Commercial Terms of Sales
Commercial Terms of Sales
These Commercial Terms of Sale (“CTS”) apply to all Products, Software and/or Services purchased by or on behalf of customer (the legal person who agrees to buy the Products, Software and/or Services from Dell and is also identified in Dell’s quotation or invoice or Statement of Work) (“Customer”) direct from the Dell entity (a Dell Inc. subsidiary company who is identified in Dell’s quotation or invoice or Statement of Work and sells Products Software and/or Services to the Customer) (“Supplier”) for its internal use only, not for re-sale purposes.
Subject Matter and Parts of CTS.
1.1 Scope. The CTS governs Customer’s procurement and Supplier’s provisioning of Products and Services (collectively “Offerings”), for Customer’s own internal use.
1.2 Products and Services. “Products” are either (i) Supplier-provided hardware products (“Equipment”) or (ii) Supplier-provided generally available software, whether microcode, firmware, operating systems or applications (“Software”). “Services” are Supplier’s standard service offerings for maintenance and support of Products (“Support Services”) or Supplier-provided consulting, deployment, implementation and any other services that are not Support Services (“Professional Services”). “Third Party Products” means hardware, software, products, or services that are not “Dell” or “Dell EMC” branded.
1.3 Parts of Agreement. The CTS consists of the main body determining the terms and conditions applicable to all Offerings that are in scope. It may be supplemented by additional schedules containing terms applicable to all or only specific Offerings (“Schedules”); these shall form an integral part of the CTS.
1.4 Framework. The CTS does not establish a commitment of Customer to procure, nor an obligation of Supplier or Affiliate to supply, any Offerings unless the parties have agreed on an Order (as defined below).
1.5 Affiliates. Transactions under the CTS may also involve affiliated companies of the parties. With respect to Customer, “Affiliate” means any other entity that directly or indirectly controls, is owned by, controlled by or under common ownership or control with Customer, and with respect to Supplier, “Affiliate” means Dell Inc. and its wholly-owned or wholly-controlled subsidiaries; “control” means more than 50% of the voting power or ownership interests.
2. Quoting and Ordering.
2.1 Process. Customer or its Affiliates based in Hong Kong may request a quote from Supplier or its Affiliate (depending on the Products or Services purchased), either in the form of a written quotation or online via www.dell.com or any other online process (“Quote”). Depending on the Product or Service ordered and the place of delivery, Customer or its Affiliates may receive Quotes from one or more Supplier Affiliates. Quoted prices are effective until the expiration date of the Quote but may change due to shortages in materials or resources, increase in the cost of manufacturing, or other factors. Customer may elect to procure the Offerings quoted by: (i) issuing a Customer purchase order that references such Quote; or (ii) ordering online through either www.dell.com or other online process. Orders are subject to acceptance by Supplier; unless Supplier has already otherwise accepted an Order, shipment of the Offerings shall be deemed Supplier’s acceptance of the Order. An accepted order is hereinafter referred to as an “Order”. Supplier may split an order into separate transactions that each of which will form an Order.
2.2 Incorporation by Reference. Each Order which covers the procurement and sale of any Offering that is within the scope of a Schedule listing certain specific Offerings and signed under the CTS shall be deemed to incorporate by reference the terms of the CTS.
2.3 Product- and Service-Specific Terms. Scope and details of Services and Product-specific terms are specified in the applicable standard service description that is attached to or referred in a Schedule or Quote, or is made available through the then-current Supplier website for product- or service-specific terms, currently located at //dell.com/offeringspecificterms. Such standard descriptions are from time to time referred to as “Service Description(s)”, “Product Notices” or “Service Briefs.” The version of the applicable document that is effective as of the date of the applicable Quote, shall be deemed incorporated into the Order. Scope and details of customized Professional Services not covered by such a standard description shall be documented in a mutually agreed Statement of Work (“SOW”).
2.4 Exclusion of General Terms and Conditions, Order of Precedence. The CTS including the documents referenced herein shall apply to the exclusion of all other general terms and conditions incorporated in or referred to in any documentation submitted by Customer to Supplier.
Subject to the foregoing, in case of any conflict or inconsistency the following order of precedence shall apply:
A. The terms of the Order, where either: (i) the CTS expressly provides for the parties to optionally deviate from the relevant provision of the CTS; or (ii) where the Order states that the parties wish to deviate from the terms of the CTS for the purpose of the individual transaction;
B. The terms of any Schedule to the CTS; and
C. The main body of the CTS.
2.5 Revision of Offerings. Supplier may revise its Offerings, including after Customer places an Order but prior to Supplier’s shipment or performance. As a result, Products or Services Customer receives may differ from those ordered, as long as they still substantially meet, or exceed, the specifications as per the documentation of the originally ordered Product or Service.
3. Product Delivery.
3.1 Shipment. Unless otherwise agreed, Supplier shall arrange for shipment of the ordered 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. Customer shall notify Supplier within 21 days of the invoice date if Customer believes any Product included in its Order is missing, wrong, or damaged, and shall ensure that the intended installation site meets the specifications as per the product documentation.
3.2 Transfer of Risk and Title. Title to the sold Equipment passes to Buyer upon delivery, and risk of loss for sold Equipment and licensed Software and Independent Software transfers to Buyer upon delivery. “Delivery” for Equipment occurs when Supplier provides the Equipment to the ship-to address indicated in the Order, unless otherwise agreed upon in the Supplier’s Quote. Delivery of Software delivered electronically or through a Transformational License Agreement or similar enterprise license arrangement shall occur once Supplier has made it available for download and has notified Customer thereof, unless otherwise agreed upon in Supplier’s Quote.
3.3 Acceptance. All Products will be deemed to be accepted upon Delivery. Notwithstanding such acceptance, Customer retains all rights and remedies under the warranty terms stated below.
4. Software Licenses.
Customer’s rights to use the Software delivered by Supplier are governed by the terms of the applicable end-user license agreement. Unless different terms have been agreed between the parties, the terms posted on www.dell.com/eula (the “EULA”) shall apply. Supplier will provide a hard copy of the applicable terms upon request. Unless expressly otherwise agreed, microcode, firmware or operating system software required to enable the Equipment with which it is shipped to perform its basic or enhanced functions, is licensed for use solely on such Equipment item.
5. Services.
5.1 Support Services.
A. Scope and Term. Supplier shall provide Support Services in accordance with the applicable Service Description or Product Notice, for the (initial or renewal) period agreed in the applicable Order. Unless otherwise agreed therein, the initial Support Services procured together with the purchase of a Product start on the commencement date of the applicable warranty period (as specified in clause 7.1).
B. Support Availability and Release Cycles. Availability of Support Services is governed by Supplier’s “End-of-Service-Life” policies, to be made available to Customer upon request. Subject to such policies, Support Services for Software apply to the current and the immediately prior release of the Software.
