dell end user license agreement for ......the future; and (iii) applications, extensions and...

Dell MS O365 Terms and Conditions June 26, 2012

DELL END USER LICENSE AGREEMENT FOR MICROSOFT OFFICE 365

1. General

1.1 THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY)

(“You/Your/End User”) AND DELL PRODUCTS L.P., A TEXAS LIMITED PARTNERSHIP, OR DELL GLOBAL B.V. (SINGAPORE BRANCH), ON BEHALF OF DELL INC. AND ITS WORLDWIDE SUBSIDIARIES AND AFFILIATES (COLLECTIVELY, "Dell/DELL/We/Our”), WHICH GOVERNS YOUR USE OF THE LICENSED SOFTWARE AND THE ONLINE SERVICES. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY, INCLUDING, WITHOUT LIMITATION, ANY SUPPLEMENTAL TERMS AND CONDITIONS APPEARING OR REFERENCED BELOW, WHICH ARE HEREBY MADE PART OF THIS END USER LICENSE AGREEMENT (COLLECTIVELY, “AGREEMENT”), BEFORE DOWNLOADING, INSTALLING, ACTIVATING AND/OR OTHERWISE USING THE LICENSED SOFTWARE OR ONLINE SERVICES. BY EXPRESSLY ACCEPTING THESE TERMS OR DOWNLOADING, INSTALLING, ACTIVATING AND/OR OTHERWISE USING THE LICENSED SOFTWARE OR ONLINE SERVICES, YOU ARE AGREEING THAT YOU HAVE READ, AND THAT YOU AGREE TO COMPLY WITH AND TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL APPLICABLE LAWS AND REGULATIONS IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MAY NOT DOWNLOAD, INSTALL, ACTIVATE OR OTHERWISE USE ANY OF THE LICENSED SOFTWARE OR ONLINE SERVICES.

1.2 IF YOU ARE AN INDIVIDUAL REPRESENTING AN ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF SUCH ENTITY.

1.3 YOU AGREE THAT WHILE THE PROVISIONS OF THIS AGREEMENT CREATE ENFORCEABLE LEGAL RIGHTS AND OBLIGATIONS BETWEEN YOU AND DELL, SUCH RIGHTS SHALL BE ENFORCEABLE BY MICROSOFT AND MICROSOFT AFFILIATES. MICROSOFT AND MICROSOFT AFFILIATES SHALL BE THIRD PARTY BENEFICIARIES OF ALL OF THE TERMS OF THIS AGREEMENT AND SHALL HAVE THE RIGHT TO ENFORCE THE TERMS OF THIS AGREEMENT AS IF THEY WERE A DIRECT PARTY TO THIS AGREEMENT.

2.0 Definitions In this Agreement the following definitions shall apply: Affiliate means any legal entity that owns, is owned by, or that is under common ownership with Company or Microsoft. Ownership means control of more than a 50% interest. Agreement means these terms and conditions, Subscription Terms and any Dell policies referred to in these terms and conditions and which shall be deemed to be included in this Agreement by reference. You/Your/End User shall have the meaning set forth in Section 1.1 of this Agreement. You/Your/End User Data means all information and data inputted and/or stored by You on the Online Service; Your Documentation means any manuals, instructions, guides or other analogous documents regardless of format provided or made available to You by either Dell or Microsoft from time to time regarding the services described in this Agreement; Hardware means any hardware, tools, equipment and other tangible property (including laptop and desktop computers, mobile telephony, personal digital assistance devices and data network components) and physical IT infrastructure owned or leased by You and used in connection with services described in this Agreement;


IPR means all (i) patents, designs, trademarks and trade names (whether registered or unregistered), copyright and related rights, moral rights, database rights, know-how and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and (iii) applications, extensions and renewals related to any such rights. Microsoft means Microsoft Corporation, One Microsoft Way, Redmond, WA 98052. Online Service shall mean the provision by Dell of any of the products described in Section 3 to You and also includes any associated services; Subscription Terms means the schedule of charges detailing the cost of the provision of the services described in this Agreement to You; Subscription Terms and Conditions means any terms and conditions described in the Subscription Terms; Reseller Agreement means the Agreement between Dell and Microsoft; Service means the provision of the Product and ongoing customer service provided to You for the duration of the subscription period. Subscription Charges means the charges payable by You for access to and use of the Online Service as set forth in the Subscription Terms; Subscription Period means the period during which Dell shall provide the Online Services and during which You are permitted to access and use the Online Service. 3.0 Software License Terms 3.1 General. These license terms are an Agreement between Dell and You. This License grant is subject to Your obligation to pay and Your compliance with this Agreement and any additional product use terms associated with this Agreement. A License is non-exclusive, non-perpetual (unless specifically allowed), and is not transferable (unless specifically allowed). The ability to use Licensed Software may be affected by minimum system requirements or other factors. Dell reserves all rights not expressly granted (and no other rights will arise by implication, estoppel, exhaustion or otherwise). 3.2 Dell grants You licenses for the number of copies of each Licensed Software that You ordered from Dell and the right to use a prior (older) version in place of a Licensed Software if specified in the product use terms.

a. Perpetual Licenses. Unless You obtain perpetual licenses under an available buy-out option from Dell, Licensed Software obtained under this Agreement lasts only for the term of this Agreement. Any references in the product use terms to running Licensed Software on a perpetual basis apply only if You obtain perpetual licenses under an applicable buy-out option. b. License Confirmation. All of the following, when taken together, are proof of Your license (or if the buy-out option is available and You have exercised it, Your perpetual license): (a) this Agreement, (b) the order confirmation, if any, (c) for any transfers allowed by this Agreement, the documentation evidencing the license transfers, and (d) proof of payment. c. License rights are not related to fulfillment of software media. The rights applicable to Licensed Software obtained under this Agreement are not related to any order of fulfillment of software media. d. Transferring licenses to Affiliates or third parties. (i). Right to transfer. You may transfer licenses for Licensed Software under this Agreement only after You exercise an available buy-out option. You may transfer fully-paid perpetual licenses only to (1) an Affiliate; or (ii) to an unaffiliated third party in connection with a merger or transfer of ownership of Your enterprise. No license transfer will be valid


unless You provide this Agreement to the party who is receiving the licenses and that party accepts it in writing. Any attempted transfer not made in compliance with this section will be void. A transfer of licenses will not relieve the assigning party of its obligations under this Agreement. The resale of licenses, and any other transfer not expressly permitted by this section, is expressly prohibited.

