CONTRACT 6484 Vender AgreementAgreement No. 6484
Noo,LLTechnologies
CHANNEL PARTNER END USER TERMS
(For use only in the United States & Canada)
These Channel Partner End User Terms (the "Agreement") establishes the terms under which SUPPLIERS offers to make
available to an End User the license for Software and the warranty and Support Services for Equipment and Software. For
purposes of this Agreement, an "End User is a purchaser of Equipment or Software licenses and/or related Support Services
from an SUPPLIERS Channel Partner, for use by the End User within the US or Canada, for its internal productive use and
not for further resale or delivery of services to third parties. "SUPPLIERS" means EMC Corporation for Products purchased
and used within the US and means EMC Corporation of Canada for Products used within Canada.
1. DEFINITIONS.
A. "Affiliate" means a legal entity that is controlled by,
controls, or is under common control with SUPPLIERS or
End User, respectively. "Control" means more than 50%
of the voting power or ownership interests.
B. "Customer Support Tools" means any software or
other tools made available by SUPPLIERS to End User to
enable End User to perfonvl various self -maintenance
activities.
C. "SUPPLIERS Channel Partner" means a reseller,
distributor or system integrator that is authorized by
SUPPLIERS to sell Equipment, Software licenses and
Support Services. The term shall also refer to any third
party duly authorized by an SUPPLIERS Channel Partner
to do the same.
C. "Documentation" means the then -current, generally
available, written user manuals and online help and
guides provided by SUPPLIERS for Products.
D. "Installation Site" means the ship -to address or other
location identified in writing by the SUPPLIERS Channel
Partner or End User as the site of installation and/or use
of a Product, or a subsequent location approved by
SUPPLIERS.
E. "Maintenance Aids" mean any hardware, software or
other tools, other than Customer Support Tools, used by
SUPPLIERS to perform diagnostic or remedial activities
on Products.
F. "Products" mean "Equipment" (which is the
hardware delivered to End User) and/or "Software"
(which is any programming code made available by
SUPPLIERS to End User as a standard product, also
including microcode, firmware and operating system
software). Products do not include any non SUPPLIERS
branded third party products.
G. "Product Notice" means the Product and Services
related information posted at the applicable SUPPLIERS
website at the time that the SUPPLIERS Channel Partner
orders the Products from SUPPLIERS. The website is
currently located at
htt .//www.Su liers.coml roducts/warrant maintenanc
gtindexL a
H. "Services" mean (!)services for the support and
maintenance of Products ("Support Services") as set
forth in Attachment 1 to this Agreement; or (ii) consulting,
installation, implementation, or other services that are not
Support Services ("Professional Services") as set forth
in Attachment 2 to this Agreement.
1. "Software Release" means any subsequent version
of Software provided by SUPPLIERS after the initial
version of Software has been made available to End User,
but does not mean a new Product.
J. "Service Brief" means a document agreed between
End User and SUPPLIERS containing specifications and
other transaction -specific details of the Professional
Services to be provided by SUPPLIERS, and may take the
form of a separately executed, long form services
specification; or a short form service description with an
accompanying SUPPLIERS model number identified on a
quote provided by an SUPPLIERS Channel Partner.
K. "Supplier(s)" means an entity (other than End User)
whose components, subassemblies, software and/or
services have been incorporated into Products and/or
Services.
2. DELIVERY AND INSTALLATION.
A. Product Installation and Acceptance. All Products
will be deemed to be delivered and accepted ("Delivery")
upon (i) delivery of the Equipment or physical media to a
common carrier selected by SUPPLIERS at
SUPPLIERS's designated point of shipment, or
(1i) transmission of a notice of availability for download
(accompanied by the license key when required by
SUPPLIERS). Notwithstanding such acceptance, End
User retains all rights and remedies set forth in the Section
entitled "Product Warranty."
3. LICENSE TERMS.
A. General License Grant. Subject to End User's
compliance with this Agreement, SUPPLIERS grants to
End User a non-exclusive, non -transferable (except as
specified in this Agreement) license to use the Software
and the Documentation during the period of the license
solely for End User's internal business operations. Unless
otherwise indicated in this Agreement or the applicable
SUPPLIERS quote to the Channel Partner, licenses
granted to End User will be perpetual, will be for use of
object code only, and will commence on Delivery. Use of
Software may require End User to complete
SUPPLIERS's then current product registration process, if
any, to obtain and input an authorization key or license file.
B. Licensing Models. Software is licensed for use only
in accordance with the commercial terms and restrictions
of the Software's relevant licensing model, which are
Channel Partner End User Terms Y101)a19 Page i or 12
Agreement No. 6484
Technologies
stated in the Product Notice and/or SUPPLIERS quote to
the Channel Partner. For example, the licensing model
may provide that Software is licensed for use solely (i) for
a certain number of licensing units; (ii) on or in connection
with a certain piece equipment, CPU, network or other
hardware environment; and/or (ii!) for a specified amount
of storage capacity. Microcode, firmware or operating
system software needed by the Equipment with which it is
shipped to perform its basic functions, is licensed for use
solely on such Equipment.
C. Copying Permitted. End User may copy the Software
and Documentation as necessary to install and run the
quantity of copies licensed, but otherwise for archival
purposes only.
D. License Restrictions. Without SUPPLIERS's prior
written consent, End User must not, and must not allow
any third party to: (I) use Software in an application
services provider, service bureau, or similar capacity for
the benefit of third parties; (ii) disclose to any third party
the results of any benchmarking testing or comparative or
competitive analyses of SUPPLIERS's Products done by
or on behalf of End User; (iii) make available Software in
any form to anyone other than End User's employees or
contractors reasonably acceptable to SUPPLIERS and
which require access to use Software on behalf of End
User in a matter permitted by this Agreement; (iv) transfer
or sublicense Software or Documentation to an Affiliate or
any third party; (v) use Software in conflict with the terms
and restrictions of the Software's licensing model and
other requirements specified in the Product Notice and/or
SUPPLIERS quote; (vi) except to the extent permitted by
applicable law, modify, translate, enhance, or create
derivative works from the Software, or reverse assemble
or disassemble, reverse engineer, decompile, or
otherwise attempt to derive source code from the
Software; (vii) remove any copyright or other proprietary
notices on or in any copies of Software; or (viii) violate or
circumvent any technological restrictions within the
Software or specked in this Agreement.
E. Software Releases. Software Releases shall be
subject to the license terms applicable to Software.
F. Records and Audit. During the license term for
Software and for two (2) years after its expiration or
termination, End User will maintain accurate records of its
use of the Software sufficient to show compliance with the
terms of this Agreement. During this period, SUPPLIERS
will have the right to audit End User's use of the Software
to confirm compliance with the terms of this Agreement.
