Terms and Conditions

1.1 These terms and conditions govern the sale of Products and Services by Dell directly to you through Dell's online 'For Home' store at www.dell.co.uk or through telephone orders only and are referred to as the "Consumer Terms" . The words "you" and "your" in these Consumer Terms mean you, being a individual or individuals purchasing Product(s) and/or Services from Dell for purposes which are outside your trade, business, craft or profession and with a United Kingdom address for delivery of those Product(s) and/or Services. Please note that Dell will not accept liability for any losses or damage incurred by any business, trade, craft or profession carried on by you or any other person using Product(s) and/or Services purchased under these Consumer Terms.

1.2 If you are purchasing Product(s) and/or Services for the purposes of your trade, business, craft or profession, please refer to Dell's Terms and Conditions for the Sale of Products & Services to Business Customers.

1.3 If you are purchasing Product(s) and/or Services for in order to resell, please refer to Dell's Terms and Conditions of Sale for Persons or Entities Purchasing to Resell .

1.4 If you are purchasing or have purchased Dell Product(s) or Services from a third party retailer or reseller, these Consumer Terms will not apply and you should refer to the terms and conditions of sale of the relevant retailer or reseller.

1.5 If the address to which the Products and/or Services are to be delivered is outside the UK, please refer to Dell's Terms and Conditions applicable to the country in which delivery is to take place.

1.6 Other key definitions in these Consumer Terms are:

"Basic Warranty" means the basic or standard warranty or service plan provided by Dell in respect of any Dell Product as set out in clause 5;

"Contract" means the contract for the sale of Products and /or Services by Dell directly to you in accordance with these Consumer Terms;

"Dell" means Dell Products, incorporated in Ireland - registered no. 191034 with registered office at 70 Sir John Rogerson's Quay, Dublin 2, Ireland, c/o Dell House, The Boulevard, Cain Road, Bracknell, Berkshire RG12 2LF;

"Dell's Online Store" means Dell's online 'For Home' store at www.dell.co.uk;

"Dell Product" means Dell branded Product;

"Dell Software" means software which is owned by Dell, and is available for purchase by you from Dell in accordance with these Consumer Terms and the applicable software licence terms;

"Description" means the descriptions of Dell Product(s) and/or Service offerings found at Dell's Online Store;

"Extended Warranty" means the extended warranty or service plan(s) offered by Dell in respect of Dell Products and as detailed in the relevant Service Description;

"Intellectual Property" means any patents, registered and unregistered trade marks, registered and unregistered service marks, database rights, registered and unregistered designs and applications for all of the above, copyright, know-how, trade and business names, domain names, moral rights and any other similar protected rights in any country;

"Product(s)" means the hardware and software product(s) listed on Dell's Online Store which Dell agrees to sell to you in accordance with these Consumer Terms;

"Services" means the services, listed on Dell's Online Store available for purchase by you in accordance with these Consumer Terms;

"Third Party Product" means any Product which is not Dell branded and is available for purchase by you in accordance with these Consumer Terms;

"Third Party Software" means software that is not Dell Software that is available for purchase by you in accordance with these Consumer Terms and applicable software licence terms.

 

The rights you have under these Consumer Terms are in addition to and do not affect the statutory rights and remedies you have under applicable consumer protection law. In the event of conflict between these Consumer Terms and applicable consumer protection law, your statutory rights under applicable consumer protection law shall prevail.

 

2.1 You may place an order for Product(s) and/or Services directly with Dell either online or by telephone. The placing of an order by you represents your offer to buy subject to these Consumer Terms. Please note that the Contract between you and Dell is formed only when Dell accepts your order by issuing you with an Order Confirmation in writing.

2.2 Any Products and/or Services forming part of your order which are not detailed in Dell's Order Confirmation do not form part of that Contract. If you notice any inaccuracies or errors in your Order Confirmation, you must contact Dell promptly upon receipt, and ideally immediately, so that Dell has an opportunity to correct any mistake or clarify any misunderstanding before commencing delivery/performance.

2.3 Dell may make minor changes to the specification of the Product you order if for example there is a scarcity of a particular component or for any other reasonable grounds notified to you. Any such minor change will be to at least an equivalent or better specification and will not adversely affect the material functionality or performance of the Product or performance of the Service. Any such change will be set out in your Order Confirmation. If you notify Dell of your acceptance of any such minor change to your order, or subsequently accept delivery of items listed in the Order Confirmation that are subject to a minor change, and use them (or unseal the Software delivered to you), this conduct will constitute acceptance by you of the minor changes in the order.

2.4 If Dell is unable to fulfil your order, Dell will notify you, and any payment received by Dell will be promptly returned.

 

3.1 Dell requires payment in full prior to delivery/performance, and will suspend delivery and performance until full payment is received. The price to be paid by you will be set out in the Order Confirmation. All prices are inclusive of VAT at the prevailing rate but are not inclusive of delivery charges unless otherwise stated. Your method of payment will be as set out in the payment information on Dell's Online Store, or otherwise as in the case of premium rate services, will be notified to you in advance as set out in clause 6.4 below.

3.2 In the unlikely event of any discrepancy between the price set out in the Order Confirmation, and the price stated on Dell's Online Store or other advertising, you should contact Dell immediately.

 

4.1 The place of delivery and estimated delivery date of Product(s) and/or Services will be stated on the Order Confirmation. If the estimated delivery date cannot be met, then Dell will notify you with a revised estimated delivery date. If delivery is not made within 30 days from the original date of your order and you have not subsequently accepted delivery or agreed to a delivery date outside the 30 days, you may cancel your order without charge and obtain a full refund. This right is in addition to your "cooling off" rights set out in clause 8 below.