3.3 Certain transfers not permitted. You may not transfer any of the following: (a) licenses on a short-term basis (90 days or less); (b) temporary rights to use Licensed Software; (c) Microsoft Software Assurance coverage, if any; (d) perpetual licenses for any version of any Licensed Software acquired through Microsoft Software Assurance Separately from the full version license; or (e) a perpetual upgrade license for a desktop operating system license or from the computer system on which the Licensed Software is installed and to which the license is assigned. 3.4 Limitations on use. Licensed Software is licensed to You, not sold. You have no right to:

i. Reverse engineer, decompile, or disassemble any Licensed Software, except where applicable law permits it despite this limitation;

ii. Rent, lease, lend, resell, or host to or for third parties nay Licensed Software, except as may be expressly permitted for a given Licensed Software in the product use terms;

iii. Separate and use the components of Licensed Software on two or more computers, upgrade or downgrade components at different times, or transfer components separately, except as may be expressly permitted in the product use terms; or

iv. Modify or create derivative works of the Licensed Software; v. Cause any part of the Products, or any software or other materials provided by Microsoft, to

become subject to the terms of an Excluded License.

4.0 General Terms You may access and use the online service as described below. These license terms apply to Your use of all Microsoft software and Online Services licensed to You under this Agreement.

a. End User Rights. If You comply with this Agreement, You may use the software and Online Services

only as expressly permitted by this Agreement.

b. Third Party Programs. If other terms come with a program licensed by a third party, those terms apply to the End User’s use of it.

c. Pre-Release Code. If other terms come with pre-release code, those terms apply to Your use of it.

d. Updates and Supplements. Dell may update or supplement the software which You license. If so,

You may use that update or supplement with the software. If other terms come an update or supplement, those terms apply to Your use of it.

e. Technical Limitations. You must comply with any technical limitations in the products that only allow

You to use them in certain ways. You may not work around them. For more information, see http://www.microsoftvolumelicensing.com/userights/TechLimit.aspx

f. Other Rights. Rights to access the software on any device do not give You any right to implement

Microsoft patents or other Microsoft IPR in software or devices that access that device.

g. Additional Functionality. Dell may provide additional functionality for the products. Other license terms and fees may apply.

http://www.microsoftvolumelicensing.com/userights/TechLimit.aspx


h. Data Transfer Notices - Internet Based Services. Microsoft may provide Internet based services with the products. It may change or cancel the services at any time. You may not use these Internet based services in any way that could harm them or impair anyone else’s use of them. You may not use the services to try to gain unauthorized access to any service, data, account or network by any means.

1. Consent for Data Transfer through Internet Based Services. The Internet Based Services Notices document at http://microsoft.com/licensing/contracts identifies software features that connect to Microsoft or service provider computer systems over the Internet. It also identifies the products in which they are found. Some features appear in more than one product. In some cases, You will not receive a separate notice when one of these features connects. You may switch off these features or not use them. By using these features, You consent to the transmission of this information. Microsoft does not use the information to identify or contact You.

2. Computer Information. The features use Internet protocols, which send the appropriate systems computer information, such as Your Internet protocol address, the type of operating system, browser and name and version of the software You are using, and the language code of the device where You installed the software. Microsoft uses this information only to make the Internet based services available to You.

3. Use of Information. Microsoft may use the computer information, accelerator information,

search suggestions information, error reports, Malware reports and URL filtering reports to improve its software and services.

i. Misuse of Internet based Services. You may not use these services in any way that could harm them

or impair anyone else’s use of them. You may not use the services to try to gain unauthorized access to any service, data, account or network by any means.

j. Documentation. Any person that has valid access to Your computer or internal network may copy and use the documentation corresponding to Licensed software for Your inter reference purposes. Documentation does not include electronic books.

k. Product Activation. Some products require activation to install or access them. Activation associates

the use of the software with a specific device. For information about when activation or a key is required, see the Product Activation section on http://www.microsoft.com/licensing. You are responsible for both the use of keys assigned to You and activation of products using Your Key Management Service (KMS) machines. You should not disclose keys to third parties. 1. KMS and Multiple Activation Key (MAK) Activation. During Multiple Activation Key (MAK)

activation, the software will send information about the software and the device to Microsoft. During Key Management Service (KMS) host activation, the software will send information about the KMS host software and the host device to Microsoft. KMS client devices activated using KMS do not send information to Microsoft. However, they require periodic reactivation with Your KMS host. The information sent to Microsoft during MAK or KMS host activation includes:

• The version, language and product key of the software • the Internet protocol address of the device • information derived from the hardware configuration of the device. For more information, see http://www.microsoft.com/licensing/existing-customers/product-activation.aspx. By using the software, You consent to the transmission of this information.

http://microsoft.com/licensing/contracts

http://www.microsoft.com/licensing

http://www.microsoft.com/licensing/existing-customers/product-activation.aspx

http://www.microsoft.com/licensing/existing-customers/product-activation.aspx


Before You activate, You have the right to use the version of the software installed during the installation process. Your right to use the software after the time specified in the installation process is limited unless it is activated. This is to prevent its unlicensed use. You are not licensed to continue using the software after that time if You do not activate it. If the device is connected to the Internet, the software may automatically connect to Microsoft for activation. You can also activate the software manually by Internet or telephone. If You do so, Internet and telephone service charges may apply. Some changes to Your computer components or the software may require You to reactivate the software. The software will remind You to activate it until You do so.

2. Proper use of KMS. You may not provide unsecured access to Your KMS machines over an

uncontrolled network such as the Internet. 3. Unauthorized use of MAK or KMS Keys. Microsoft may take any of these actions related to

unauthorized use of MAK or KMS keys: • prevent further activations • deactivate • otherwise block the key from activation or validation

Key deactivation may require You to acquire a new key from Microsoft.

l. Font Components. While the software is running, You may use its fonts display and print content.

You may only: • embed fonts in content as permitted by the embedding restrictions in the fonts; and • temporarily download them to a printer or other output device to print content

m. Using Multiple Products or Functionality Together. A separate license is required for each product

and each separately licensed functionality used on a device or by a user. For example, You use Office Windows; You will need a license for both Office and Windows.

n. Multiplexing. Hardware or software You use to:

• pool connections • reroute information • reduce the number of devices or users that directly access or use the product, or • reduce the number of operating system environments, devices or users the product directly

managed

(sometimes referred to as “multiplexing” or “pooling”), does not reduce the number of licenses of any type that You require.

5.0 Online Services General License Terms.

a. User Subscription Licenses (User SLs) and Device Subscription Licenses (Device SL’s). • If an online service is listed in the table below, You must acquire and assign User SLs or Device

SLs to Your users and devices as described in the table. If both User and Device SLs are listed for the online service, You may acquire and assign either type to use the online service.

