General Terms and Conditions of Sale
"You" or "Customer" means the individual or legal entity that buys or uses the Products.
"Consumer" means the individual or legal entity that buys the Products for its own use, or for family or social use.
"Dell" or "we" means Dell World Trade LP, or whichever name appears in the invoice, domiciled at the address indicated on the invoice and, where relevant, the Service Provider.
"IM" (Integration Material) means Third Party Products or customer factory integration (CFI) software.
"Price" means the price indicated on the Order Confirmation.
"Product" means the good or service described in the Order Confirmation, which may include Third Party Products and Service Offers.
"Service Offerings" means the description of services as described in the Order Confirmation and Dell service documents.
"Service Provider" means Dell or specialists authorized by Dell to provide services.
"Third Party Products" means the products described in the Order Confirmation that are not manufactured by Dell or do not carry the Dell brand.
"Software" means computer programs, including operating systems or computer applications.
- Scope of Application. These Sales Terms and Conditions apply to any and all purchases and sales and/or services that are in any way described, mentioned, promoted or listed in Dell's brochures, advertisements, price lists, announcements, estimates and quotes, on the Internet or verbally. Any terms and conditions not included herein are excluded. By placing an order, the Customer accepts these General Terms and Conditions of Sale. Dell reserves the right to modify the General Terms and Conditions at any time and, as of the date of modification, new transactions entered into between Dell and its Customers shall be governed by the modified document. Dell's acceptance of the Customer's purchase order does not imply Dell's acceptance of the terms and conditions thereof, regardless of how they are described, including, for example, terms that are inconsistent or additional to the terms and conditions of these General Terms and Conditions of Sale.
- Order/Contract. Orders shall be accepted in writing, by electronic mail, telephone or fax and shall become binding upon Dell's acceptance thereof by means of its issuing an Order Confirmation by any of the aforementioned means of communication. The Customer must check the Order Confirmation and report any error to Dell in writing immediately. Otherwise, the Product description appearing in the Order Confirmation shall become part of this contract and shall be binding.
- Price and Payment Terms. Quotes and/or offers are only valid if made in writing and for the period specified therein. If such period is not stated, the period shall be 30 days (10 days for Third Party Products). Dell reserves the right to provide a Product other than those requested (including a Third Party Product) at any time, but guarantees the purpose for which it was designed and its operation shall be equal to the purpose and function of the Product requested. The Product's price and the terms and conditions of payment shall be included in the Order Confirmation. The Price does not include tax, shipping, insurance and installation, unless explicitly stated otherwise. Exchange rates, duties, insurance and other production costs (including parts and services) may affect the final price and result in Dell's adjustment thereto. Payment shall be made at the time the order is placed or under the conditions established in the Order Confirmation. Dell may suspend delivery of the Product or provision of the service until full payment is made. If payment is late, Dell shall charge collection costs and past-due interest shall be applied to the outstanding amount for each day said amount remains outstanding, from the date payment is due until full payment thereof, at an annual interest rate equal to the Prime Rate listed in Citibank's New York City office, or at any other reference rate that Citibank lists instead of the Prime Rate, plus 6 percentage points. Dell reserves the right to request prior approval of credit or debit cards and/or bank certification of checks. Unless you and Dell have agreed to a different discount, Dell's standard pricing policy for Dell-branded systems, which include both hardware and services in one discounted price, allocates the discount off list price applicable to the service portion of the system to be equal to the overall calculated percentage discount off list price on the entire system.
- Software. All software is provided subject to the license agreement that is part of the software package and you agree that you will be bound by such license agreement.
- Delivery/Title/Risk. Delivery shall be made within the time period indicated in the Order Confirmation and on an FCA basis*. Deliveries may be made in installments. Title shall be transferred to the Customer at the time Dell delivers the Products to the shipping company. The Customer grants, to Dell, a purchase money security interest on the Products for the value received until the full Price is paid. Consequently, the Customer must store Dell's Products separately and may not sell, pledge or modify them until it has paid the Price in full. Dell has the right to enter the premises where the Product is stored to repossess the Product. Dell has the right to sue the Customer for the Price of the Product before title passes to a third party. If the Customer rejects delivery without Dell's prior approval, the Customer shall pay the resulting expenses and damages, including storage costs.
- Acceptance and Return. The Customer must inspect the Product immediately upon delivery, or if applicable, within the term stipulated for inspection or rejection. Once this term has lapsed, the Customer shall be considered to have accepted the Product. If the Customer has the right to return a Product, Dell requires that the Customer first contact Dell to receive authorization. The Customer must return the Product in its original condition with packaging, return note and proof of purchase. The Customer shall be responsible for the costs of return, unless the Product is subject to return under the terms of the Product's warranty included in the package. If the purchase was made at a distance, via the Internet, mail, telephone or catalogue, the Customer shall have the right to return the Product without justification within five days following delivery or, otherwise, pursuant to the terms and conditions for returns listed at www.dell.com.
