General Terms and Conditions of Sale
Purchases of Dell products, software and/or services are governed by the following terms and conditions; which you previously approved and supersedes all prior understandings or agreements between you and Dell
If you are a Commercial Customer (including Small, Medium and Large Business and Government and Public sector customers) with an agreement in force with Dell, will apply the terms and conditions set in that agreement. If you are a Commercial Customer without an agreement with Dell, the following Dell's Terms & Conditions for the Sale of Products & Services to Business Customers will apply.
If you are a Consumer Customer , i.e. you buy the Products either for your own use or for your family or social use, the General Terms and Conditions of Sale for Consumers and End-Users will apply.
Dell's Terms & Conditions for the Sale of Products & Services to Business Customers
These terms ("Terms") 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) ("Customer") direct from Dell Puerto Rico Corp. ("Dell") for its internal use only and to the exclusion of all other terms and conditions. These Terms together with Dell's Order Documents and Service Documents (as defined below) form a legally binding contract between Customer and Dell for the purchase of Products, Software and Services ("the Agreement"). These documents will apply in following order of priority: (1) Order Documents; (2) Service Documents and (3) these Terms. You may have rights conferred by consumer protection law; in such case those rights will be observed.
If Customer and Dell have a separate agreement in place for the purchase of Products, Software or Services, that agreement shall apply instead of these Terms. The terms set out on Dell's website at: http://www.dell.com.pr/partner shall apply to Products, Software and Services purchased for resale by Customer.
"Confidential Information" means collectively information of the disclosing party that is not generally known to the public, such as software, product plans, pricing, marketing and sales information, customer lists, "know-how," or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential.
"Deliverables" means tangible and intangible materials including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations prepared by Dell or its suppliers, licensors in the course of providing the Services.
"Dell-branded Products" means IT hardware and related products which are marked with the Dell logo and sold under the Dell brand and components thereof, excluding (1) Third Party Products and (2) any parts or components added after delivery of the Products or through Dell's custom factory integration service.
"Intellectual Property Rights" means any patent, copyright, database right, moral right, design right, registered design, trade mark, service mark, domain name, metatag, utility model, unregistered design or, where relevant, any application for any such right, or other industrial or intellectual property right subsisting anywhere in the world and any intellectual property rights in know-how, documentation, and techniques associated with the Deliverables or Materials.
"Materials" means all content and other items included with or as part of the Products, Services, Software, or Deliverables, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds, and software.
"Order Documents" means the quotation and/or the order confirmation and/or the invoice sent by Dell to Customer which describes the Products, Software and Services purchased by Customer under the Agreement as well as Prices, payment terms and other provisions.
"Prices" means the gross price payable for the Products, Software and/or Services including freight charges and value added tax.
"Products" means computer hardware and related products supplied by Dell under the Agreement.
"Services" means the services provided by Dell as described in any Service Documents.
"Software" means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as related documentation, provided by Dell to Customer. Software includes software (1) provided by Dell and locally installed on Customer's hardware and/or equipment or (2) made available by Dell and accessed by Customer through the internet or other remote means (such as websites, portals, and "cloud-based" solutions).
"Statement of Work" means any mutually agreed statement of work describing specific Services as agreed between Customer and Dell.
"Third Party Products" means any non Dell-branded Products, Software, or Services.
3.1 Any quotes issued by Dell shall be valid for 15 days unless stated otherwise in the quote. All Customer orders are subject to acceptance by Dell.
3.2 Prices for the Products, Software and Services shall be stated in the Order Documents or Service Documents issued by Dell. Where deliveries occur in installments or phases Dell may need to adjust Prices for Products, Software or Services due to changes, including without limitation, in exchange rates, taxes, duties, freight and purchase costs. Quotes provided by Dell exclude value added tax and any other taxes, levies, and shipping charges unless expressly set out in the quote. Such charges are payable by Customer in addition to the prices quoted and may appear as separate items on the Order Documents.
3.3 Payment for Products must be received by Dell prior to Dell shipping the Products or providing the Software or Services to Customer or, if agreed in writing, within the time period noted on the Order Documents, or if not noted, within 30 days from the date of the invoice. Time for payment shall be of the essence. Customer's payment terms are subject to credit checking by Dell. Dell shall be entitled to charge interest on overdue amounts at a rate of 3 per cent above the Bank of England base rate calculated on a daily basis (both before and after judgment) until actual payment is made in full. If any sum due from the Customer to Dell under the Agreement is not paid by the due date for payment then (without prejudice to any other right or remedy available to Dell), Dell shall be entitled to cancel or suspend its performance of the Agreement or any order including suspending deliveries of the Products and/or Software and suspending provision of the Services until arrangements as to payment or credit have been established which are satisfactory to Dell. Dell may invoice parts of an order separately.