• A hardware partition or blade is considered to be a separate device.


Online Services That Require User or Device SLs Online Service User/Device SL Required for Each of Your . . . Exchange Online Basic

• Exchange Online Basic User SL Users who access the online service or related software

Exchange Online Kiosk

• Exchange Online Kiosk User SL, or • Office 365 Plan K1 User SL, or • Office 365 Plan K2 User SL

Users who access the online service or related software

Exchange Online Plan 1

• Exchange Online Plan 1 User SL, or • Exchange Online Plan 2 User SL, or • Office 365 Plan E1 User SL, or • Office 365 Plane E2 User SL, or • Office 365 Plan E3 User SL, or • Office 365 Plan E4 User SL

Users who access the online service or related software. Archiving may be used for messaging storage only.

Exchange Online Archiving

• Exchange Online Archiving User SL Users whose customer data is processed and stored by the online service or related software

Lync Online Plan 1 • Lync Online Plan 1 User SL, • Lync Online Plan 2, User SL, or • Office 365 Plan E1 User SL, or • Office 365 Plan E2 User Sl, or • Office 365 Plan E3 User SL, or • Office 365 Plan E4 User SL, or • Live Meeting Professional User SL,

or Live Meeting Standard User SL

Users who access the online service or related software

Lync Online Plan 2 • Lync Online Plan 2 User SL, or • Office 365 Plan E1User, or • Office 365 Plan E2 User SL, or • Office 365 Plan E3 User SL, or • Office 365 Plan E4 User SL, or • Live Meeting Professional User SL,

or • Live Meeting Standard User SL

Authenticated users who access the online service or related software. However, (i) Users licensed for Lync Online Plan 1; (ii) Users licensed for Lync Server Standard CAL; (iii)Users licensed for Lync Server Enterprise CAL do not need USLs to access the online service for purposes other than scheduling or conducting a web conference.

Lync Online Plan 3 • Lync Online Plan 3 User SL; or • Office 365 Plan E4 User SL

Authenticated users who access the online service or related software. However, (i) users licensed for Lync Online Plan 1; (ii) users licensed for Lync Server Standard CAL; (iii) Users licensed for Lync Server Enterprise CAL Do not need the required SLs to access the online service for purposes other than (i) scheduling or conducting a web conference, or (ii) initiating a voice call through the public switched telephone network (PSTN),

Office 365 Plan P1 • Office 365 Plan P1 User SL Authenticated Users who access the online service or related software A maximum of 50 authenticated external


users per month may access the SharePoint functionality through the online service. You do not need Office 365 Plan P1 User SLs for these users.

Lync-to-Voice Add-on for Office 365 Plan P1

• Lync-to-voice Add-on for P1 User SL Authenticated Users who access the online service or related software;

Office Web Applications

• Office Web Applications User SL, or • Office 365 Plan K2 User SL, or • Office 365 Plan E2 User SL, or • Office 365 Plan E3 User SL, or • Office 365 Plan E4 User SL

Users who access the online service or related software.

SharePoint Online Kiosk

• Office 365 Plan K1 User SL or • Office 365 Plan K2 User SL

Authenticated Users who access the online service or related software for “read only” access to view site content and “edit privileges” for browser-based or InfoPath forms, and Office 365 Plan K2 Users who access the online service to create and edit Office documents. No other access and use of the service is permitted.

SharePoint Online Plan 1

• SharePoint Online Plan 1 user SL, or • Online Plan2 User SL, or • Office 365 Plan E1 User Sl, or • Office 365 Plan E2 User SL, or • Office 365 Plan E3 User SL, or • Office 365 Plan E4 User SL

Authenticated Users who access the online service or related software. However, You may not access InfoPath, excel, Access, Visio services.

SharePoint Online Plan 2

• SharePoint Online Plan 2 User SL, or • Office 365 Plan E3 User SL, or • Office 365 Plan E4 User SL.

Authenticated Users who access the online service or related software.

1. Existing or renewing Lync Online Plan 2 customers who had active Business Productivity Only Suite active

User SLs on June 27, 2011 may continue to access and use the Live Meeting service under the license term sin the April 2011 Online Services Use Righters after they have migrated from the Business Productivity Online Suite to Office 365 Plan E1 and until April 1, 2013 or the expiration of their corresponding Office 365 Plan E1 User SLs (whichever is earlier). Customers whose User SL terms extend beyond April 1, 2013 may access only the Office 365 service components after that date. Customers with new Office 365 Plan E1 User SLs that commenced after June 27, 2011 may not access Live Meeting.

2. “External users” means users that are not either (i) You or Your affiliates’ onsite contractors or agents. 3. Feature Preview for External Users. A Feature Preview is available for authenticated external User Access.

Under the Preview, You may invite authenticated eternal users to access externally facing SharePoint sites via the Share-By-Mail feature of SharePoint Online without acquiring and assigning User SLs for those users. The Preview ends with the next major update of the service at which time Microsoft may choose to make the same access available under a separate subscription license. Use of the online service and the related software under the Preview is subject to the terms and conditions of Your volume licensing Agreement and these Online Services use rights.

• Reassignment of User and Device SLs. You may: • Permanently reassign a User SL from one user to another or Your Device SL from one device to

another; or


• Temporarily reassign a User SL to a temporary worker while the first user is absent or Your Device SL to a loaner device while the first device is out of service. However, temporary reassignments to enable rotating or similar shift work are not permitted.

b. Add-on Subscription Licenses (Add-on SLs). Add-on SLs are available as optional licenses or required licenses depending on the online service. For Online Services listed in the table below:

• You may acquire optional Add-on SLs and use that online service as described in the table, and, • You must acquire required Add-on SLs to use that online service as described in the table.

Online Services That Offer Add-on SLs Online Service Add-on SL When Required . . . SharePoint Online Plan 1 and 2 • SharePoint Online Extra

Storage Add-on SL For each one gigabyte of storage in excess of storage provided with User SL’s

c. Desktop Applications User Subscription Licenses (User SLs). If a desktop applications online service is listed in the table below, You may acquire and assign User SLs to Your users as described in the table.

Online Services That Requires User SLs Online Service User SL Permits the Following Office Professional Plus Subscription

• Office Professional Plus User SL, or

• Office 365 Plan E3 User SL, or • Office 365 Plan E4 User SL

Each user to whom You assign a User SL may install and use one copy of the software per device on up to 5 devices at a time.

• Reassignment of User SLs. You may: o Permanently reassign a User SL from one user to another; or o Temporarily reassign a User SL to a temporary worker while the first user is absent.

