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DELL TECHNOLOGY PARTNER PROGRAM TERMS AND CONDITIONS
THIS IS A LEGAL AGREEMENT (“Agreement”) BETWEEN YOU, AN ENTITY OR AN INDIVIDUAL REPRESENTING AN ENTITY, (“Company” or “you”) 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"). PLEASE READ THIS AGREEMENT CAREFULLY. BY PARTICIPATING IN THE DELL TECHNOLOGY PARTNER PROGRAM (“Program” or “TPP”), THE COMPANY OR ENTITY SUBMITTING THE TECHNOLOGY PARTNER APPLICATION (”Customer” or “you”) AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THIS PRODUCT.
Please print a copy of this Agreement for your records. Completion of the Program application does not imply that you have been accepted into the Program. Acceptance into the Program does not imply that you have been accepted into any other Dell PartnerDirect Programs, each of which may have separate terms and conditions. Dell and Company are each referred to individually as a "party," and collectively as the "parties."
Throughout your participation in the Program, Company must (a) be in compliance with all agreements with Dell currently in place; (b) maintain a current registration profile including yearly updates and prompt notification to Dell in writing of any change that may affect Company’s 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 located at
(the “Portal”) is subject to and governed by this Agreement and any additional terms within the Portal. You will create an online password that will allow you to access the 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 TPP office at
You will not grant any third-party access to the Portal without prior written approval by Dell. By agreeing to this Agreement, you agree to transfer information requested in registering for the Program and through the Portal to Dell and third-party contractors that may be located outside of your region.
3. TECHNOLOGY PARTNER LISTING.
Dell may have a partner locator tool to help the public search for a member of the Program. Unless you advise Dell in writing that it may not do so, Dell may include Company in the partner locator tool, which may include basic information such as Company’s name, address, telephone number, web address and certified/verified practice area.
4. ERRORS & AVAILABILITY.
Dell is not responsible for any errors in transmission that may occur prior to our receipt of any transmission. You acknowledge that the security procedures used in the 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 Portal may be unavailable without notice at certain times, including without limitation 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, failure of the Internet, interruptions in telephone service, or electrical outages. Dell will not be liable for the unavailability of the Portal or for any damages that may result from such unavailability.
The term “Dell Confidential Information” means any information related to the Program, including non-public data contained in the 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 properly 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 who has no 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.
Company’s use of software provided by Dell under the Program (“Dell Materials”) is solely subject to and governed by the separate software license terms provided with the Dell Materials, included with the media packaging, or presented to Company during the installation or use of the Dell Materials. Company agrees that it will be bound by such license agreement. If no license terms accompany the Dell Materials, then Company’s use of such Dell Materials is subject to and governed by the End User License Agreement — Type S located at
Despite any language to the contrary in the applicable license agreement, Company may only use the Dell Materials for the sole purpose of designing, developing and testing Company’s offerings. Dell Materials shall include, without limitation, the software, libraries, utilities, tools, toolkits or other computer or program code, as well as the related media, printed materials, online and electronic documentation, enabling tools and best practices, including any copies thereof, as further described in an executed TPA (as defined below) or as otherwise provided by Dell under the Program
This Section 7 outlines certain benefits that Certification provides. The terms in this Section 7 shall apply only to the extent the parties execute a Technology Partner Agreement (“TPA”) by which Company can certify its offerings (the “Company Products”) for use with Dell Materials and/or Dell can certify Dell offerings for use with Company Products (“Certification”).
7.1 CERTIFICATION/VERIFICATION PROCESS.
Prior to Certification, the parties shall execute a TPA. The Company Products and Dell Materials eligible for certification/verification and the geographical practice area for which it will be certified/verified (the “TPP Area”) will be listed in the TPA,.
