TERMS AND CONDITIONS
By participating in the Dell PartnerDirect Program for Technology Partners (“Program”), the company or entity submitting the Technology Partner application (“you”) agrees to be bound by all of the Terms and Conditions below (“Agreement”). Please print a copy of this Agreement for your records. Completion of the Technology Partner application does not imply that you have been accepted into the Program. Acceptance into the PartnerDirect Program for Technology Partners does not imply that you have been accepted into any other Dell PartnerDirect Programs, each of which may have separate terms and conditions.
1. ELIGIBILITY. Throughout your participation in the Program, you (a) must be in compliance with any applicable agreement with Dell currently in place, including but not limited to a signed, written Certified Technology Partner Agreement (if applicable); (b) maintain a current registration profile including yearly updates and prompt notification to Dell in writing of any change that may affect your membership or membership level; and (c) meet other criteria required by Dell. This Program is not exclusive, and Dell may authorize any qualified third party to participate in the Program.
2. PARTNER PORTAL ACCESS. Your use of the Partner Portal is subject to this Agreement, Dell’s Site Terms at www.dell.com, and any additional terms within the Partner Portal. You will create an online password that will allow you to access the Partner Portal. You are responsible for keeping your password confidential. Dell recommends that you change your password regularly. You will be responsible for all activity on your account. If you believe an unauthorized transaction has occurred in your account, please notify the Dell TechnologyPartner program office at US_partner_registration@dell.com. You will not grant any third-party access to the Partner Portal without prior written approval by Dell.
3. TECHNOLOGY PARTNER LISTING Dell may have a locator tool to help the public search for a Dell Technology Partner. Unless you advise Dell in writing that it may not do so, Dell may include you in the locator tool, which may include basic information such as your company name, address, telephone number, web address, certified practice area, and individual contact names.
4. ERRORS & AVAILABILITY. Dell is not responsible for any errors in transmission that may occur prior to our receipt of the transmission. You acknowledge that the security procedures used in the Partner Portal are for the purposes of authentication of a transmission, and not to detect error. In addition, there may be a delay between the time you send a transmission to Dell and the time Dell receives it. All transmissions are considered received by Dell only when actually received by Dell. Dell is not responsible for any delays between the time you send a transmission and the time Dell receives it. Access to the Partner Portal may be unavailable without notice at certain times, including when systems require maintenance or upgrades, or in the case of unforeseen circumstances such as earthquakes, fires, floods, terrorism, war, riot, computer virus or bugs, computer failures, interruptions in telephone service, or electrical outages. Dell will not be liable for the unavailability of service or for any damages that may result from such unavailability.
5. CONFIDENTIALITY. The term “Dell Confidential Information” means any information related to the Program, including the Partner Portal and all non-public data contained in the Partner Portal. You will keep all Dell Confidential Information strictly confidential for a period of three (3) years after the termination of this Agreement or any related agreement with Dell. You may not disclose Dell Confidential Information to any third party without Dell’s prior written consent. You may share Dell Confidential Information with only your employees who have a need to know and who are subject to legally binding obligations to keep such information confidential. These confidentiality obligations do not apply to any Dell Confidential Information that (a) you can demonstrate was in your possession before receipt from Dell; (b) is or becomes publicly available through no fault by you; or (c) you rightfully received from a third party without a duty of confidentiality. If you are required by a government body or court of law to disclose any Dell Confidential Information, you agree to give Dell reasonable advance notice so that Dell may contest the disclosure or seek a protective order.
6. ADMINISTRATION. At any time Dell may audit your compliance with the Program. Dell may without prior notice, immediately suspend or terminate your participation in the Program if you submit inaccurate, incomplete, or fraudulent information or if you engage in activities that may cause damage, embarrassment or adverse publicity to Dell. Dell’s records and systems shall be authoritative and conclusive for purposes of determining your eligibility and Program benefits. Dell reserves the right to interpret the rules of the Program in its sole discretion. All decisions made by Dell are final.
7. COMPLIANCE. You agree you will comply with all applicable federal, state, and local laws and regulations governing your participation in the Program. In addition, you agree to comply with all terms posted to the Partner Portal, including:
Without limiting the foregoing, you represent and warrant that, for each commercial email delivered to a U.S. resident that promotes a Dell product or service or your participation in the Program (a “ Technology Partner Email”), you will fully comply with the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN SPAM Act”), all rules and official guidance promulgated by the Federal Trade Commission pursuant to the CAN SPAM Act, the Federal Communications Commission’s rules and orders regulating the transmission of commercial email to wireless devices, and all other applicable federal, state and local laws and regulations. In addition, without limiting the foregoing, you agree to comply with the following requirements with respect to each Technology Partner Email:
You agree that Dell’s trademarks, service marks, trade or company names, product and service identifications, logos, artwork and other symbols and devices associated with Dell’s products and services (the “Dell Marks”) are and shall remain Dell’s property. You acknowledge that any provided images and artwork of Dell products are copyrighted by Dell and you will not alter these images or use them outside of the context in which they were provided to you.
8. INDEPENDENT CONTRACTORS. You and Dell are independent contractors and shall have no authority to bind the other. Neither this Agreement nor your participation in the Program shall be deemed to create a partnership, agency, joint venture, or other similar arrangement, and the employees, agents, or representatives of one party shall not be deemed to be employees, agents, or representatives of the other party. You acknowledge that use of the term “partner” in the Program name, materials, and administration does not constitute or imply a partnership or any other fiduciary relationship.