4.2 It is important that you examine the Product(s) carefully upon delivery. If you discover that anything listed in your Order Confirmation is missing, incorrect or damaged, you will promptly notify Dell in writing or by email. This will give Dell the opportunity to suggest an appropriate solution, which may include a price refund, replacement, or repair services.

4.3 Once Dell delivers Product(s) to you (or your representative) you will take on risk of damage to or loss of the Product(s).

4.4 Ownership of Product(s) will pass to you once Dell receives payment in full, or when Dell delivers the Product(s) to you (or your representative), whichever is later. That transfer of ownership of the Product does not mean that you own any Intellectual Property in the Products or Services you purchase from Dell. Ownership of such Intellectual Property remains with Dell and any applicable software licensors. If the Contract is terminated before that passing of ownership occurs, Dell may recover any Product(s) supplied to you and you agree to assist Dell in such circumstances.

 

5.1 You have statutory rights in relation to the Products sold to you. For example, Products sold to you shall be of satisfactory quality and conform to their Product Description. Those rights are not affected by this Dell Product warranty.

5.2 Dell warrants that Dell Product shall: (i) conform to its Product Description, (ii) be free from material defects for a period of one year from date of delivery, and (iii) that Dell branded spare parts shall be free from defects for 90 days from the date of delivery or for the remainder of the applicable Services (Basic Warranty) or statutory warranty period, if longer.

5.3 Under the Basic Warranty, subject to clauses 5.3.1 - 5.3.4 inclusive and clause 5.4 below, Dell shall repair or replace the Dell Product if it develops a material fault in the period of one year from date of delivery, on condition that:

     5.3.1 the Dell Product has only been subject to normal use in a domestic, non commercial, non research environment in a manner which is consistent with the specification, functionality and service standards described in the Dell Product Description,

     5.3.2 reasonable care has been taken of the Dell Product, and it has only been subjected to reasonable wear and tear;

     5.3.3 the fault has not been caused or contributed to by willfully or negligently caused damage, or any accident, or being in environmental conditions harmful to the Dell Product, or by third party software or hardware, which has not been supplied by Dell, loaded onto or connected to the Dell Product;

     5.3.4 the part which develops the fault has not been previously modified or repaired by any third party.

5.4 Dell's obligation to repair or replace under clause 5.3 above does not apply to:

     5.4.1 consumable components (for example, toner in printer cartridges);

     5.4.2 parts which are not critical to Product function, or

     5.4.3 cosmetic features of the Product.

5.5 In relation to many Dell Products, you can purchase extended warranties from Dell which last beyond the Basic Warranty term. However, these are not available in respect of Notebook batteries (which have a maximum one-year warranty unless a shorter period is stated in any applicable Basic Warranty or Product Description.

5.6 Dell will repair Dell Product using parts which are new, or equivalent to new in accordance with industry standards and practice, and which will work for at least the remainder of the Basic Warranty period.

5.7 You will own all replacement Products and/or parts. Dell shall own any Product and/or parts that are replaced pursuant to Dell's warranty, and, if requested by Dell to do so, you must return them to Dell. The costs of returning such removed parts or replaced Product(s) will be borne by Dell.

5.8 Dell will pass to you, to the extent that Dell is permitted to do so, the benefit of any warranty or guarantee given by the manufacturer or supplier of Third Party Product or Third Party Software. Without prejudice to your rights against Dell, Dell may therefore ask Third Party Product manufacturers and/or Third Party Software licensors to fulfill their obligations to you under such warranties and guarantees and seek to ensure that such manufacturers and/or licensors do so with reasonable skill and care and within a reasonable period.

 

6.1 Dell warrants that Services shall: (i) conform to their Service Descriptions, and (ii) be performed with reasonable skill and care during the applicable Service period. You must provide Dell with all reasonable information, cooperation and courtesy to enable Dell to provide Dell Services.

6.2 Repairs under warranty, and other repair Services, will be carried out within a reasonable period. Dell will at all times try to meet response times estimated in the applicable Services Description, but actual timings may vary depending, among other factors, on the remoteness or accessibility of your location, weather conditions and availability of parts.

6.3 Dell may provide Services via internet or telephone as appropriate. Some additional optional value added Services may be offered using premium rate services. Dell will identify any such Services to you in advance and will only provide such Services in compliance with the regulations and codes which apply to the provision of premium rate services. Telephone calls may be recorded for training purposes.

6.4 Unless otherwise stated, you shall be responsible for all telephone and postal charges in contacting Dell, except when returning Product(s) which are defective or damaged, or do not accord with the Order Confirmation.

6.5 If you purchase an Extended Warranty Service from Dell, other than insurance based Services, you have the right to cancel such Services at any time:-

(i) if you do so within 45 calendar days of the date of purchase and no claim has been made on the Service, you will then obtain a full refund;

(ii) otherwise, you will be given a pro rata refund for the complete calendar months of the extended warranty Service period remaining unused at the date of receipt by Dell of the notice to cancel.

 

7.1 Both Dell Software and Third Party Software are subject to software license agreements. These agreements are provided with the software media, or at Product start up, or when software is downloaded or activated.

7.2 In the absence of licence terms accompanying Dell Software, Dell grants you a non-exclusive, non-transferable license to access and use Dell Software for the duration of the Service period and/or the life of the Product as applicable. Software provided or made available to you by Dell in connection with the provision of Services may be used only during the term of the Services and solely as necessary for you to enjoy the benefit of the Services.

7.3 You must comply with the license conditions for any Dell Software and Third Party Software supplied to you, and you must not:

(i) copy or make a back up copy, adapt, licence or sublicense, sell, assign, or otherwise transfer or encumber the software; or

(ii) exceed any criteria stipulated in any Services Description and/or software licence agreement.

