1 Services Agreement - Terms and Conditions Client Gold Technical Support Services OptiPlex, Precision, Latitude, P1500, S2500, S2500N and M5200n Printers BY ACCEPTING THE SERVICES AND SUPPORT DESCRIBED ON YOUR INVOICE, YOU AGREE TO BE BOUND BY AND ACCEPT THE TERMS AND CONDITIONS HEREIN. PLEASE READ THIS AGREEMENT IN ITS ENTIRETY. THESE TERMS AND CONDITIONS (THE AGREEMENT ) WILL SUPPLEMENT THE TERMS AND CONDITIONS OF ANY APPLICABLE OVERRIDING SIGNED AGREEMENT BETWEEN YOU AND DELL OR, IN THE ABSENCE OF SUCH AN AGREEMENT, DELL S STANDARD TERMS AND CONDITIONS OF SALE. THIS CONTRACT IS BETWEEN YOU AND THE DELL ENTITY ( DELL, OUR, WE OR US ) AS SPECIFIED IN THE AFOREMENTIONED SIGNED AGREEMENT OR DELL S STANDARD TERMS AND CONDITIONS. ALL CAPITALISED TERMS AND CONDITIONS NOT DEFINED HEREIN SHALL HAVE THE MEANING SPECIFIED IN THE AFOREMENTIONED SIGNED AGREEMENT OR DELL S STANDARD TERMS AND CONDITIONS. 1. Services that Dell Will Supply: For your one-time payment to us of the price shown on your invoice (the Total Price ) plus any applicable sales taxes, Dell us or Dell will provide you with Gold Technical Support Service pursuant to the following terms and conditions: 1.1. Scope Dell agrees to deliver to you the services in accordance with these Terms and Conditions described herein. Dell reserves the right to change or modify any of the terms and conditions contained in the Terms and Conditions at any time and from time to time in its sole discretion. Gold Technical Support Services are available only for select Dell OptiPlex, Precision, Latitude, systems and for Dell P1500, S2500, S2500N and M5200n printers ( Gold Supported System ).. Our invoice to you will indicate whether you purchased Gold Technical Support Services and will serve as your receipt ( Client Gold Service Invoice ). Separate contracts must be purchased for each system and printer. Your printer is NOT covered by your contract for your system. In addition, the Product will be tagged with a serial number that will indicate your purchase of Gold Technical Support Services (the Service Tag ). A third party service provider, under subcontract with Dell, may provide some or all of the Gold Technical Support Services. IN ADDITION TO THE DELL STANDARD TECHNICAL SUPPORT COVERAGE THAT COMES WITH YOUR DELL OPTIPLEX, PRECISION, AND LATITUDE, SYSTEMS AND DELL P1500, S2500, S2500N AND M5200N PRINTERS, DELL S GOLD TECHNICAL SUPPORT SERVICE PROVIDES A HIGHER LEVEL RAPID RESOLUTION WITH ADVANCED TECHNICAL ASSISTANCE AND ACCOUNT MANAGEMENT TO GIVE YOU A SINGLE POINT OF CONTACT FOR YOUR GOLD SUPPORTED SYSTEM. Product Support: Products Covered ( Covered Hardware ): Hardware Support covers any hardware that is installed as standard equipment by Dell on OptiPlex, Precision, Latitude systems, and P1500, S2500, S2500N and M5200n printers. Industry-Certified Advanced Level Technician
2 Gold Technical Support Services includes, a 7x24 dedicated number, direct into Dell s Gold Technical Support team. Technical Account Manager (TAM) Services are offered through defined teams of engineers who assist Gold Technical Support Services customers. The size and coverage of these teams are closely monitored to help you work with expert engineers. TAM Team Service responsibilities: Escalation Management-Single point of contact for escalations Change Notification Updates Monthly email updates on BIOS, driver, and software changes affecting the hardware Performance Reporting Quarterly email reports on service issues and performance Seamless Escalation Support If a problem with a Microsoft operating system/application or a select hardware product is determined by Dell, then a member of Gold Technical Support will contact the third party vendor and provide details on the incident for you. Once the vendor is engaged, Dell will monitor the problem resolution process and obtain status and resolution plans from the vendor until the problem is solved and closed. A problem may be resolved and/or closed by one of the following actions: providing a resolution or steps towards a resolution workaround configuration changes escalate a bug report Quarterly Performance Reporting Your Gold Technical Support Service allows you to request to receive a Quarterly Service Performance Report, designed to give you the details you need to track your system support issues. The report provides the following information for your benefit: Site Summary Issues Summary Performance Graph Contacts per Issue Graphs Project Summary Issues Details Mean Time to Repair Graph WebEx TM OnCall Support Capability In certain situations, you may choose to enhance the effectiveness of traditional telephone-based technical support by allowing our Gold Technical Support Technician to interact with you live over the Web. Using WebEx OnCall, the Technician can instantly initiate online sessions so they can diagnose and fix problems using a powerful set of interactive tools. Limits of Support Services: THIS AGREEMENT IS OF LIMITED DURATION AND COVERAGE. This Agreement extends only to the Gold Supported System shown on the Client Gold Service Invoice and only to uses for which this the Gold Supported System was designed. Except as stated below, the services Dell agrees to provide under this Agreement are repair services that are necessary because of any existing defect or a defect occurs in materials or workmanship in the Gold Supported System or in any system component covered by this Agreement. Preventive maintenance is not included. Installation, de-installation, or relocation services and operating supplies are not included. Repairs necessitated by software problems, or as a result of alteration, adjustment, or repair by anyone other than Dell (or its representatives) are not included. Dell is not obligated to repair any Gold Supported System or system component which has been damaged as a result of: (i) accident, misuse, or abuse of the Gold Supported System or