Changes in a Product, Software, or Service
Changes in a Product, Software, or Service may occur after a Customer places an order but before Dell ships the Product or Software or performs the Service and, Products and Software or Services Customer receives might display minor differences from the Products, Software, or Services Customer orders but they will meet or exceed all material specifications of such order.
5.1 Dell shall deliver the Products in the location set out in the quotation or in the order confirmation. Delivery dates are non-binding and time for delivery shall not be of the essence. If no delivery dates are specified, delivery shall be within a reasonable time. Delivery of Products may be made in installments. Dell shall not be liable for any loss (including loss of profits), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products (even if caused by Dell's negligence), nor will any delay entitle Customer to terminate or rescind the Agreement. Dell shall only be liable for any non-delivery of Products if Customer gives written notice to Dell within 7 days of the date when the Products would, in the ordinary course of events, have been delivered Dell does not exclude or limits liability to the other party for gross negligence or willful misconduct.
5.2 Customer shall inspect the Products to identify any missing, wrong or damaged Products or packaging, and notify Dell of any such issues which would be apparent on reasonable inspection and testing of the Products within 7 days of the date of delivery of the Products. Where the defect or failure would not be so apparent within 7 days of the date of delivery, Customer shall notify Dell in writing of any defects or other failure of the Products within a reasonable time. If Customer does not comply with the notification requirements in this clause, Customer shall not be entitled to reject the Products; Dell shall have no liability for such defect or failure, and Customer shall be bound to pay for the Products as if they had been delivered in accordance with the Agreement. Dell shall, at its discretion, repair or replace Products rejected in accordance with this clause.
5.3 If for any reason Customer does not accept delivery of any of the Products when they are ready for delivery, or Dell is unable to deliver the Products on time because Customer has not provided appropriate instructions, documents, licences or authorisations then the Products will be deemed to have been delivered, risk passing to Customer (including for loss or damage caused by Dell's negligence) and Dell may:
5.3.1 store the Products until actual delivery and Customer shall be liable for all related costs and expenses (including without limitation storage and insurance); or
5.3.2 sell the Products at the best price readily obtainable and (after deduction of all reasonable storage and selling expenses) charge Customer for any shortfall below the Price for the Products.
Services, Software provided by Dell in connection with the provision of the Services & Deliverables
6.1 Dell shall provide Services, Software, or Deliverables to Customer in accordance with the Service Documents. Dell may, at its option, propose to renew the Service and the Software license by sending Customer an invoice or, subject to prior notification, continuing to perform the Service or make the Software available to Customer. Customer is deemed to have agreed to such renewal of the Service and Software license by paying such invoice by its due date or by continuing to order Services or use the Software.
6.2 All Intellectual Property Rights embodied in the Materials and Deliverables shall belong solely and exclusively to Dell, its suppliers or its licensors except as expressly granted in this Agreement.
6.3 Subject to payment in full for the applicable Services, Dell grants Customer a non-exclusive, non-transferable, royalty-free right to use the Materials and Deliverables solely (1) in the country or countries in which Customer does business, (2) for its internal use, and (3) as necessary for Customer to enjoy the benefit of the Services as stated in the applicable Service Documents.
6.4 Dell may cancel or suspend its performance of the Services or Customer's access or any user access to the Software provided by Dell in connection with the provision of the Services where Dell is required to do so (1) by law, (2) by order of a court of competent jurisdiction, or (3) when Dell has reasonable grounds to believe that Customer (or Customer's users) are involved in any fraudulent or other illegal activities in connection with the Agreement.
6.5 It may be necessary for Dell to carry out scheduled or unscheduled repairs or maintenance, or remote patching or upgrading of the Software provided by Dell in connection with the provision of the Services and which is installed on Customer's computer system(s) ("Maintenance "), which may temporarily degrade the quality of the Services or result in a partial or complete outage of the Software. Any degradation or interruption in the Software or Services during such Maintenance shall not give rise to a refund or credit of any fees paid by Customer.
6.6 Customer agrees that the operation and availability of the systems used for accessing and interacting with the software provided by dell in connection with the provision of the services (including telephone, computer networks and the internet) or to transmit information can be unpredictable and may from time to time interfere with or prevent access to or use or operation of the software. Dell shall not be liable for any such interference with or prevention of customer's access to or use or lack of operation of the software.