That audit is subject to reasonable notice by SUPPLIERS
and will not unreasonably interfere with End User's
business activities. SUPPLIERS may conduct no more
than one (1) audit in any twelve (12) month period, and
only during normal business hours. End User will
reasonably cooperate with SUPPLIERS and any third
party auditor and will, without prejudice to other rights of
SUPPLIERS, address any non-compliance Identified by
the audit by promptly procuring additional licenses. End
User will promptly reimburse SUPPLIERS for all
reasonable costs of the audit if the audit reveals either
underpayment of more than five (5%) percent of the
Software fees payable by End User for the period audited,
or that End User has materially failed to maintain accurate
records of Software use.
G. Termination of License. SUPPLIERS mayterminate
licenses for cause if End User breaches the terms
governing use of Software and fails to cure within thirty
(30) days after receipt of SUPPLIERS's written notice
thereof. Upon termination of a license, End User shall
cease all use and return or certify destruction of applicable
Software (including copies) to SUPPLIERS.
H. Reserved Rights. SUPPLIERS reserves all rights not
expressly granted to End User and does not transfer any
ownership rights in any Software.
I. Other License Terms. If a particular Product or
component is provided with its own license terms
("Separate License Terms"). typically in the form of a
(i) "click -to -accept" agreement included as part of the
installation and/or download process, or (ii) "shrink-wrap"
agreement included in the packaging for the Product, or
(ii!) notice indicating that by installation and/or use thereof
the related license terms apply, then, in case of conflict
with the terms of this Agreement, such Separate License
Terms shall (a) prevail with regard to Products or
components forwhich SUPPLIERS is not the licensor; and
(b) not prevail with regard to a Product or component for
which SUPPLIERS is the licensor.
4. PRODUCT WARRANTY.
A. Equipment and Software Media. SUPPLIERS
warrants that (i) Equipment, and Equipment upgrades
installed into Equipment, when purchased from an
SUPPLIERS Channel Partner and operated with normal
usage and regular recommended service; and (ii) the
physical media, if any, on which Software is provided by
SUPPLIERS or via an SUPPLIERS Channel Partner, shall
be free from material defects in materials and
workmanship, and perform substantially in accordance
with Documentation provided for Equipment or the
physical media until the expiration of the warranty period.
Unless otherwise noted on the Product Notice, the
warranty coverage for the microcode, firmware or
operating system software that enables Equipment to
perform as described in its Documentation shall be no less
than that which applies to such Equipment. To the extent
specified in the Product Notice, Support Services in the
form of the Support Option noted on the Product Notice
are included free of charge during the Equipment warranty
period. In some cases, a Support Option upgrade during
the Equipment warranty period may be available by
separate purchase.
B. Equipment and Software Media Warranty Duration.
The warranty period from SUPPLIERS for Products shall
be as set forth at the Product Notice. Equipment warranty
commences upon Delivery (as defined in Section 2.A
above). Equipment upgrades and replacement parts are
warranted in the same manner as the Equipment in which
such are installed from Delivery thereof until the end of the
warranty period for the Equipment into which such are
Channol Padna End User Tefms 00D=19 Page 2 of 12
Agreement No. 6484
Technologies
installed. The warranty for physical media for Software, if
any, is ninety (90) days and commences upon Delivery.
C. Equipment and Software Media Warranty
Remedies. SUPPLIERS's entire liability and End User's
exclusive remedies under the Equipment and physical
media for Software warranties described in this Section 5
shall be for SUPPLIERS, at its option, to remedy the non-
compliance or to replace the affected Product, and if
SUPPLIERS is unable to effect such within a reasonable
time, then SUPPLIERS shall refund the amount paid by
End User for the affected Product as depreciated on a
straight line basis over a five (5) year period, upon return
of such Product to SUPPLIERS. All replaced Products or
portions thereof shall be returned to and become the
property of SUPPLIERS. If such replacement is not so
returned, End User shall pay SUPPLIERS's then current
spare parts price therefore. SUPPLIERS shall have no
liability hereunder after expiration of the applicable
warranty period.
D. Software Warranty, Duration and Remedy.
SUPPLIERS warrants to End User that the Software will,
for a period of ninety (90) days following Delivery
("Software Warranty Period"), substantially conform to
the applicable Documentation, provided that the Software:
(i) has been properly installed and used at all times in
accordance with the applicable Documentation; and
(li) has not been modified or added to by persons other
than SUPPLIERS or its authorized representative.
SUPPLIERS will, at its own expense and as its sole
obligation and End User's exclusive remedy for any
breach of this warranty, either replace that Software or
correct any reproducible error in that Software reported to
SUPPLIERS by End User in writing during the Software
Warranty Period. If SUPPLIERS determines that it is
unable to correct the error or replace the Software,
SUPPLIERS will refund to End User the amount paid by
End User for that Software, in which case the license for
that Software will terminate.
E. Exclusions. Warranty does not cover problems that
arise from (i) accident or neglect by End User or any third
party; (ii) any third party items or services with which the
Product is used or other causes beyond SUPPLIERS's
control; (iii) installation, operation or use not in accordance
with SUPPLIERS's instructions or the applicable
Documentation; (iv) use in an environment, in a manner or
for a purpose for which the Product was not designed;
(v) modification, alteration or repair by anyone other than
SUPPLIERS or its authorized representatives; or (vi) in
case of Equipment only, causes not attributable to normal
wear and tear. SUPPLIERS has no obligation whatsoever
for Software installed or used beyond the licensed use, for
Equipment which was moved from the Installation Site
without SUPPLIERS's consent or whose original
identification marks have been altered or removed.
F. Service Enabled Channel Partners. Certain
SUPPLIERS Channel Partners may provide their own
warranty services, which may include remote service
and/or onsite repair. Where End User orders SUPPLIERS
Products from such a service enabled SUPPLIERS
Channel Partner (confirm status with your SUPPLIERS
Channel Partner), the terms of this Section 5, subparts A-
E shall not apply to such Products, and End User shall
look solely to the service -enabled SUPPLIERS Channel
Partner for warranty claims.
G. Disclaimer of Warranty. OTHER THAN THE
WARRANTIES SET FORTH IN THIS AGREEMENT, AND
TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, SUPPLIERS AND ITS SUPPLIERS
MAKE NO OTHER EXPRESS WARRANTIES UNDER
THIS AGREEMENT, AND DISCLAIM ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE AND NON -
INFRINGEMENT, AND ANY WARRANTY ARISING BY
STATUTE, OPERATION OF LAW, COURSE OF
DEALING OR PERFORMANCE, OR USAGE OF TRADE.