• Online Service and Software Upgrade. If We provide a major upgrade to software licensed under Your User SLs for the online service, You must install the upgrade on all devices using the online service to prevent an interruption of the online service.

• Required Connection. Each user to whom You assign a User SL must connect each device upon which they have installed the software to the Internet at least once every 45 days. If a user does not comply with this requirement, the functionality of the software may be affected.

• Remote Use. You may allow other users to remotely access the software to provide You with support services. No other remote access use is permitted.

• Subscription Validation. Microsoft may automatically check the version of any version of software installed by Your users on any device. Devices on which the software is installed may periodically provide information to verify that the software is properly licensed and that the Term has not expired. This information includes the software version, the user’s Windows Live ID, product ID information, a machine ID, and the internet protocol address of the device. If the software is not properly licensed, its functionality will be affected. You may only obtain updates or upgrades for the software from Microsoft or authorized sources. For more information on obtaining updates from authorized sources, see


www.microsoft.com/genuine/downloads/faq.aspx. By using the software, You consent to the transmission of the information described in this section.

• Media Elements and Templates. Media images, clip are, animations, sounds, music, video clips, templates and other forms of content are “media elements”. You may have access to media elements provided with the software or as part of a related service. You may copy and use those media elements in projects and documents. You may not

o Sell, license or distribute copies of the media elements by themselves or as a product if the primary value of the product is the media elements;

o Grant Your customers rights to further license or distribute the media elements; o License or distribute for commercial purposes media elements that include the

representation of identifiable individuals, governments, logos, trademarks or emblems or use these types of images in ways that could imply an endorsement or association with Your product, entity or activity; or

o Create obscene or scandalous works using the media elements. o For more information, go to www.microsoft.com/permission.

• Font Components. You may use the fonts installed by the software or as part of a related service to display and print content. You may only embed fonts in content as permitted by the embedding restrictions in the fonts and may temporarily download them to a printer or other output device to print content.

6.0 Additional Terms.

a. License Terms Updates. We may update these license terms from time to time. Changes to these license terms that we either introduce with updates or supplements or are required by law to make, that do not materially affect Your use of the online service will apply immediately. For any other changes, Your use of the online service under any existing license type will be governed by these license terms without those updates during the greater of either:

• 12 months from the time You first use it or • The length of Your committed term.

We will endeavor to notify You of updates at least 30 days before they are generally effective. You agree to the new terms by using the online service after we publish them in these Online Services use rights or send You an email notice about the updates.

b. Online Service Updates. We may modify the functionality or features or release a new version of the Online Service and software from time-to-time. After an update, some previously available functionality or features may change or no longer be available. If we update the Online Service or software and You do not use the updated Online Service or software, some features may not be available to You and Your use of the Online Service and software may be interrupted.

c. Suspension of an Online Service.

(1) Online Services Suspension. We may suspend an Online Service in whole or in part in the following circumstances:

http://www.microsoft.com/genuine/downloads/faq.aspx

http://www.microsoft.com/permission


o if we believe that Your use of the of Online Services represents a direct or indirect threat to our network function or integrity or anyone else’s use of the Online Service;

o if reasonably necessary to prevent unauthorized access to Customer Data; o to the extent necessary to comply with legal requirements; or o if You do not abide by the Scope of Use section of the Online Services Use Rights or

violate other terms of the Agreement. (2) Our suspension promise. Any suspension of an Online Service pursuant to this section

shall apply to the minimum necessary portion of the Online Service and will only be in effect for as long as reasonably necessary to address the issues giving rise to the suspension.

(3) Notice of suspension. We will provide advance notice before suspending an Online Service, except where we reasonably believe an immediate suspension is required. We will provide at least 30 days’ notice before suspending an Online Service for non-payment.

(4) Our right to terminate the Online Service. If You do not fully address the reasons for the suspension within 60 days after we suspend Your Online Service, we may terminate Your Subscription and reserve the right to delete Your Customer Date without any retention period.

(d) Online Service Expiration or Termination. Upon expiration or termination of Your Online Service subscription, You must contact Dell and tell us whether to:

(1) Disable Your account and then delete Your customer data; or

(2) Retain Your customer data stored in in the Online Service in a limited function account for at least 90 days after expiration or termination of Your subscription (the “retention period”) so that You may extract the data. o If You indicate (1), You will not be able to extract Your customer data from Your

account. If You do not indicate (1) or (2), we will retain Your customer data in accordance with (2).

o Following the expiration of the retention period, we will disable Your account and then delete Your customer data. Cached or back-up copies will be purged within 30 days of the end of the retention period.

o The online service may not support retention or extraction of software provided by customer for use in the Online Service.

• No Liability for Deletion of Customer Data. You agree that, other than as described in these

terms, we have no obligation to continue to hold, export or return Your customer data. You agree that we have no liability whatsoever for deletion of Your customer data pursuant to these terms.

(e) Availability of Online Service. Availability of the Online Service, some of its functionality and language versions vary by country. You may only use the Online Service, or certain functionality of the Online Service, as is made available in Your primary location. Information on availability is located at http://www.microsoft.com/online/faq.aspx#international or at an alternate site Microsoft identifies.

http://www.microsoft.com/online/faq.aspx#international


(f) Responsibility for End User Accounts. You are responsible for Your passwords, if any and all activity with Your Online Service accounts including that of users You provision and dealings with third parties that take place through Your account or associated accounts. You must keep Your accounts and passwords confidential. You must tell Dell immediately about any possible misuse of Your accounts or any security incident related to the Online Service.

(g) Use of Software with the Online Service. You may need to install certain Microsoft software in order to sign into and use the Online Services. If so, the following terms apply:

• Microsoft Software License Terms. You may install and use the software on Your devices only for use on the Online Service. Your right to use the software ends when Your right to use the Online Service terminates or expires, or when we update the Online Service and it no longer supports the software, whichever comes first. You must uninstall the software when Your right to use it ends. We may also disable it at that time.

• Automatic Updates for Microsoft Software. From time to time, We may check Your version of the software and recommend or download updates to Your devices. You may not receive notice when We download the update.

(h) Use of other Web Sites and Services. You may need to use certain Microsoft web sites or services to access and use the Online Services. If so, the terms of use associated with those web sites or services, as applicable, apply to Your use of them.

(i) Third Party Content and Services. We are not responsible for any third party content You access directly or indirectly via the online service. You are responsible for Your dealings with any third party (including advertisers) related to the online service (including the delivery of any payment for goods and services).