C. Limitations. Support Services do not cover any of the following: (i) problems that are excluded from warranty coverage according to clause 7.2, below; (ii) problems that cannot be reproduced at Supplier’s facility or via remote access to Customer’s facility; (iii) providing media replacement, operating supplies, cosmetic accessories or parts such as frames, and cover or support on those items; (v) repairing damage or defects in Equipment that are purely cosmetic and do not affect device functionality.
D. Maintenance Tools and Spare Parts. Supplier may, at its discretion, store tools and spare parts used by Supplier to perform diagnostic or remedial activities in connection with Products at the Customer’s site or on Customer’s systems, and Customer agrees that such are for use only by Supplier authorized personnel and further authorizes Supplier to remove and/or disable them when no longer needed by Supplier to provide its Services.
E. Replacements. All replaced Equipment or components thereof shall be returned to Supplier and become the property of Supplier upon Customer’s receipt of the corresponding replacement unless specifically agreed otherwise in an Order; if Customer does not return the replaced component or Equipment within 15 days after receipt of Supplier’s request, then Customer must pay Supplier at the then-current spare parts list price for the Equipment or portions that Customer has failed to return. If Supplier determines that a component of a defective Equipment product is “customer-replaceable”, i. e. one that is easily disconnected and reconnected, or if the Supplier analyst determines that the Equipment should be replaced as a whole, Supplier reserves the right to send Customer a component or whole replacement Equipment for exchange.
F. Data Responsibility. Supplier shall not access or use any Customer production data stored on the Products, unless Customer has exceptionally and expressly authorized Supplier to do so. Unless a data deletion service is expressly ordered from Supplier, Customer is responsible for removing all information and data stored on replaced parts, or on any other items or Product before it is returned to Supplier.
G. Customer-Initiated Changes. If the Product is covered by Support Services and Customer intends: (i) to relocate Equipment to a different installation site (where applicable to the Product); (ii) to change the hardware configuration on its own; or (iii) to deny the activation or to disable remote support features of a Product, Customer shall notify Supplier in advance. Where any of such action limits Supplier’s ability to provide Support Services for the affected Product or increases the Supplier’s cost of providing Support Services, Supplier is entitled to make the continuation of Support Services dependent on Customer paying a reasonable adjustment of the ongoing fees and a reasonable charge for any re-certification services Supplier reasonably considers necessary for continued support; agreed proactive support capabilities, response times, or other service levels may no longer apply.
5.2 Professional Services.
A. Scope of Services. Supplier shall provide Professional Services including any Deliverables (as defined below) in accordance with the applicable Service Description, SOW or other agreed documentation containing the specifics of such services (“Service Specification”). Professional Services are provided as a separate and independent service even if mentioned together with the sale or licensing of Products by Supplier in the same Order. Supplier is not providing legal or regulatory advice in any Professional Services.
B. Grant of License Rights in Deliverables.
(1) “Deliverables” means any reports, analyses, scripts, code, or other work results that Supplier delivers to Customer within the framework of fulfilling obligations under a Service Specification. “Proprietary Rights” mean all patents, copyrights, trademarks, trade secrets, or other intellectual property rights of a party.
(2) Subject to Customer’s compliance with the terms of the CTS and any applicable Service Specification, Customer’s payment of applicable amounts due, and Supplier’s Proprietary Rights in any underlying intellectual property incorporated into any Deliverables or used by Supplier to perform Professional Services, Supplier grants Customer a non-exclusive, non-transferable, revocable (in case of non-payment, or any breach of the CTS or any applicable Service Specification) license to use (without the right to sublicense) the Deliverables provided by Supplier for Customer’s internal business purposes, only and solely in accordance with the applicable Service Specification and subject to the CTS. Customer may authorize its service providers to use the Deliverables, but solely on Customer’s behalf, solely for Customer’s internal business purposes, and Customer shall be responsible for service provider’s compliance with these restrictions.
(3) Supplier reserves for itself all Proprietary Rights that it has not expressly granted to Customer herein. The license granted in this clause 5.2B does not apply to: (i) any Products; or (ii) items licensed or otherwise provided under a separate agreement. Supplier is not limited in developing, using, or marketing services or products that are similar to the Deliverables or Professional Services provided hereunder, any Service Specification, or, subject to Supplier’s confidentiality obligations to Customer, in using the Deliverables or performing similar Professional Services for any other projects.
C. Responsibility for Personnel. Supplier is solely responsible for personnel placement as well as for all other human resource issues (e.g. vacation) concerning its personnel.
5.3 Customer Responsibilities. At no charge to Supplier, Customer shall: (i) provide Supplier personnel with timely access to appropriate facilities, space, power, documentation, files, data, information, additional software (if needed); (ii) use skilled and authorized Customer personnel to assist and cooperate with Supplier in the provision of the Services as reasonably requested by Supplier; (iii) be responsible for physical and network security and all conditions in its business necessary for due performance of Services; (iv) allow Supplier remote and onsite access to the Products and Customer’s infrastructure environment, as required; and (v) where applicable, promptly notify Supplier when Products fail and provide Supplier with sufficient details of the failure such that the failure can be reproduced by Supplier. For Professional Services, details may be set forth in the Service Specification.
5.4 Termination of Services. A termination for convenience of Services shall only be permitted if expressly agreed between the parties. Either party may terminate Services for material breach by the other party if such other party has failed to cure such breach within a reasonable grace period of no less than 30 days set by the other party in writing.
6. Invoicing and Payment.
6.1 Invoicing. Supplier shall invoice for the Products and Services to Customer in the currency agreed in the Order. If Supplier is obligated by applicable law to collect and remit any taxes or fees, then Supplier will add the appropriate amount to Customer’s invoices as a separate line item in accordance with statutory requirements.
6.2 Payment Terms. Customer shall pay Supplier’s invoices in full and in the same currency as Supplier’s invoice within the time noted on Supplier’s invoice, or if not noted, then within 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. Such payment terms are subject to regular credit checking by Supplier. In case of Customer’s default in payment, Supplier shall, until arrangements as to payment or credit have been established, be entitled to: (i) cancel or suspend its performance of such Order and/or (ii) withhold performance under the CTS. Termination or expiration of the CTS shall not affect the obligation of Customer to pay all amounts due hereunder.
6.3 Taxes. The charges due under each Order are exclusive of, and Customer shall pay or reimburse Supplier for all, value added (VAT), sales, use, excise, withholding, personal property, goods and services and other taxes, governmental fees, levies, customs and duties resulting from Customer’s purchase, except for taxes based on Supplier’s net income, gross revenue, or employment obligations. If Customer qualifies for a tax exemption, Customer must provide Supplier with a valid certificate of exemption or other appropriate proof of exemption within 1 week of the date of Customer’s Order. If Customer is required to withhold taxes, then Customer will within 60 days of remittance to the applicable tax authority provide Supplier with satisfactory evidence (e.g. official withholding tax receipts) that Customer has accounted to the relevant authority for the sum withheld or deducted, otherwise Supplier will charge Customer for the amount that Customer has deducted for the transaction.