7.1.1. Certification of Company Materials for use with Dell Materials.
If the parties agree that Company Products may be certified for use with Dell Materials, then:
Company will conduct its own internal testing of Company Products to determine appropriateness of certifying Company Products for use with Dell Materials;
If required by Dell, Company may have to supply Dell with a product preview and supply royalty-free copies (which may include alpha/beta versions, upon Dell’s request) of Company Products to Dell for review;
Using certification criteria provided by Dell (including usage models and test plans), Company will conduct testing at Company’s facilities and will provide Dell with demonstration copies, and written documentation of test results, including but not limited to any contingencies or dependencies required for usage models to pass testing;
Dell will schedule a time for Company to test Company Product for certification at Dell’s facilities or Company’s facilities or remotely;
Dell and Company will conduct all applicable certification tests, including interoperability testing, on the Company Product; and
Certification will be considered complete upon Dell’s approval of the certification testing and completion of the test scenarios outlined in Dell’s Test Exit Form (to be provide by Dell to Company), at which time Company may claim that the Company’s offerings are “Certified” for use with Dell Materials.
Company may achieve either
, as set forth below, specific to each instance of Dell Materials and the TPP Area. Dell, in its sole discretion, will determine whether certification shall be pursued as Integrated or Validated, depending on the Company Product, the instance of relevant Dell Materials, and the TPP Area.
shall mean certification achieved when the Company product is integrated with Dell software and/or hardware using the software tools and documentation provided by Dell under this Agreement. The Company’s solution will be tested against all applicable certification tests. Company will pay Dell a nonrefundable, one-time fee of one thousand five hundred United States dollars ($1500) upon the commencement of Integrated Certification testing.
shall mean certification achieved with the Company’s unmodified product or with only minor cosmetic changes to the look and feel of the Company’s product that has been tested against all applicable certification tests. The customer will pay Dell a nonrefundable, one-time fee of one thousand United States dollars ($1000) upon the commencement of Validated Certification testing.
Verification of Company Materials for use with Dell Materials.
If the parties agree that Company may self-certify Company Materials for use with Dell Materials, then:
Company will conduct its own internal testing of Company Products to verify that the Company Product meets Dell’s set requirement and determine appropriateness of certifying Company Products for use with Dell Materials;
If requested by Dell, Company will supply Dell with a product preview of Company Products to Dell;
Using verification criteria provided by Dell (including usage models and test plans), Company will conduct all applicable tests, including interoperability testing, on the Company Product at Company’s facilities;
Company is responsible for the accuracy of the representations, claims and statements they make during the verification process. Dell will only verify the Company’s solution test results; and
Verification will be considered complete upon Dell’s approval of the testing and completion of the test scenarios outlined in Dell’s Test Exit Form (to be provide by Dell to Company), at which time Company may claim that the Company’s offerings are “Verified” for use with Dell Materials.
Certification of Dell offerings for use with Company Products.
If the parties agree that Dell offerings may be certified for use with Company Products, then:
Company will supply Dell with a product preview and supply royalty-free copies (which may include alpha/beta versions, upon Dell’s request) of Company Products to Dell for review and certification;
Company will conduct interoperability testing at Company’s facilities and shall provide Dell with the results of such testing and demonstration copies;
Dell may schedule a time to test Company Product for certification at Dell’s facilities;
Company will conduct all applicable certification tests on the Company Product;
Company will provide written approval if Company Product passes certification testing; and
Certification will be considered complete upon Dell’s approval of the certification testing and completion of the test scenarios outlined in Dell’s Test Exit Form (to be provide by Dell to Company), at which time Dell may claim that the Dell offerings are “Certified” for use with Company Products.
The occurrence of any of the following events may require Company to re-certify the Company Product.
Yearly anniversary of the completion of the initial or prior year’s certification.
Dell Material or Company Product change that is significant enough to affect the interoperability, such as but not limited to any points required for the Dell Material and Company Product to interoperate, and that Dell determines warrants re-certification. Company will make commercially reasonable efforts to recertify the Company Product within sixty (60) days of the general release of the changed Company Product or Dell Materials, provided that Dell includes Company in beta testing of the applicable Dell Materials, where software is relevant to the interoperability. Any beta version of changed Licensed Materials will be available to Company subject to a beta testing agreement between Company and Dell.