 

8.1 Subject to clause 8.2 below, you have, for a short period, the right to cancel your Contract and return the Product. That period ends on the expiry of the period of seven (7) working days beginning on the day after the day on which:

(a) you receive your Order Confirmation; or

(b) if you are purchasing Product(s), those Product(s) are delivered to you;

whichever is the later ("the Cooling Off Period").

8.2 Your right to cancel under clause 8.1 will cease if the Contract is for:

(a) the supply of Services to you and Dell has commenced providing the Services to you in accordance with your Contract; or

(b) the sale of Software to you, which is delivered to you sealed, and it is unsealed (electronically or otherwise) by you or by someone acting on your behalf.

If those Services or Software can be used by you independently of any other Product(s) or Services sold under the same Contract, this early cessation of the right to cancel will not apply to the Contract insofar as it applies to those other Products.

8.3 Your right to cancel under clause 8.1 is in addition to your rights to cancel in the event of non or delayed delivery under clause 4.1 above, and your rights to cancel Extended Warranty Services under clause 6.5 above.

8.4 In order to exercise your right to cancel your order pursuant to clause 8.1, you must notify Dell in writing of your wish to cancel and Dell will then arrange for collection of the Product(s) at a reasonable time. Dell will provide you with a return address and a return number which must be clearly stated on the packaged Product(s) to be returned. You must return all cancelled Product(s) to Dell in original condition. Return freight costs will be payable by you. Dell will refund you the price, less direct return freight costs it has paid on your behalf, as soon as possible and in any case within 30 days of receipt of the notice of cancellation from you. Please note that you must take reasonable care of Product(s) in your possession during the Cooling Off Period, and, if a Product is returned to Dell in a damaged state, you will be responsible for any part of that damage which occurred whilst it was in your care or control.

8.5 Once the Cooling Off Period has ended, you do not have the right to return your order, unless Dell agrees in the circumstances set out in clauses 4.2 or 5 above or as provided in this clause 8.

8.6 Where Software or operating system elements are included with hardware in Product Descriptions, you may not obtain a refund on return of only that Software or operating system element. To cancel in accordance with clause 8.1, you would need to cancel the Product order during the Cooling Off Period.

 

Please note that Products, which may include technology and software are subject to U.S. export laws as well as the laws of the country where it is delivered or used. You agree to abide by these laws. Under these laws, Product(s) may not be sold, leased, or transferred to restricted countries, restricted end-users, or for restricted end-uses. You specifically agree that Product(s) purchased from Dell will not to be used for activities related to weapons of mass destruction, including but not limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons. You agree that you will not sell, lease, or otherwise transfer Product(s) to end-users engaged in these activities. Dell will not provide warranty support or Service in respect of a Product which have been exported in violation of these provisions.

 

10.1 Dell retains title to all Dell-owned Intellectual Property in Products and Services. You must notify Dell immediately of any infringing or unauthorised use of any Products and/or Services or Intellectual property in such Products and/or Services.

10.2 Subject to 10.3, Dell will be responsible and will reimburse you for all costs and liabilities you may incur arising from any claim that your use of Dell branded Product(s) or Dell Software infringes any third party Intellectual Property rights. Dell may recall and exchange or modify the infringing item or give you a refund (less depreciation) or require you to install replacement or modified Dell Software from appropriate delivery and/or transfer mechanisms such as CD or internet download for example.

10.3 Dell's promise to reimburse your losses in the circumstances set out at 10.2 above does not apply if the claim arises due to:

     10.3.1 use of any Third Party Product or Third Party Software or any other third party services and/or software;

     10.3.2 unauthorised modification or use of Product(s), Services or Dell Software;

     10.3.3 the use of Dell branded Product(s) or Services or Dell Software in conjunction with anything not supplied by Dell.

10.4 Dell may litigate, negotiate and settle claims described in clause 10.2 and you must provide reasonable assistance if requested to assist Dell, if litigation is directly related to Product(s) and/or Services supplied to you.

 

The Contract formed under these Consumer Terms is personal to you and you are not permitted to assign or transfer it to any other person without Dell's prior written consent. Dell has the right to assign the Contract to any company or entity for business reasons.

 

12.1 The Products are supplied only for use in a domestic, non commercial, non research environment in a manner which is consistent with the specification, functionality and service standards described in the Product Description. Dell shall not be liable for losses relating to any business of yours, such as lost revenue, income or profits, lost data or business interruption.

12.2 You must take reasonable care of the Products and use them in accordance with user instructions/ product information supplied by Dell. You must also take all reasonable steps to prevent data loss, by installing protection against virus damage, and keeping back up copies of important data on separate media. Home computers in regular use are not supplied for the purpose of the long term storage of important data, unless these basic precautions are taken.

12.3 Neither you nor Dell shall be responsible for any losses suffered as a result of breach of this agreement by the other party, except to the extent that those losses are a foreseeable consequence of the breach. If any Product develops a fault, you should promptly notify Dell and seek its advice.

12.4 Neither you nor Dell will be liable for any delay or failure to perform its obligations under these Consumer Terms if such delay or failure is caused by an event or events beyond its reasonable control, such as for example and without limitation: third party strike action, terrorism, war, natural disasters, severe weather, unforeseeable manufacturing or transport disruption affecting suppliers.

12.5 Dell's liability for breach of an agreement to provide you with Services, or arising from any failure to provide such Services with reasonable care and skill, shall not exceed the greater of:

- £5,000; or

- twice the value of the Products and Services sold or supplied to you under the Contract.

This limit will not apply to any liability of Dell to you for breach of an agreement to sell you Products, or for death or personal injury resulting from negligence.