7. Warranty.
7.1 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 and Software will perform substantially in accordance with the corresponding standard product documentation issued by Supplier. Customer must promptly notify Supplier of any warranty claims within the warranty period. Unless otherwise agreed in the Order the warranty period is 12 months for Equipment and 90 days for Software, commencing upon the date of invoice. 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.
7.2 Customer’s Remedies. Supplier’s entire liability under the warranties for Products 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.
7.3 Services. Supplier will perform Services in a workmanlike manner in accordance with generally accepted industry standards. Customer must notify Supplier of any failure to so perform within 10 days after the date on which such failure first occurs. In such case, Supplier will use reasonable efforts to 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 Customer may terminate the affected Services for cause by providing written notice to Supplier.
7.4 Limitations. Warranty does not cover problems that arise from: (i) accident or neglect by Customer 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.
7.5 Exclusive Remedies. Supplier’s warranties for Products and Services and Customer’s remedies in case of breach of any warranty are exhaustively described in the CTS, and any warranties implied by applicable law are excluded, insofar as permitted under such law.
7.6 Software License Terms. Where specific warranty terms are set out for certain titles or types of Software in the applicable license terms (see clause 4), such terms shall apply instead of the above.
8. Indemnity.
8.1 Indemnification by Supplier. Supplier will: (i) defend Customer against any third-party claim that a “Dell” or “Dell EMC”-branded Product (excluding Third Party Product(s), any Product provided for evaluation or without charge, and open source software) (“Covered Product”) or related Support Services for such Covered Product (“Covered Service”) infringe that party’s patent, copyright, or trade secret enforceable in Hong Kong where Customer purchased the Covered Product from Supplier (“Claim”); and (ii) indemnify Customer by paying: (a) the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction to the extent that such are the result of the third party Claim; or (b) the amounts stated in a written settlement negotiated and approved by Supplier. In addition, should any Covered Product or Covered Service become, or in Supplier’s opinion be likely to become, the subject of such a Claim, Supplier may, at its expense and in its discretion: (1) obtain a right for Customer to continue using the affected Covered Product or Covered Service; (2) modify the affected Covered Product or Covered Service to make them non-infringing; (3) replace the affected Covered Product or Covered Service with non-infringing substitutes; (4) provide a reasonable depreciated or pro rata refund for the affected Covered Product; or (5) discontinue the Covered Service and refund the portion of any prepaid Support Service fees that corresponds to the period of Covered Services discontinuance. Except as otherwise provided by law, this clause 8 states Customer’s exclusive remedies for any third-party intellectual property claim relating to the Covered Products or Covered Services, and nothing in the CTS or elsewhere will obligate Supplier to provide any greater indemnity.
8.2 Limitations. Supplier shall have no obligation under clause 8.1 above: (i) if Customer is in material breach of the CTS or the Order; or (ii) for any Claim resulting or arising from: (a) any combination, operation or use of a Covered Product or Covered Service with any other products, services, items, or technology, including Third-Party Products and open source software; (b) use for a purpose or in a manner for which the Covered Product or Covered Service was not designed, or use after Supplier notifies Customer to cease such use due to a possible or pending Claim; (c) any modification to the Covered Product made or Covered Service performed by any person other than Supplier or its authorized representatives; (d) any modification to the Covered Product or Covered Service made by Supplier pursuant to instructions, designs, specifications or any other information provided to Supplier by or on behalf of Customer; (e) use of any version of a Covered Product when an upgrade or newer iteration of the Covered Product or Covered Service made available by Supplier would have avoided the infringement; (f) services provided by Customer (including Claims seeking damages based on any revenue or value Customer derives from Customer’s services); or (g) any data or information that Customer or a third party records on or utilizes in connection with the Covered Product or Covered Service.
8.3 Customer Obligations. Supplier’s duties under this clause 8 are contingent upon Customer: (i) sending prompt written notice of the Claim to Supplier and taking reasonable steps to mitigate damages; (ii) granting to Supplier the sole right to control the defense and resolution of the Claim; and (iii) cooperating with Supplier in the defense and resolution of the Claim and in mitigating any damages.
9. Limitation of Liability.
For all claims of either party to the other for damages under or in connection with the CTS or any Order hereunder, whatever the legal basis may be (whether in contract, tort (including negligence), under indemnity, for breach of statutory duty or otherwise), the following shall apply:
9.1 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; or (v) any other liability that cannot be excluded by law.
9.2 Limitations. Subject to clause 9.1, neither party shall be liable for: (i) loss of profit, anticipated savings, 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. Supplier (and its suppliers) shall have no liability for any damages resulting from Customer’s use or attempted use of Third Party Software, Free Software or Development Tools, all defined in the EULA described in clause 4 above, or Third Party Products.
9.3 Prevention and Mitigation. Customer is solely responsible for its data. Customer shall implement IT architecture and processes enabling Customer to prevent and mitigate damages in line with the criticality of the systems and data for Customer’s business and its data protection requirements, including a business recovery plan. In that regard, Customer 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 Customer’s IT systems; (ii) monitor the availability and performance of its IT environment during the performance of Services; and (iii) promptly react to 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 cost of commercially reasonable and customary efforts to recover the lost data from Customer’s last available backup.
9.4 Liability Cap. Subject to clause 9.1, each party’s total liability in the aggregate for all claims under the T&Cs is capped at a fixed amount not to exceed 12 months’ trailing revenue which Customer paid to Supplier for the specific service, product or software giving rise to the claim.
9.5 Limitation Period. Except as stated in this clause, 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 claims, 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. Third-Party Products.
Supplier may offer to supply Third Party Products that are provided by a third party manufacturer/supplier, 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” or “Dell EMC”. Notwithstanding any other provisions herein, such Third Party Products 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 Customer shall adhere. Even if support fees are invoiced through Supplier, such Third Party Products are not supported by Supplier and Customer shall contact such third party directly for support. Any warranty, damages or indemnity claims against Supplier in relation to such Third Party Products are expressly excluded. References to warranty and support information for Dell EMC Select products is currently available through //dell.com/offeringspecificterms.
11. Confidentiality.
11.1 Scope. “Confidential Information” shall mean any information, pricing, technical data or know-how furnished in connection with the scope of the CTS, whether in written, oral, electronic, website-based, or other form, by a Customer or a Customer Affiliate to Supplier or a Supplier Affiliate or vice versa and that: (i) is marked, accompanied or supported by documents clearly and conspicuously designating such 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 the recipient to be confidential. Confidential Information does not include information that is: (a) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party; (b) a matter of public knowledge (or becomes a matter of public knowledge other than through breach of confidentiality by the other party); (c) rightfully furnished to the receiver by a third party without confidentiality restriction; or (d) independently developed by the receiver or its Affiliates without reference to the discloser’s Confidential Information.