If Dell or Company discovers an error in the Company Product and/or integration points between Company Product and Dell Materials required for interoperability, Company and Dell shall work together to correct such error within a time frame commensurate with the severity level of the error.
With regard to Dell client products, recertification will be required as mutually agreed when new revisions are available of such Dell client products.
Any waiver of the foregoing requirements by Dell must be in writing.
Upon completion of Certification/Verification, Company may use the Dell Technology Partner logo as provided and directed by Dell in the TPA. Certification/Verification shall not be considered complete until Company receives notice from Dell confirming the same and the parties execute the TPA. Company must specify the Company Product and TPP Area for which it has passed certification. The Dell Technology Partner logos may only be used in connection with the certified/verified Company Product and Company may only use those Dell Technology Partner logos which are consistent with its then current Dell certification(s).
Upon and during Verification/Certification, Dell may market Company’s certification.
All verified/certified partners will get listed at
catalog which will enable the Company to promote Company’s verified/certified product
Once certification is complete and while certification is maintained, Dell may list the certified Company Products at
on the Dell Technology Partner web page or such other web page that is relevant to the Company’s Certification Area.
Certification positions Dell and Company to create marketing communications tools to make customers aware of joint solutions, including the value of those solutions. Potential marketing opportunities might include:
o Joint development of whitepapers promoting solutions in target markets
o Company participation in promotional activities or events
o Company’s ability to use jointly developed materials in Company’s own marketing campaigns and activities.
Dell agrees to make available to Certified Company certain Dell product information that can be used by Company to educate its sales teams on the value of Dell products and joint solutions.
COMPANY POST-CERTIFICATION/VERIFICATION REQUIREMENTS.
Upon and during certification/verification, Company may market Company’s Certification/Verification. Company may identify itself as a Dell Technology Partner in the practice area for which it maintains Certification/Verification (Technology Partner Certification Area).
Company agrees to include the Dell Technology Partner logo on Company’s website. Company will specify the Company Product and its relevant Certification/Verification Area.
Company will include a link from its website to the Dell Technology Partner web page or such other web page that is relevant to the Technology Partner Certification Area and where Company’s logo is posted by Dell.
Company shall include appropriate copyright and/or proprietary rights notices, including copyright and proprietary notices regarding Dell’s intellectual property, in and on certified/verified Company Products that contain Licensed Materials. Company shall not remove, deface, obscure or modify, but shall retain, reproduce, and apply any copyright notices and any other of Dell proprietary rights notices contained on and in the Licensed Materials.
DELIVERY AND SUPPORT SERVICES.
End User Support
Except as otherwise agreed to by the parties in an OEM software license agreement, master purchase agreement, or in a Collaborative support agreement (CSA), Company will be solely responsible for providing any support for Company Products (including any updates thereto) to Company’s end user customers. This support may include, but is not limited to, taking customer calls, verifying support customer entitlement, logging calls and problem identification, as well as fault isolation, call diagnosis, troubleshooting, and advanced call diagnosis.
Company shall be solely responsible for, and Dell shall have no obligation to honor, any warranties that Company provides to customers or to end users with respect to the Licensed Materials (as allowed by this Agreement to be distributed) or Company Product.
Licensed Materials Support
Dell shall make available to Company any new versions or updates of the Licensed Materials as such become generally available.
Dell may provide Company with additional support services related to the Licensed Materials ("Support Services") at rates provided by Dell and on terms mutually agreed upon by Company and Dell. Any supplemental materials provided to Company as part of the Support Services or this Agreement shall be considered part of the Licensed Materials and subject to the terms and conditions of this Agreement. Dell may, but shall be under no obligation to, correct any defects in the Licensed Materials and/or provide updates to the Licensed Materials, but will make reasonable efforts to address known defects in the Dell Support Services Public API and Dell Storage Products.
Company agrees to promptly report to Dell any defects Company finds in the Licensed Materials. With respect to technical information Company provides to Dell as part of the Support Services, or other Company provided information, Dell may use such information for its business purposes, including but not limited to product support and development.
