Services Agreement - Terms and Conditions Gold Support Premier Enterprise Support Services BY ACCEPTING THE SERVICES AND SUPPORT DESCRIBED ON YOUR INVOICE, YOU AGREE TO BE BOUND BY AND ACCEPT THE TERMS AND CONDITIONS HEREIN. THESE TERMS AND CONDITIONS (THE “AGREEMENT”) WILL SUPPLEMENT THE TERMS AND CONDITIONS OF ANY APPLICABLE OVERRIDING SIGNED PURCHASE AGREEMENT BETWEEN YOU AND DELL (INCLUDING WITHOUT LIMITATION, DELL’S STANDARD CUSTOMER PURCHASE AGREEMENT) OR, IN THE ABSENCE OF SUCH AN AGREEMENT, DELL’S STANDARD INVOICE TERMS AND CONDITIONS OF SALE (SEE WWW.DELL.CA). IF THERE IS ANY INCONSISTENCY BETWEEN THIS AGREEMENT AND THE APPLICABLE PURCHASE AGREEMENT OR DELL’S STANDARD INVOICE TERMS AND CONDITIONS OF SALE, THEN THE TERMS OF THE APPLICABLE PURCHASE AGREEMENT OR THE STANDARD INVOICE TERMS AND CONDITIONS OF SALE SHALL PREVAIL. THIS AGREEMENT IS BETWEEN YOU AND DELL CANADA INC., FORMERLY DELL COMPUTER CORPORATION, A CANADIAN CORPORATION (“DELL”, “OUR” OR “WE”). ALL CAPITALIZED TERMS AND CONDITIONS NOT DEFINED HEREIN SHALL HAVE THE MEANING SPECIFIED IN THE AFOREMENTIONED SIGNED PURCHASE AGREEMENT OR DELL’S STANDARD INVOICE 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 goods and services tax or other sales taxes, Dell will provide you with Gold Support - Premier Enterprise Support Services pursuant to the following terms and conditions: 1.1. Scope. Dell agrees to deliver to you the services described on the applicable Service Description for the Gold Support Premier Enterprise Support Service Package including any applicable Supplemental Terms and Conditions (“Gold Support Services”). The Service Description and applicable Supplemental Terms and Conditions are hereby incorporated into this Agreement by reference. Dell reserves the right to change or modify any of the terms and conditions contained in the Supplemental Terms and Conditions at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers. Gold Support Services are available only for select Dell PowerEdge™, PowerApp™, PowerVault™ and Dell | EMC Storage systems. Our invoice to you will indicate whether you purchased Gold Support Services and will serve as your receipt (“Premier Service Invoice”). To see the Service Description that describes the Gold Support Services, and your responsibilities, go to www.dell.ca. In addition, the Product will be tagged with a serial number that will indicate your purchase of Gold Support Services (the “Service Tag”). A third party service provider, under subcontract with Dell, may provide some or all of the Gold Support Services. 1.2. Your Site. Gold Support Services will be delivered to the site(s) and for the systems indicated on the applicable Premier Service Invoice (“Gold Supported System”). You agree to give Dell at least thirty (30) days written notice prior to relocating Gold Supported Systems. Some Gold Support Services are not available at all locations. Dell’s obligation to supply Gold Support Services to relocated Gold Supported Systems is subject to local availability and may be subject to additional fees, and to inspection and recertification of the relocated Gold Supported Systems at Dell’s then current time and materials consulting rates. 1.3. Third Party Products Not Covered. Gold 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 -2- 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. 1.4. Supported Releases. Gold Support Services require you to maintain software and Gold Supported Systems at Dell-specified minimum release levels or 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 Support Services. 1.5. Exclusions. Unless otherwise expressly provided in the applicable Service Description, Gold Support Service does not cover a) accessories, supply items, peripherals and certain parts, such as batteries, frames, and covers; b) Dell Software and Peripherals and 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. 1.6. Customer Owned Onsite Spares. If you have ordered the optional Customer On-Site Spares Kit, you agree to provide a safe and secure location for all parts, spares, equipment or materials which Dell places at your site. The purchase price for spare parts, including any parts on any Recommended Spares List that Dell may supply to you, is not included in the price for the Gold Support Services. You are responsible for buying any necessary spare parts, and for warehousing, planning, ordering, and inventory for any necessary spare parts. . 2. Payment. 2.1. Fees: You agree to pay Dell the fee for the Gold Support Services described on Premier Service Invoice plus any applicable goods and services tax or other sales taxes, within thirty (30) days of the date of invoice. You agree to pay an additional interest fee of 1.5% per month (19.56% per year) for invoices not paid within such thirty (30) day period. If you have not timely paid Dell for Gold Support Services, then, in addition to the other remedies that Dell may have, Dell may, in its sole discretion, discontinue providing the Gold Support Services. 