(j) No High Risk Use. The Online Services are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Neither You nor Your end users have the right to use the Online Services in any application or situation where the Online Services’ failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). Examples of High Risk Use include, but are not limited to: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of Online Services for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. You agree to indemnify and hold harmless Microsoft from any third-party claim arising out of the use of the Online Services in connection with any High Risk Use.

(k) Acquired Rights. You will defend us against any claim that arises from (1) any aspect of the current or former employment relationship between You and any of Your current or former personnel or contractors or under any collective Agreements, including, without limitation, claims for wrongful termination, breach of express or implied employment contracts, or payment


of benefits or wages, unfair dismissal costs, or redundancy costs, or (2) any obligations or liabilities whatsoever arising under the Acquired Rights Directive (Council Directive 2001/23/EC, formerly Council Directive 77/187/EC as amended by Council Directive 98/50/EC) or any national laws or regulations implementing the same, or similar laws or regulations, (including the Transfer of Undertakings (Protections of Employment) Regulations 2006 in the United Kingdom) including a claim from Your current or former personnel or contractors (including a claim in connection with the termination of their employment by us following any transfer of their employment to us pursuant to such laws or regulations).

You must pay the amount of any resulting adverse final judgment (or settlement to which You consent). This section provides our exclusive remedy for these claims. We must notify You promptly in writing of a claim subject to this section. We must (1) give You sole control over the defense or settlement of such claim; and (2) provide reasonable assistance in defending the claim. You will reimburse us for reasonable out of pocket expenses that we incur in providing assistance.

(l) Your Customer Data. You may be able to submit customer data for use in connection with the Online Service. “Customer data” are all data, including all text. Sound, or image files and software that are provided to Dell by, or on behalf of, You through Your use of the Online Service. When You submit customer data for use with any Online Service that enables communication or collaboration with third parties, You acknowledge that those third parties may then be able to:

• Use, copy, distribute, display, publish, and modify Your customer data; • Publish Your name in connection with the customer data; and • Facilitate others’ ability to do the same.

Some online services may offer functionality that restricts third parties’ ability to do so. It is Your responsibility to make use of that functionality as appropriate for Your intended use of Your customer data.

You agree to secure rights in the customer data necessary for Dell to provide You and Your customers the online service without violating the rights of any third party, or otherwise obligating Microsoft or Dell to You, Your customers or any third party. Neither Microsoft nor Dell will accept any obligations set forth in any separate license or other Agreement that may apply to the customer data or use of the online service.

(m) Ownership of customer data. As between the parties, You retain all right, title and interest in and to customer data. We acquire no rights in and to customer data. We acquire no rights in customer data, other than the rights You grant to us for the applicable online service. This does not apply to software or services We license to You.

(n) Privacy. Personal Data collected through the Online Service may be transferred, stored and processed in the United States or any other country in which Microsoft or its services providers maintain facilities. This includes any personal data You collect using the service. By using this Online Service, You consent to transfer of personal data outside of Your country. You also agree to obtain sufficient authorization from persons providing personal data to You, to:

• Transfer that data to Microsoft and its agents, and • Permit its transfer, storage and processing.


If You are an educational institution, You shall be responsible for any parental consent for any end users’ use of the online service as may be required by applicable law.

See the Online Service’s privacy statement for more information about how Dell or Microsoft may collect and use Your information:

Online Service Privacy Statement Exchange Online Lync Online SharePoint Online Office 365 Plan P1

http://go.microsoft.com/fwlink/?LinkID=12058

o. Dell’s Use of Customer Data; Third Party Request. Customer data will be used only to provide You the Online Service. This may include troubleshooting aimed at preventing, detecting and repairing problems affecting the operation of the Online Service and the improvement of features that involve the detection of , and protection against, emerging and evolving threats to the uses (such as malware or spam).

We will not disclose customer data to a third party (including law enforcement, other government entity, or civil litigant; excluding our subcontractors) except as You direct or unless required by law. Should a third party contact us with a demand for customer data, We will attempt to redirect the third party to request it directly from You. As part of that, We may provide Your basic contact information to the third party. If compelled to disclose customer data to an enforcement third party, We will use commercially reasonable efforts to notify You in advance of a disclosure unless legally prohibited. You are responsible for responding to requests by a third party regarding Your use of the Online Service, such as a request to take down content under the Digital Millennium Copyright Act.

p. Security of Customer Data. We will implement reasonable and appropriate technical and organizational measures, as described in the security overview applicable to the Online Service to help secure Your customer data processed or accessed by the Online Service against accidental or unlawful loss, access, or disclosure. You agree that these measures are:

• Our only responsibility with respect to the security and handling of customer data; and • In place of any confidentiality obligation contained in Your volume license Agreement or any

other non-disclosure or confidentiality Agreement.

See the table below for information on where to find the security overview for the online service.

Online Service Security Overview Exchange Online SharePoint Online Lync Online Office 365

See Privacy Statement Table

q. Scope of Use. You may not:

• Use the Online Service in a way that is prohibited by any law, regulation or governmental order or decree in any relevant jurisdiction, or that violates others’ legal rights;

• Use the Online Service in a way that could harm it or impair anyone else’s use of it;

http://go.microsoft.com/fwlink/?LinkID=12058


• Use the Online Service to try to gain unauthorized access to any service data, account or network by any means;

• Falsify any protocol or email header information (“spoofing”); • Use the online service to send “spam” (i.e. unsolicited bulk or commercial messages), to

distribute malware or other make available any offering designed to violate these terms (e.g., denial of service attacks, etc.); or

• Remove, modify, or tamper with any regulatory or legal notice or link that is incorporated into the online service.

r. Regulatory. We may modify or terminate the Online Service in any country where there is any current or future government requirement or obligation that subjects Microsoft to any regulation or requirement not generally applicable to businesses operating there, presents a hardship for Microsoft to continue operating the Online service without modification, and/or causes Microsoft to believe these terms or the Online Service may be in conflict with any such requirement or obligation. For example, We may modify or terminate the Online Service in connection with a government requirement that causes Microsoft to be regulated as a telecommunications provider.

s. Electronic Notices. We may provide You with information about the Online Service in electronic

form. It may be via email to the address You provide when You sign up for the Online Service, or through a web site that We identify. Notice via email is given as of the transmission date. As long as You use the Online Service, You have the software and hardware needed to receive these notices. You may not use the online service if You do not agree to receive these electronic notices.

7.0 Exceptions and Additional Terms for Particular Products.

a. For Exchange Online Archiving. Exchange Online Archiving is a successor online service to Exchange Hosted Archive.