 

Personal data obtained by Dell from you shall be held and processed in accordance with all applicable laws and consistently with Dell's Privacy Policy. Dell may share your personal data with other Dell entities, agents, or subcontractors performing Services for Dell. Dell may also transfer your personal data to affiliated companies or agents or subcontractors performing Services for Dell, which may be outside the European Economic Area, in which case Dell will ensure adequate protection to safeguard your personal data. Please review Dell's Privacy Policy in order to understand our privacy and data protection practices, and for full details of Dell's Privacy Practices, please see Privacy Practices or contact: Dell Data Protection Officer at privacy@dell.com. You consent to the processing of your personal data in accordance with the above.

 

If you breach these Consumer Terms, and Dell takes no action, Dell will still be entitled to exercise its rights and remedies in respect of that breach at a later date, or in any other situation where you breach these Consumer Terms.

 

Dell's standard terms and conditions of sale can be viewed on www.dell.co.uk. Dell will update these from time to time, giving thirty (30) days prior notice on the site of any changes which are to be introduced. Any future changes will not affect Contracts already concluded, unless the changes are required to be made and given retrospective effect by any law or government authority (in which case it will apply to Contracts if required to do so).

 

If the place of delivery of the Product(s) and/or Services is:

- in England or Wales, the Contract is governed by English law, and the courts of England and Wales shall have exclusive jurisdiction in relation to the Contract;

- in Scotland, the Contract is governed by Scottish law, and the courts of Scotland shall have exclusive jurisdiction in relation to the Contract;

- in Northern Ireland, the Contract is governed by the laws of Northern Ireland, and the courts of Northern Ireland shall have exclusive jurisdiction in relation to the Contract.

 

Product Descriptions, Basic Product Warranty and Services Descriptions and Dell Privacy Practices are located at www.dell.co.uk.

 

These terms ("Terms ") apply to all Products, Software and/or Services purchased by or on behalf of customer (the legal person who agrees to buy the Products, Software and/or Services from Dell) ("Customer ") direct from Dell Corporation Limited ("Dell") for its internal use only and to the exclusion of all other terms and conditions. These Terms together with Dell's Order Documents and Service Documents (as defined below) form a legally binding contract between Customer and Dell for the purchase of Products, Software and Services ("the Agreement "). These documents will apply in following order of priority: (1) Order Documents; (2) Service Documents and (3) these Terms.

If Customer and Dell have a separate agreement in place for the purchase of Products, Software or Services, that agreement shall apply instead of these Terms. The terms set out on Dell's website at: http://www.dell.co.uk/partner shall apply to Products, Software and Services purchased for resale by Customer.

 

"Confidential Information" means collectively information of the disclosing party that is not generally known to the public, such as software, product plans, pricing, marketing and sales information, customer lists, "know-how," or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential.

"Deliverables" means tangible and intangible materials including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations prepared by Dell or its suppliers, licensors in the course of providing the Services.

"Dell-branded" means IT hardware, software and related products and services which are marked with the Dell logo or sold under the Dell brand and components thereof, excluding (1) Third Party Products and (2) any parts or components added after delivery of the Products or through Dell's custom factory integration service.

"Intellectual Property Rights" means any patent, copyright, database right, moral right, design right, registered design, trade mark, service mark, domain name, metatag, utility model, unregistered design or, where relevant, any application for any such right, or other industrial or intellectual property right subsisting anywhere in the world and any intellectual property rights in know-how, documentation, and techniques associated with the Deliverables or Materials.

"Materials" means all content and other items included with or as part of the Products, Services, Software, or Deliverables, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds, and software.

"Order Documents" means the quotation and/or the order confirmation and/or the invoice sent by Dell to Customer which describes the Products, Software and Services purchased by Customer under the Agreement as well as Prices, payment terms and other provisions.

"Prices" means the gross price payable for the Products, Software and/or Services including the charges set out in clause 3.2.

"Products" means computer hardware and related products supplied by Dell under the Agreement.

"Services" means the services provided by Dell as described in any Service Documents.

"Service Descriptions" means descriptions of services found at http://www.euro.dell.com/service-descriptions.

"Service Documents" means the Service Descriptions available at http://www.euro.dell.com/service-descriptions, Statements of Work and any other mutually agreed documents describing Services, Software or Deliverables.

"Software" means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as related documentation, provided by Dell to Customer. Software includes software (1) provided by Dell and locally installed on Customer's hardware and/or equipment or (2) made available by Dell and accessed by Customer through the internet or other remote means (such as websites, portals, and "cloud-based" solutions).

"Statement of Work" means any mutually agreed statement of work describing specific Services and/or Deliverables as agreed between Customer and Dell.

"Third Party Products" means any non Dell-branded products, software, or services.

 

3.1 Any quotes issued by Dell shall be valid for 15 days unless stated otherwise in the quote.

3.2 Prices for the Products, Software and Services shall be stated in the Order Documents or Service Documents issued by Dell. Where deliveries occur in instalments or phases Dell may need to adjust Prices for Products, Software or Services due to changes in exchange rates, taxes, duties, freight, levies and purchase costs. Quotes provided by Dell exclude value added tax, sales tax, governmental fees and any other applicable taxes, levies, and shipping charges unless expressly set out in the quote. Such charges are payable by Customer in addition to the prices quoted and may appear as separate items on the Order Documents. If the Customer is eligible for tax exemptions, it shall provide Dell with a valid certificate of exemption or other documentary proof of exemption.