9. WARRANTY DISCLAIMER. DELL MAKES NO WARRANTIES AND SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PROGRAM (INCLUDING ALL INFORMATION, TOOLS, AND OTHER MATERIALS RELATED TO OR PROVIDED UNDER THE PROGRAM), EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. YOU UNDERSTAND THAT THE PROGRAM DOES NOT GUARANTEE THAT YOU WILL MAKE ANY SALES OR PROFITS.
10. INDEMNIFICATION. To the fullest extent permitted by law, you shall indemnify, defend, and hold harmless Dell and its subsidiaries, affiliates, parents, successors, and assigns, from any claim, demand, cause of action, debt, or liability (including reasonable attorney or legal fees, expenses, and court costs) arising from (i) your breach of this Agreement or (ii) your conduct related to the Program.
11. LIMITATION OF LIABILITY.
YOU ACKNOWLEDGE THAT YOUR PARTICIPATION IN THE PROGRAM IS STRICTLY VOLUNTARY AND THAT YOUR PARTICIPATION HAS NOT BEEN REQUIRED BY DELL. YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT THE PROGRAM OR ANY BREACH OF THESE TERMS AND CONDITIONS BY DELL IS WITHDRAWAL FROM PARTICIPATION IN THE PROGRAM.
IN NO EVENT SHALL DELL BE LIABLE FOR ANY LOST PROFITS OR LOSS OF BUSINESS, OR FOR LOST OR CORRUPTED DATA OR SOFTWARE. IN ADDITION, DELL SHALL HAVE NO LIABILITY FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, RELIANCE, EXEMPLARY, INCIDENTAL, OR INDIRECT LOSS OR DAMAGES, WHETHER ANY CLAIM FOR SUCH DAMAGES IS BASED ON TORT, CONTRACT, OR OTHER THEORIES, AND WHETHER DELL KNEW OR SHOULD HAVE KNOWN THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS, THE REMEDIES SET FORTH IN THESE TERMS AND CONDITIONS SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
12. DISPUTE RESOLUTION. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN YOU AND DELL, its agents, employees, principals, successors, assigns, affiliates arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Dell's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM (NAF) under its Code of Procedure then in effect (available via the Internet at http://www.arb-forum.com, or via telephone at 1-800-474-2371). In the event of any inconsistency or conflict between NAF Code of Procedure and this Agreement, this Agreement shall control. The arbitration will be limited solely to the dispute or controversy between YOU and Dell. NEITHER YOU NOR DELL SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER PARTNERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual (non-class) nature of this dispute provision goes to the essence of the parties' arbitration agreement, and if found unenforceable, the entire arbitration provision shall not be enforced. This transaction involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. If you prevail on any claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for fees, the Arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. Otherwise, each party shall pay for its own costs and attorneys' fees, if any. Information may be obtained and claims may be filed with the NAF at P.O. Box 50191, Minneapolis, MN 55405.
13. GOVERNING LAW. THE PARTIES AGREE THAT THIS AGREEMENT, OR ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN YOU AND DELL ARISING FROM OR RELATING TO THIS AGREEMENT, ITS INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY THEREOF, THE RELATIONSHIPS THAT RESULT FROM THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAWS RULES.
14. MODIFICATIONS. Dell reserves the right to modify the Program, including the eligibility requirements and benefits and this Agreement and any agreements referenced herein, at any time without prior notice. When changes are made, Dell may notify you of the changes via the Partner Portal. If any modification is unacceptable to you, your sole recourse is to terminate your participation in the Program. If you continue to participate in the Program, such participation will constitute your binding acceptance of the changes and your consideration supporting any such modification. No oral modifications are permitted under this Agreement and you agree not to rely upon any oral representations made at any time.
15. TERMINATION. You may withdraw from the Program at any time by notifying Dell in writing. Dell may suspend or terminate your participation in the Program, in whole or in part, without prior written notice, for any breach of this Agreement or for any attempt to impair the integrity of the Program as determined by Dell. In such event, Dell is not obligated to provide any benefits related to or arising from the cause of such suspension or termination. In addition, Dell, in its sole discretion, may at any time terminate the Program in whole or in part, for all participants, or for you alone, with or without cause, without prior written notice. All provisions that by their nature are intended to survive the termination, including but not limited to the terms set forth in Paragraphs 5, 10, 11, 12, and 13, shall survive. Each party accepts the risk of termination by the other. On termination, neither party will have any claim against the other for the investment it may have made in the relationship established under this Agreement or in anticipation of the sales and other revenue to be gained because of it.
16. PRECEDENCE. If you and Dell have a signed written Certified Technology Partner Agreement, then the terms of the Technology Partner Software License shall not apply and any conflicting provisions in such Certified Technology Partner Agreement shall take precedence over such provisions in this Agreement. If such agreement is subsequently terminated, then the terms of the Technology Partner Software License shall apply.
17. MISCELLANEOUS. You may not assign this Agreement, or any benefits due to you under the Program, to any third party without the express written consent of Dell. If any provision herein is void or unenforceable, you and Dell agree to delete such provision and agree that the remainder of the Agreement will continue to be in effect. Dell’s failure to enforce your strict performance of any term herein will not constitute a waiver of Dell’s right to subsequently enforce such term or any other term of this Agreement. The entire relationship between you and Dell is defined in this Agreement and any other applicable agreement as described in Paragraph 16. Both parties expressly disclaim any reliance on any oral statements, representations, or courses of conduct, including any right to continue to participate in the Program other than as provided in Paragraph 14.
(Rev [06/06/2011])