If You renew from Exchange Hosted Archive into Exchange Online Plan 2 and have not yet migrated to Exchange Online Plan 2, Your licensed users may continue to use the Exchange Hosted Archive service subject to the terms of the March 2011 Product Use Rights until Your migration to Exchange Online Archiving or the expiration of Your Exchange Online Archiving User SLs (whichever is earlier).

b. For Exchange Online Plan 2:

Exchange Online Plan 2 is a successor online service to Exchange Hosted Archive.

If You renew from Exchange Hosted Archive into Exchange Online Plan 2 and have not yet migrated to Exchange Online Plan 2, Your licensed users may continue to use the Exchange Hosted Archive service subject to the terms of the March 2011 Product Use Rights until Your migration to Exchange Online Plan 2 and the expiration of Your Exchange Online Plan 2 User SLs (whichever is earlier).

c. For Lync Online:

Recording Notice. The laws of some jurisdictions require notice to or the consent of individuals prior to intercepting, monitoring and/or recording their communications and/or restrict collection, storage, and use of personally identifiable information. You agree to comply with all applicable laws and to


obtain all necessary consents and make all necessary disclosures before using the Online Service and/or the recording feature(s).

Lync 2010 includes Silverlight. The following notice applies to Silverlight software. Notice About the H.264/AVC Visual Standard, and the VC-1 Video Standard. This software may include H.264/MPEG-4 AVC and/or VC-1 decoding technology. MPEG LA, L.L.C. requires this notice:

THIS PRODUCT IS LICENSED UNDER THE AVC AND THE VC-1 PATENT PORTFOLIO LICENSES FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE ABOVE STANDARDS (“VIDEO STANDARDS”) AND/OR (ii) DECODE AVC, AND VC-1 VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE SUCH VIDEO. NONE OF THE LICENSES EXTEND TO ANY OTHER PRODUCT REGARDLESS OF WHETHER SUCH PRODUCT IS INCLUDED WITH THIS SOFTWARE IN A SINGLE ARTICLE. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG-LA, L.L.C. SEE WWW.MPEGLA.COM.

For clarification purposes, this notice does not limit or inhibit the use of the software for normal business uses that are personal to that business which do not include (i) redistribution of the software to third parties, or (ii) creation of content with the VIDEO STANDARDS compliant technologies for distribution to third parties.

8.0 Service Level Agreements (SLAs).

Some Online Services may include performance related SLAs. Dell SLAs may be found at: www.Dell.com/smb/office365/FAQ

9.0 Other General Terms for the Online Service

a. Subject to Section (b) below, Dell shall in consideration of the payment of the Subscription Charges provide the Online Services to You subject to the terms and conditions of this Agreement.

b. In order to access and use the Online Services You will need to provision the Hardware from which the Online Services will be accessed and use. You may carry out the provisioning on Your own account or You may, subject to execution of a Statement of Work, engage Dell to provide the Installation Services. Similarly, You may engage Dell to provide the De-Installation Services on the termination or expiration of this Agreement.

c. Where You carry out the provisioning of Your user equipment Yourself neither Dell nor Microsoft shall be liable for any loss, damage, liability, cost or expense incurred by You whether directly or indirectly in carrying out such provisioning.

d. It is hereby expressly agreed and acknowledged by Dell and You that: DELL AND MICROSOFT MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY, OPERATION, THE MERCHANTABILITY OR FITNESS OF THE ONLINE SERVICES FOR A PARTICULAR PURPOSE, OR ISSUES REGARDING IPR INFRINGEMENT, TITLE AND THE LIKE;

http://www.mpegla.com/

http://www.dell.com/smb/office365/FAQ


You hereby waive to the maximum extent permitted by law any rights and remedies conferred upon You under any relevant legislation, and those rights now or hereafter conferred by statute or otherwise;

You hereby further agree that: (i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last for one year from the start of the limited warranty; and (ii) the warranties do not cover problems caused by accident, abuse or use of the Online Services or Software in a manner that is inconsistent with Your Agreement or resulting from events beyond Dell’s or Microsoft’s reasonable control.

e. Dell shall not be deemed to have made, be bound by or liable for, any representation, warranty

or promise made by Microsoft in respect of the Online Services;

f. Dell shall not be liable for any failure of the Online Services or any delay in the availability thereof; and

g. You have selected the Online Services without Dell’s assistance.

h. You shall be fully and solely responsible for satisfying Yourself that the Online Service is fit for

Your purposes and neither Dell nor Microsoft provide any representations or warranties in this regard.

i. You acknowledge that Dell may at any time do the following:

• Modify all or part of an Online Service, including adding new features or functionality to, or

removing existing features or functionality; • In the event of Microsoft issuing a new release of all or part of the Online Services, migrate You

to such new release at any time subject to the terms and conditions of this Agreement; • Release a new version of the Online Services or part of it.

j. Subscription Charges. The Subscription Charges payable by You to Dell for the services described

herein are as set out in the Subscription Terms and Conditions.

k. You acknowledge that the Subscription Charges may be amended by Dell by giving You not less than thirty (30) days’ notice.

l. Professional Charges payable by You (if any) shall be as agreed in writing by You.

m. Your Obligations.

• You agree throughout the Subscription Period that You will: • pay all amounts due to Dell under this Agreement • comply with all relevant laws related to Your use of the services; • use the licensed software and services in compliance with the terms of this Agreement and any

User Guide or other instructions of Dell or Microsoft and You will not copy, reverse engineer or modify any software made available as part of any of the services in any way.

n. You represent and warrant that You have all of the necessary rights and authorizations to use to all

data, software programs and services that You use in connection with Your access to or use of the Online Services and the Online Service, and that such activities do not infringe the intellectual property or other proprietary rights of any third party. You agree to indemnify and hold harmless


Dell and Microsoft from and against any and all claims, costs, expenses, damages, liabilities and legal fees that Dell and Microsoft may suffer or incur as a result of any dispute that may arise , any way whatsoever, in connection with any breach of this Clause.

o. You further represent and warrant that You shall: (i) access and use the services without violating the

rights of any third party or purporting to subject Microsoft or Dell to any obligations with any third party; and (ii) solely in a manner that complies with all applicable laws and regulations.

p. Dell’s Obligations.

• Dell will provide the Online Services in accordance with the terms and conditions of this

Agreement and the relevant Statement of Work, if any. • Dell will provide necessary log in details as are required to enable You to access and use the

Online Services. • During the Subscription Period, Dell and not Microsoft or Microsoft’s Affiliates or suppliers, will

provide customer support services to You in relation to all technical support queries up to a level at which Dell advises You that the issue has been escalated to Microsoft directly.

