PartnerDirect Referral Program Terms and Conditions (U.S., Canada, and EMEA 1 )

Transcription

1 PartnerDirect Referral Program Terms and Conditions (U.S., Canada, and EMEA 1 ) Partners in good credit and payment standing in the Dell PartnerDirect Program and in compliance with their relevant PartnerDirect Program Terms and Conditions ( Partners ) shall be entitled to a fee ( Referral Fee ) for the referral of Dell branded software products ( Eligible Referral Products ) to certain end customers ( Prospect ) resulting, in the U.S. and Canada, in an indirect or direct sale to the Prospect from Dell or, in EMEA), in a direct sale to the Prospect by Dell, subject to the following terms and conditions. Referral Registration Criteria: Eligible Referral Products shall be set forth in Exhibit A hereto Each referral by Partner of Eligible Referral Products to a Prospect shall be considered an Opportunity. Each Opportunity (in whole or as part of a broader opportunity) must not be o pursued directly by Dell at the time the Partner submits the Opportunity o the subject of a public request for proposal (RFP), invitation for bid (IFB), or similar tender process, that has been published; registered as a referral or otherwise the subject of a deal registration by another Partner; o related to OEM sales the Prospect is not o a consumer end user, distributor, third-party sales agent, or a government, public sector (including a U.S. or Canadian federal, provincial, state, or local government, or any other Canadian public or greater public sector entity) or education end user or a US customer that will be reimbursed for the purchase under a federal healthcare program o an affiliate or subsidiary of the Partner the Opportunity must meet the threshold requirements set forth in the Deal and Line of Business Registration Official Guidelines applicable to the Eligible Referral Products comprising the Opportunity Referral Registration Process: Partner shall submit complete information about each Opportunity to Dell through Dell s PartnerDirect deal registration system and select the Referral box to notify Dell the opportunity is a referral and not resale. Before registering an Opportunity, the Partner must have made pre-sales efforts related to the opportunity, such as meeting with the Prospect s decision-makers, helping the Prospect to quantify the project budget and helping the Prospect to define the project requirements to include Dell Eligible Referral Products. Partner must include a description of such efforts in the Justification Statement section of the deal registration tool. In addition, Partner must document such efforts, including proof of date and time, to be provided to Dell on request. The first Partner to submit an Opportunity that meets all of the applicable referral criteria, as determined by Dell in its sole discretion, will receive an approved referral registration for that Opportunity. If an Opportunity is conditionally approved, Dell will contact the Partner to discuss Partner s intended engagement with the Prospect. If approved, Dell will notify the Partner by , including the maximum Referral Fee percentage available to Partner if it meets all associated Referral Partner Engagement requirements (as set forth in the PartnerDirect portal); such approval shall be at Dell s sole discretion. An approved referral registration of an Opportunity does not guarantee payment of a Referral Fee. If an Opportunity is declined, Dell will notify the Partner by and will include the reason(s) for such decision. An Opportunity may be rejected by Dell in its sole discretion for any reason, including but not limited to Dell having a prior relationship with the Prospect or the registration duplicates existing other sales efforts or 1 EMEA: Denmark, Sweden, Norway, Austria, Netherlands, Germany, Switzerland, France, Spain, Italy, United Kingdom, Ireland

2 information. For the avoidance of doubt, Partner s registration of an Opportunity pursuant to these provisions shall be deemed to be Partner s acceptance of these terms. Referral Fees: Subject to the following paragraph, the Referral Fees are as set forth in Exhibit A hereto as Dell may change in its sole discretion from time to time (and any referral fee changes shall not affect the Referral Fee for previously approved referral Opportunities) and shall be the sole consideration due to the Partner for the referrals rendered in accordance with the terms hereof. Unless otherwise agreed to specifically by Dell in writing, in no event will the total Referral Fee exceed the lesser of (1) ten percent (10%) of the net license fee paid to Dell for the Opportunity or (2) $100, per Opportunity. Payment shall be made to Partner within forty-five (45) days of Dell s receipt of the corresponding fees. Net license fees shall include revenue collected by Dell for the Opportunity, minus any (1) taxes and shipping and handling fees, (2) any credits for returned items or refunds, and (3) reimbursement of expenses. Dell s records and systems shall be authoritative and conclusive for purposes of determining any Referral Fees owed under this Agreement. If the Partner has any past overdue invoices, Dell may elect not to make, and the Partner forfeits any right to receive, any and all Referral Fees due hereunder. Referral Fees will only be paid for sales closed within the Deal Registration Approval Period as set forth in the Deal and Line of Business Registration Official Guidelines applicable to the Partner. Partner may request one automatic period extension per approved Opportunity. Partner may request a second extension for an approved Opportunity; Dell may extend the approval period if it believes sufficient justification exists. As per Exhibit A, applicable percentages shall depend on the Partner s PartnerDirect partner status and the Partner s level of involvement with the Prospect during the sales cycle. Dell shall pay the Partner the Referral Fee corresponding to the relevant percentage of the net license fees paid to Dell for such Eligible Product as set forth in the Opportunity approval notice from Dell to the Partner, provided Partner has met all Referral Partner Engagement Requirements. Dell shall have the absolute right, exercisable in its sole discretion, to establish the prices, charges, and terms and conditions governing the sale of Eligible Referral Products to its customer, which may be the Prospect in a direct sale or which may be another reseller. Dell shall in its sole discretion determine whether Partner has met all Referral Partner Engagement Requirements. All decisions by Dell are final.