3.3 Payment for Products, Software or Services must be received by Dell prior to Dell shipping the Products or providing the Software or Services to Customer or, if agreed in writing, within the time period noted on the Order Documents, or if not noted, within 30 days from the date of the invoice. Payment shall be made to the account indicated by Dell (as may be amended from time to time.) Time for payment shall be of the essence. Customer's payment terms are subject to credit checking by Dell. Dell shall be entitled to charge interest on overdue amounts at a rate of 3 per cent above the Bank of England base rate calculated on a daily basis (both before and after judgement) until actual payment is made in full. If any sum due from the Customer to Dell under the Agreement is not paid by the due date for payment then (without prejudice to any other right or remedy available to Dell), Dell shall be entitled to cancel or suspend its performance of the Agreement or any order including suspending deliveries of the Products and/or Software and suspending provision of the Services until arrangements as to payment or credit have been established which are satisfactory to Dell. Dell may invoice parts of an order separately.

3.4 All payments made or to be made by Customer to Dell under this Agreement shall be made free of any restriction or condition and without any deduction or withholding (except to the extent required by law) on account of any other amount, whether by way of set-off or otherwise.

3.5 Dell may invoice electronically and the parties agree to make the necessary arrangements to enable such electronic invoicing to take place.

 

Changes in a Product, Software, or Service may occur after a Customer places an order but before Dell ships the Product or Software or performs the Service, and Products and Software or Services Customer receives might display minor differences from the Products, Software, or Services Customer orders but they will meet or exceed all material functionality and performance of the Products, Software or Services that were originally ordered.

 

5.1 Dell shall deliver the Products to Customer's location as set out in the Order Documents. Delivery dates are non-binding and time for delivery shall not be of the essence. If no delivery dates are specified, delivery shall be within a reasonable time. Delivery of Products may be made in instalments. Dell shall not be liable for any loss (including loss of profits), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products (even if caused by Dell's negligence), nor will any delay entitle Customer to terminate or rescind the Agreement. Dell shall only be liable for any non-delivery of Products if Customer gives written notice to Dell within 7 days of the date when the Products would, in the ordinary course of events, have been delivered.

5.2 The Products shall be at the risk of Customer or its representative from the time of delivery. Dell retains all title to the Products until full payment for such Products is received by Dell from Customer. Therefore, until full payment is received, Customer will (1) hold the Products on a fiduciary basis as Dell's bailee and shall not pledge or in any way charge by way of security for any indebtedness any of the Products (2) ensure that the Products remain readily identifiable as Dell's property (3) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products (4) maintain the Products in satisfactory condition and keep them insured [on Dell's behalf] for their full price against all risks to the reasonable satisfaction of Dell. On request Customer shall produce the policy of insurance to Dell. Customer grants Dell, its agents and employees an irrevocable licence at any time to enter without restriction any premises where the Products are or may be stored without prior notice in order to inspect them, or, where Customer's right to possession has terminated, to recover them. Dell shall be entitled to maintain an action against Customer for the price of the Products notwithstanding that title to and property in the Products has not passed to Customer.

5.3 Customer shall inspect the Products to identify any missing, wrong or damaged Products or packaging, and notify Dell of any such issues which would be apparent on reasonable inspection and testing of the Products within 7 days of the date of delivery of the Products. Where the defect or failure would not be so apparent within 7 days of the date of delivery, Customer shall notify Dell in writing of any defects or other failure of the Products within a reasonable time. If Customer does not comply with the notification requirements in this clause, Customer shall not be entitled to reject the Products; Dell shall have no liability for such defect or failure, and Customer shall be bound to pay for the Products as if they had been delivered in accordance with the Agreement. Dell shall, at its discretion, repair or replace Products rejected in accordance with this clause.

5.4 If for any reason Customer does not accept delivery of any of the Products when they are ready for delivery, or Dell is unable to deliver the Products on time because Customer has not provided appropriate instructions, documents, licences or authorisations then the Products will be deemed to have been delivered, risk passing to Customer (including for loss or damage caused by Dell's negligence) and Dell may:

     5.4.1 store the Products until actual delivery and Customer shall be liable for all related costs and expenses (including without limitation storage and insurance); or

     5.4.2 sell the Products at the best price readily obtainable and (after deduction of all reasonable storage and selling expenses) charge Customer for any shortfall below the Price for the Products.

 

6.1 Dell shall provide Services, Software, or Deliverables to Customer in accordance with the Service Documents. Dell may, at its option, propose to renew the Service and the Software licence by sending Customer an invoice or, subject to prior notification, continuing to perform the Service or make the Software available to Customer. Customer is deemed to have agreed to such renewal of the Service and Software licence by paying such invoice by its due date or by continuing to order Services or use the Software.

6.2 All Intellectual Property Rights embodied in the Materials and Deliverables shall belong solely and exclusively to Dell, its suppliers or its licensors except as expressly granted in this Agreement.

6.3 Subject to payment in full for the applicable Services, Dell grants Customer a non-exclusive, non-transferable, royalty-free right to use the Materials and Deliverables solely (1) in the country or countries in which Dell delivers the Services, (2) for its internal use, and (3) as necessary for Customer to enjoy the benefit of the Services as stated in the applicable Service Documents.

6.4 Dell may cancel or suspend its performance of the Services or Customer's access or any user access to the Software provided by Dell in connection with the provision of the Services where Dell is required to do so (1) by law, (2) by order of a court of competent jurisdiction, or (3) when Dell has reasonable grounds to believe that Customer (or Customer's users) are involved in any fraudulent or other illegal activities in connection with the Agreement.

6.5 It may be necessary for Dell to carry out scheduled or unscheduled repairs or maintenance, or remote patching or upgrading of the Software provided by Dell in connection with the provision of the Services and which is installed on Customer's computer system(s) ("Maintenance "), which may temporarily degrade the quality of the Services or result in a partial or complete outage of the Software. Any degradation or interruption in the Software or Services during such Maintenance shall not give rise to a refund or credit of any fees paid by Customer.