SUPPLIERS AND ITS SUPPLIERS DO NOT WARRANT
THAT THE SOFTWARE WILL OPERATE
UNINTERRUPTED OR THAT IT WILL BE FREE FROM
DEFECTS OR THAT IT WILL MEET END USER'S
REQUIREMENTS.
5. INDEMNITY. SUPPLIERS shall (i) at its own expense,
defend End User against any third party claim that a
Product as provided by SUPPLIERS to End User infringes
a patent or copyright enforceable in a country that is a
signatory to the Berne Convention; and (ii) pay the
resulting costs and damages finally awarded against End
User by a court of competent jurisdiction to the extent that
such are the result of the third party claim, or pay the
amounts stated in a written settlement negotiated and
approved by SUPPLIERS. The foregoing obligations are
subject to the following: End User (a) notifies SUPPLIERS
promptly in writing of such claim; (b) grants SUPPLIERS
sole control over the defense and settlement thereof;
(c) reasonably cooperates in response to an SUPPLIERS
request for assistance and information; and (d) is not in
material breach of this Agreement. Should any such
Product become, or in SUPPLIERS's opinion be likely to
become, the subject of such a claim, SUPPLIERS may, at
its option and expense, (1) procure for End User the right
to make continued use thereof; (2) replace or modify such
so that it becomes non -infringing; or (3) if, in
SUPPLIERS's opinion, neither of the foregoing are
reasonably available, SUPPLIERS shall notify End User
to return the Product and, upon receipt thereof,
SUPPLIERS shall refund the price paid by End User, less
straight-line depreciation based on a five (5) year useful
life for Products. SUPPLIERS shall have no obligation or
liability to the extent that the alleged infringement arises
out of or relates to: (A) combination, operation or use of a
Product as Delivered by SUPPLIERS with any products,
services, items, or technology that (i) were not provided by
SUPPLIERS; or (ii) were provided by SUPPLIERS but
were obtained by SUPPLIERS from a third party (such as
an SUPPLIERS Select Product, Brokerage Product or any
other technology, item or service not developed,
performed or manufactured by SUPPLIERS), except if
provided by SUPPLIERS as an embedded component of
an SUPPLIERS Product; (B) use for a purpose or in a
Channel Partner End User Terms vMecl9 Page 3 of 12
Agreement No. 6484
Technologies
manner for which the Product was not designed or use
after SUPPLIERS notifies End User to cease such use
due to a possible or pending claim of infringement; (C) any
modification made by any person other than SUPPLIERS
or its authorized representatives; (D) any modifications to
a Product made by SUPPLIERS pursuant to instructions,
designs, specifications or any other information provided
to SUPPLIERS by or on behalf of End User, (E) use of any
version of a Product when an upgrade or newer iteration
of the Product made available by SUPPLIERS would have
avoided the infringement; (F) services provided by End
User and/or any revenue End User derives therefrom; or
(G) any data or information which End User or a third party
records on or utilizes in connection with Products. THIS
SECTION STATES END USER'S SOLE AND
EXCLUSIVE REMEDY AND SUPPLIERS'S ENTIRE
LIABILITY FOR INFRINGEMENT CLAIMS PERTAINING
TO PRODUCTS.
6. LIMITATION OF LIABILITY.
A. Limitation on Direct Damages. EXCEPT WITH
RESPECT TO CLAIMS PURSUANT TO SECTION 5
ABOVE, SUPPLIERS'S TOTAL LIABILITY AND END
USER'S SOLE AND EXCLUSIVE REMEDY FOR ANY
CLAIM OF ANY TYPE WHATSOEVER, ARISING OUT
OF PRODUCT OR SERVICE PROVIDED HEREUNDER,
SHALL BE LIMITED TO PROVEN DIRECT DAMAGES
CAUSED BY SUPPLIERS'S SOLE NEGLIGENCE IN AN
AMOUNT NOT TO EXCEED (i) US$1,000,000, FOR
DAMAGE TO REAL OR TANGIBLE PERSONAL
PROPERTY; AND (ii) THE PRICE PAID TO SUPPLIERS
FOR THE SPECIFIC SERVICE (CALCULATED ON AN
ANNUAL BASIS, WHEN APPLICABLE) OR PRODUCT
FROM WHICH SUCH CLAIM ARISES, FOR DAMAGE
OF ANY TYPE NOT IDENTIFIED IN (1) ABOVE OR
OTHERWISE EXCLUDED HEREUNDER.
B. No Indirect Damages. EXCEPT WITH RESPECT TO
CLAIMS REGARDING VIOLATION OF SUPPLIERS'S
INTELLECTUAL PROPERTY RIGHTS, NEITHER END
USER NOR SUPPLIERS SHALL HAVE LIABILITY TO
THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL,
EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES
(INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS, REVENUES, DATA AND/OR USE), EVEN IF
ADVISED OF THE POSSIBILITY THEREOF.
C. Regular Back-ups. As part of its obligation to mitigate
damages, End User shall take reasonable data back-up
measures. In particular, End User shall provide for a daily
back-up process and back-up the relevant data before
SUPPLIERS performs any remedial, upgrade or other
works on End User's production systems. To the extent
SUPPLIERS's liability for loss of data is not anyway
excluded under this Agreement, SUPPLIERS shall in case
of data losses only be liable for the typical effort to recover
the data which would have accrued if End User had
appropriately backed up its data.
D. Limitation Period. All claims must be made within
(i) the time period specified by applicable law; or
(ii) eighteen (18) months after the cause of action accrues
if (a) no such period is specified at law; or (b) the
applicable law allows the parties to agree to a shorter
period than that specified therein.
E. Suppliers. The foregoing limitations shall also apply
in favor of SUPPLIERS's Suppliers.
7. LEASING TRANSACTIONS.
A. General. From time to time, End User may obtain
"Leased Products" (meaning Products made available
by SUPPLIERS through an SUPPLIERS Channel Partner
to End User which may be subsequently leased to End
User pursuant to a separate lease or financing agreement
consisting of a "Master Lease Agreement" and related
product specific lease supplements). However, the terms
of this Agreement shall govern End User's use of Leased
Products and any Services identified in the applicable
lease supplement subject to the exceptions set forth
immediately below.