6.7 During the performance of the Services or in connection with Customer's use of the Software provided by Dell in connection with the provision of the Services, it may be necessary for Dell to obtain, receive, or collect data or information, including system specific data (collectively, the "Data "). Customer grants to Dell a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to:
6.7.1 use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely for the purposes set out in clause 6.7;
6.7.2 a license to aggregate the Data with other data for use in an anonymous manner for Dell's marketing and sales activities; and
6.7.3 a right to copy and maintain such Data on Dell's servers (or the servers of its suppliers) during the term of this Agreement.
6.8 Customer represents and warrants that it has obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which Customer is located in connection with Dell's performance of the Services or Customer's use of the Software.
7.1 Where the Services purchased consist of repair of Dell-branded Products, such Services shall be those repair services that are necessary to fix a defect in materials or construction of any Products covered by this Agreement. Preventive maintenance is not included and Dell shall not be responsible for repairs of Dell-branded Products caused by problems with Software or Customer provided Third Party Products. Unless expressly stated in a Service Document, Services do not include repair of any Products or Product component that has been damaged as a result of (1) work carried out by anyone other than Dell or its representatives (2) accident, misuse, or abuse of the Product or Product component (such as, without limitation, use of incorrect line voltages or fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) by anyone other than Dell or its representatives; (3) the moving of the Product from one geographic location or entity to another; or (4) an act of nature, including without limitation, lightning, flooding, tornado, earthquake, or hurricane. Parts used in repairing or servicing Products may be new, or, equivalent-to-new, or reconditioned.
7.2 Customer authorizes Dell to use or access any Customer provided Third Party Products as necessary or as requested by Customer in Dell's performance of the Services, including without limitation, copying, storing, and reinstalling a backup system or data. Customer shall defend, indemnify, and hold Dell harmless from any third party claim or action arising out of Customer's failure to provide such authorization (including without limitation, obtaining appropriate licenses, Intellectual Property Rights, or any other permissions, regulatory certifications, or approvals associated with technology, software, or other components).
8.1 Software is subject to separate software license agreements accompanying the software media and any product guides, operating manuals, or other documentation presented to Customer during the installation or use of the Software.
8.2 In the absence of license terms accompanying the Software, Dell grants Customer a non-exclusive license to access and use the Software provided by Dell. Software provided or made available to Customer by Dell may be used only during the term of the Services and solely as necessary for Customer to enjoy the benefit of the Services.
8.3 For Software provided by Dell in connection with the provision of the Services, the following clauses shall apply:
8.3.1 Customer may not: (1) copy (save for making a back up copy), adapt, license, sell, assign, sublicense, or otherwise transfer or encumber the Software; (2) use the Software in a managed services arrangement; or (3) use the Software in excess of the authorized number of licensed seats for concurrent users, sites, or other criteria specified in the applicable Service Documents.
8.3.2 Customer is prohibited from (1) attempting to use or gain unauthorized access to Dell or to any third party's networks or equipment; (2) attempting to probe, scan, or test the vulnerability of Software or a system, account, or network of Dell or any of its customers or suppliers; (3) interfering or attempting to interfere with service to any user, host, or network; (4) transmitting unsolicited bulk or commercial messages; (5) restricting, inhibiting, or otherwise interfering with the ability of any other person, regardless of intent, purpose, or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (6) restricting, inhibiting, interfering with, or otherwise disrupting or causing a performance degradation to any Dell (or Dell's suppliers') facilities used to deliver the Services.
8.3.3 Customer grants Dell, or an agent designated by Dell, the right to perform an audit of its use of the Software during normal business hours. Customer agrees to cooperate with Dell in such audit and to provide reasonable access to all records related to the use of the Software. The audit will be limited to verification of Customer's compliance with the terms of usage relating to such Software under this Agreement.
8.4 Part of the Software and Materials may contain or consist of open source materials and the applicable licence terms for such open source materials shall apply together with clause 8.5 below instead of remainder of these Terms.
8.5 Subject to clause 11.1, any open source materials used by dell in connection with this agreement are provided "as is" without any warranty, express, implied, or otherwise, including, without limitation, implied warranties as to satisfactory quality, merchantability or fitness for a particular purpose, or any warranty regarding title or non-infringement. To the extent permitted by law, dell, the copyright holders, or the contributors to open source materials shall not be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, without limitation, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused, whether in contract, strict liability, or tort (including negligence) or otherwise arising in any way out of the use of the open source materials in connection with the agreement.
9.1 Subject to clause 9.3, Dell warrants that Dell-branded Products shall (1) conform to their product specification and (2) be free from material defects for the period set out in the relevant Product specification and in the absence of any such period in that specification, for a period of 12 months from the date of the invoice ("Warranty Period") and (3) that Dell-branded spare parts shall be free from defects for 90 days from the date of delivery or for the remainder of the Warranty Period, if longer.