TERM AND TERMINATION OF CERTIFICATION/VERIFICATION.
The term of the Certification/Verification shall be one (1) year from the Effective Date of the TPA, and shall renew for additional one (1) year terms (the initial term and each subsequent renewal term the “Term”), unless either party gives notice of termination or non-renewal of the TPA (thereby terminating the Certification/Verification). Either party shall have the right to terminate the TPA without cause, at any time upon ninety (90) days written notice. In the event that either party provides notice of a material breach to the other party, such other party will have thirty (30) days to cure. If a material breach is not cured by such other party within such thirty (30)-day period, then the party providing notice of breach shall have the right to terminate the TPA immediately. Upon the termination of TPA, the Certification/Verification shall immediately terminate and the applicable party shall cease claiming that its offering(s) is certified/verified with the other party’s offering(s).
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.
Each party agrees it will comply with all applicable federal, state, and local laws and regulations governing its participation in the Program and associated activities, including but not limited to regulations governing e-mail marketing and privacy and regulations applicable to use of the Portal. You also agree to comply with all other terms relevant to Dell sites that you may use as part of the Program.
Company agrees that it will comply with applicable law, including but not limited to any restrictions on export by U.S. law or the laws of the jurisdiction in which Dell Materials were obtained. The Dell Materials are provided with restricted rights. Use, duplication, or disclosure by the U.S. government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Dell.
Company agrees 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. Company acknowledges that any provided images and artwork of Dell products are copyrighted by Dell and it will not alter these images or use them outside of the context in which they were provided to Company.
Company and Dell are independent contractors and shall have no authority to bind the other. Neither this Agreement nor Company’s 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. The parties 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.
Nothing in this Agreement shall be construed as (1) prohibiting or restricting either party or its subsidiaries from independently developing, having developed independently, acquiring, licensing, distributing or marketing products, services and other materials which are competitive in any form with the Dell Materials or Company Product, as applicable (provided none of the other party’s intellectual property is infringed or misappropriated), (2) guaranteeing that either party or its subsidiaries shall announce, or otherwise offer for sale or lease, any product or service, or (3) affecting either party’s pricing of products or services. Each party is free to enter into similar agreements with other parties.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DELL MATERIALS, THE PROGRAM (INCLUDING ALL INFORMATION, TOOLS, AND OTHER MATERIALS RELATED TO OR PROVIDED UNDER THE PROGRAM), THE PORTAL AND COMPANY PRODUCTS ARE PROVIDED "AS IS", WHERE IS, WITH ALL FAULTS, AND NEITHER PARTY MAKES OR RECEIVES WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. DELL DOES NOT WARRANT THAT THE FUNCTIONS OF THE DELL MATERIALS, THE PROGRAM AND THE PORTAL WILL MEET COMPANY’S REQUIREMENTS OR THAT OPERATION OF SUCH WILL BE UNINTERRUPTED OR ERROR FREE. COMPANY ASSUMES RESPONSIBILITY FOR SELECTING THE DELL MATERIALS AND THE RESULTS ACHIEVED IN THE PROGRAM. COMPANY’S SOLE AND EXCLUSIVE REMEDY, AND DELL’S ENTIRE LIABILITY, FOR BREACH OF ANY WARRANTIES PROVIDED HEREIN, IS FOR DELL, AT ITS SOLE DISCRETION, TO EITHER USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY ANY NON-CONFORMANCE OR TO PROVIDE A REFUND OF ANY FEES RECEIVED BY DELL HEREUNDER. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND EITHER PARTY MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF MATERIALS AT ISSUE (UNLESS LOCAL LAW PROVIDES OTHERWISE).