3 components (such as, but not limited to, use of incorrect line voltages, use of incorrect 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), (ii) an act of God such as, but not limited to, lightning, flooding, tornado, earthquakes, and hurricanes, or (iii) the moving of the Gold Supported System from one geographic location to another or from one entity to another. With regard to any services that are not within the coverage of this Agreement, it will be within Dell s discretion whether to perform the services, and, if Dell elects to perform the services, the services will be subject to an additional charge to be paid by you. 1.2. Third Party Products Not Covered. Gold Technical Support Services do not include warranty or repair service or any other services for third party products. Dell s seamless support services means that Dell will act as a facilitator between you and the other vendor to obtain whatever third party service or support you may be entitled to receive under your agreements with those other vendors. It is your responsibility to buy and pay for warranty or service contracts for those third party systems. Dell is not responsible for the performance of other vendors products and services. You hereby indemnify and hold Dell harmless for any claims related to those third party products. 1.3. Supported Releases. Gold Technical Support Services require you to maintain software and Gold Supported Systems at Dell-specified minimum release levels and configurations specified on the original product invoice. You must also install remedial replacement parts, patches, software updates or subsequent releases as directed by Dell in order to keep your Gold Supported Systems eligible for Gold Technical Support Services. 1.4. Exclusions. Gold Technical Support Service does not cover warranty or troubleshoot a) accessories, supply items, peripherals and certain parts, such as batteries, and covers; b) Third Party Products, Custom Factory Integration products or c) service of equipment damaged by misuse, accident, modification, unsuitable physical or operating environment, improper maintenance by you, removal or alteration of equipment or parts identification labels, or failure caused by a product for which Dell is not responsible. 1.5. Seamless Escalation Support. For several key applications that are commonly utilised in Dell supported environments (for example Microsoft Applications and Operating Systems), Dell will provide a single point of contact until problems are isolated and escalated to the product vendor. Dell will contact the Seamless Support vendor and create a problem incident on behalf of the customer, providing the necessary problem documentation. Seamless Escalation Support is provided for all Gold Technical Support Service customers (on the Gold Supported Systems). Once a vendor is engaged, Dell will monitor the problem resolution process and obtain status and resolution plans from the vendor until the problem is solved or closed. A Gold Technical Support Team Member will initiate management escalation procedures within Dell and the vendor organisation, upon the request of the customer. The customer must have the appropriate support agreements and entitlement with the Seamless Support vendors. Once isolated and reported, the Seamless Support vendor provides technical problem support and resolution. DELL SHALL NOT BE RESPONSIBLE FOR A VENDOR S INABILITY TO SOLVE A PARTICULAR CUSTOMER PROBLEM. 2. Payment. 2.1. Fees: You agree to pay Dell the fee for the Gold Technical Support Services described on Client Gold Service Invoice plus any applicable taxes, within 30 days of the date of invoice. You agree to pay an additional fee for invoices not paid within such 30-day period in accordance with the terms of your signed agreement with Dell or Dell s standard Terms and Conditions of Sale. If you have not timely paid Dell for Gold Technical Support Services, then,
4 in addition to the other remedies that Dell may have, Dell may, in its sole discretion, discontinue providing the Gold Technical Support Services to you. 2.2. Payment Provisions - Expense Reimbursement. Unless otherwise specified in the applicable Service Description, or otherwise purchased as an optional service contract, you agree to reimburse Dell for all actual, reasonable, documented out of pocket expenses that Dell incurs in connection with rendering any on-site service or on-site training. If you travel to receive training or other services from Dell, your travel expenses are your responsibility. 