9.2 All warranties, conditions and other terms implied by law are to the fullest extent permitted by law, excluded from this Agreement.
9.3 Dell shall at its own discretion, repair or replace Dell-branded Products that do not comply with the warranties set out in clause 9.1 provided Dell is notified in writing of the alleged defect within 7 days of the time when Customer discovers or ought to have discovered the defect and in any event within the Warranty Period. If Dell elects to replace Dell-branded Products or parts pursuant to the warranties set out in clause 9.1, Dell shall deliver the replacement Products or parts to Customer at Dell's own expense at the address to which the defective Dell-branded Products were delivered and the legal, equitable and beneficial title to the defective Products or parts which are being replaced shall (if it has vested in Customer) re vest in Dell. Customer shall make any arrangements as may be reasonably necessary to deliver up to Dell the defective Products which are being replaced and Dell shall be entitled to charge Customer if such defective Product or parts are not returned on request.
9.4 Dell warrants that (1) the Services and Deliverables shall conform to the Service Documents and (2) the Services shall be performed with reasonable skill and care during the applicable service period.
9.5 Dell warrants that for a period of 90 days from the date of delivery Dell-branded Software will be capable of functioning in all material respects in accordance with the relevant specifications provided (1) Customer notifies Dell of any error or defects in the Software within 14 days of the time when Customer discovers or ought to have discovered the error or defect and (2) Customer provides Dell with documented examples of such error or defect. Dell provides no assurance or warranty that the Software will be free from minor errors. Dell's sole responsibility in respect of the warranty given in this clause 9.5 and Customer's sole remedy shall be the correction of any failure of the Dell-branded Software so that it functions in material respects in accordance with the relevant specifications.
9.6 Dell shall not be liable under the warranties given in this clause 9 in respect of:
9.6.1 any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow Dell's instructions (whether oral or in writing), misuse or alteration, modification, adjustment or repair of the Products and/or Software without Dell's approval;
9.6.2 if the total Price for the Products and/or Software has not been paid by the due date for payment;
9.6.3 for any Products, Software, Deliverables parts, materials or equipment not manufactured or produced by Dell, in respect of which Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer or supplier to Dell to the extent that they are assignable by Dell to Customer;
9.6.4 any Software, Deliverables and Products manufactured, produced or provided by Dell pursuant to the Agreement in accordance with any design, specification, instruction or recommendation made to Dell by Customer;
9.6.5 any type of defect, damage or wear specifically excluded by Dell by notice in writing; and/or
9.6.6 if Customer makes any further use of the Products and/or Software after giving notice pursuant to clause 9.3.
9.7 Dell does not warrant that the Products, Software, Deliverables or Services will function (1) with any specific configuration not provided by Dell or (2) to produce a specific result even if the configuration or result has been discussed with Dell.
Acceptance and Returns.
The Customer will immediately examine the Products after the delivery or within the term decided with Dell, if there is any, for its inspection or rejection. Once this term has expired, it is deemed that Customer has accepted the Product. If Customer considers it has the right to return a Product, Customer will have to contact Dell and obtain an authorization number for the Return. The Customer will return the Product in its original conditions, with its packaging, note of return and invoice. All return costs will be responsibility of the Customer.
11.1 Neither party excludes or limits liability to the other party for (1) death or personal injury resulting from negligence, (2) fraud or (3) fraudulent misrepresentation or (4) any other liability that cannot be excluded by law.
11.2 Neither party shall be liable for:
11.2.1 special, indirect or consequential loss or damages;
11.2.2 business interruption;
11.2.3 loss of profit, income or revenue;
11.2.4 loss of use of Customer's system(s) or networks;
11.2.5 loss of management time;
11.2.6 loss of anticipated savings;
11.2.7 loss of goodwill or reputation;
11.2.8 loss of, corruption of or damage to data or software; or
11.2.9 recovery of data or programs
11.3 Dell's total liability arising out of, or in connection with, any event or series of connected events occurring in connection with the Services and Products that are the subject of the claim, shall not exceed the amount of fees paid under this agreement for the specific service or Product during the prior year, unless such liability arises out of or in connection with Dell's own willful and wrongful misconduct.
11.4 Some warranties or service-contracts for Third-Party Products may become void if Dell or anyone other than an authorized service provider provides services for or works on such hardware or software (such as providing maintenance or repair services for the Third-Party Products). DELL DOES NOT TAKE RESPONSIBILITY FOR ANY EFFECT THAT THE DELL SERVICES MAY HAVE ON THOSE WARRANTIES OR SERVICE CONTRACTS.