Except where prohibited by applicable law, each party (“Indemnifying Party”) shall defend the other party (“Indemnified Party”) against any third-party claim or action that the materials provided to the other party hereunder (specifically excluding open source software) infringes or misappropriates that third party’s patent, copyright, trade secret, or other intellectual property rights (“Indemnified Claims”). In addition, if the Indemnifying Party receives prompt notice of an Indemnified Claim that, in the Indemnifying Party’s reasonable opinion, is likely to result in an adverse ruling, then the Indemnifying Party will at its sole discretion, (A) obtain a right for the Indemnified Party to continue using such materials; (B) modify such materials to be non-infringing; (C) replace such materials with a non-infringing substitute; or (D) provide a reasonable depreciated refund of any amounts paid for the allegedly infringing materials. Notwithstanding the foregoing, the Indemnifying Party shall have no obligation under this section for Indemnified Claims resulting or arising from: (i) modifications of the material that were not performed by or on behalf of the Indemnifying Party; (ii) the Indemnified Party’s unauthorized use of the materials, or the combination or operation of the materials in connection with a third-party product, software, or service (the combination of which causes the claimed infringement); (iii) the Indemnified Party’s failure to incorporate free updates or upgrades to the material that would have avoided the alleged infringement; or (iv) the Indemnifying Party’s compliance with the Indemnified Party’s specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by the Indemnified Party. Each party’s duty to indemnify and defend is contingent upon: (a) the Indemnified Party providing the Indemnifying Party with prompt written notice of the third-party claim or action, (b) the Indemnifying Party having the right to solely control the defense and settlement of such claim or action, and (c) the Indemnified Party’s cooperation with the Indemnifying Party in defending and resolving such claim or action. This section states each party’s exclusive remedies for any third-party intellectual property claim or action, and nothing in this agreement or elsewhere will obligate the Indemnifying Party to provide any greater indemnity to the Indemnified Party.
13. LIMITATION OF LIABILITY.
EXCEPT FOR AN UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION OR INFRINGEMENT/MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES , OR FOR ANY (a) LOSS OF REVENUE, INCOME, PROFIT, SAVINGS OR BUSINESS OPPORTUNITY; (b) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK, OR THE RECOVERY OF SUCH; OR (c) LOSS OF GOODWILL OR REPUTATION; ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
EXCEPT FOR COMPANY’S BREACH OF ITS PAYMENT OBLIGATIONS, AN UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION, OR INFRINGEMENT/MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY PRODUCTS, SOFTWARE OR SERVICES PROVIDED HEREUNDER WILL EXCEED THE TOTAL AMOUNT RECEIVED BY DELL UNDER THIS AGREEMENT.
THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR DELL PROVIDING PRODUCTS, SOFTWARE, OR SERVICES TO COMPANY, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES OR FAILURES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
14. DISPUTE RESOLUTION.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN COMPANY AND DELL arising out of or in connection with this Agreement, or the breach, termination or validity thereof shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by one or more arbitrators appointed in accordance with such rules. The arbitration shall be conducted in the English language. The place of the arbitration shall be a commercial center reasonably chosen by the arbitration panel so as to ensure that the award resulting from the arbitration shall be of an international character and enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The arbitration panel shall be empowered to grant whatever relief would be available in court, including without limitation preliminary relief, injunctive relief, and specific performance. Any award of the arbitration panel shall be final and binding immediately when rendered, and judgment on the award may be entered in any court of competent jurisdiction. Neither Company nor Dell shall be entitled to join, consolidate, or include any claims belonging to or alleged or arising from, by, or on behalf of any third party to an arbitration brought hereunder. The individual (non-class) nature of this dispute resolution provision goes to the essence of the parties' dispute resolution agreement, and if found unenforceable, the entire arbitration and dispute resolution provision shall be void. Notwithstanding the foregoing, either party may apply to any relevant government agency or any court of competent jurisdiction to preserve its rights under this Agreement and to obtain any injunctive or preliminary relief, or any award of specific performance, to which it may be entitled, either against you or against a non-party; provided, however, that no such administrative or judicial authority shall have the right or power to render a judgment or award (or to enjoin the rendering of an arbitral award) for damages that may be due to or from either party under this Agreement, which right and power shall be reserved exclusively to an arbitration panel proceeding in accordance herewith. Furthermore, the parties agree that the provisions of the Uniform Computer Information Transactions Act (“UCITA”), as it may have been or hereafter may be in effect in any jurisdiction, shall not apply to this EULA, and the parties waive any and all rights they may have under any laws(s) adopting UCITA in any form.
