PowerEdge: Trial Licenses for iDRAC, OpenManage Enterprise, OpenManage Integration, DPAT

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SOFTWARE EVALUATION AGREEMENT

BY DOWNLOADING, INSTALLING, ACTIVATING, OR OTHERWISE USING THE SOFTWARE, YOU ARE AGREEING THAT YOU HAVE READ AND THAT YOU AGREE TO COMPLY WITH AND ARE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MAY NOT DOWNLOAD, INSTALL, ACTIVATE OR OTHERWISE USE ANY OF THE SOFTWARE. IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF AN ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF SUCH ENTITY.

GENERAL TERMS

This agreement ("Agreement") between you ("you" or "Customer"), and Dell Global B.V. (Singapore Branch), the Singapore branch of a company incorporated in the Netherlands, with limited liability on behalf of itself, Dell Inc. and "Dell Affiliates" (which are Dell Inc.’s direct and indirect subsidiaries) ("Licensor"), governs the provision and your use of the Software and is effective upon your acceptance hereof.

Additional terms and conditions (CUSTOMER SPECIFIC TERMS) may apply to you if you are a public customer.

1. PURPOSE: Licensor may provide you with software products and related services ("Software") at no charge. Subject to the terms of this Agreement, the Customer may use the Software for the sole purposes of (a) internal evaluation and testing for purchase in a secure, non-production environment, and (b) supporting Licensor’s development activities, including without limitation, activities such as hardware and software evaluation, integration, testing, and validation of Software requested by Licensor (the "Purpose"). All reports, testing data or results, feedback, benchmarking or other analysis developed with usage of the Software shall be deemed part of the Software and owned by Licensor.
2. TERM AND EVALUATION PERIOD: Customer’s right to use Software begins upon the earlier of your download, installation, activation, or use of the Software and continues for thirty (30) days, unless (a) terminated as described in Section 13, or (b) otherwise extended by Licensor ("Evaluation Period"). The Software may not operate beyond the Evaluation Period.
3. LIMITATIONS ON USE. YOU MAY NOT USE THE SOFTWARE IN A PRODUCTION ENVIRONMENT. Except for the Purpose, the Customer shall not use the Software, or any information gained from such use, for any purpose including for commercial purposes or for designing or developing, or authorizing or assisting others in designing or developing hardware and related offerings. Customer shall not, and will not allow others to (A) reverse engineer, decompile or disassemble the Software or otherwise seek to discover information about the internal architecture, design, operation, manufacture, features, or functionality of the Software, (B) sell, lease, license, sublicense, encumber, assign, distribute or otherwise transfer or dispose in whole or in part the Software, (C) modify or create derivative works based upon the Software, or (D) provide, make available to, or permit use of the Software in whole or in part by, any third party, including contractors, without Licensor 's prior written consent, unless such use by the third party is solely on your behalf, is strictly in compliance with the terms and conditions of this Agreement, and you are fully liable for the third party’s breach of this Agreement. The licensor may audit the Customer to ensure compliance with this Agreement.
4. OWNERSHIP AND LICENSE
   1. Software provided to you is licensed, not sold. Except as provided otherwise in Section B below, your use shall be governed by the following:
      1. General License Grant: Licensor grants to Customer a nonexclusive and nontransferable temporary license (with no right to sublicense) to use (a) the Software solely for Customer’s internal evaluation and testing in accordance with the Purpose; (b) microcode, firmware, and operating system Software shipped with hardware, or other Software licensed together with hardware and designed to enable the hardware to perform enhanced functions, solely on that hardware; and (c) the then-current, generally available, written user manuals and online help and guides ("Documentation") related to such Software for supporting the Customer’s use of such Software.
      2. License Restrictions. All Software licenses granted in this Section 4.1 are for use of object code. The customer is permitted to copy the Software as necessary to install and run it in accordance with the license, but otherwise for back-up purposes only. Customer may copy Documentation as reasonably necessary with Customer’s authorized internal use of the Software. Customer shall not (a) use Software in a service bureau, application service provider, or similar capacity; or (b) disclose to any third party the results of any comparative or competitive analyses, benchmark testing, or analyses of the Software that Customer performs or that are performed on Customer’s behalf; (c) make Software available in any form to anyone other than Customer’s employees or contractors; or (d) transfer Software to an affiliate or a third party.
      3. Reserved Rights: The licensor retains exclusive ownership of and title to the Software and Documentation and to and all related intellectual property rights. All rights not expressly granted to the Customer are reserved. No title to, or ownership of, the Software is transferred to the Customer. Customer shall reproduce and include copyright and other proprietary notices on and in any copies of the Software and Documentation. Unless applicable law expressly permits, Customer shall not modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, decompile or otherwise reduce to human readable form the Software, nor shall Customer permit any third party to do the same.
   2. Other License Terms: If particular Software is provided with a "click-to-accept" agreement included as part of the installation and download process, or a "shrink-wrap" agreement is in the Software packaging, the terms of such "click-to-accept" or "shrink-wrap" agreement shall, if there is conflict with these terms, (a) prevail (excluding any perpetual license language) regarding Software for which Licensor or a Dell Affiliate is not the licensor; and (b) not prevail regarding Software for which Licensor or a Dell Affiliate is the licensor. Notwithstanding any deviating terms in a "click-to-accept" or "shrink-wrap" license, all licenses to use Software expire at the end of the Evaluation Period.
   3. Software Releases: Software versions that Licensor provides after initial delivery of the Software (but not a new product) shall be subject to the license terms applicable to the Software being updated.
5. SERVICES: Services provided under this Agreement are governed by the supplemental terms and conditions applicable to such services and located at www.dell.com/servicecontracts/global and www.dellemc.com/en-us/customer-services/product-warranty-and-service-descriptions.htm.