High Risk Activities
Customer acknowledges that the Products, Software, Deliverables and Services are not designed or intended for use 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 application in which the failure of the Products, Software, Deliverables or Services could lead directly to death, personal injury, or severe physical or property damage ("High Risk Activities "). Dell expressly disclaims any express or implied warranty of fitness for High Risk Activities.
Each party must treat all Confidential Information received from the other party as it would treat its own confidential information generally, but with no less than a reasonable degree of care.
14.1 Dell shall defend and indemnify Customer against any third-party claim or action that Dell-branded Products, Software, Deliverables or Services (excluding open source software) prepared or produced by Dell and delivered pursuant to this Agreement infringe or misappropriate that third party's Intellectual Property Rights enforceable in the country in which Dell delivers and the Customer is authorized to receive such Products, Software, or Services ("IPR Claim "). If Dell receives prompt notice of an IPR claim that, in Dell's reasonable opinion, is likely to result in an adverse ruling, then Dell shall at its option, (1) obtain a right for Customer to continue using such Products, Deliverables or Software or allow Dell to continue performing the Services; (2) modify such Products, Deliverables, Software, or Services to make them non-infringing; (3) replace such Products, Deliverables, Software, or Services with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverable or Software.
14.2 Notwithstanding clause 13.1, Dell shall have no obligation under clause 13.1 for any IPR Claim arising from (1) modifications of the Products, Deliverables, Software, or Services that were not performed by or on behalf of Dell; (2) the combination, operation, or use of the Products, Deliverables, Software, or Services in connection with a third party product, software, or service (the combination of which causes the claimed infringement); or (3) Dell's compliance with Customer's written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by Customer. This clause sets out Customer's sole and exclusive remedies for any IPR Claim.
14.3 Customer shall defend and indemnify Dell against any third party claim or action arising out of (1) Customer's failure to obtain any appropriate licence, Intellectual Property Rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by Customer, or (2) associated with software or other components directed or requested by Customer to be installed or integrated as part of the Products, Deliverables, Software or Services; (3) Customer's breach of Dell's proprietary rights as stated in this Agreement; or (4) any inaccurate representation regarding the existence of an export licence; or (5) any allegation made against Dell due to Customer's breach or alleged breach of applicable export laws, regulations, or orders.
15.1 Either party may (without prejudice to any other rights or remedies it may have against the other party) terminate this Agreement immediately if the other party:
15.1.1 commits a material breach of the Agreement and fails to remedy such breach within 30 days of written notice; or
15.1.2 ceases, or threatens to cease, to carry on business or, becomes insolvent.
15.2 Dell may terminate this Agreement with immediate written notice if Customer:
15.2.1 fails to pay undisputed sums properly due to Dell in accordance with the Agreement;
15.2.2 Customer breaches or Dell reasonably suspects Customer has breached export control laws;
15.2.3 Customer breaches any IPR obligations, warranties and indemnities set out in the Agreement.
15.3 On termination of this Agreement, all rights and obligations of the parties relating to such order under the Agreement will automatically terminate except for rights of action accruing prior to its termination.
15.4 The following clauses shall survive termination of the Agreement and continue to bind the parties, their successors and assigns: 1 (Introduction); 2 (Definitions); 3 (Products); 6 (Services, Software & Deliverables); 7 (Services); 8.5 (Open Source Software); 9 (Warranties); 11 (Liability); 12 (High Risk Disclaimer); 13 (Confidentiality); 14 (Indemnities); 15 (Termination); 16 (Force Majeure); 17 (Export Compliance); 18 (Data Privacy); 19 (General).
Force Majeure Event
Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by any circumstances beyond a party's reasonable control including, without limitation, fire, flood, war, embargo, strike, riot, or the intervention of any governmental authority ("Force Majeure Event ") provided that the delayed party shall provide the other party with prompt written notice of the Force Majeure Event. The delayed party's time for performance shall be excused for the duration of the Force Majeure Event, but if the Force Majeure Event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement by giving written notice to the delayed party.
17.1 Customer acknowledges that the Products, Deliverables, Software, and Services provided under this Agreement, (which may include technology and encryption), (1) are subject to U.S. customs and export control laws, (2) may be rendered or performed in countries outside the U.S., or outside of the borders of the country in which Customer or Customer's Products are located, and (3) may also be subject to the customs and export laws and regulations of the country in which the Products, Deliverables, Software, or Services are rendered or received. Under these laws and regulations, Products, Deliverables, Software, and Services purchased under this Agreement may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries. In addition, the Products, Deliverables, Software and Services may not be sold, leased or otherwise transferred to, or utilized by, an end-user engaged in activities related to weapons of mass destruction, including but not necessarily limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons. Customer agrees to abide by those laws and regulations.