- Warranties. Warranties are included in the documentation Dell provides with the Product(s) and shall be governed by the provisions set forth in this document, except for the following. Dell guarantees that the Product (excluding Third Party Products) is free of defects for the period indicated in the documentation Dell provides with the Product(s). For spare parts, at no time shall said term exceed 90 calendar days from installation. If, during this warranty period, the Customer informs Dell that the Product is defective, at our discretion, Dell shall repair or replace the Product within a reasonable time. Repairs may be done using new, equivalent to new or refurbished parts or products, which will be equivalent in functionality to the part replaced. The Customer must allow Dell, at its discretion, to examine the Product at the place where it is located or on Dell's premises. Dell is the owner of the defective parts it replaces or exchanges and has the right to charge the Customer if these parts are not returned to Dell. Dell will respond to each case as quickly as possible to resolve the problems within an appropriate time based on the circumstances. Dell does not guarantee nor assume responsibility for:
THE WARRANTY GRANTED IS THAT WHICH IS DESCRIBED HEREIN AND EXCLUDES ANY OTHER WARRANTIES, WHETHER VERBAL OR WRITTEN, EXPRESS OR IMPLIED. DELL EXPRESSLY WAIVES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE AND FITNESS FOR PURPOSE.
- damage caused by incorrect installation, use, modification or repair by any unauthorized third parties or by the Customer;
- damage caused by any external party or event;
- suitability of the Product for any particular purpose or specific use;
- Third Party Products, Software and IM specified by the Customer; the warranty for which the Customer shall receive directly from the manufacturer or licensor;
- any instructions provided by the Customer and followed by Dell;
- Operation without interruptions and errors. Dell's liability for any violation of this warranty, its service commitments, or any other concept, under no circumstances shall exceed the Product Price set forth in the Order Confirmation. All Products are provided on an "as-is" basis. Dell's warranty replaces implicit warranties, and said implicit warranties are hereby waived to the extent permitted by law.
- Services and Support. Where applicable, Service will be provided by Dell or a Service Provider and may vary depending on the Product. Response times are estimates and may vary depending on the Product's location or accessibility. Services may be provided by telephone or Internet where appropriate. If agreed and stated in the Order Confirmation, the Service Offers may include advice, tagging of assets, installation, integration, disposal, training and/or consulting. Unless expressly stated in the Order Confirmation, the Services do not include: items not covered by the warranty; changes in the configuration; reinstallation; preventive maintenance; consumables; diskettes; compact disks (CDs); work that Dell considers to be unnecessary; electrical environment; data or software transfers; and solutions to problems caused by viruses. Third Party Products shall be repaired according to their manufacturer's or licensor's warranty. Replacement parts that are not critical to the Product's operation (e.g. hinges, doors, cosmetic features, frames) may not be substituted within the Service Offer time period. Dell shall not be obligated to provide Service or Support until it receives payment in full.
- Customer Factory Integration (CFI). The Customer may specify and provide Dell with the IM, or Dell may obtain the IM following Customer's instructions. Dell shall notify the Customer of acceptance and/or validation of the IM and shall integrate the IM into the Product (producing a CFI Product) following the Customer's instructions or Dell's technical criteria, as appropriate. Dell shall not do any CFI work that it does not consider to be technically feasible.
- Limitation of Liability. Dell's liability for damage caused by or related to this contract, independent of the type of legal or out-of-court action to determine liability, whether contractual or otherwise, due to negligence, fraud, bad faith or breach of warranties, shall always be limited and must not under any circumstances exceed the total consideration paid by the Customer to Dell for the order in question, excluding taxes and expenses. No claim of any kind arising from an event or events occurring more than one year prior to the date the claim is made may be used or claimed by either of the parties.. Dell does not assume responsibility for: 1) indirect or incidental damages; 2) loss of business, salary, income or savings; 3) damages remedied by Dell within a reasonable period; 4) losses that could have been avoided through reasonable conduct, including backing up data and following Dell's general recommendations; and 5) items not covered by the warranty or cases of force majeure.