11.2 Protection. Each party shall procure that, where it or one of its Affiliates is the receiver of Confidential Information hereunder, the receiver shall (a) use Confidential Information of the discloser only for the purposes of exercising rights or performing obligations in connection with the CTS or any Order hereunder; and (b) protect from disclosure to any third parties any Confidential Information disclosed by the discloser, both for a period commencing upon the date of disclosure until 3 years thereafter. Subject to the terms of this Section 11, the foregoing obligations shall never expire in relation to technical information about a discloser’s products and services or any information about possible unreleased products or services, and shall survive any termination or expiration of this Agreement.
11.3 Exceptions. Notwithstanding the foregoing, either party and its Affiliates may disclose Confidential Information (1) to an Affiliate, or to a subcontractor used by Supplier to provide Services under this Agreement, as long as the Affiliate or subcontractor has a need-to-know and complies with the foregoing; (2) to either party’s directors, officers, employees, and professional advisors and those of its Affiliates, and (3) if required by law or regulatory authorities provided the receiver has given the discloser prompt notice. For the purposes of this clause 11.3, “Affiliates” of Supplier include other members of Dell Technologies group.
12. Term and Termination of the CTS.
The term of the CTS begins on the Effective Date and continues until it is terminated in accordance with this clause. Either party may terminate the CTS for material breach by the other party if such other party has failed to cure the breach within a reasonable grace period of no less than 30 days as set forth by the other party in writing. A termination of the CTS shall not affect any previously concluded Order.
13. General.
13.1 Governing Law and Place of Jurisdiction. The CTS is governed by the laws of Hong Kong. To the extent permitted by law, the courts of Hong Kong will have exclusive jurisdiction over any disputes arising out of or in connection with the CTS and all transactions governed by it. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
13.2 Trade Compliance. Customer’s procurement of Offerings and access to related technology (collectively, the “Materials”) are intended for its own use, not for resale, export, re-export, or transfer. Customer is subject to and responsible for compliance with the export control and economic sanctions laws of the United States, the European Union and other applicable jurisdictions. Materials may not be used, sold, leased, exported, imported, re-exported, or transferred except in compliance with such laws, including, without limitation, export licensing requirements, end user, end-use, and end-destination restrictions, 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 Entity List, Denied Persons List, Military End User List, and Military Intelligence End User List. Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory (including without limitation, North Korea, Cuba, Iran, Syria, Crimea and the regions known as Donetsk People’s Republic and Luhansk People’s Republic) that is the subject or target of, economic sanctions of the United States, European Union or other applicable jurisdictions.
13.3 Customer Responsibility. Customer agrees that it will obtain all necessary rights, permissions and consents associated with: (a) technology or data (including personal data) that Customer and its Affiliates provide to Supplier or its Affiliates, and (b) non-Supplier software or other components that Customer and its Affiliates direct or request that Supplier or its Affiliates use with, install, or integrate as part of the Supplier’s Offerings. Customer is solely responsible for reviewing data that will be provided to or accessed by Supplier in the provision of the Offerings to ensure that it does not contain: (i) data that is classified, ITAR (International Traffic in Arms Regulations) related data, or both; or (ii) articles, services, and related technical data designated as defense articles and defense services. Customer will defend and indemnify Supplier and its Affiliates against any third party claim resulting from a breach of any of the foregoing obligation under Section 13.2, or from Customer’s infringement or misappropriation of intellectual property rights of Supplier, its Affiliates or third parties.
13.4 High-Risk Applications. Customer acknowledges that the Offerings are not designed or intended for use in high-risk activities which means the use of the Offerings in hazardous environments requiring fail safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life support machines, or any other potentially life critical uses.
13.5 Encryption (only applicable to international orders). Customer is solely responsible for reviewing data that it will provide to Supplier (or to which Supplier will have access) and certifies that all items (including hardware, software, technology and other materials) it provides to Supplier for any reason that contain or enable encryption functions either (a) satisfy the criteria in the Cryptography Note (Note 3) of Category 5, Part 2 of the Wassenaar Arrangement on Export Controls for Conventional Arms (Wassenaar Arrangement) and Dual-Use Goods and Technologies and Category 5, Part 2 of the U.S. Commerce Control List (CCL) or (b) employ key length of 56-bit or less symmetric, 512-bit asymmetric or less, and 112-bit or less elliptic curve or (c) are otherwise not subject to the controls of Category 5, Part 2 of the Wassenaar Arrangement and Category 5, Part 2 of the CCL. Supplier is not responsible for determining whether any third party product to be used in the products and services satisfies regulatory requirements of the country to which such products or services are to be delivered or performed. Supplier shall not be obligated to provide any product or service where the product or service is prohibited by law or does not satisfy the local regulatory requirements.
13.6 Entire Agreement. The CTS and each Order hereunder comprise the complete statement of the agreement of the parties regarding the subject matter thereof and may be modified only by written agreement.
13.7 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any of its obligations (other than for the payment of fees) caused by Force Majeure. If such delay or failure lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, the relevant Order by giving written notice to the delayed party. “Force Majeure” refers to circumstances beyond a party’s reasonable control including, without limitation, act of God, war, riot, civil commotion, terrorist acts, malicious damage, governmental or regulatory actions, accident, breakdown of plant or machinery, local or national emergency, explosions, fire, natural disasters, severe weather or other catastrophes, epidemics/pandemics, general import/export/customs process problems affecting supplies to Supplier or to Customer, shortages in materials, failure of a utility service or transport network, embargo, strike, lock out or other industrial dispute (whether involving Supplier’s workforce or any other party), or default of suppliers or subcontractors due to any of the preceding events.
13.8 Assignment and Subcontracting. Neither party shall assign, transfer or novate the CTS, any Order, or any right or obligation thereunder, 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 Order shall remain responsible for the performance thereof; and (ii) either party may assign rights to payments arising under any Order without consent of the other party.
13.9 Independent Contractors. The parties are independent contractors for all purposes under the CTS and cannot obligate any other party without prior written approval. The parties do not intend anything in the CTS 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.
13.10 Third Party Rights. There are no third-party beneficiaries to the CTS or any Order under any laws, including The Contracts (Rights of Third Parties) Ordinance.
13.11 Waiver and Severability. Failure to enforce a provision of the CTS will not constitute a waiver of that or any other provision of the CTS. If any part of the CTS or an Order is held unenforceable, the validity of the remaining provisions shall not be affected.