B. Exceptions. For Leased Products: (i) no title shall
pass to End User, but shall remain with SUPPLIERS or its
designee; (11) in lieu of a refund, if any, due from
SUPPLIERS to End User pursuant to a claim under
warranty or of indemnification for patent or copyright
infringement, SUPPLIERS shall assume all of End User's
remaining lease obligations for the affected Leased
Products. Notwithstanding the termination terms of this
Agreement or any applicable Service Brief, if Support
Services fees and/or Professional Services fees are
financed with SUPPLIERS under a Master Lease
Agreement, payment of such fees shall be made in
accordance with the terms of the Master Lease
Agreement and applicable lease supplement and shall
continue unabated in accordance with the terms and
conditions thereof.
8.CONFIDENTIALITY. "Confidential Information"
means any Information that is marked "confidential" or
"proprietary" or any other similar term or in relation to
which its confidentiality should by its nature be inferred or,
if disclosed orally, is identified as being confidential at the
time of disclosure and, within two (2) weeks thereafter, is
summarized, appropriately labeled and provided in
tangible form. Confidential Information does not include
information that is (i) rightfully in the receiving party's
possession without prior obligation of confidentiality from
the disclosing party; (ii) a matter of public knowledge;
(III) rightfully furnished to the receiving party by a third
party without confidentiality restriction; or
(iv) independently developed by the receiving party
without reference to the disclosing party's Confidential
Information. Each party shall (a) use Confidential
Information of the other party only for the purposes of
exercising rights or performing obligations in connection
with this Agreement; and (b) protect from disclosure to any
third parties, by use of a standard of care equivalent to
that as used by recipient to protect its own information of
a similar nature and importance, and, no less than the use
of reasonable care, any Confidential Information disclosed
by the other party. The obligation of confidentiality will
apply for a period commencing upon the date of disclosure
until three (3) years thereafter, except with respect to
(1) End User data to which SUPPLIERS may have access
Channel Porter End User Terms YIODCC19 Page 4 of 12
Agreement No. 6484
DOLLTechnologies
in connection with the provision of Services, which shall
remain Confidential Information until one of the exceptions
stated in the above definition of Confidential Information
applies; and (2) Confidential Information that constitutes,
contains or reveals, in whole or in part, SUPPLIERS
proprietary rights, which shall not be disclosed by the
receiving party at anytime. Notwithstanding the foregoing,
the receiving party may disclose Confidential Information
(A) to its Affiliate for the purpose of fulfilling its obligations
or exercising its rights hereunder as long as such Affiliate
complies with the foregoing; and (B) to the extent required
by law (provided the receiving party has given the disclosing
party prompt notice).
9. TRADE COMPLIANCE. All content, Services and the
technology included therein (collectively the "Materials")
provided under this Agreement are subject to
governmental restrictions on exports and imports
including without limitation (1) exports from the U.S and the
European Union as well as re-export from third countries
in the form received; (ii) exports from other countries in
which the Materials may be produced or located; (iii)
disclosures of technology to non-U.S persons; (iv) exports
from other countries of the same or products derivative of
Materials; and (v) the importation and/or use the Materials
outside of the U.S. or other countries (collectively, "Trade
Laws"). End User must comply with all Trade Laws.
Diversion contrary to U.S. law or other Trade Laws is
expressly prohibited. In addition, End User shall not send
or deliver to SUPPLIERS any data controlled by the
International Traffic in Arms Regulations ("ITAR"), and
shall not request Materials or Service from SUPPLIERS
where an ITAR license is required in order for
SUPPLIERS to provide such Materials or Service, unless
the SUPPLIERS Global Trade Compliance Group Office
has signed a specific agreement consenting to provide
ITAR controlled Materials or Service to End User. End
User represents and warrants that it is not (a) listed on any
of the lists of restricted parties found at
httl2://www.bis.doe.aov/index,Dho/ olic uidancel'lists-of-
ggJes- f-concern; (b) located in any country subject to
embargo by the U.S. (identified as an E:1 country in
Supplement 1 to Part 740 of the United States Export
Administration Regulations ("EAR"), as shown here and
updated from time to time: httr)://www.eefr.goyLcAi-
binitext-
idx?SIID=7f5l b08428b0 14519eea4b4fdc 640e&node=I
5.2.1. .4.25.0.1.21.28&r n;d'iv ; or (c) engaged in the
proliferation of weapons of mass destruction (i.e., nuclear,
chemical or biological weapons or missiles). End User will
not participate or ask SUPPLIERS to participate in any
illegal boycott.
10.TERM AND TERMINATION.
A. Term of Agreement. The term of the Agreement
begins on the Effective Date and continues until the
Agreement is terminated (i) in accordance with this
Section 10, or (ii) or until End User ceases to use or
possess the Products or receive the Services ("Term").
B. Termination of Agreement. The Agreement may be
terminated by either party at any time, effective sixty (60)
days after delivery of written notice to the other party. Any
provision will survive any termination or expiration if by its
nature and context it is intended to survive, including
provisions relating to records and audit, confidentiality and
liability.
11.MISCELLANEOUS.
A. References. SUPPLIERS may identify End User as a
user of SUPPLIERS's Products and/or Services. Each
party shall not, and shall not authorize or assist another
to, originate, produce, issue or release any written
publicity, news release, marketing collateral or other
publication or public announcement, relating in any way to
this Agreement, without the prior written approval of the
other, which approval shall not be unreasonably withheld.
B. Notices. Any notices hereunder shall be in writing.
C. Entire Agreement. This Agreement, the Exhibits
Identified in subsection J below and each purchase order
(i) comprise the complete statement of the agreement of
the parties with regard to the subject matter thereof; and
(H) may be modified only in a writing with evidence of
acceptance by both parties.
D. Force Majeure. Neither party will be liable for failure
to perform its obligations during any period if performance
is delayed or rendered impracticable or impossible due to
circumstances beyond that party's reasonable control.
E. Assignment. End User will not assign this Agreement
or a purchase order or any right or obligation herein or
delegate any performance without SUPPLIERS's prior
written consent, which consent will not be unreasonably
withheld. Any other attempted assignment or transfer by
End User will be void. SUPPLIERS may use its Affiliates
or other sufficiently qualified subcontractors to provide
Services to End User, provided that SUPPLIERS remains
responsible to End User for the Services' performance.
F. Governing Law. This Agreement is governed by the
laws of the State of Texas (excluding its conflict of law
rules) and the federal laws of the United States. The U.N.
Convention on Contracts for the International Sale of
Goods does not apply. To the extent permitted by law, the
state and federal courts located in Texas will have
exclusive jurisdiction for any Disputes. Customer and
Suppliers agree to submit to the personal jurisdiction of
the state and federal courts located within Travis or
Williamson County, Texas, and agree to waive any and all
objections to the exercise of jurisdiction over the parties
by those courts and to venue in those courts..