- Intellectual Property. Dell shall indemnify the Customer from all costs and liabilities arising from claims for use of the Product that infringes on any third party's intellectual or industrial property rights. In this event, Dell may, at its sole discretion, exchange or modify the Product or refund the Price, minus the Product's depreciation value. The Customer shall indemnify Dell from any liability arising from the IM or the intellectual or industrial property rights integrated into the Product at the Customer's request or that belong to the Customer. Dell reserves the right to initiate legal action and to settle or resolve disputes, at its discretion, in the event of a third-party claim based on intellectual-property rights. The Customer must aid Dell, at the latter's expense (except in the case of a claim deriving from the IM or the intellectual or industrial property rights integrated into the Product at the Customer's request or that belong to the Customer), in cases in which the dispute is directly related to the Product. Dell reserves all intellectual and industrial property rights to the Product that pertain to Dell. The Customer must notify Dell immediately of all cases of infringement or unauthorized use of the Product or of its intellectual or industrial property. In any event, Dell's liability shall be limited to the amount that the Customer shall have paid for the Product.
- Software. The Customer understands and acknowledges that the Product is sold excluding the Software, as the latter is subject to a license granted solely to the Customer to be used with the Product. Software not belonging to Dell is supplied under license and warranty of the licensor. Dell will include the Software license that the Customer requests with the Product when necessary. The Customer is obligated to comply with the terms of that license.
- Export Control. The Product may include technology and Software subject to the customs and export control laws and regulations of the United States ("U.S.") and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received. You acknowledge that it is your sole responsibility to comply with and abide by those laws and regulations. Further, under U.S. law, the goods shipped pursuant to this Agreement may not be sold, leased or otherwise transferred to restricted countries or utilized by restricted end-users or an end-user engaged in activities related to weapons of mass destruction, including without limitation, activities related to the design, development, production or use of nuclear weapons, materials, or facilities, missiles or the support of missile projects, and chemical or biological weapons. Restrictions in the U.S. often vary depending on the Product. Therefore, the Customer must refer to current regulations in the U.S.
- Act of God or Force Majeure. Dell assumes no liability for delays (including delivery or services) caused by circumstances beyond its reasonable control, and, in such event, shall have the right to an extension to complete its performance. A non-exhaustive list of examples of such circumstances are: strikes; problems with transport, supply or production; fluctuations in exchange rates; government measures; and natural disasters. If the cause originating the delay lasts more than two months, this contract may be terminated by either party, without the right to compensation.
- Confidentiality. The parties must treat all information received from the other party, identified as "confidential" or that can reasonably be considered confidential, with the same treatment as its own confidential information.
- Termination. Dell may terminate this contract with prior written notice under the following circumstances: 1) failure to pay the Price on time, for which effect the parties expressly agree that total or partial failure to pay shall result in termination of the contract as a matter of law; 2) the Customer's breach or suspect breach of export-control laws. Either party may terminate this contract in the event of: 1) a material and persistent breach of this contract, without remedy of said breach, within a period of 30 days following written notice of said breach: 2) insolvency, bankruptcy or inability to pay debts as they become due. Dell may choose to demand that the Customer honor the obligation to pay the Price and, in any event, request compensation for any damages or losses.
- The Customer's Obligations. The Customer shall be responsible for:
The Customer shall provide sufficient information, cooperation, collaboration and access to allow Dell to meet its commitments. Otherwise, Dell shall be released from its obligations. The Customer is responsible for making backup copies, maintaining confidentiality of Product data, and fulfilling any other legal requirement.
- its own choice of Product and its suitability for a specific purpose;
- its telephone and mailing costs to contact Dell, if applicable;
- its specifications for CFI products and instructions given by Customer;
- the entire IM, its operation, licenses and authorizations.
- Data Protection. The Customer's personal data shall be treated in accordance with applicable data-protection laws, for which the Customer provides its express consent. The Customer may ask Dell not to use its data for direct marketing. The Customer may exercise its right to access, rectify and cancel said data by means of written communication to Dell.
- Consumer Rights. If the Customer is a Consumer, the provisions of this contract shall not in any way affect the public-policy provisions that govern consumer rights.
- Jurisdiction. This contract is considered to have been entered into in the City of Round Rock, State of Texas, United States of America, and is governed by the laws of the State of Texas, without prejudice to legislation concerning conflict of laws. The parties hereby submit to the exclusive jurisdiction of the State and Federal courts of Williamson County in the State of Texas. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this contract.
- Headings. The headings to each of the points herein are for reference and convenience and are not part of the Terms and Conditions of Sale.
- General provisions. If a court declares any provision of this contract null and void, the remaining provisions shall not be affected. Dell may subcontract its obligations to third parties, without the need for approval. Neither of the parties may assign or transfer any obligations or rights. Notices must be sent in writing (hand-written, by e-mail, fax or certified mail) and sent to the other party's legal representative.
- Information. The Customer can find information regarding Dell and its policies at www.dell.com. The Customer can also find all updates at said site.