3 Specific Conditions: Opportunities must be registered prior to the sale of the Eligible Referral Product by Dell to the end customer. In EMEA, Partner shall disclose to the Prospect the fact that it might be receiving a Referral Fee in relation to any subsequent sale by Dell to the Prospect of the Eligible Referral Products. Partner must be onboarded within Dell s payment system before any Referral Fees can be paid to Partner. Partner shall complete forms reasonably required by Dell in order to process payment. Partner forms must be returned to Dell within thirty (30) days of Dell s sale of the Eligible Referral Product. In the event that Partner is paid any Referral Fees by Dell for any Eligible Referral Product sales and those Eligible Referral Products are returned or not accepted by the Prospect or such other reseller making sale to the Prospect for any reason ( Returned Items ), Dell will notify the Partner of the same and, at Dell s option, (1) the Partner will repay the portion of such Referral Fees attributable to such Returned Items (the Returned Fees ) to Dell within thirty (30) days of its notification or (2) Dell may credit or set off such Returned Fees against any future Referral Fees owed and Partner will pay to Dell the difference, if any, between Referral Fees and any Returned Fees within thirty (30) days of the close of the then-current quarter. Dell will not withhold any amounts for payment of taxes from the amounts paid to Partner. All sums subject to deductions, if any, required to be withheld or paid under any applicable laws or union or professional guild regulations shall be the sole responsibility of the Partner. However, Dell may, at its sole discretion and without liability, choose not to pay any Referral Fees if it determines that such Referral Fees are subject to withholding tax requirements under applicable law. Partner shall not by virtue of this appointment be deemed to be granted any authority to directly or indirectly hold out to the public (including to a Prospect) that Partner is affiliated with Dell or that Partner is an authorized agent acting on behalf of Dell. Each Referral Fee is based on the specific Opportunity and is not a right for the Partner to receive payment on future sales by Dell of any Dell offering, including but not limited to the Eligible Referral Products to the Prospect or any other customer. Neither Partner nor any of its representatives is an employee, agent, servant, representative, partner, or joint venturer of Dell nor has any authority to assume or create any obligation or liability of any kind on behalf of Dell, including but not limited to binding Dell to any prices to charge a Prospect or other Dell customer or any terms to offer a Prospect or other Dell customer. Partner shall be solely responsible for all its costs, salaries, and other expenses incurred in connection with providing the referrals or any other obligations hereunder, and Dell shall have no liability, obligation, or responsibility therefor. Exceptions: Dell may, at its discretion, deny, remove, rescind, suspend, or terminate the Partner s referral registration in the following scenarios. Partner is not actively working the Opportunity or has been inattentive to the Prospect s needs (for example, by failing to respond to the Prospect or Dell s communications) Partner does not lead with or quote (or, where possible, exclusively propose and exclusively bid) the Dell Eligible Referral Products identified in its registration form Partner s account has been placed on hold by Dell or Partner has been late in paying invoices or Partner otherwise is in breach of the applicable Dell PartnerDirect Program Terms and Conditions or its other agreements with Dell for the region in which it is located or has engaged in any activity that impairs the integrity of the PartnerDirect Program as determined by Dell a similar opportunity is already registered to another Partner any other reason as Dell shall determine in its sole discretion Prospect Information. Partner acknowledges and agrees that its access to, collection, retention, transfer, disclosure, and use of customer data, including but not limited to data that relates to an identified or identifiable

4 natural person ("Personal Information") will comply in all respects with Partner s privacy policy and all applicable laws, rules, and regulations. Partner further represents and warrants that Dell's exercise of its rights under these PartnerDirect Referral Program terms will not violate any applicable Partner privacy policy or other representation made to a Prospect by Partner regarding the use of customer data. Partner represents and warrants that Partner has obtained all rights, permissions, and consents necessary for Dell to obtain and use Prospect data (including any personal information of a Prospect or its employees) in accordance with this Agreement, including to contact the Prospect with a view to selling Dell offerings to it and including but not limited to all rights, permissions, and consents necessary to transfer the data within and outside of the country where a customer is located, upload or otherwise transfer or disclose the data to Dell, and otherwise permit Dell to exercise all of its rights under these terms. Dell shall only transfer such data in accordance with Dell s relevant data privacy statement applicable in the country in which the Partner is located. Miscellaneous. The benefits of the PartnerDirect Referral Program cannot be combined with any other benefits, promotions, or offers. These PartnerDirect Referral Program terms are a supplement to and are subject to the relevant terms and conditions of the Dell PartnerDirect Program and should be read in conjunction with those agreements. In the event of a conflict or inconsistency, the order of precedence shall be as follows: (i) these PartnerDirect Referral Program terms and (ii) the Dell PartnerDirect Program Terms and Conditions. Entire Agreement. These PartnerDirect Referral Program terms constitute the entire agreement of the parties and supersedes all prior or contemporaneous communications, representations, understandings, or agreements with respect to Partner s rights hereunder.

5 Exhibit A Dell Software-branded software licenses (formerly Quest Software) professional service fees are excluded Available Referral Fees shall be posted in the PartnerDirect portal. Referral Fees shall be calculated using the applicable percentage effective and posted in the PartnerDirect portal as of the date of the Opportunity registration.