17.2 Customer represents that any software provided by it and used as part of the Products, Deliverables, Software, or Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. If Customer cannot make the preceding representation, Customer agrees to provide Dell with all of the information needed for Dell to obtain export licenses from the U.S. government or any other applicable national government and to provide Dell with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, Customer is solely responsible for obtaining any necessary licenses relating to the export of software. Dell also may require export certifications from Customer for Software.
17.3 Dell's acceptance of any order for Products, Deliverables, Software, or Services is contingent on the issuance of any applicable export license required by the U.S. Government or any other applicable national government. Dell shall not be liable for delays or failure to deliver Products, Deliverables, Software, or Services resulting from Customer's failure to obtain such license or to provide such certification.
17.4 Customer agrees to indemnify, defend and hold Dell harmless from any third party claims, demands, or causes of action against Customer's breach or alleged breach of the applicable export laws
and then select Country Specific Privacy.
18.2 As data controller, Customer confirms that it has obtained all necessary authorizations for lawful processing, prior to passing personal data to Dell. To the extent Dell processes personal data as a data processor for Customer under or in connection with this Agreement, Dell shall ensure appropriate protection is in place to safeguard such personal data.
18.3 Dell shall use its reasonable efforts to assist Customer to comply with its obligations, as data controller, to respond to requests for access to Customer records made by individuals to whom the personal data relates, subject to the payment by Customer of Dell's reasonable professional charges for the time engaged by Dell staff in so doing.
18.4 Customer authorizes Dell to collect, use, store and transfer the personal data Customer provides to Dell for the purpose of performing Dell's obligations under this Agreement and for any additional purposes described, pursuant to the Agreement. Dell may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, Dell shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with this Agreement. Dell shall not be liable for any claim brought by Customer or a data subject arising from any action or omission by Dell to the extent that such action or omission resulted from compliance by Dell with Customer's instructions.
19.1 Notices given under the Agreement must be in writing and shall be effective when delivered to the other party's legal officer at the address stated on Dell's invoice.
19.2 Neither party may assign or transfer this Agreement without the prior written consent of the other party except that (1) no consent is required by Dell to assign to its affiliated companies and (2) Dell may subcontract its obligations under the Agreement but shall remain liable and responsible to Customer for such obligations.
19.3 This Agreement constitutes the entire agreement between the parties and each party acknowledges that in entering into this Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in the Agreement shall limit or exclude any liability for fraud or fraudulent misrepresentation.
19.4 Any changes to this Agreement or to any order placed pursuant to it shall not be valid or binding unless it is in writing and agreed by parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be struck out or modified to the extent necessary to comply with the law, and the remainder of this Agreement shall remain in full force and effect.
19.5 Dell reserves the right to update this Agreement at any time, effective upon posting an updated version at www.Dell.com/Terms; however, your rights and obligations shall be as provided in the version of this Agreement executed by you or available to you at the time of your purchase of Products, Software, or Services or, when applicable, renewal of Software or Services.
19.6 A waiver by either party of a breach of the Agreement or delay or failure to enforce a right under the Agreement shall not constitute a waiver of any subsequent breach of the Agreement.
19.7 The Agreement and any non contractual obligations shall be interpreted according to Texas law and the Texas courts shall have exclusive jurisdiction.
19.8 If any provision of this Agreement is found to be void or unenforceable the remainder of this Agreement will remain in full force and will not be terminated.
General Terms and Conditions of Sale for Consumers and End-Users
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"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 Puerto Rico Corp., or any of its affiliates which name appears on the invoice, domiciled at the address indicated on the invoice and, where relevant, the Service Provider.
"Order Confirmation" means the document used by Dell upon acceptance of an order.
"Price" means the price indicated on the Order Confirmation.
"Product" means the good or service described on the Order Confirmation, which may include Third Party Products and Service Offerings.
"Service Offerings" means the detailed description of services as described on 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 on 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 General Terms and Conditions of Sale shall apply to each and every sale of Products made by Dell in or for the territory of Puerto Rico that are in any way described, mentioned, promoted or listed in Dell's brochures, advertisements, price lists, announcements, estimates, on the Internet or verbally. Any other terms and conditions intended to supersede these General Terms and Conditions shall not be valid. By placing an order, the Customer expressly accepts these General Terms and Conditions of Sale.
- Order. Orders shall be accepted in writing, by electronic mail, telephone or fax, and shall only 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 immediately report any error to Dell in writing; otherwise, the Product description appearing on the Order Confirmation shall become part of this contract and shall be binding upon the parties.