G. Waiver. Failure to enforce a provision of this
Agreement will not constitute a waiver.
H. Independent Contractors. The parties shall act as
independent contractors for all purposes under this
Agreement. Nothing contained herein shall be deemed to
constitute either party as an agent or representative of the
other party, or both parties as joint venturers or partners
for any purpose. Neither party shall be responsible for the
acts or omissions of the other party, and neither party shall
have authority to speak for, represent or obligate the other
Channel Partner End User Terms vIWecl9 Page 5 of 12
Agreement No. 6484
Technologies
party in any way without the prior written approval of the
other party.
I. Severability. if any part of this Agreement, purchase
order, quote or Statement of Work is held unenforceable,
the validity of all remaining parts will not be affected.
J. Exhibits. The following Exhibits form part of this
Agreement, and in the event of a conflict between an
Exhibit and the main terms of this Agreement, the terms
of the Exhibit shall prevail.
Attachment 1 — Support Services Exhibit
Attachment 2 — Professional Services Exhibit
Attachment 3 — PivotalTM Products Exhibit
12.COUNTRY SPECIFIC TERMS.
A. CANADA. The terms in this subsection A apply only
when SUPPLIERS means SUPPLIERS Corporation of
Canada.
1. Section 2.A (Delivery). The first sentence is
deleted in its entirety and replaced with: "All Products
will be deemed to be delivered and accepted
("Delivery") upon the following (as applicable) (1) title
and risk of loss to Equipment or physical media, if any,
transfers to End User at the time and place that the
Equipment or media, if any, clears Canadian Customs;
or (H) transmission of a notice of availability for
download (accompanied by the license key when
required by SUPPLIERS)"
2. Section 12 (MISCELLANEOUS).
(a) Section 12.F Governing Law. The first and
second sentences are deleted in their entirety and
replaced with: "This Agreement is governed by the
laws of the Province of Ontario, Canada, excluding its
conflict of laws rules. To the extent permitted by law,
the courts located in the Province of Ontario will be the
exclusive jurisdiction for disputes arising out of or in
connection with this Agreement.
(b) Add the following as new subsection K:
K. Language. The parties have required that this
Agreement be drawn up in. English and have also
agreed that all notices or other documents required
by or contemplated in this Agreement be written in
English.
Les parties ont requis que cette convention soit
r6digde en anglais et ont 6galement convenu que
tout avis ou autre document exig6 aux termes des
prdsentes ou d6coulant de l'une quelconque de ses
dispositions sera pr6pare en anglais.
Channel Partner End UsetTerms v HIDec19 Page 6 of 12
Agreement No. 6484
DOLLTechnologies
Attachment 1 to End User License and Support Services Agreement
Support Services Exhibit
This Support Services Exhibit ("Exhibit") sets forth the terms governing the provision of Support Services ordered by End
User from an SUPPLIERS Channel Partner who provides that the Agreement shall govern orders for Support Services
performed by SUPPLIERS during or after the applicable warranty period.
1. DEFINITIONS.
A. All definitions setforth in the main body of the Agreement
shall also apply to this Exhibit.
B. "SUPPLIERS Service Area" means the area that is
within (i) one hundred (100) drivable miles of an
SUPPLIERS service location; and (ii) the same country as
the SUPPLIERS service location.
C. "Time and Materials Service" means any maintenance
or support service that is provided by SUPPLIERS but not
part of fixed -fee Support Services or other generally
available service related offering from SUPPLIERS using a
pre -established fee, but which will be separately charged to
End User on a time and materials basis and may be made
available under a separate set of Time and Materials
Services terms and conditions.
2. SUPPORT SERVICES.
A. Scope. The contents of Support Services for each
Product (the "Support Option") are set forth in the Product
Notice, and unless otherwise indicated in the Product
Notice, consist of (i) using commercially reasonable efforts
to remedy failures of Products to perform substantially in
accordance with SUPPLIERS's applicable Documentation;
(ii) providing English -language (or, where available, local
language) help line service (via telephone or other
electronic media); and (iii) providing, or enabling End User
to download Software Releases and Documentation
updates made generally available by SUPPLIERS at no
additional charge to other purchasers of Support Services
for the applicable Product. SUPPLIERS reserves the right
to change the scope of Support Services on sixty (60) days'
prior written notice to End User.
B. Additional Support. SUPPLIERS reserves the right to
charge for Support Services performed outside the time
frames of the applicable Support Option as a Time and
Materials Service. Time and Materials Service will be
charged and invoiced by SUPPLIERS in accordance with
terms governing each such Time and Materials Service
engagement. Except to the extent that Support Services are
independent of the Equipment's location, SUPPLIERS will
have no obligation to provide Support Services with respect
to Equipment that is outside the SUPPLIERS Service Area.
Support Services do not apply to any Software other than
the current and the immediately prior Software Release,
Support Services are subject to SUPPLIERS's then -current
end -of -service -life policy for the respective Product.
SUPPLIERS shall have no obligation to provide Support
Services for Software problems that cannot be reproduced
at SUPPLIERS's facility or via remote access to End User's
facility. Support Services do not include the supply of
Equipment upgrades, if any, needed to utilize new features
or functionality in a Software Release.
C. Exclusions. Support Services do not cover a problem
that would have been excluded from coverage pursuant to
Section 5 E in the main body of the Agreement had the
problem arisen during the warranty period of the affected
Product.
D. Re -Instatement of Support. If End User wishes to re-
instate Support Services for a Product that is not then
currently covered thereby, such re -instatement shall be
subject to a certification at SUPPLIERS's then current Time
and Materials Service rates and conditions. Once so
certified, Support Services shall commence upon payment
to SUPPLIERS of (i) the charge for the above described
Time and Materials Service; (ii) the amount SUPPLIERS
would have normally charged had Support Services been in
effect during the period of the lapse or discontinuation; and
(iii) the charge for the next twelve (12) months of the newly
commenced Support Services.
E. Channel Partner Provided Support. Certain
SUPPLIERS Channel Partners may provide technical
support, which may include remote service andlor onsite
repair. Where End User orders SUPPLIERS Products from
such an SUPPLIERS Channel Partner (confirm status with
your SUPPLIERS Channel Partner), the terms of this
Exhibit shall not apply to such Products, and End User shall
look solely to that SUPPLIERS Channel Partner for any
support on the Products.