6.6 Customer agrees that the operation and availability of the systems used for accessing and interacting with the Software provided by Dell in connection with the provision of the Services (including telephone, computer networks and the internet) or to transmit information can be unpredictable and may from time to time interfere with or prevent access to, use or operation of the Software. Dell shall not be liable for any such interference with or prevention of Customer's access to, use or lack of operation of the Software.

6.7 During the performance of the Services or in connection with Customer's use of the Software provided by Dell in connection with the provision of the Services, it may be necessary for Dell to obtain, receive, or collect data or information, including system specific data (collectively, the "Data "). Customer grants to Dell a non-exclusive, worldwide, royalty-free, perpetual, irrevocable licence to:

     6.7.1 use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely for the purposes set out in clause 6.7;

     6.7.2 a licence to aggregate the Data with other data for use in an anonymous manner for Dell's marketing and sales activities; and

     6.7.3 a right to copy and maintain such Data on Dell's servers (or the servers of its suppliers) during the term of this Agreement.

6.8 Customer represents and warrants that it has obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which Customer is located in connection with Dell's performance of the Services or Customer's use of the Software.

 

7.1 Where the Services purchased consist of repair of Dell-branded Products, such Services shall be those repair services that are necessary to fix a defect in materials or construction of any Products covered by this Agreement. Preventive maintenance is not included and Dell shall not be responsible for repairs of Dell-branded Products caused by problems with Software or Customer provided Third Party Products. Unless expressly stated in a Service Document, Services do not include repair of any Products or Product component that has been damaged as a result of (1) work carried out by anyone other than Dell or its representatives (2) accident, misuse, or abuse of the Product or Product component (such as, without limitation, use of incorrect line voltages or fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) by anyone other than Dell or its representatives; (3) the moving of the Product from one geographic location or entity to another; or (4) an act of nature, including without limitation, lightning, flooding, tornado, earthquake, or hurricane. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned.

7.2 Customer authorises Dell to use or access any Customer provided Third Party Products as necessary or as requested by Customer in Dell's performance of the Services, including without limitation, copying, storing, and reinstalling a backup system or data. Customer shall defend, indemnify, and hold Dell harmless from any third party claim or action arising out of Customer's failure to provide such authorisation (including without limitation, obtaining appropriate licenses, Intellectual Property Rights, or any other permissions, regulatory certifications, or approvals associated with technology, software, or other components).

 

8.1 Software is subject to separate software licence agreements accompanying the software media and any product guides, operating manuals, or other documentation presented to Customer during the installation or use of the Software.

8.2 In the absence of licence terms accompanying the Software, Dell grants Customer a non-exclusive licence to access and use the Software provided by Dell. Software provided or made available to Customer by Dell in connection with the provision of the Services may be used only during the term of the Services and solely as necessary for Customer to enjoy the benefit of the Services.

8.3 For Software provided by Dell in connection with the provision of the Services, the following clauses shall apply:

     8.3.1 Customer may not: (1) copy (save for making a back up copy), adapt, licence, sell, assign, sublicense, or otherwise transfer or encumber the Software; (2) use the Software in a managed services arrangement; or (3) use the Software in excess of the authorised number of licensed seats for concurrent users, sites, or other criteria specified in the applicable Service Documents.

     8.3.2 Customer is prohibited from (1) attempting to use or gain unauthorised access to Dell or to any third party's networks or equipment; (2) attempting to probe, scan, or test the vulnerability of Software or a system, account, or network of Dell or any of its customers or suppliers; (3) interfering or attempting to interfere with service to any user, host, or network; (4) transmitting unsolicited bulk or commercial messages; (5) restricting, inhibiting, or otherwise interfering with the ability of any other person, regardless of intent, purpose, or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (6) restricting, inhibiting, interfering with, or otherwise disrupting or causing a performance degradation to any Dell (or Dell's suppliers') facilities used to deliver the Services.

8.4 Customer grants Dell, or an agent designated by Dell, the right to perform an audit of its use of the Software during normal business hours. Customer agrees to cooperate with Dell in such audit and to provide reasonable access to all records related to the use of the Software. The audit will be limited to verification of Customer's compliance with the terms of usage relating to such Software under this Agreement.

 

9.1 Subject to clause 9.3, Dell warrants that Dell-branded Products shall (1) conform to their product specification and (2) be free from material defects for a period of 12 months from the date of the invoice ("Warranty Period") and (3) that Dell-branded spare parts shall be free from defects for 90 days from the date of delivery or for the remainder of the Warranty Period, if longer. Performance of any one of the options set out at clause 9.3 below shall constitute an entire discharge of Dell's liability under the warranties given in this clause 9.1.

9.2 All warranties, conditions and other terms implied by law are to the fullest extent permitted by law, excluded from this Agreement.

9.3 Dell shall at its own discretion, repair or replace Dell-branded Products that do not comply with the warranties set out in clause 9.1 provided Dell is notified in writing of the alleged defect within 7 days of the time when Customer discovers or ought to have discovered the defect and in any event within the Warranty Period. If Dell elects to replace Dell-branded Products or parts pursuant to the warranties set out in clause 9.1, Dell shall deliver the replacement Products or parts to Customer at Dell's own expense at the address to which the defective Dell-branded Products were delivered and the legal, equitable and beneficial title to the defective Products or parts which are being replaced shall (if it has vested in Customer) re vest in Dell. Customer shall make any arrangements as may be reasonably necessary to deliver up to Dell the defective Products which are being replaced and Dell shall be entitled to charge Customer if such defective Product or parts are not returned on request.

9.4 Dell warrants that (1) the Services and Deliverables shall conform to the Service Documents and (2) the Services shall be performed with reasonable skill and care during the applicable service period.