- Price and Payment Terms. Estimates and/or offers shall only be valid if made in writing and for the period specified therein. If such period is not stated, the period shall be 30 days. Dell reserves the right to provide a Product other than those requested (including a Third Party Product) at any time, but warrants that the purpose for which it was designed and its operation shall be equal to the purpose and function of the Product requested. In these cases, the price included in the estimate shall remain valid. The Product's price and the terms and conditions of payment shall be included on the Order Confirmation. The Price does not include tax, shipping expenses, insurance and installation, unless explicitly stated otherwise. Payment shall be made upon placing an order and shall be received by Dell prior to issuing the Order Confirmation, except otherwise provided on the Order Confirmation. In the event of a delay in the payment (default), the expenses arising from the recovery, collection and restitution of the Products shall be charged, and a legal default interest on the amount due for each delayed day shall be applied pursuant to the provisions in force in Puerto Rico as from the due date until the date of the total effective payment. Dell reserves the right to request prior approval of credit or debit cards and/or bank certification of checks given as payment before initiating the production procedure and Product delivery.
- Delivery/Title/Risk. Delivery shall be made within the time period indicated on the Order Confirmation. Deliveries may be made in installments. The delivery place shall be the one stipulated on the Confirmation Order. The Customer is not allowed to sell or place a lien on the Product until the Price is fully paid. The Customer shall be liable for any damages arising from the unjustified rejection of delivery and failure to make partial or full payment. Any loss or damage caused during the shipment of the Product shall be borne by Dell in the event Dell had chosen the carrier; otherwise, the Customer shall bear the costs arising from such loss or damage.
- Acceptance and Return. The Customer shall 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. In the event of damaged or incorrect Products, the Customer is entitled to return the Product, to which end the Customer shall first contact Dell and obtain the relevant authorization number for returning or replacing the Product. The Customer shall 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.
- Warranties. Warranties are included in the policy Dell provides with the Product(s), which in turn, may be found in the document titled "Information on Warranty and Technical Support" referred to in article 8 herein, and shall be governed by the provisions set forth in this document, except for the following: Dell warrants that the Product is free of defects for the period indicated in the documentation Dell provides with the Product(s). In the cases of spare parts or pieces, the warranty term shall be the one specified in the warranty policy and shall not exceed in any case the term of 6 months as from the Product installation. If, during this warranty period, the Customer informs Dell that the Product is defective, Dell shall repair or replace the Product with a product of the same model or with a product equivalent in terms of aspect and operation, within a reasonable time. After the expiration of the legal warranty term provided by the laws in Puerto Rico, 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 shall 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 shall neither warrant nor be liable for:
All Products are provided on an "as-is" basis. Dell's warranty is provided in lieu of all implied warranties which are excluded to the extent permitted by law.
- Any damage caused by incorrect installation, use, modification or repair by any unauthorized third party or by the Customer;
- Any damage caused by any external party or event;
- The suitability of the Product for any particular purpose or specific use;
- Third Party Products and Software 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; and
- 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 on the Order Confirmation.
- Services and Support. Where applicable, Service shall be provided by Dell or a Service Provider and may vary depending on the Product. Response times are estimated 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 on the Order Confirmation, the Service Offering may include advice, installation, removal and/or consulting. Unless expressly stated on the Order Confirmation or unless the Customer acquires services supplementary to the 12-month basic warranty mentioned in the document titled "Information on Warranty and Technical Support" (hereinafter, "Basic Warranty"), which the Customer may find by visiting www.dell.com.pr/servicios, the Basic Warranty service shall not include: items not covered by the warranty; changes in the configuration; 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, among others. Third Party Products shall be repaired according to their manufacturer's or licensor's warranty. The Customer shall be responsible for making "back up" copies of the information, software and programs contained in the Product before Dell starts providing services or support, even in the event of telephone support. Neither Dell nor the Service Provider shall copy or administer any illegally obtained materials or materials prohibited by the laws in force or materials regarding which the Customer is not licensed to use.