3. DISCLAIMER OF ALL WARRANTIES. DELL MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE GOLD TECHNICAL SUPPORT SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING THE GOLD TECHNICAL SUPPORT SERVICES, OR ANY EXPRESS OR IMPLIED WARRANTIES CONCERNING THE RESULTS TO BE OBTAINED FROM THE GOLD TECHNICAL SUPPORT SERVICES OR THE RESULTS OF ANY RECOMMENDATION DELL MAY MAKE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES OR OF ANY GOLD SUPPORTED SYSTEM THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION DELL MAY PROVIDE. NOTHING IN THIS AGREEMENT OR ANY OTHER WRITTEN DOCUMENTATION OR ANY ORAL COMMUNICATIONS WITH CUSTOMER MAY ALTER THE TERMS AND CONDITIONS OF THIS PARAGRAPH. 4. Your Responsibilities. 4.1. You agree to follow the instructions Dell provides and where applicable, before you ask Dell to provide Gold Technical Support Services you agree: a) to follow the problem determination, problem analysis, and service request procedures that Dell provides; and b) to secure all programs, data and funds contained in the Gold Technical Supported Systems. 4.2. In order to receive Gold Technical Support Services, you must fulfill all the Customer Responsibilities described here. Please be sure you have read and understand all of your obligations. If you do not fulfill each of the Customer Responsibilities, then Dell will not be obligated to deliver the Gold Technical Support Services, or there may be an additional charge for those services. You must supply Dell with the appropriate customer contact name, phone number, e-mail and fax number. 4.3. We agree generally to cooperate with each other to see to it that work is successfully completed. 4.4. It is your responsibility to back up the data on your Gold Supported System, and to provide adequate security for your system. DELL WILL NOT BE RESPONSIBLE FOR LOSS OF OR DAMAGE TO DATA OR LOSS OF USE OF ANY OF YOUR COMPUTER OR NETWORK SYSTEMS. 4.5. You represent and warrant to Dell that you have obtained permission for both you and Dell to access and use your Gold Supported System, the data on it, and all hardware and software components included in it, for the purpose of providing the Gold Technical Support Services. If you do not already have that permission, it is your responsibility to obtain it, at your expense, before you ask Dell to perform the Gold Technical Support Services. 4.6. Some of the Gold Technical Support Services may require Dell to access hardware or software that is not manufactured by Dell. Some manufacturers warranties may become void if Dell or anyone else, other than the manufacturer or its authorised representative, works on the hardware or software. It is your responsibility to look at your warranty, and to ensure that Dell s performance of Gold Technical Support Services will not affect the warranty, or, if it does, that the
5 effect will be acceptable to you. DELL DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE DELL SERVICES MAY HAVE ON THOSE WARRANTIES. General: To receive Gold Technical Support Services, you are responsible for complying with the following: GOLD TECHNICAL SUPPORT SERVICE CUSTOMERS CALL THE PROVIDED TELEPHONE NUMBER. a. Prepare for the Call. You will help the technician serve you better if you have the following information and materials ready when you call: your Gold Supported System's invoice and serial numbers; service tag number; model and model numbers; the current version of the operating system you are using; and the brand names and models of any peripheral devices (such as a modem) you are using. b. Explain Your Problem to the Technician. Now you are ready to describe the problem you are having with your Gold Supported System. Let the technician know what error message you are getting and when it occurs; what you were doing when the error occurred; and what steps you may have already taken to solve the problem. 5. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL DELL OR ITS SUBCONTRACTORS BE LIABLE FOR ANY OF THE FOLLOWING; 1) THIRD PARTY CLAIMS AGAINST YOU FOR DAMAGES; 2) SPECIAL, PUNITIVE, INDIRECT, LOST PROFITS OR SAVINGS, LOST OR CORRUPTED DATA OR SOFTWARE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO PRODUCTS OR SYSTEMS BEING UNAVAILABLE FOR USE,, WHETHER DIRECT, INDIRECT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE GOLD SUPPORTED SERVICES, OR ARISING OUT OF THE RESULTS OR OPERATION OF ANY GOLD SUPPORTED SYSTEM RESULTING FROM IMPLEMENTATION OF ANY RECOMMENDED PLAN OR DESIGN, EVEN IF DELL OR ITS SUBCONTRACTORS HAVE BEEN ADVISED OF THE POSSIBLITY OF THE DAMAGE, AND EVEN IF YOU ASSERT OR ESTABLISH A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL DELL BE LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF THE GOLD TECHNICAL SUPPORT SERVICES FEES ACTUALLY RECEIVED BY DELL UNDER THE APPLICABLE SERVICE DESCRIPTION FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT DELL IS NOTIFIED BY YOU OF ANY CLAIM OF LIABILITY. THIS LIMITATION OF LIABILITY APPLIES TO ALL TYPES OF LEGAL THEORIES, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE), PROFESSIONAL LIABILITY, PRODUCT LIABILITY, WARRANTY, OR ANYTHING ELSE. THIS LIMIT ALSO APPLIES TO ANY DELL SUBCONTRACTOR. IT IS THE MAXIMUM AMOUNT FOR WHICH DELL AND ITS SUBCONTRACTORS ARE RESPONSIBLE. NOTHING HEREUNDER SHALL LIMIT DELL S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE. 6. General Terms. 6.1. Term and Renewal. This Agreement begins on the date of the Gold Supported System Invoice from Dell and expires three (3) years thereafter unless a different time period is set forth on your invoice. 6.2. Claims of Confidentiality or Proprietary Rights. You agree that any information or data disclosed or sent to Dell, over the telephone, electronically or otherwise, is not confidential or proprietary to you. 6.3. Cancellation. We may cancel this Agreement if you fail to pay us the Total Price for Gold Technical Support Service in accordance with our invoice terms, make a misrepresentation to us or our agents, or otherwise breach your obligations under this Agreement. If we cancel this