9.5 Dell warrants that for a period of 90 days from the date of delivery Dell-branded Software will be capable of functioning in all material respects in accordance with the relevant specifications provided (1) Customer notifies Dell of any error or defects in the Software within 14 days of the time when Customer discovers or ought to have discovered the error or defect and (2) Customer provides Dell with documented examples of such error or defect. Dell provides no assurance or warranty that the Software will be free from minor errors. Dell's sole responsibility in respect of the warranty given in this clause 9.5 and Customer's sole remedy shall be the correction of any failure of the Dell-branded Software so that it functions in material respects in accordance with the relevant specifications.

9.6 Dell shall not be liable under the warranties given in this clause 9 in respect of:

     9.6.1 any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Dell's instructions (whether oral or in writing), misuse or alteration, modification, adjustment or repair of the Products and/or Software without Dell's approval;

     9.6.2 if the total Price for the Products and/or Software has not been paid by the due date for payment;

     9.6.3 for any Products, Software, Deliverables parts, materials or equipment not manufactured or produced by Dell, in respect of which Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer or supplier to Dell to the extent that they are assignable by Dell to Customer;

     9.6.4 any Software, Deliverables and Products manufactured, produced or provided by Dell pursuant to the Agreement in accordance with any design, specification, instruction or recommendation made to Dell by Customer;

     9.6.5 any type of defect, damage or wear specifically excluded by Dell by notice in writing; and/or

     9.6.6 if Customer makes any further use of the Products and/or Software after giving notice pursuant to clause 9.3.

9.7 Dell does not warrant that the Products, Software, Deliverables or Services will function (1) with any specific configuration not provided by Dell or (2) to produce a specific result even if the configuration or result has been discussed with Dell.

 

10.1 Neither party excludes or limits liability to the other party for (1) death or personal injury resulting from negligence, (2) fraud or (3) fraudulent misrepresentation or (4) any other liability that cannot be excluded by law.

10.2 Neither party shall be liable for:

     10.2.1 special, indirect or consequential loss or damages;

     10.2.2 loss of profit, income or revenue;

     10.2.3 loss of use of Customer's system(s) or networks;

     10.2.4 loss of goodwill or reputation;

     10.2.5 loss of, corruption of or damage to data or software; or

     10.2.6 recovery of data or programs.

10.3 Dell's total liability to Customer howsoever arising out of or in connection with the Agreement whether for negligence or breach of contract or otherwise shall not exceed 125% of the Price payable by Customer under the Agreement for Products, Software, Deliverables and/or Services.

 

Customer acknowledges that the Products, Software, Deliverables and Services are not designed or intended for use in hazardous environments requiring fail safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life support machines, or any other application in which the failure of the Products, Software, Deliverables or Services could lead directly to death, personal injury, or severe physical or property damage ("High Risk Activities" ). Dell expressly disclaims any express or implied warranty of fitness for High Risk Activities.

 

Each party must treat all Confidential Information received from the other party as it would treat its own confidential information generally, but with no less than a reasonable degree of care.

 

13.1 Dell shall defend and indemnify Customer against any third-party claim or action that Dell-branded Products, Software, Deliverables or Services prepared or produced by Dell and delivered pursuant to this Agreement infringe or misappropriate that third party's Intellectual Property Rights enforceable in the country in which Dell delivers and the Customer is authorised to receive such Products, Software, or Services ("IPR Claim" ). If Dell receives prompt notice of an IPR claim that, in Dell's reasonable opinion, is likely to result in an adverse ruling, then Dell shall at its option, (1) obtain a right for Customer to continue using such Products, Deliverables or Software or allow Dell to continue performing the Services; (2) modify such Products, Deliverables, Software, or Services to make them non-infringing; (3) replace such Products, Deliverables, Software, or Services with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverable or Software.

13.2 Notwithstanding clause 13.1, Dell shall have no obligation under clause 13.1 for any IPR Claim arising from (1) modifications of Dell-branded Products, Deliverables, Software, or Services that were not performed by or on behalf of Dell; (2) the combination, operation, or use of such Products, Deliverables, Software, or Services in connection with a third party product, software, or service (the combination of which causes the claimed infringement); or (3) Dell's compliance with Customer's written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by Customer.

13.3 Clauses 13.1 and 13.2 set out Customer's sole and exclusive remedies for any IPR Claim.

13.4 Customer shall defend and indemnify Dell against any third party claim or action arising out of (1) Customer's failure to obtain any appropriate licence, Intellectual Property Rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by Customer, or (2) associated with software or other components directed or requested by Customer to be installed or integrated as part of the Products, Deliverables, Software or Services; (3) Customer's breach of Dell's proprietary rights as stated in this Agreement; or (4) any inaccurate representation regarding the existence of an export licence; or (5) any allegation made against Dell due to Customer's breach or alleged breach of applicable export laws, regulations, or orders.

 

14.1 Either party may (without prejudice to any other rights or remedies it may have against the other party) terminate this Agreement by notice in writing immediately if the other party:

      14.1.1 commits a material breach of the Agreement and fails to remedy such breach within 30 days of written notice; or

      14.1.2 ceases, or threatens to cease, to carry on business or, becomes insolvent.

14.2 Dell may terminate this Agreement with immediate written notice if Customer:

      14.2.1 fails to pay undisputed sums properly due to Dell in accordance with the Agreement;

      14.2.2 Customer breaches or Dell reasonably suspects Customer has breached export control laws;

      14.2.3 Customer breaches any IPR obligations, warranties and indemnities set out in the Agreement.

14.3 On termination of this Agreement, all rights and obligations of the parties relating to the Products, Services and/or Software relevant to the specific Order Documents under the Agreement will automatically terminate except for rights of action accruing prior to its termination

14.4 The following clauses shall survive termination of the Agreement and continue to bind the parties, their successors and assigns: 1 (Introduction); 2 (Definitions); 3.3 (Payment); 5 (Products); 6 (Services, Software & Deliverables); 7 (Services); 9 (Warranties); 10 (Liability); 11 (High Risk Disclaimer); 12 (Confidentiality); 13 (Indemnities); 14 (Termination); 15 (Force Majeure); 16 (Export Compliance); 17 (Data Privacy); 18 (WEEE Compliance); and 19 (General).