- Limitation of Liability. Dell's liability for any 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. Under no circumstances shall any compensation to be borne by Dell include any amount due for loss of profit, revenue or savings, or any incidental, indirect, special, punitive or consequential damages, including those related to Third Parties when a prior notice thereof may have been made nor shall Dell be responsible therefor. Neither party shall file any claim or cause of action, or submit a request for arbitration or mediation, in relation to an event or events which had occurred more than one year as from the date the complaint is filed or the arbitration or mediation is requested. Dell shall not assume responsibility for: 1) any indirect or incidental damage; 2) loss of business, salary, revenue or savings; 3) any damage remedied by Dell within a reasonable period; 4) losses that may 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 for 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 exchange or modify the Product or refund the Price paid. The Customer shall indemnify Dell for any liability arising from the intellectual or industrial property rights owned by the Customer and/or integrated into the Product. Dell reserves the right to initiate legal actions and to settle or resolve disputes, at its discretion, in the event of a third-party claim based on intellectual-property rights. Dell reserves all intellectual and industrial property rights to the Product where applicable. The Customer shall immediately notify Dell of all cases of infringement or unauthorized use of the Product or of its intellectual or industrial property.
- Third Party Products and Software. All Third Party Products and Software not belonging to Dell are supplied under license and warranty of the licensor/manufacturer. Dell shall include the Software license that the Customer requests with the Product when necessary. The Customer is bound by the terms of that license. The Software which is included in the Product or distributed for such Product, where there is no license agreement between the Customer and the Software's manufacturer or owner, shall be governed by Dell's software license agreement included in the Basic Warranty document referred to in article 8 by which the Customer agrees to be bound.
- Export Control. The Product may include technology and Software subject to the export control laws and regulations of the United States and may also be subject to the export laws and regulations of the country in which the products are manufactured and/or received, by which the Customer agrees to be bound. The Product shall not be sold, leased or otherwise transferred to restricted countries or end-users or to end-users engaged in activities related to weapons of mass destruction, the use of nuclear, chemical or biological weapons, or genocide-related activities. Restrictions in the U.S. often vary depending on the Product. Therefore, the Customer shall refer to current regulations in the U.S.
- Act of God or Force Majeure. Dell shall assume no liability for delays (including delivery or services) caused by circumstances beyond its reasonable control, including without limitation, strikes; problems with transport, supply or production; fluctuations in exchange rates; sovereign acts; and natural disasters. In such event, Dell shall have the right to an extension to complete its performance. Should the cause originating the delay last more than two months, this contract may be terminated by either party, without the right to compensation.
- Confidentiality. The parties shall handle any information sent by the other party which is considered as "confidential" or which may reasonably be deemed confidential in the same fashion the parties handle their own confidential information.
- Termination. Dell may cancel the purchase order upon sending a prior written notice if 1) the Price is not paid on the due date, to which end the parties hereby expressly agree that failure to pay, either in whole or in part, shall result in the termination of the agreement by operation of law; 2) The Customer fails to comply with any of the obligations undertaken herein; or 3) The Customer fails to abide by the regulations on export control. Dell is entitled to demand the fulfillment of your obligation related to the payment of the price and to file for damages.
- Obligations of Customer. The Customer shall be responsible for:
The Customer shall provide sufficient information, cooperation, assistance and access to allow Dell to meet its obligations under the contract; otherwise, Dell shall be released from its obligations. The Customer shall be responsible for making backup copies, maintaining confidentiality of data contained in the Product, 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;
- the relevant 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. In the event the Customer is a Consumer, no provision contained herein shall in any way affect the public-policy regulations governing consumer rights.
- Jurisdiction. This document shall be governed by the laws of Texas, United States of America, and no dispute resolution law shall apply hereto. Any controversy shall be submitted before a Court of First Instance in and for the city of San Juan, Commonwealth of Puerto Rico, unless Dell had specified otherwise in writing. Both Dell and the Customer expressly waive their right to submit controversies before any other venue that may correspond on account of the parties' current or future address.
- Miscellaneous. In the event any provision herein shall be rendered invalid or unenforceable by a competent Court, the remainder shall not be affected. Dell is entitled to subcontract any of its obligations to third parties without the Customer's approval. The Customer shall not assign any right or obligation to any third party without the prior and written consent by Dell. Dell is entitled to assign any right or obligation to any branch office, headquarter, or third party on account of any business reason. Notices shall be made in writing (either by hand, e-mail, fax or certified mail) and sent to the other party's legal representative.
- Information. The Customer may find updates and information regarding Dell and its policies at www.dell.com.pr.
- Dell may amend these General Terms and Conditions of Sale at any time and without the need of any prior notice. Upon publication by Dell of the new version of said General Terms and Conditions of Sale at www.dell.com.pr such Terms and Conditions shall be valid and applicable to all transactions carried out following said amendment.
Contact information: Customer Service: 1-877-537-3355 - Technical Support: 1-866-390-4695
Note: Products and/or software that commercial customers (including small, medium and large businesses, government and public sector customers) may purchase from Dell for reselling purposes and which are not intended for their own use, or for family or social group, shall be governed by the Commercial Terms and Conditions of Sale described at www.Dell.com/Terms