2.2. Payment Provisions - Expense Reimbursement. Unless otherwise specified in the applicable Service Description, 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 OR CONDITIONS WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR CONDITION WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES, OR ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION DELL MAY MAKE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES OR OF ANY 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 Support Services you agree: a) to follow the problem determination, problem analysis, -3- and service request procedures that Dell provides; and b) to secure all programs, data and funds contained in the Gold Supported Systems. 4.2. In order to receive Gold Support Services, you must fulfill all the Customer Responsibilities described here and in the applicable Service Description. 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 Support Services, or there may be an additional charge for those services. 4.3. completed. We agree generally to cooperate with each other to see to it that work is successfully 4.4. You understand and agree that Dell is not responsible for any lost or corrupted software or data. Dell strongly recommends that you maintain a complete data backup and disaster recovery plan. 4.5. You represent and warrant to Dell that you have obtained permission for both you and Dell to access and use your system, the data on it, and all hardware and software components included in it, for the purpose of providing the Gold 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 Support Services. 4.6. Some of the Gold 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 authorized representative, works on the hardware or software. It is your responsibility to look at your warranty and conditions, and to ensure that Dell’s performance of Gold Support Services will not affect the warranty, or, if it does, that the effect will be acceptable to you. DELL DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR CONDITIONS FOR ANY EFFECT THAT THE DELL SERVICES MAY HAVE ON THOSE WARRANTIES OR CONDITIONS. 4.7. If the Services include on-site service, you agree to provide Dell with sufficient, free, and safe access to your facilities for Dell to fulfill its obligations. 5. LIMITATION OF LIABILITY. DELL (INCLUDING DELL’S PARENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE, LOST OR CORRUPTED DATA OR SOFTWARE, PRODUCTS SOLD THROUGH DELL’S SOFTWARE AND PERIPHERALS DIVISION, OR THE PROVISION OF SERVICES OR SUPPORT. DELL WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT OR WEAPONS SYSTEMS. DELL WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS, OR OTHER INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES, DELL IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF PRODUCTS AND/OR SERVICES UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE DELL IS NOTIFIED BY CUSTOMER OF ANY CLAIM OF LIABILITY. -4- THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM). NEITHER DELL NOR CUSTOMER MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THIS AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN, OR IN THE CASE OF NONPAYMENT, MORE THAN EIGHTEEN (18) MONTHS FROM THE DATE OF LAST PAYMENT. 6. General Terms. 6.1. Term and Renewal. This Agreement commences on the date you receive the Gold Supported System from Dell and expires at the end of the term specified on your Premier Service Invoice. This Agreement may be renewed pursuant to available renewal options. 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. You may cancel this Agreement within the thirty (30) days of your receipt of the Gold Supported System by sending written notice to us at: Dell Canada Inc. 155 Gordon Baker Road Toronto (North York), Ontario Canada M2H 3N5 Attn: Service Department If you cancel this Agreement within thirty (30) days of your receipt of the Gold Supported System we will send you a full refund less the cost of claims, if any, made under this Agreement. You may not cancel this Agreement after thirty (30) days of your receipt of the Gold Supported System except as provided by any applicable provincial or federal law which may not be varied by agreement. We may cancel this Agreement if you fail to pay us the Total Price for Gold Support Premier Enterprise Support Service in accordance with our invoice terms, make a misrepresentation to us or our agents, or otherwise breach your obligations under this Agreement, or as provided in the applicable Supplemental Terms and Conditions and/or Service Description for a particular service. If we cancel this 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, unless provincial or federal law requires other cancellation provisions that may not be varied by agreement. 