15. GOVERNING LAW.
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. Company acknowledge that the headquarters of the Dell family of companies is located in Texas, and that the materials provided under this Agreement and the related products marketed in connection with such materials were in substantial part conceived, developed, or marketed by Dell personnel in the United States. Further, Company acknowledges, agrees, and stipulates 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 is reasonable and appropriate, and Company consents to the selection of such law to govern this Agreement and the relationship of the parties hereto. This Agreement has been agreed to 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 Company only in a non-English language version, then such non-English language version shall control. Otherwise, Company acknowledges and represents that it has carefully reviewed this Agreement with the involvement and assistance of its employees, advisors, and/or legal counsel fluent in the English language, that it has consulted with local legal counsel and counsel competent to render advice with respect to transactions governed by the law applicable to this Agreement, that it has no questions regarding the meaning or effect of any of this Agreement’s terms, and that it has obtained high-quality translations of this Agreement for use by it or any of its team who are not fluent in the English language, with the understanding that Company 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.
Les parties ont demandé que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.
16. RIGHT TO PRELIMINARY AND INJUNCTIVE RELIEF.
Each party agrees that money damages would be an inadequate remedy for the other party in the event of a breach or threatened breach of the provisions set forth in this Agreement; therefore, each party agrees that in the event of a breach or threatened breach of any such provisions, the other party may, in addition to any other remedies to which it is entitled, be entitled to such preliminary or injunctive relief (including an order prohibiting you from taking actions in breach of such provisions) and specific performance as may be appropriate to preserve all rights. All rights and remedies afforded by law shall be cumulative and not exclusive.
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 Company of the changes via the Portal. If any modification is unacceptable to Company, its sole recourse is to terminate its participation in the Program. If Company continues to participate in the Program, such participation will constitute its binding acceptance of the changes and Company’s consideration supporting any such modification. No oral modifications are permitted under this Agreement and Company agrees not to rely upon any oral representations made at any time.
Company may withdraw from the Program at any time by notifying Dell in writing. Dell may suspend or terminate Company’s 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 Company 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 Sections 5, 9, 11, 12, 13, 14, 15, 16, 18 and 20, 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.
The provisions of this Agreement supersede all prior agreements, oral or written, and all other communications relating to the subject matter hereof. The terms of this Agreement shall take precedence over any conflicting provisions in any other agreement between the parties regarding the subject matter herein, including without limitation, the TPA and Dell’s Test Exit Form, unless the conflicting provision specially identifies the provision in this Agreement to be changed.
The provisions of this Agreement constitute the entire agreement between the parties and supersede all prior agreements, oral or written, and all other communications relating to the subject matter hereof. The failure, refusal or neglect by a party to exercise any of its right hereunder shall not be deemed a waiver of any such right. Any waiver of a right or default hereunder shall be effective only if made in writing and signed by the party making such waiver and shall not operate as or imply a waiver of any similar right or default on any subsequent occasion. Any portion of this Agreement which is held to be illegal or otherwise unenforceable by a court of competent jurisdiction shall be amended to the extent required to render it valid, legal, and enforceable, or deleted if no such amendment is feasible; and such amendment or deletion shall not affect the enforceability of the remaining provisions of this Agreement. 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 this Agreement.
Except as otherwise explicitly set forth herein, neither party may transfer or assign any rights or obligations of this Agreement beyond an affiliate bound by these terms, except with other party’s prior written consent, which shall not be unreasonably withheld or delayed. Each party agrees that the other party may transfer or assign this Agreement as part of a change of control of the other party through investment or acquisition, provided that other party provides prior written notice of such transfer or assignment and the assignee or transferee is not a Tier 1 competitor of the non-transferring party.
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