 

Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by any circumstances beyond a party's reasonable control including, without limitation, fire, flood, war, embargo, strike, riot, or the intervention of any governmental authority ("Force Majeure Event" ) provided that the delayed party shall provide the other party with prompt written notice of the Force Majeure Event. The delayed party's time for performance shall be excused for the duration of the Force Majeure Event, but if the Force Majeure Event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement by giving written notice to the delayed party.

 

16.1 Customer acknowledges that the Products, Deliverables, Software, and Services provided under this Agreement, (which may include technology and encryption), (1) are subject to U.S. and European customs and export control laws, (2) may be rendered or performed in countries outside the U.S. or Europe, or outside of the borders of the country in which Customer or Customer's Products are located, and (3) may also be subject to the customs and export laws and regulations of the country in which the Products, Deliverables, Software, or Services are rendered or received. Under these laws and regulations, Products, Deliverables, Software, and Services purchased under this Agreement may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries. In addition, the Products, Deliverables, Software and Services may not be sold, leased or otherwise transferred to, or utilized by, an end-user engaged in activities related to weapons of mass destruction, including but not necessarily limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons. Customer agrees to abide by those laws and regulations.

16.2 Customer represents that any software provided by it and used as part of the Products, Deliverables, Software, or Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a licence. If Customer cannot make the preceding representation, Customer agrees to provide Dell with all of the information needed for Dell to obtain export licences from the U.S. government or any other applicable national government and to provide Dell with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, Customer is solely responsible for obtaining any necessary licenses relating to the export of software. Dell also may require export certifications from Customer for Software.

16.3 Dell's acceptance of any order for Products, Deliverables, Software, or Services is contingent on the issuance of any applicable export license required by the U.S. Government or any other applicable national government. Dell shall not be liable for delays or failure to deliver Products, Deliverables, Software, or Services resulting from Customer's failure to obtain such licence or to provide such certification.

16.4 Customer agrees to indemnify, defend and hold Dell harmless from any third party claims, demands, or causes of action against Customer's breach or alleged breach of the applicable export laws

 

In this section 17, the terms "data controller", "data processor", "personal data" and "processing" shall be as defined in the European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data ("Directive" ) as amended or superseded from time to time.

17.1 To the extent Customer and Dell are data controllers for the purpose of any personal data processed under or in connection with this Agreement, each party shall comply with the provisions and obligations imposed by the Directive to the extent required by that legislation of each party. As data controller, Customer confirms that it has obtained all necessary authorisations for lawful processing, prior to passing personal data to Dell.

17.2 To the extent Dell processes personal data as a data processor for Customer under or in connection with this Agreement, Dell shall ensure appropriate protection is in place to safeguard such personal data. Dell shall use its reasonable efforts to assist Customer to comply with its obligations, as data controller, to respond to requests for access to Customer records made by individuals to whom the personal data relates, subject to the payment by Customer of Dell's reasonable professional charges for the time engaged by Dell staff in so doing.

17.3 Customer authorises Dell to collect, use, store and transfer the personal data Customer provides to Dell for the purpose of performing Dell's obligations under this Agreement and for any additional purposes described, pursuant to the Agreement.

17.4 Dell may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, Dell shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with this Agreement.

17.5 Dell shall not be liable for any claim brought by Customer or a data subject arising from any action or omission by Dell to the extent that such action or omission resulted from compliance by Dell with Customer's instructions.

 

Dell takes responsibility for compliance with the Waste Electrical and Electronic Equipment Directive 2002/96/EC ("WEEE" ), including without limitation: reporting of equipment placed on the market, payment of ECO-fees to the appropriate authority where required and take back of product at Dell provided collection facilities in accordance with WEEE as transposed in national legislation. Products deposited at collection facilities will be recycled by Dell in accordance with WEEE. Customer shall be responsible for returning products at its cost to Dell's designated collection facilities as per Dell's WEEE recycling programme - www.euro.dell.com/recycling.

 

19.1 Notices given under the Agreement must be in writing and shall be effective when delivered to the other party's legal officer at the address stated on Dell's invoice.

19.2 Neither party may assign or transfer this Agreement without the prior written consent of the other party except that (1) no consent is required by Dell to assign to its affiliated companies and (2) Dell may subcontract its obligations under the Agreement but shall remain liable and responsible to Customer for such obligations.

19.3 This Agreement constitutes the entire agreement between the parties and each party acknowledges that in entering into this Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in the Agreement shall limit or exclude any liability for fraud or fraudulent misrepresentation.

19.4 Any changes to this Agreement or to any order placed pursuant to it shall not be valid or binding unless it is in writing and agreed by parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be struck out or modified to the extent necessary to comply with the law, and the remainder of this Agreement shall remain in full force and effect.

19.5 A waiver by either party of a breach of the Agreement or delay or failure to enforce a right under the Agreement shall not constitute a waiver of any subsequent breach of the Agreement.

19.6 A person who is not a party to the Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

19.7 The Agreement and any non contractual obligations shall be interpreted according to English law and the English courts shall have exclusive jurisdiction.

19.8 The parties agree that the United Nations Convention on Contracts for the International Sale of Goods 1980 (Vienna Convention) shall not apply to the Agreement.