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 the applicable Supplemental Terms and Conditions are the complete Agreement between you and Dell regarding the Gold Premier Enterprise 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. -5- 6.5. Additional Remedies. This Agreement affords you specific legal rights. You may have additional legal rights that vary from province to province. 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 Premier Enterprise 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 Premier Enterprise 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. THE CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE PROVINCE OF ONTARIO AND THE APPLICABLE LAWS OF CANADA. THE PARTIES HEREBY AGREE TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE PROVINCE OF ONTARIO. 6.9. Dispute Resolution. a. Acknowledgments. You acknowledges that Dell possesses valuable confidential and proprietary information, including trade-marks and business practices, that would be damaging to Dell if revealed in open court. The parties further acknowledge and agree that it is preferable to resolve all disputes between them confidentially, individually, and in an expeditious and inexpensive manner. The parties accordingly acknowledge and agree that private dispute resolution is preferable to court actions. b. Good Faith Negotiation. Before commencing any arbitration in the manner set out in Subsection 6.9(c) below, the parties shall first attempt to resolve any dispute or differences between them by way of good faith negotiation. The good faith negotiation shall commence by each party communicating their position regarding the complaint, claim, dispute, or controversy to the other party, and how the parties should resolve the dispute. The parties shall then make good faith efforts to negotiate a resolution of the claim, dispute, or controversy. Neither party shall commence any arbitral proceedings unless and until the good faith negotiation fails. c. Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS CAPABLE IN LAW OF BEING SUBMITTED TO BINDING ARBITRATION) AGAINST DELL, its agents, employees, officers, directors, successors, assigns or affiliates (collectively for purposes of this paragraph, "Dell") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future, (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Dell's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM ("NAF") under its Code of Procedure and any specific procedures for the resolution of small claims and/or consumer disputes then in effect (available via the Internet at http://www.arb-forum.com , or via telephone at 1-800-474-2371). The arbitration will be limited solely to the dispute or controversy between you and Dell. Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Information may be obtained and claims may be filed with the NAF at -6- P.O. Box 50191, Minneapolis, MN 55405, or by e-mail at [email protected], or by online filing . at http://www.arb-forum.com d. Injunctive Relief and Provisional Relief in Aid of Arbitration. Notwithstanding the provisions in this Section 6.9 or anywhere else in this Agreement, Dell shall have the right to seek and obtain any provisional or interim relief from any court of competent jurisdiction to protect its trade-mark or property rights or to preserve the status quo pending good faith negotiation and/or arbitration. 6.10. Order of Precedence. If any inconsistencies or conflicts arise between the provisions of this Agreement, any Service Description, Supplemental Terms and Conditions, any other applicable Customer signed agreement, or Invoice, the following order of precedence shall apply in order of priority a. b. c. d. e. Any applicable signed purchase agreement or Dell’s standard invoice terms and conditions of sale; This Agreement; Supplemental Terms and Conditions; Service Description; Invoice. 6.11. Notices. To send notice to Dell: Dell Canada Inc., Attn: Contracts Manager, 155 Gordon Baker Road, Toronto (North York), Ontario, M2H 3N5. 6.12. Limitation of Actions. Neither you nor Dell will bring a legal action, related to the Gold Premier Enterprise 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 Premier Enterprise 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. Subject to the limitations set forth in this Agreement, you may transfer this Agreement to anyone who buys your entire Gold Supported System before the termination date of this Agreement, provided you are the original purchaser of the Gold Supported System and this Agreement, or you have purchased the Gold Supported System and this Agreement from its original owner (or a previous transferee) and have complied with all the transfer rules in this Agreement. Please note that if you or your transferee move your Gold Supported System to