6. CONFIDENTIALITY: Customer agrees to protect the Licensor s Confidential Information with the same degree of care, but no less than a reasonable degree of care, as Customer uses concerning its own confidential information. The customer shall not disclose Licensor Confidential Information without Licensor’s prior written consent. "Confidential Information" means any oral, written, graphic, or machine-readable information disclosed by Licensor that should be reasonably understood to be confidential. The Software, including all features, capabilities, and related problems encountered by Customer are Licensor Confidential Information.
7. WARRANTY DISCLAIMER: The Software and Documentation are provided "AS IS," with all faults. Licensor disclaims any and all warranties and conditions, express, implied or otherwise, regarding the Software and Documentation, including without limitation: (a) any warranties or conditions of merchantability, fitness for a particular purpose, title and noninfringement, and (b) any warranties arising by statute, operation of law, course of dealing or performance or usage of trade.
8. HIGH-RISK APPLICATIONS: The customer acknowledges that the Software is not designed or intended for use in High-Risk Activities (defined below) and that the Licensor does not test or certify the Software for use in High-Risk Activities. The licensor expressly disclaims any express or implied warranty of fitness for High-Risk Activities. "High-Risk Activities" means the use of the Software in hazardous environments requiring fail safe performance, such as any application in which the failure of the Software could lead directly to death, personal injury, or physical or property damage.
9. LIMITATION OF LIABILITY: LICENSOR, ITS AFFILIATES, AND ITS SUBCONTRACTORS SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES, OR FOR LOSS OF PROFITS; LOSS OF REVENUE; LOSS OF USE; LOSS OR CORRUPTION OF DATA; OR BUSINESS INTERRUPTION OF ANY KIND. LICENSOR’S TOTAL LIABILITY FOR ANY AND ALL DISPUTES (DEFINED BELOW) AND DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SOFTWARE AND DOCUMENTATION WILL NOT EXCEED THE LESSER OF: (A) THE LIST PRICE OF THE APPLICABLE SOFTWARE AND DOCUMENTATION GIVING RISE TO THE CLAIM OR (B) $10,000 USD. THESE LIMITATIONS APPLY WHETHER ARISING UNDER ANY CONTRACT, TORT, WARRANTY OR ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. ALL CLAIMS MUST BE MADE WITHIN THE PERIOD SPECIFIED BY APPLICABLE LAW. IF THE LAW ALLOWS THE PARTIES TO SPECIFY A SHORTER PERIOD FOR BRINGING A CLAIM, OR THE LAW DOES NOT PROVIDE A TIME AT ALL, THEN CLAIMS MUST BE MADE WITHIN 18 MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
10. INTELLECTUAL PROPERTY RIGHTS: All rights, titles, and interests to Licensor’s intellectual property including without limitation those embodied in the Software and Documentation, remain with Licensor. Customer shall not use the name of the Licensor nor any Licensor trademarks, trade names, service marks, or quote the opinion of any Licensor employee in any advertising or otherwise without first obtaining the prior written consent of the Licensor.
11. MODIFICATIONS TO SOFTWARE: The licensor retains the right during the term to modify, revise, remove, or request the Customer to stop using the Software. The licensor shall retain ownership of any modifications, derivative works, changes, expansions, or improvements to Software and to Documentation.
12. COMPLIANCE WITH LAWS: You shall comply with all laws and regulations applicable to your use of the Software and Documentation in the countries in which you do business including, without limitation, any laws relating to taxes, U.S, and applicable local export and sanctions laws, anti-bribery, or competition laws ("Applicable Laws"). The licensor is providing and Customer accepts the Software and Documentation and access to related technology (the "Materials") for the Purpose, and not for resale, export, re-export, or transfer. The customer is subject to and responsible for compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions. Materials may not be used, sold, leased, exported, imported, re-exported, or transferred except with Licensor’s prior written authorization and in compliance with such laws, including, without limitation, export licensing requirements; end-user, end-use, and end-destination restrictions; and prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List or the U.S. Department of Commerce Denied Persons List. Customer represents and warrants that it is not the subject or target of, and that the Customer is not located in a country, region, 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.
13. TERMINATION; RETURN OF SOFTWARE: The customer may terminate this Agreement, and the license granted hereunder at any time by ceasing use of the Software and removing or destroying all copies of the Software. The licensor may terminate this Agreement, and the license granted hereunder if the Customer fails to comply with the terms of the Agreement. Termination of this Agreement terminates all rights of the Customer to use the Software. Upon termination of the Agreement and no later than at the end of each Evaluation Period, the Customer shall promptly cease use of Software and remove or destroy all copies of the Software. All obligations of confidentiality, intellectual property rights, and limitations on liability, and the terms set forth in Section 15 (General) shall survive termination of this Agreement for any reason.
14. SOFTWARE/DATA BACKUP AND REMOVAL: CUSTOMER IS RESPONSIBLE FOR BACKING UP ANY DATA OR SOFTWARE AND REMOVING ANY CONFIDENTIAL, NON-PUBLIC OR SENSITIVE DATA ("COVERED DATA") FROM THE SOFTWARE PRIOR TO THE END OF THE EVALUATION PERIOD. UNDER NO CIRCUMSTANCES WILL LICENSOR BE LIABLE FOR LOST DATA OR SOFTWARE, FOR COSTS ASSOCIATED WITH DATA OR SOFTWARE RESTORATION, FOR ANY DISCLOSURE OF CONFIDENTIAL OR SENSITIVE DATA UTILIZED IN CONNECTION WITH THE SOFTWARE OR FOR ANY LEGAL OR COMPLIANCE REQUIREMENTS TO COMPLY WITH SPECIAL RULES OR OTHER REQUIREMENTS THAT MAY APPLY TO THE COVERED DATA. The customer agrees to indemnify, defend, and hold harmless Licensor from any and all claims or liability against Licensor arising from any Covered Data that may be used with the Software.
15. GOVERNING LAW: This Agreement, and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND LICENSOR, including their affiliates, contractors, and agents, and each of their respective employees, directors, and officers (a "Dispute") shall be governed by the laws of the State of Texas (or by U.S. federal laws if you are a Federal End User), (or by the laws of the province of Ontario and the federal laws of Canada applicable therein if you are a Canadian entity), without regard to conflicts of law. The UN Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply.
16. PRE-RELEASE FEATURES: The Software may include pre-release features and capabilities which may not be available in Licensor’s generally available commercial versions of the Software. The Software may not have been approved by the Federal Communications Commission (FCC), Underwriters Laboratory (UL), CSA Group, or other regulatory or certification agencies.
17. GENERAL: This Agreement (GENERAL TERMS and applicable CUSTOMER-SPECIFIC TERMS) constitutes the entire agreement between you and the Licensor regarding the Software. The customer shall not transfer or assign this Agreement. Licensor and Customer are independent contractors and neither is a legal representative or agent of the other.