13.12 Counterparts and Electronic Signatures. The CTS (and any amendments and addenda hereto) may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one agreement. It may be executed by a party’s physical or electronic signature and delivered also by electronic means, and any copies so executed and delivered shall have the same force and effect as copies executed and delivered with original physical signatures.
Commercial Terms of Sale (Hong Kong)
Revision June 2022
Subject Matter and Parts of CTS.
1.1 Scope. The CTS governs Customer’s procurement and Supplier’s provisioning of Products and Services (collectively “Offerings”), for Customer’s own internal use.
1.2 Products and Services. “Products” are either (i) Supplier-provided hardware products (“Equipment”) or (ii) Supplier-provided generally available software, whether microcode, firmware, operating systems or applications (“Software”). “Services” are Supplier’s standard service offerings for maintenance and support of Products (“Support Services”) or Supplier-provided consulting, deployment, implementation and any other services that are not Support Services (“Professional Services”). “Third Party Products” means hardware, software, products, or services that are not “Dell” or “Dell EMC” branded.
1.3 Parts of Agreement. The CTS consists of the main body determining the terms and conditions applicable to all Offerings that are in scope. It may be supplemented by additional schedules containing terms applicable to all or only specific Offerings (“Schedules”); these shall form an integral part of the CTS.
1.4 Framework. The CTS does not establish a commitment of Customer to procure, nor an obligation of Supplier or Affiliate to supply, any Offerings unless the parties have agreed on an Order (as defined below).
1.5 Affiliates. Transactions under the CTS may also involve affiliated companies of the parties. With respect to Customer, “Affiliate” means any other entity that directly or indirectly controls, is owned by, controlled by or under common ownership or control with Customer, and with respect to Supplier, “Affiliate” means Dell Inc. and its wholly-owned or wholly-controlled subsidiaries; “control” means more than 50% of the voting power or ownership interests.
2. Quoting and Ordering.
2.1 Process. Customer or its Affiliates based in Hong Kong may request a quote from Supplier or its Affiliate (depending on the Products or Services purchased), either in the form of a written quotation or online via www.dell.com or any other online process (“Quote”). Depending on the Product or Service ordered and the place of delivery, Customer or its Affiliates may receive Quotes from one or more Supplier Affiliates. Quoted prices are effective until the expiration date of the Quote but may change due to shortages in materials or resources, increase in the cost of manufacturing, or other factors. Customer may elect to procure the Offerings quoted by: (i) issuing a Customer purchase order that references such Quote; or (ii) ordering online through either www.dell.com or other online process. Orders are subject to acceptance by Supplier; unless Supplier has already otherwise accepted an Order, shipment of the Offerings shall be deemed Supplier’s acceptance of the Order. An accepted order is hereinafter referred to as an “Order”. Supplier may split an order into separate transactions that each of which will form an Order.
2.2 Incorporation by Reference. Each Order which covers the procurement and sale of any Offering that is within the scope of a Schedule listing certain specific Offerings and signed under the CTS shall be deemed to incorporate by reference the terms of the CTS.
2.3 Product- and Service-Specific Terms. Scope and details of Services and Product-specific terms are specified in the applicable standard service description that is attached to or referred in a Schedule or Quote, or is made available through the then-current Supplier website for product- or service-specific terms, currently located at //dell.com/offeringspecificterms. Such standard descriptions are from time to time referred to as “Service Description(s)”, “Product Notices” or “Service Briefs.” The version of the applicable document that is effective as of the date of the applicable Quote, shall be deemed incorporated into the Order. Scope and details of customized Professional Services not covered by such a standard description shall be documented in a mutually agreed Statement of Work (“SOW”).
2.4 Exclusion of General Terms and Conditions, Order of Precedence. The CTS including the documents referenced herein shall apply to the exclusion of all other general terms and conditions incorporated in or referred to in any documentation submitted by Customer to Supplier.
Subject to the foregoing, in case of any conflict or inconsistency the following order of precedence shall apply:
A. The terms of the Order, where either: (i) the CTS expressly provides for the parties to optionally deviate from the relevant provision of the CTS; or (ii) where the Order states that the parties wish to deviate from the terms of the CTS for the purpose of the individual transaction;
B. The terms of any Schedule to the CTS; and
C. The main body of the CTS.
2.5 Revision of Offerings. Supplier may revise its Offerings, including after Customer places an Order but prior to Supplier’s shipment or performance. As a result, Products or Services Customer receives may differ from those ordered, as long as they still substantially meet, or exceed, the specifications as per the documentation of the originally ordered Product or Service.
3. Product Delivery.
3.1 Shipment. Unless otherwise agreed, Supplier shall arrange for shipment of the ordered 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. Customer shall notify Supplier within 21 days of the invoice date if Customer believes any Product included in its Order is missing, wrong, or damaged, and shall ensure that the intended installation site meets the specifications as per the product documentation.
3.2 Transfer of Risk and Title. Title to the sold Equipment passes to Buyer upon delivery, and risk of loss for sold Equipment and licensed Software and Independent Software transfers to Buyer upon delivery. “Delivery” for Equipment occurs when Supplier provides the Equipment to the ship-to address indicated in the Order, unless otherwise agreed upon in the Supplier’s Quote. Delivery of Software delivered electronically or through a Transformational License Agreement or similar enterprise license arrangement shall occur once Supplier has made it available for download and has notified Customer thereof, unless otherwise agreed upon in Supplier’s Quote.
3.3 Acceptance. All Products will be deemed to be accepted upon Delivery. Notwithstanding such acceptance, Customer retains all rights and remedies under the warranty terms stated below.
4. Software Licenses.
Customer’s rights to use the Software delivered by Supplier are governed by the terms of the applicable end-user license agreement. Unless different terms have been agreed between the parties, the terms posted on www.dell.com/eula (the “EULA”) shall apply. Supplier will provide a hard copy of the applicable terms upon request. Unless expressly otherwise agreed, microcode, firmware or operating system software required to enable the Equipment with which it is shipped to perform its basic or enhanced functions, is licensed for use solely on such Equipment item.
5. Services.
5.1 Support Services.
A. Scope and Term. Supplier shall provide Support Services in accordance with the applicable Service Description or Product Notice, for the (initial or renewal) period agreed in the applicable Order. Unless otherwise agreed therein, the initial Support Services procured together with the purchase of a Product start on the commencement date of the applicable warranty period (as specified in clause 7.1).
B. Support Availability and Release Cycles. Availability of Support Services is governed by Supplier’s “End-of-Service-Life” policies, to be made available to Customer upon request. Subject to such policies, Support Services for Software apply to the current and the immediately prior release of the Software.
C. Limitations. Support Services do not cover any of the following: (i) problems that are excluded from warranty coverage according to clause 7.2, below; (ii) problems that cannot be reproduced at Supplier’s facility or via remote access to Customer’s facility; (iii) providing media replacement, operating supplies, cosmetic accessories or parts such as frames, and cover or support on those items; (v) repairing damage or defects in Equipment that are purely cosmetic and do not affect device functionality.