3. END USER RESPONSIBILITIES.
A. Cooperation. End User shall (1) promptly notify
SUPPLIERS when a Products fails and provide
SUPPLIERS with sufficient details so that the failure can be
reproduced by SUPPLIERS; (ii) allow SUPPLIERS remote
and on -site (when deemed necessary by SUPPLIERS)
access to the Product to provide Support Services; and
(iii) furnish necessary facilities (which for on -site access
means suitable work space, computers, power, light, phone,
internet network availability, software and equipment
reasonably required by SUPPLIERS), information and
assistance required to provide Support Services.
B. Support Contacts. Unless a specific number of
authorized contacts are indicated on the Product Notice,
End User shall designate in writing a reasonable number of
authorized contacts, as determined by End User and
SUPPLIERS, who shall initially report problems and receive
Support Services from SUPPLIERS. Each End User
representative shall be familiar with End User's
requirements and shall have the expertise and capabilities
necessary to permit SUPPLIERS to fulfill its obligations. A
change to the authorized support contacts by End User
shall be submitted to SUPPLIERS in writing.
4. ADDITIONAL TERMS.
A. Maintenance Aids and Spare Parts for Equipment.
End User authorizes SUPPLIERS to store Maintenance
Chanwl Parrncr End UsaTcrms vI GDec19 Page 7 of 12
Agreement No. 6484
Technologies
Aids and spare parts at the Installation Site and agrees that
such are for use only by SUPPLIERS authorized personnel.
End User shall not, and shall not authorize any third party
to, make any use thereof. SUPPLIERS is authorized, upon
the conclusion of the Support Services or at any other time,
upon reasonable notice to End User, to enter the Installation
Site, or to use remote means, to remove and/or disable
Maintenance Aids and spare parts. End User shall
reasonably cooperate in this effort.
B. Customer Support Tools. SUPPLIERS may choose to
make End User Support Tools available to assist End User
in performing various maintenance or support related tasks.
End User shall use End User Support Tools only in
accordance with terms under which SUPPLIERS makes
such available.
C. Equipment Replacements. All replaced Equipment (or
portions thereof) shall become the property of SUPPLIERS
upon End User's receipt of the corresponding replacement,
and shall be returned promptly upon SUPPLIERS's request.
If such replaced Equipment is not so returned within fifteen
(15) days after SUPPLIERS's request, End User shall pay
SUPPLIERS's then current spare parts list price therefore.
D. Data Security Options. End User is, at its own
expense, fully responsible for the permanent erasure of all
information, including without limitation all personally
identifiable and other protected information placed on, and
by use of a method that does not cause damage to, any
replaced parts or any other items that End User provides to
SUPPLIERS for repair, trade-in, or disposal, before such
items are returned to SUPPLIERS. Descriptions and
charges associated with SUPPLIERS's then currently
offered data erasure services are available on request.
SUPPLIERS is not responsible for any information
contained on such items notwithstanding anything to the
contrary herein.
E. Proactive Product Changes. SUPPLIERS may, at its
expense, Implement changes to the Products upon
reasonable notice to End User (1) when such changes do
not adversely affect interchangeability or performance of the
Products; (ii) when SUPPLIERS reasonably believes such
changes are required for purposes of safety or reliability; or
(III) when SUPPLIERS is required by law to do so. End User
shall give SUPPLIERS reasonable access to the Products
for such purpose.
F. Software Releases. Upon use of a Software Release,
End User shall remove and make no further use of all prior
Software Releases, and protect such prior Software
Releases from disclosure or use by any third party. End
User is authorized to retain a copy of each Software
Release properly obtained by End User for End User's
archive purposes and use as a temporary back-up if the
current Software Release becomes inoperable. End User
shall use and deploy Software Releases strictly in
accordance with terms of the original license for Software.
G. Change of Equipment Location or Configuration.
End User may change the Installation Site or configuration
of a Product under Support Services by SUPPLIERS only
after written notice to SUPPLIERS. If the new location is in
a different country, such move is subject to SUPPLIERS's
prior written approval. End User shall promptly notify
SUPPLIERS of any changes to the configuration, or
movement of Equipment by anyone other than
SUPPLIERS. SUPPLIERS reserves the right to inspect and
evaluate the changes in configuration or location of affected
Equipment at SUPPLIERS's then current Time and
Materials Service terms, conditions and rates. Additional
charges, if any, related to changes in configuration or
location of Equipment shall apply from the date the change
took place.
H. Movement of Software. If End User is current in the
payment of the applicable Support Services fee, End User
may, to the extent technologically compatible, discontinue
all use of the Software on the hardware or network
environment for which it was originally licensed and begin
the corresponding use thereof on a different End User
owned or controlled hardware or network environment
provided that End User (i) gives SUPPLIERS advance,
written notice of such move; and (ii) pays the applicable
transfer and/or upgrade fee assessed by SUPPLIERS for
such a move (if any).
I. Remote Support Capability. As part of Support
Services, SUPPLIERS makes various remote support
capabilities available for certain Products in accordance
with its then current policies and procedures. SUPPLIERS's
warranty and Support Services fees are based on the
availability and use of such remote support capabilities. End
User has the option to not activate or to disable remote
support capabilities, but it shall notify SUPPLIERS thereof
without undue delay. If End User chooses to disable or to
not activate the remote support capabilities, then, with
regard to all Products affected by such disablement
(i) SUPPLIERS may assess End User a surcharge in
accordance with SUPPLIERS's then current standard rates;
and (ii) agreed response times or other agreed service
levels (if any) shall no longer apply.
J. Alterations and Attachments to Equipment.
SUPPLIERS does not restrict End User from making
alterations to, or installing other products in or with, the
Equipment at End Users expense; provided End User is
responsible for any inspection fees and/or additional
charges resulting from such activities. If the alterations or
attachments prevent or hinder SUPPLIERS's performance
of Support Services, End User shall, upon SUPPLIERS's
request, take corrective action. End User's failure to take
appropriate corrective action shall be deemed a breach
hereof.
K. Transfer of Equipment to Secondary Purchasers. If
End User decides to sell, assign or otherwise transfer the
use and/or ownership of Equipment to a Secondary
Purchaser (meaning a bona fide end user that (i) is not
considered, in SUPPLIERS's reasonable discretion, to be a
competitor of SUPPLIERS; and/or (ii) has not had prior
disputes with SUPPLIERS), to the extent SUPPLIERS
resources reasonably permit, SUPPLIERS shall make
available to End User, as a Time and Materials Service, de -
installation services. In addition, and to the extent
SUPPLIERS resources reasonably permit, SUPPLIERS
shall make available to the Secondary Purchaser,
Channel Partner End User Terms vI UOccl9 Page 9 of 12
Agreement No. 6484
E)OoLLTechnologies
(a) Equipment installation and re -certification services as a
Time and Materials Service; and (b) Support Services for
Equipment meeting the certification criteria.