Customer-Specific Terms apply to you if you are a Public Customer. If there is a conflict, the Customer-Specific Terms take precedence over the GENERAL TERMS.

CUSTOMER SPECIFIC TERMS

UNITED STATES

Additional Terms for US Public and Healthcare Customers

The terms in this Additional Terms for US Public and Healthcare Customers section ("US Public Customer Terms") below apply to public sector or healthcare customers such as any healthcare provider, department, agency, division, or office of the United States government ("Federal End User"), or any department, agency, division, or office of any district, state, county, or municipal government within the United States (together with Federal End Users, "Public Customer") and supplement the GENERAL TERMS. If you are a Federal End User, then references to "Licensor" below means Dell Marketing L.P. or Dell Federal Systems L.P.

1. Any portion of the GENERAL TERMS that is not applicable by law shall not apply to you.
2. Federal End User shall notify the Licensor when evaluation and testing are complete. Disputes with Federal End Users shall be governed by the Contract Disputes Act of 1978, as amended.
3. Software and Documentation provided constitutes "commercial items" as is defined at 48 C.F.R. 2.101; consisting of "commercial computer software" and "commercial computer software documentation" as used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 to 227.7202-4, Federal End Users acquire only the rights set forth in the applicable EULA. Agreements referenced in Section 4.2 of the General Terms are provided to you upon request.
4. Public Customer does not intend to award a contract based on Licensor’s provision of the Software and Documentation, nor grant Licensor any preferential treatment in any contracts or task or delivery orders currently being performed by Licensor, or future procurement actions.
5. You confirm that (1) you are a contracting officer or other authorized representative of Public Customer with authority to bind the Public Customer for purposes of accepting the Software as set forth herein, and (2) you have read and agree to be bound by the terms and conditions of any licensing agreement applicable to the Software (see Section 4 of the General Terms) or service terms applicable to services (see Section 5 of the Agreement).