D. Maintenance Tools and Spare Parts. Supplier may, at its discretion, store tools and spare parts used by Supplier to perform diagnostic or remedial activities in connection with Products at the Customer’s site or on Customer’s systems, and Customer agrees that such are for use only by Supplier authorized personnel and further authorizes Supplier to remove and/or disable them when no longer needed by Supplier to provide its Services.
E. Replacements. All replaced Equipment or components thereof shall be returned to Supplier and become the property of Supplier upon Customer’s receipt of the corresponding replacement unless specifically agreed otherwise in an Order; if Customer does not return the replaced component or Equipment within 15 days after receipt of Supplier’s request, then Customer must pay Supplier at the then-current spare parts list price for the Equipment or portions that Customer has failed to return. If Supplier determines that a component of a defective Equipment product is “customer-replaceable”, i. e. one that is easily disconnected and reconnected, or if the Supplier analyst determines that the Equipment should be replaced as a whole, Supplier reserves the right to send Customer a component or whole replacement Equipment for exchange.
F. Data Responsibility. Supplier shall not access or use any Customer production data stored on the Products, unless Customer has exceptionally and expressly authorized Supplier to do so. Unless a data deletion service is expressly ordered from Supplier, Customer is responsible for removing all information and data stored on replaced parts, or on any other items or Product before it is returned to Supplier.
G. Customer-Initiated Changes. If the Product is covered by Support Services and Customer intends: (i) to relocate Equipment to a different installation site (where applicable to the Product); (ii) to change the hardware configuration on its own; or (iii) to deny the activation or to disable remote support features of a Product, Customer shall notify Supplier in advance. Where any of such action limits Supplier’s ability to provide Support Services for the affected Product or increases the Supplier’s cost of providing Support Services, Supplier is entitled to make the continuation of Support Services dependent on Customer paying a reasonable adjustment of the ongoing fees and a reasonable charge for any re-certification services Supplier reasonably considers necessary for continued support; agreed proactive support capabilities, response times, or other service levels may no longer apply.
5.2 Professional Services.
A. Scope of Services. Supplier shall provide Professional Services including any Deliverables (as defined below) in accordance with the applicable Service Description, SOW or other agreed documentation containing the specifics of such services (“Service Specification”). Professional Services are provided as a separate and independent service even if mentioned together with the sale or licensing of Products by Supplier in the same Order. Supplier is not providing legal or regulatory advice in any Professional Services.
B. Grant of License Rights in Deliverables.
(1) “Deliverables” means any reports, analyses, scripts, code, or other work results that Supplier delivers to Customer within the framework of fulfilling obligations under a Service Specification. “Proprietary Rights” mean all patents, copyrights, trademarks, trade secrets, or other intellectual property rights of a party.
(2) Subject to Customer’s compliance with the terms of the CTS and any applicable Service Specification, Customer’s payment of applicable amounts due, and Supplier’s Proprietary Rights in any underlying intellectual property incorporated into any Deliverables or used by Supplier to perform Professional Services, Supplier grants Customer a non-exclusive, non-transferable, revocable (in case of non-payment, or any breach of the CTS or any applicable Service Specification) license to use (without the right to sublicense) the Deliverables provided by Supplier for Customer’s internal business purposes, only and solely in accordance with the applicable Service Specification and subject to the CTS. Customer may authorize its service providers to use the Deliverables, but solely on Customer’s behalf, solely for Customer’s internal business purposes, and Customer shall be responsible for service provider’s compliance with these restrictions.
(3) Supplier reserves for itself all Proprietary Rights that it has not expressly granted to Customer herein. The license granted in this clause 5.2B does not apply to: (i) any Products; or (ii) items licensed or otherwise provided under a separate agreement. Supplier is not limited in developing, using, or marketing services or products that are similar to the Deliverables or Professional Services provided hereunder, any Service Specification, or, subject to Supplier’s confidentiality obligations to Customer, in using the Deliverables or performing similar Professional Services for any other projects.
C. Responsibility for Personnel. Supplier is solely responsible for personnel placement as well as for all other human resource issues (e.g. vacation) concerning its personnel.
5.3 Customer Responsibilities. At no charge to Supplier, Customer shall: (i) provide Supplier personnel with timely access to appropriate facilities, space, power, documentation, files, data, information, additional software (if needed); (ii) use skilled and authorized Customer personnel to assist and cooperate with Supplier in the provision of the Services as reasonably requested by Supplier; (iii) be responsible for physical and network security and all conditions in its business necessary for due performance of Services; (iv) allow Supplier remote and onsite access to the Products and Customer’s infrastructure environment, as required; and (v) where applicable, promptly notify Supplier when Products fail and provide Supplier with sufficient details of the failure such that the failure can be reproduced by Supplier. For Professional Services, details may be set forth in the Service Specification.
5.4 Termination of Services. A termination for convenience of Services shall only be permitted if expressly agreed between the parties. Either party may terminate Services for material breach by the other party if such other party has failed to cure such breach within a reasonable grace period of no less than 30 days set by the other party in writing.
6. Invoicing and Payment.
6.1 Invoicing. Supplier shall invoice for the Products and Services to Customer in the currency agreed in the Order. If Supplier is obligated by applicable law to collect and remit any taxes or fees, then Supplier will add the appropriate amount to Customer’s invoices as a separate line item in accordance with statutory requirements.
6.2 Payment Terms. Customer shall pay Supplier’s invoices in full and in the same currency as Supplier’s invoice within the time noted on Supplier’s invoice, or if not noted, then within 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. Such payment terms are subject to regular credit checking by Supplier. In case of Customer’s default in payment, Supplier shall, until arrangements as to payment or credit have been established, be entitled to: (i) cancel or suspend its performance of such Order and/or (ii) withhold performance under the CTS. Termination or expiration of the CTS shall not affect the obligation of Customer to pay all amounts due hereunder.
6.3 Taxes. The charges due under each Order are exclusive of, and Customer shall pay or reimburse Supplier for all, value added (VAT), sales, use, excise, withholding, personal property, goods and services and other taxes, governmental fees, levies, customs and duties resulting from Customer’s purchase, except for taxes based on Supplier’s net income, gross revenue, or employment obligations. If Customer qualifies for a tax exemption, Customer must provide Supplier with a valid certificate of exemption or other appropriate proof of exemption within 1 week of the date of Customer’s Order. If Customer is required to withhold taxes, then Customer will within 60 days of remittance to the applicable tax authority provide Supplier with satisfactory evidence (e.g. official withholding tax receipts) that Customer has accounted to the relevant authority for the sum withheld or deducted, otherwise Supplier will charge Customer for the amount that Customer has deducted for the transaction.