L. Software Support Services affected by Change in
Equipment Status. For Software used on or operated in
connection with Equipment that ceases to be covered by
Support Services or the SUPPLIERS Equipment warranty,
SUPPLIERS reserves the right to send End User written
notice that SUPPLIERS has either chosen to discontinue or
change the price for Support Services for such Software
(with such price change effective as of the date the
applicable Equipment ceases to be so covered). If
SUPPLIERS sends a discontinuation notice, or if End User
rejects or does not respond to the notice of a proposed price
change within thirty (30) days after receipt, End User will be
deemed to have terminated the Software Support Services
for its convenience and the terms of Section 6 C 2 below
shall apply.
5. WARRANTY ON SUPPORT SERVICES.
A. Support Services. SUPPLIERS shall perform the labor
portion of Support Services in a workmanlike manner in
accordance with generally accepted industry standards.
End User shall notify SUPPLIERS of any failure to so
perform as soon as reasonably possible, and in no event
more than ten (10) days after the date on which such failure
first occurs. A replacement part provided in connection with
Support Services receives the remainder of the Product
warranty or Support Services coverage applicable to the
Product containing the replacement part.
B. End User Remedies. End User's exclusive remedy and
SUPPLIERS's entire liability under the foregoing warranties
shall be for SUPPLIERS to, at its option, (i) use reasonable
efforts to (a) re -perform the deficient labor services within a
reasonable time, or (b) replace any replacement parts
which become defective during the remainder of the
warranty or Support Services coverage applicable to the
Product containing the replacement part, or sixty (60) days
after installation thereof, whichever occurs later; and (ii) if,
after reasonable efforts, SUPPLIERS is not able correct
such deficiencies, then End User has the rlght to terminate
for breach in accordance with Section 6 D below.
C. No Further Warranties. EXCEPT AS EXPRESSLY
STATED HEREIN, AND TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, WITH REGARD TO
REPLACEMENT PARTS, SERVICES OR ANY OTHER
ITEMS OR MATTERS ARISING HEREUNDER,
SUPPLIERS (INCLUDING ITS SUPPLIERS) MAKES NO
OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL,
AND DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR
AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER
WARRANTIES ARE SPECIFICALLY EXCLUDED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON -
INFRINGEMENT, AND ANY WARRANTY ARISING BY
STATUTE, OPERATION OF LAW, COURSE OF DEALING
OR PERFORMANCE, OR USAGE OF TRADE.
6. TERM AND TERMINATION.
A. Software Support Services Term. Software related
Support Services that are ordered at the same time as the
license for such Software shall commence on the date of
shipment of the physical media or electronic availability of
the Software and continue for the period specified on the
SUPPLIERS quote. Renewals of Software related Support
Services shall commence and expire in accordance with the
dates on the applicable SUPPLIERS quote.
B. Equipment Support Services Term. Support Services
(including Support Option upgrades, if applicable) for
Equipment are provided during the warranty period.
Renewals of Equipment related Support Services shall
commence and expire in accordance with the dates on the
applicable quote. Support Services for hardware upgrades
installed into Equipment are coterminous with the Support
Services that are then in effect for the Equipment into which
such upgrades are installed.
C. Termination for Convenience. In addition to the term
and termination provisions set forth In the main body of the
Agreement, the following apply to Support Services:
1. By SUPPLIERS. If SUPPLIERS terminates for its
convenience, End User's sole and exclusive remedy and
SUPPLIERS's sole and exclusive obligation shall be to
refund to End User the portion of any pre -paid Support
Services fee that corresponds to the period between the
effective date of the termination for convenience and the
end of the then current Support Services period.
2. By End User. If End User terminates Support
Services for its convenience, End User's sole and exclusive
remedy and SUPPLIERS's sole and exclusive obligation
shall be to grant End User a credit that corresponds to the
period between the effective date of the termination for
convenience and the end of the then current Support
Services period. Such credit may only be used against
future purchases of Products or Support Services from
SUPPLIERS and may be reduced to recapture unearned
discounts (meaning discounts to a Support Services fee that
were based on an End User obligation that can no longer
be fulfilled due to the termination).
D. Termination for Breach. In addition to the term and
termination provisions set forth in the Agreement, either
party may terminate the Support Services for a specific
Product for cause due to a material failure of the other party
to comply with the terms of this Support Exhibit with regard
to such Product, provided that the terminating party has
given thirty (30) days' written notice specifying the failure
and the other party has not remedied such failure within
such time. If SUPPLIERS terminates the Support Services
for any Product(s) affected by such a failure by End User,
such termination shall be without further liability for
SUPPLIERS and without any obligation to refund any fees
already paid therefore. If End User terminates for
SUPPLIERS's breach, End User's sole and exclusive
remedy and SUPPLIERS's sole and exclusive obligation
shall be to either issue a credit for use against current or
future purchases of Products or Support Services or grant
a refund (as selected by End User) for that portion of any
Channel Partner End User Terms vlWecl9 Page 9 of 12
Agreement No. 6484
MoLLTechnologies
pre -paid Support Service fee that corresponds to the period
between the effective date of the termination for breach and
the end of the then current Support Services period.
Chmml Peimcr End User Taw AOD=19 Page 10 of 1 Z
Agreement No. 6484
DOUTechnologies
Attachment 2 to End User License and Support Services Agreement
Professional Services Exhibit
This Professional Services Exhibit ("Exhibit") sets forth the terms governing Professional Services ordered by End User
from an SUPPLIERS Channel Partner who provides that the Agreement shall govern orders for Professional Services
performed by SUPPLIERS.
1. DEFINITIONS.
A. All definitions set forth in the main body of the Agreement
shall also apply to this Exhibit.
B. "Deliverables" means any reports, analyses, scripts,
code or other work results which have been delivered by
SUPPLIERS to End User within the framework of fulfilling
obligations under the Service Brief.
C. "Proprietary Rights" mean all patents, copyrights,
trade secrets or other intellectual property rights of a party.
2. PROFESSIONAL SERVICES.
A. Scope. Each project for Professional Services shall be
governed by a separate Service Brief. Professional
Services are provided as a separate and independent
service to End User even if offered together with the sale or
licensing of Products by an SUPPLIERS Channel Partner in
the same quote or End User purchase order.