Information about Dell support services is available at: http://www.dell.com/smb/office365/support

q. Auto-Renewal. You acknowledge that Your subscription to the Online Services will auto-renew at the

end of each billing period and that You will automatically be charged for the upcoming subscription period unless You cancel or terminate subject to the Subscription Terms, subject to any suspension or termination rights set forth in this Agreement. Auto-renewal shall occur unless Your subscription is terminated subject to the Subscription Terms and such termination shall apply to all services subscribed to by You in the relevant period that only changes made on or before the 28th of every month will be reflected in the next billing cycle. If You add or remove seats or cancel the accounts after the 28th day of any month then the next months billing will proceed as previously agreed and changes to billing amounts will only be reflected on the following months bill.

r. Termination. Dell may terminate this Agreement immediately and without prior notice if You fail to

comply with any term or condition of this AGREEMENT or if Dell does not receive timely payment for the licenses to the Software or for the hardware to which it is attached, if any. In addition, Dell may terminate any license to Software distributed for free at any time in its sole discretion. Either party may terminate this AGREEMENT at any time by providing at least ninety (90) days prior written notice to the other party. In the event of termination of this AGREEMENT, all licenses granted hereunder shall automatically terminate and You must immediately cease use of the Software and return or destroy all copies of the Software. The parties recognize and agree that there are certain obligations which by their nature are meant to survive, as well as obligations for payment, and all such terms shall survive the cancellation, termination, and/or expiration of this AGREEMENT, and/or the licenses granted hereunder. (i) You may terminate this Agreement by giving notice to Dell by phone at: 1-888-649-4090 or

online via the control panel and such termination will take effect at the expiration of the then current billing period during which notice of termination is received. The user control panel is accessible at https://cp.office365.dell.com.

(ii) On termination or suspension for any reason the provisions of this Agreement related to

Online Service Expiration or Termination shall apply.

(iii) You shall not be entitled to any refund of any prepaid Subscription Charges for the unexpired remainder of the subscription period for any reason.

http://www.dell.com/smb/office365/support

https://cp.office365.dell.com/


(iv) Dell may terminate this Agreement immediately: (i) if You fail to pay the Subscription

Charges and/or Professional Charges (if any) by the due date; (ii) if the Reseller Agreement between Dell and Microsoft is terminated; (iii) if there are reasonable grounds to believe that You are misusing the services in any way; or using the services in a manner which is in breach of this Agreement or illegal; and/or (iv) for any reason, without cause, by providing You at least thirty (30) days advance written notice.

s. Suspension. Dell may suspend or restrict the provision of services under this Agreement, if: (a) You

fail to pay the Subscription Charges and/or the Professional Charges (if any) by the due date and the provisions of this Agreement related to non-payment and termination or suspension shall apply; (b) there is an emergency, or if there are reasonable grounds to that there is a threat or risk to the security or integrity of the Online Services or the Online Service; (c) You breach this Agreement; or (d) in accordance with any other provisions of this Agreement which allow for suspension of the services.

(i) During a suspension period, You will have limited or no access to the Online Services except

for the purposes of retrieving End User Data in accordance with the provisions of this Agreement related to termination or suspension. You acknowledge that neither Microsoft nor Dell will be liable in any manner whatsoever to You where Microsoft or Dell has suspended or terminated Your access to and use of the Online Services in accordance with the terms of this Agreement.

(ii) You shall not be relieved of the obligation to pay the Subscription Charges due

notwithstanding the suspension or termination of the provisions of the services described in this Agreement up to the date of termination.

(iii) Microsoft may terminate or suspend the Online Services if it believes in good faith that You

are misusing the Service. Microsoft may, at Microsoft’s sole discretion, terminate or suspend Your subscription and the provisions of this Agreement relations suspension or termination shall apply. You acknowledge that Microsoft will have no liability to You in connection with terminating or suspending the Online Services.

(iv) Dell shall endeavor to provide advance notice to You of any suspension or termination of the

services described in this Agreement but shall not be required to do so.

t. Retrieval of Your Data. Upon termination, suspension or expiration of this Agreement for any reason the provisions of this Agreement related to Online Service Expiration or Termination shall apply. You shall be fully and solely responsible for contacting Dell in the manner described in the Section on Online Service Expiration or termination. Neither Dell nor Microsoft shall be liable to You for any cost, claim, loss, liability, expense or damage incurred directly or indirectly or any way whatsoever in the event that Your data is deleted due to Your failure to comply with the provisions of this Agreement related to Section 6.0(d) (“Online Service Expiration or Termination”).

u. Service Levels. Service levels for the Online Services are provided by Microsoft and are available at

www.dell.com/smb/office365/FAQ. Dell and Microsoft reserve the right to change service levels at any time by posting changes to that website provided, however, that no such changes shall apply to: (a) Your existing orders for the duration of their applicable Subscription; and (b) to Your orders received by Microsoft within 60 days of the service level change being effective. In the event Microsoft agrees to apply a credit related to Microsoft’s failure to meet a certain service level Dell shall credit You in the same amount of credit on the next invoice following Dell’s receipt of the credit from Microsoft.

http://www.dell.com/smb/office365/FAQ


v. Intellectual Property. The provision of the Online Services to You does not grant You any right, title, interest or license in or to any of Microsoft’s IPR

w. Limitation of Liability. SUBJECT TO THE PROVISIONS OF THIS AGREEMENT RELATED TO YOUR

OBLIGATIONS, NEITHER PARTY NOR ITS LICENSORS NOR SUPPLIERS SHALL BE LIABLE TO THE OTHER FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF THE SERVICES OR SOFTWARE DESCRIBED IN THIS AGREEMENT IN CONTRACT OR TORT OR OTHERWISE FOR ANY LOSS (WHETHER DIRECT OR INDIRECT) OF PROFITS, BUSINESS, REVENUE, ANTICIPATED SAVINGS, GOODWILL OR ANY LOSS OR CORRUPTION OF DATA OR FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DELL’S AND DELL’S LICENSORS AND SUPPLIERS AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT OR RESULTING FROM THE SOFTWARE OR SERVICES SUPPLIED UNDER THIS AGREEMENT, INCLUDING THOSE RELATED TO DELL’S NEGLIGENCE, SHALL BE LIMITED FOR ALL CLAIMS TO 100% OF THE SUBSCRIPTION CHARGES PAID BY YOU IN THE PREVIOUS TWELVE (12) MONTHS PRIOR TO TERMINATION.

NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR RESTRICT THE LIABILITY OF EITHER PARTY FOR: (A) DEATH OR PERSONAL INJURY RESULTING FROM THAT PARTY’S NEGLIGENCE; OR (B) CLAIMS RELATED TO YOUR OBLIGATIONS UNDER SECTION 13.

x. DELL SHALL NOT BE LIABLE TO YOU FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE

CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.

y. Force Majeure. Dell shall not be responsible for any delay or failure in performance of any part of an embargo, government requirement, civil, or military authority, act of God, act or omission of carriers, failure of the Internet or other similar causes beyond its control.

z. Microsoft’s liability. Microsoft disclaims, to the fullest extent permitted by law, all warranties by

Microsoft and any liability my Microsoft or its Affiliates or suppliers for any damages, whether direct, indirect or consequential, arising from the sale or use of the Online Services.

10. Miscellaneous

a. No Assignment. Except as set forth herein, You may not assign or transfer Your interests, rights or obligations under this AGREEMENT by written Agreement, merger, consolidation, operation of law or otherwise, without the prior written consent of an authorized executive officer of Dell. Any attempt to assign this AGREEMENT by You without such prior written consent from Dell shall be null and void.

b. Invalidity. If any of the provisions of this Agreement is or becomes invalid, illegal or unenforceable, the

validity or enforceability of the remaining provisions shall not in any way be affect or impaired. In any such circumstances the parties shall negotiate in good faith in order to agree to the terms of a mutually satisfactory provision, achieving as nearly as possible the same commercial effect, to be substituted for the provision which is found to be invalid, illegal or unenforceable.

c. No Waiver. No waiver of breach or failure to exercise any option, right, or privilege under the terms of

this AGREEMENT on any occasion shall be construed to be a waiver of a subsequent breach or right to exercise any option, right, or privilege.

d. Amendments. Dell reserves the right to amend this Agreement by providing notice to You of the

proposed amendment not less than thirty (30) days prior to the date any such proposed amendment is


implemented. Dell may provide such notice directly to You in writing or via an update at http://www.dell.com/smb/office365/FAQ

e. Compliance. You will certify in writing, upon reasonable request by Dell, that all use of Software is in compliance with the terms of this AGREEMENT, indicating the number of Software licenses deployed at that time. You grant Dell, or an agent selected by Dell, the right to perform a reasonable audit of Your compliance with this AGREEMENT during normal business hours. You agree to cooperate and provide Dell with all records reasonably related to Your compliance with this AGREEMENT. If, as a result of the audit, a deficiency of greater than five percent (5%) is found in the licensee fees paid, then You shall bear the total cost of the audit, in addition to any other liabilities You may have.

f. Export, Import and Government Restrictions. You are advised that the Software is subject to U.S. export laws as well as the laws of the country where it is delivered or used. You agree to abide by these laws. Under these laws, the Software may not be sold, leased, or transferred to restricted countries (currently Cuba, Iran, North Korea, Sudan and Syria), restricted end-users, or for restricted end-uses. You specifically agree that the Software will not be used for activities related to weapons of mass destruction, including but not 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. You understand that certain functionality of the Software, such as encryption or authentication, may be subject to import restrictions in the event You transport the Software from the country of delivery and You are responsible for complying with applicable restrictions.

The Software and documentation are "commercial items" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and documentation with only those rights set forth herein. Contractor/manufacturer is Dell Products L.P., One Dell Way, Round Rock, Texas 78682.

g. Confidentiality. You agree to: (A) not use Confidential Information except as necessary to exercise the

rights herein and (B) use best efforts to preserve and protect the confidentiality of the Confidential Information. "Confidential Information" means any oral, written, graphic or machine-readable information disclosed by Dell that is (i) identified as confidential; (ii) designated in writing to be confidential or proprietary; or (iii) should be reasonably understood to be confidential. Confidential Information includes the Software and its trade secrets, including but not limited to source code, the development status of the Software, the appearance, content and flow of the user interface of the Software, and the content and documentation of the Software. Confidential Information does not include information that is (a) publicly available other than through a breach of this AGREEMENT; (b) known to You prior to such disclosure; or (c) subsequently lawfully obtained by You from a third party that has no obligations of confidentiality. You agree that, without Dell’s prior written consent, You will not grant access to any Dell Confidential Information to any persons or entities except for Your employees and agents who have a business need to have such access and who are obligated to maintain the confidentiality thereof as set forth herein. These obligations do not expire. In some, limited circumstances, Dell may need to engage a third party to fulfill its obligations to You under this Agreement. By using this Software You agree that Dell may provide Your information to such third party for that purpose. Dell may obtain information related to Your use of the Software and You agree that we may use such information in aggregate form in an anonymous manner in support of our marketing activities related to the Software. Any feedback, value added changes or suggestions made by You or other information that is provided to Dell relating to the Software shall be owned by Dell and considered Dell Confidential Information.

h. Choice of Law and Language. This AGREEMENT shall be governed by the laws of the State of Texas, USA, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. You acknowledge

http://www.dell.com/___________


that the headquarters of the Dell family of companies is located in Texas, and that the software licensed under this Agreement and the related products marketed in connection with such software were in substantial part conceived, developed, and marketed by Dell personnel in Texas. Further, You acknowledge, agree, and stipulate that the laws of the State of Texas bear a substantial relationship to this Agreement and that the selection of Texas law to govern this Agreement and the license of the Software hereunder is reasonable and appropriate, and You consent to the selection of such law to govern this Agreement and the relationship of the parties hereto. This Agreement has been agreed only in the English language, which version of this AGREEMENT shall be controlling regardless of whether any translations of this Agreement have been prepared or exchanged. As an exception to the preceding sentence, if Dell provides this Agreement to You only in a non-English language version, then such non-English language version shall control. You acknowledge and represent that You have carefully reviewed this AGREEMENT with the involvement and assistance of Your employees, advisors, and/or legal counsel fluent in the English language, that You have consulted with local legal counsel and counsel competent to render advice with respect to transactions governed by the law applicable to this AGREEMENT, that You have no questions regarding the meaning or effect of any of this AGREEMENT’s terms, and that You have obtained high-quality translations of this Agreement for use by You or any of Your team who are not fluent in the English language, with the understanding that You alone shall bear the risk of any misunderstandings that may arise as a result of such translation. All communications in connection with this Agreement shall be in the English language.

i. Entire Agreement. Unless You have entered into another written Agreement with respect to the Software which has been signed by You and an authorized representative of Dell and which conflicts with the terms of this Agreement, You agree that this Agreement supersedes all prior written or oral Agreements, warranties or representations, including any and all other click-wrap, shrink-wrap or similar licenses or Agreements, with respect to use of the Software. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. You agree that any principle of construction or rule of law that provides that an Agreement shall be construed against the drafter shall not apply to the terms and conditions of this Agreement.

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