7. Warranty.
7.1 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 and Software will perform substantially in accordance with the corresponding standard product documentation issued by Supplier. Customer must promptly notify Supplier of any warranty claims within the warranty period. Unless otherwise agreed in the Order the warranty period is 12 months for Equipment and 90 days for Software, commencing upon the date of invoice. 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.
7.2 Customer’s Remedies. Supplier’s entire liability under the warranties for Products 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.
7.3 Services. Supplier will perform Services in a workmanlike manner in accordance with generally accepted industry standards. Customer must notify Supplier of any failure to so perform within 10 days after the date on which such failure first occurs. In such case, Supplier will use reasonable efforts to 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 Customer may terminate the affected Services for cause by providing written notice to Supplier.
7.4 Limitations. Warranty does not cover problems that arise from: (i) accident or neglect by Customer 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.
7.5 Exclusive Remedies. Supplier’s warranties for Products and Services and Customer’s remedies in case of breach of any warranty are exhaustively described in the CTS, and any warranties implied by applicable law are excluded, insofar as permitted under such law.
7.6 Software License Terms. Where specific warranty terms are set out for certain titles or types of Software in the applicable license terms (see clause 4), such terms shall apply instead of the above.
8. Indemnity.
8.1 Indemnification by Supplier. Supplier will: (i) defend Customer against any third-party claim that a “Dell” or “Dell EMC”-branded Product (excluding Third Party Product(s), any Product provided for evaluation or without charge, and open source software) (“Covered Product”) or related Support Services for such Covered Product (“Covered Service”) infringe that party’s patent, copyright, or trade secret enforceable in Hong Kong where Customer purchased the Covered Product from Supplier (“Claim”); and (ii) indemnify Customer by paying: (a) the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction to the extent that such are the result of the third party Claim; or (b) the amounts stated in a written settlement negotiated and approved by Supplier. In addition, should any Covered Product or Covered Service become, or in Supplier’s opinion be likely to become, the subject of such a Claim, Supplier may, at its expense and in its discretion: (1) obtain a right for Customer to continue using the affected Covered Product or Covered Service; (2) modify the affected Covered Product or Covered Service to make them non-infringing; (3) replace the affected Covered Product or Covered Service with non-infringing substitutes; (4) provide a reasonable depreciated or pro rata refund for the affected Covered Product; or (5) discontinue the Covered Service and refund the portion of any prepaid Support Service fees that corresponds to the period of Covered Services discontinuance. Except as otherwise provided by law, this clause 8 states Customer’s exclusive remedies for any third-party intellectual property claim relating to the Covered Products or Covered Services, and nothing in the CTS or elsewhere will obligate Supplier to provide any greater indemnity.
8.2 Limitations. Supplier shall have no obligation under clause 8.1 above: (i) if Customer is in material breach of the CTS or the Order; or (ii) for any Claim resulting or arising from: (a) any combination, operation or use of a Covered Product or Covered Service with any other products, services, items, or technology, including Third-Party Products and open source software; (b) use for a purpose or in a manner for which the Covered Product or Covered Service was not designed, or use after Supplier notifies Customer to cease such use due to a possible or pending Claim; (c) any modification to the Covered Product made or Covered Service performed by any person other than Supplier or its authorized representatives; (d) any modification to the Covered Product or Covered Service made by Supplier pursuant to instructions, designs, specifications or any other information provided to Supplier by or on behalf of Customer; (e) use of any version of a Covered Product when an upgrade or newer iteration of the Covered Product or Covered Service made available by Supplier would have avoided the infringement; (f) services provided by Customer (including Claims seeking damages based on any revenue or value Customer derives from Customer’s services); or (g) any data or information that Customer or a third party records on or utilizes in connection with the Covered Product or Covered Service.
8.3 Customer Obligations. Supplier’s duties under this clause 8 are contingent upon Customer: (i) sending prompt written notice of the Claim to Supplier and taking reasonable steps to mitigate damages; (ii) granting to Supplier the sole right to control the defense and resolution of the Claim; and (iii) cooperating with Supplier in the defense and resolution of the Claim and in mitigating any damages.
9. Limitation of Liability.
For all claims of either party to the other for damages under or in connection with the CTS or any Order hereunder, whatever the legal basis may be (whether in contract, tort (including negligence), under indemnity, for breach of statutory duty or otherwise), the following shall apply:
9.1 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; or (v) any other liability that cannot be excluded by law.
9.2 Limitations. Subject to clause 9.1, neither party shall be liable for: (i) loss of profit, anticipated savings, 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. Supplier (and its suppliers) shall have no liability for any damages resulting from Customer’s use or attempted use of Third Party Software, Free Software or Development Tools, all defined in the EULA described in clause 4 above, or Third Party Products.
9.3 Prevention and Mitigation. Customer is solely responsible for its data. Customer shall implement IT architecture and processes enabling Customer to prevent and mitigate damages in line with the criticality of the systems and data for Customer’s business and its data protection requirements, including a business recovery plan. In that regard, Customer 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 Customer’s IT systems; (ii) monitor the availability and performance of its IT environment during the performance of Services; and (iii) promptly react to 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 cost of commercially reasonable and customary efforts to recover the lost data from Customer’s last available backup.
9.4 Liability Cap. Subject to clause 9.1, each party’s total liability in the aggregate for all claims under the T&Cs is capped at a fixed amount not to exceed 12 months’ trailing revenue which Customer paid to Supplier for the specific service, product or software giving rise to the claim.
9.5 Limitation Period. Except as stated in this clause, 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 claims, 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. Third-Party Products.
Supplier may offer to supply Third Party Products that are provided by a third party manufacturer/supplier, 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” or “Dell EMC”. Notwithstanding any other provisions herein, such Third Party Products 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 Customer shall adhere. Even if support fees are invoiced through Supplier, such Third Party Products are not supported by Supplier and Customer shall contact such third party directly for support. Any warranty, damages or indemnity claims against Supplier in relation to such Third Party Products are expressly excluded. References to warranty and support information for Dell EMC Select products is currently available through //dell.com/offeringspecificterms.
11. Confidentiality.
11.1 Scope. “Confidential Information” shall mean any information, pricing, technical data or know-how furnished in connection with the scope of the CTS, whether in written, oral, electronic, website-based, or other form, by a Customer or a Customer Affiliate to Supplier or a Supplier Affiliate or vice versa and that: (i) is marked, accompanied or supported by documents clearly and conspicuously designating such 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 the recipient to be confidential. Confidential Information does not include information that is: (a) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party; (b) a matter of public knowledge (or becomes a matter of public knowledge other than through breach of confidentiality by the other party); (c) rightfully furnished to the receiver by a third party without confidentiality restriction; or (d) independently developed by the receiver or its Affiliates without reference to the discloser’s Confidential Information.