B. Placement of SUPPLIERS Personnel. SUPPLIERS
shall have the sole responsibility for personnel placement
as well as for all other human resources issues (e.g.
vacation). SUPPLIERS will only utilize employees or
contractors that are sufficiently qualified. If specific
SUPPLIERS personnel cease to perform due to illness,
resignation or any other reason, SUPPLIERS shall without
undue delay use reasonable efforts to provide a
substantially equivalent replacement. SUPPLIERS's
contact person responsible for liaising with End User will
exclusively be the person identified by SUPPLIERS as
being responsible for the project. No employee/employer
relationship is intended or shall be established by any
Service Brief.
C. Standard Work Day. The standard work day is any
eight (8) hour period of work, between 8:00 AM and 6:00
PM, Monday through Friday, excluding public holidays at
the SUPPLIERS location providing Professional Services.
D. End User Responsibilities. End User shall provide
SUPPLIERS personnel with timely access to appropriate
facilities, space, power, documentation, networks (including
internet and telephone), files, information, additional
software (if needed), and skilled and authorized End User
personnel to assist in the performance and who will
cooperate with SUPPLIERS. End User shall also perform
its specific obligations as described in the relevant Service
Brief, and, if necessary, assist and support SUPPLIERS in
the provision of the Professional Services as reasonably
requested by SUPPLIERS, and shall provide ail conditions
in its business necessary for due performance of
Professional Services by SUPPLIERS.
3. PROPRIETARY RIGHTS.
A. Grant of Copyright Rights in Deliverables. Subject to
SUPPLIERS's receipt of payment of the applicable amounts
due SUPPLIERS and to SUPPLIERS's Proprietary Rights
in the Deliverables or other materials used by SUPPLIERS
to perform Professional Services, End User shall own all
copyright rights to the portion of Deliverables that consists
solely of written reports, analyses and other working papers
prepared and delivered by SUPPLIERS to End User in the
performance of SUPPLIERS's obligations under the Service
Brief.
B. Grant of License Rights in Deliverables. For the
portion of Deliverables that consists of scripts and code and
subject to End User's compliance with the Agreement,
SUPPLIERS grants End User a non-exclusive, non-
transferable, perpetual right to use, copy and create
derivative works from such (without the right to sublicense)
for End User's internal business operations, as
contemplated by the applicable Service Brief. The license
granted in this section does not apply to (i) End User
furnished materials, and (ii) any other Products or items
licensed, or otherwise provided, under a separate
agreement.
C. End User Furnished Materials. End User retains
ownership any of its rights in materials it furnishes for use
by SUPPLIERS in connection with the performance of
Professional Services. Pursuant to End User's Proprietary
Rights therein, End User grants SUPPLIERS a non-
exclusive, non -transferable right to use such solely for the
benefit of End User in fulfillment of SUPPLIERS's
obligations under the Service Brief.
D. Reservation of Proprietary Rights. Each party
reserves for itself all Proprietary Rights that it has not
expressly granted to the other. SUPPLIERS shall not be
limited in developing, using or marketing services or
products which are similar to the Deliverables or
Professional Services provided hereunder, or, subject to
SUPPLIERS's confidentiality obligations to End User, in
using the Deliverables or performing similar Professional
Services for any other projects.
4. TRAINING SERVICES.
A. Courses. SUPPLIERS's standard training Services are
available through the applicable catalogue or website.
SUPPLIERS customized training Services are available
pursuant to an Service Brief.
B. Cancellation and Refunds. If End User prepays and
subsequently cancels standard training Services,
SUPPLIERS shall provide (i) a full refund, if SUPPLIERS
receives written notice of cancellation two (2) or more
weeks before the scheduled start date; or (ii) a 50% refund,
if SUPPLIERS receives written notice of cancellation less
than two (2) weeks before, but prior to, the scheduled start
date. Cancellation charges for customized training Services
shall be as mutually agreed between the parties in the
applicable Service Brief.
Channel Partner End UserTnmrcAODn19 Page I I 0r 12
Agreement No. 6484
DOLLTechnologies
5. WARRANTY.
A. Professional Services. SUPPLIERS shall perform
Professional Services in a workmanlike manner in
accordance with generally accepted industry standards.
End User must notify SUPPLIERS of any failure to so
perform within ten (10) days after the performance of the
applicable portion of Professional Services.
B. End User Remedies, SUPPLIERS"s entire liability and
End User's sole remedy for SUPPLIERS"s failure to so
perform shall be for SUPPLIERS to, at its option, (i) correct
such failure; and/or (ii) terminate the applicable Service
Brief and refund that portion of any fees received that
correspond to such failure to perform.
C. No Further Warranties. EXCEPT AS EXPRESSLY
STATED HEREIN, AND TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, WITH REGARD TO
SERVICES OR ANY OTHER ITEMS OR MATTERS
ARISING HEREUNDER, SUPPLIERS (INCLUDING ITS
SUPPLIERS) MAKES NO OTHER EXPRESS
WARRANTIES, WRITTEN OR ORAL, AND DISCLAIMS
ALL IMPLIED WARRANTIES. INSOFAR AS PERMITTED
UNDER APPLICABLE LAW, ALL OTHER WARRANTIES
ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NON -INFRINGEMENT, AND ANY
WARRANTY ARISING BY STATUTE, OPERATION OF
LAW, COURSE OF DEALING OR PERFORMANCE, OR
USAGE OF TRADE.
6. TERM OF PROFESSIONAL SERVICES.
A. Termination for Breach of Service Brief. Either
party may notify the other in writing in case of the other's
alleged breach of a material provision of the applicable
Service Brief. The recipient shall have thirty (30) days from
the date of receipt of such notice to effect a cure (the "Cure
Period"). If the recipient of the notice fails to effect a cure
within the Cure Period, then the sender of the notice shall
have the option of sending a written notice of termination of
the applicable Service Brief(s), which notice shall take effect
upon receipt.
CIOF aEGUNDO
Acting Director,
Director,
Information Technology Services Department
ATTE
�a 0 �
Tracy Weavg,
City Clerk
APPROVED AS TO FORM:
MARK D. HENSLEY, CITY
ATTORNE
JoaquinryAttomey
e„
Deputy
I
Management
Channel Partner End User Terms vlMm19 Page 12 of 12
"EXHIBIT -A'
xtend rlrec quo_ initazma�r� i
Claribel Castillo
Servkea Manager
�fgJbel Casuuane aentcam.,c�
Phone: 1-800456-3355 exl 7413169
ur rfiqWp,,nvn1t #rig at[
_ — —
Billing address
Sh POV address, kwiuding a contact name 6 Phone number
-T stand all
A total dollar amount
.An aulhorpilg signature (d required)
Oach a COPS* or your Dell quote, or reference the Dell quote numbarlo) on the
to Ordat.
Page 1 of 2
0
(Q
0
0
3
0
.-r
z
0
co