6 Agreement, we will send you written notice of cancellation at the address indicated in our records. The notice will include the reason for cancellation and the effective date of cancellation, which will not be less than ten (10) days from the date we send notice of cancellation to you. IF DELL CANCELS THIS AGREEMENT PURSUANT TO THIS PARAGRAPH, YOU SHALL NOT BE ENTITLED TO ANY REFUND OF FEES PAID OR DUE TO DELL. We may, at our discretion, terminate this Agreement on thirty, (30) days notice to you, in which case you will be entitled to receive a pro-rated refund of any unearned support fees that you have paid. Any refund will be determined by Dell based on the passage of time and/or the number of support incidents, at Dell s discretion. 6.4. Entire Agreement. This Agreement, along with the applicable Service Description (including but not limited to any separate service contracts that are incorporated by reference in those Service Descriptions), and any applicable customer signed agreement are the complete Agreement between you and Dell regarding the Gold Technical Support Services, and replace any prior oral or written communications between you or Dell regarding such services. None of Dell s employees or agents may orally vary the terms and conditions of this Agreement. 6.5. Additional Remedies. This Agreement affords you specific legal rights. This Agreement is not a warranty. The Product you purchase from us may also come with a limited warranty from Dell or third party manufacturers of Products we distribute. Please consult our limited warranty statements for your rights and remedies under those limited warranties. 6.6. Forms. All preprinted terms and conditions stated on any forms (such as purchase orders) that you have sent to Dell or which you may send to Dell in the future will not apply to the Gold Technical Support Services and will not alter or supplement this Agreement. 6.7. Independent Contractor. Dell is an independent contractor. Neither you nor Dell will consider the other its agent or representative. You will not be responsible for paying benefits or employment taxes for the persons retained by Dell to perform the Gold Technical Support Services under this Agreement, and those individuals will be considered employees of Dell or its subcontractors, rather than your employees. 6.8. Governing Law and Forum. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF ENGLAND. THE PARTIES HEREBY AGREE THAT ANY LEGAL ACTION UNDERTAKEN UNDER THIS AGREEMENT SHALL BE BROUGHT ONLY IN THE HIGH COURT OF LONDON AND THAT SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE HEREUNDER, SUBJECT TO THE DISPUTE RESOLUTION PROVISIONS BELOW 6.9. Dispute Resolution. The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to this Agreement, Dell s advertising, or any related purchase (a Dispute ) through face to face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. 6.10. Order of Precedence. If any inconsistencies or conflicts arise between the provisions of this Agreement, any Service Description or any other applicable Customer signed agreement, or Invoice, the following order of precedence shall apply in order of priority a. This Agreement;
7 b. Service Description; c. Any applicable customer signed agreement; d. Invoice 6.11. Notices. To send notice to Dell: Dell Europe, Attn: Services Manager, Dell Campus, Cain Road, Bracknell, Berkshire, RG12 1FA, United Kingdom cc: Services Legal Counsel. 6.12. Limitation of Actions. Neither you nor Dell will bring a legal action, related to the Gold Technical Support Services, more than two years after the cause of action arose unless otherwise provided by local law without the possibility of contractual waiver or limitation. 6.13. Force Majeure. Neither you nor Dell is responsible for failure to fulfill any obligation due to causes beyond its control. If Dell s ability to render Gold Technical Support Services is impaired by circumstance beyond Dell s control, Dell may terminate this Agreement, in which event, provided that circumstances resulting in Dell s impaired ability to provide such services did not result from your actions or inaction, you will receive a refund for any unused portion of your service term for which you have paid. 6.14. Transfer of this Agreement. Any transfer or assignment of this Agreement, or your rights under it, is at Dell s discretion and subject to Dell s then current transfer rules. Gold Technical Support Services may not be available in all geographic locations and/or additional fees may be payable. Any attempt to transfer or assign without Dell s prior written consent is void. Dell may assign this Agreement to qualified third party service providers. 6.15. Savings Clause. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect. PLEASE PRINT THIS AGREEMENT FOR YOUR RECORDS.