11.2 Protection. Each party shall procure that, where it or one of its Affiliates is the receiver of Confidential Information hereunder, the receiver shall (a) use Confidential Information of the discloser only for the purposes of exercising rights or performing obligations in connection with the CTS or any Order hereunder; and (b) protect from disclosure to any third parties any Confidential Information disclosed by the discloser, both for a period commencing upon the date of disclosure until 3 years thereafter. Subject to the terms of this Section 11, the foregoing obligations shall never expire in relation to technical information about a discloser’s products and services or any information about possible unreleased products or services, and shall survive any termination or expiration of this Agreement.
11.3 Exceptions. Notwithstanding the foregoing, either party and its Affiliates may disclose Confidential Information (1) to an Affiliate, or to a subcontractor used by Supplier to provide Services under this Agreement, as long as the Affiliate or subcontractor has a need-to-know and complies with the foregoing; (2) to either party’s directors, officers, employees, and professional advisors and those of its Affiliates, and (3) if required by law or regulatory authorities provided the receiver has given the discloser prompt notice. For the purposes of this clause 11.3, “Affiliates” of Supplier include other members of Dell Technologies group.
12. Term and Termination of the CTS.
The term of the CTS begins on the Effective Date and continues until it is terminated in accordance with this clause. Either party may terminate the CTS for material breach by the other party if such other party has failed to cure the breach within a reasonable grace period of no less than 30 days as set forth by the other party in writing. A termination of the CTS shall not affect any previously concluded Order.
13. General.
13.1 Governing Law and Place of Jurisdiction. The CTS is governed by the laws of Hong Kong. To the extent permitted by law, the courts of Hong Kong will have exclusive jurisdiction over any disputes arising out of or in connection with the CTS and all transactions governed by it. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
13.2 Trade Compliance. Customer’s procurement of Offerings and access to related technology (collectively, the “Materials”) are intended for its own use, not for resale, export, re-export, or transfer. Customer is subject to and responsible for compliance with the export control and economic sanctions laws of the United States, the European Union and other applicable jurisdictions. Materials may not be used, sold, leased, exported, imported, re-exported, or transferred except in compliance with such laws, including, without limitation, export licensing requirements, end user, end-use, and end-destination restrictions, 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 Entity List, Denied Persons List, Military End User List, and Military Intelligence End User List. Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory (including without limitation, North Korea, Cuba, Iran, Syria, Crimea and the regions known as Donetsk People’s Republic and Luhansk People’s Republic) that is the subject or target of, economic sanctions of the United States, European Union or other applicable jurisdictions.
13.3 Customer Responsibility. Customer agrees that it will obtain all necessary rights, permissions and consents associated with: (a) technology or data (including personal data) that Customer and its Affiliates provide to Supplier or its Affiliates, and (b) non-Supplier software or other components that Customer and its Affiliates direct or request that Supplier or its Affiliates use with, install, or integrate as part of the Supplier’s Offerings. Customer is solely responsible for reviewing data that will be provided to or accessed by Supplier in the provision of the Offerings to ensure that it does not contain: (i) data that is classified, ITAR (International Traffic in Arms Regulations) related data, or both; or (ii) articles, services, and related technical data designated as defense articles and defense services. Customer will defend and indemnify Supplier and its Affiliates against any third party claim resulting from a breach of any of the foregoing obligation under Section 13.2, or from Customer’s infringement or misappropriation of intellectual property rights of Supplier, its Affiliates or third parties.
13.4 High-Risk Applications. Customer acknowledges that the Offerings are not designed or intended for use in high-risk activities which means the use of the Offerings in hazardous environments requiring fail safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life support machines, or any other potentially life critical uses.
13.5 Encryption (only applicable to international orders). Customer is solely responsible for reviewing data that it will provide to Supplier (or to which Supplier will have access) and certifies that all items (including hardware, software, technology and other materials) it provides to Supplier for any reason that contain or enable encryption functions either (a) satisfy the criteria in the Cryptography Note (Note 3) of Category 5, Part 2 of the Wassenaar Arrangement on Export Controls for Conventional Arms (Wassenaar Arrangement) and Dual-Use Goods and Technologies and Category 5, Part 2 of the U.S. Commerce Control List (CCL) or (b) employ key length of 56-bit or less symmetric, 512-bit asymmetric or less, and 112-bit or less elliptic curve or (c) are otherwise not subject to the controls of Category 5, Part 2 of the Wassenaar Arrangement and Category 5, Part 2 of the CCL. Supplier is not responsible for determining whether any third party product to be used in the products and services satisfies regulatory requirements of the country to which such products or services are to be delivered or performed. Supplier shall not be obligated to provide any product or service where the product or service is prohibited by law or does not satisfy the local regulatory requirements.
13.6 Entire Agreement. The CTS and each Order hereunder comprise the complete statement of the agreement of the parties regarding the subject matter thereof and may be modified only by written agreement.
13.7 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any of its obligations (other than for the payment of fees) caused by Force Majeure. If such delay or failure lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, the relevant Order by giving written notice to the delayed party. “Force Majeure” refers to circumstances beyond a party’s reasonable control including, without limitation, act of God, war, riot, civil commotion, terrorist acts, malicious damage, governmental or regulatory actions, accident, breakdown of plant or machinery, local or national emergency, explosions, fire, natural disasters, severe weather or other catastrophes, epidemics/pandemics, general import/export/customs process problems affecting supplies to Supplier or to Customer, shortages in materials, failure of a utility service or transport network, embargo, strike, lock out or other industrial dispute (whether involving Supplier’s workforce or any other party), or default of suppliers or subcontractors due to any of the preceding events.
13.8 Assignment and Subcontracting. Neither party shall assign, transfer or novate the CTS, any Order, or any right or obligation thereunder, 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 Order shall remain responsible for the performance thereof; and (ii) either party may assign rights to payments arising under any Order without consent of the other party.
13.9 Independent Contractors. The parties are independent contractors for all purposes under the CTS and cannot obligate any other party without prior written approval. The parties do not intend anything in the CTS 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.
13.10 Third Party Rights. There are no third-party beneficiaries to the CTS or any Order under any laws, including The Contracts (Rights of Third Parties) Ordinance.
13.11 Waiver and Severability. Failure to enforce a provision of the CTS will not constitute a waiver of that or any other provision of the CTS. If any part of the CTS or an Order is held unenforceable, the validity of the remaining provisions shall not be affected.
13.12 Counterparts and Electronic Signatures. The CTS (and any amendments and addenda hereto) may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one agreement. It may be executed by a party’s physical or electronic signature and delivered also by electronic means, and any copies so executed and delivered shall have the same force and effect as copies executed and delivered with original physical signatures.
Commercial Terms of Sale (Hong Kong)
Revision June 2022