a geographic location in which the Gold Premier Enterprise Support Service coverage that you have purchased is not available at the same price as you paid for this Agreement, you may incur an additional change to maintain the same categories of Service coverage at the new location. If you choose not to pay such additional charge, your Service may be automatically changed to categories of Service that are available at such price or a lesser price in such new location with no refund available. Additionally, if (i) you transfer your Agreement to a buyer who will move the Gold Supported System to a geographic location in which the Gold Premier Enterprise Support Service that you have purchased is not available at the same price as you paid for this Agreement, or (ii) if the transferee (i.e. the buyer) of this Agreement wishes to change the Service coverage, then you may incur an additional charge for such transfer fee discussed above. Except as described above, you may not assign, or otherwise transfer, this Agreement or your rights under it, or delegate your obligations, without Dell’s prior written consent. Any attempt to do so 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. -7- 6.16. Additional Services. Supplemental Terms and Conditions for certain Gold Premier Enterprise Support Services follow on the next several pages, and are hereby incorporated into this Agreement. 6.17. Language. The parties confirm that it is their wish that this Agreement, as well as other documents relating to this Agreement, including all notices, have been and will be drawn up in the English language only. Les parties aux presentes conferment leur volonté que cette convention, de meme que tous les documents, y compris tout avis, qui s’y rattachent, soient redigés en langue anglaise Please print this Agreement for your records. -8- SUPPLEMENTAL TERMS AND CONDITIONS APPLICABLE TO PREMIERE ENTERPRISE SUPPORT HARDWARE SERVICE (“Supplemental Hardware Service Terms”) Products Covered (“Covered Product”): When we refer to “Gold Supported Systems” in this Supplemental Hardware Service Terms, we mean Dell-branded PowerEdge, PowerApp, PowerVault, or Dell | EMC Storage hardware that is sold as new, in a standard configuration(s) at the time of purchase. Excluded from these Supplemental Hardware Service Terms are software and any additional items sold through Dell Software and Peripherals or integrated by Custom Factory Integration. The Gold Supported System covered under this Agreement is described in your Invoice. Scope of Services: Subject to the terms of this Supplemental Hardware Services Terms, On-Site Service is available for your Gold Supported System within Canada. The technician will need to have the full address of your Gold Supported System’s location and know whether it is a residence or business. A service technician will be dispatched to your location to service your Gold Supported System depending on the service level you purchased, as described below. If the Gold Supported System was purchased in Canada and is being transferred outside Canada, terms and conditions of this contract may not apply. For further details, contact your Dell Sales or Service Representative. 8-Hour Response. If you follow these procedures, a service technician will, in most cases, be dispatched to arrive at your location for On-Site Service within eight (8) hours after dispatch, twenty-four (24) hours a day, seven (7) days a week (including holidays). For Gold Supported Systems except Dell | EMC Storage products, this service is only available if you are located within a radius of 100 to 200 kilometers from a Dell stocking location. For Dell | EMC Storage products, this service is only available if you are located within a radius of 100 to 200 kilometers from a Dell stocking location situated in select major metropolitan areas. 4-Hour Response. If you follow these procedures, a service technician will, in most cases, be dispatched to arrive at your location for On-Site Service within four (4) hours after dispatch, twenty-four (24) hours a day, seven (7) days a week (including holidays). For Gold Supported Systems except Dell | EMC Storage products, this service is only available if you are located within a radius of 100 kilometers from a Dell stocking location. For Dell | EMC Storage products, this service is only available if you are located within a radius of 100 kilometers from a Dell stocking location situated in select major metropolitan areas. 2-Hour Response. If you follow these procedures, a service technician will, in most cases, be dispatched to arrive at your location for On-Site Service within two (2) hours after dispatch, twenty-four (24) hours a day, seven (7) days a week (including holidays). This service is only available on select Dell PowerEdge and PowerVault models if you are located within a radius of 50 kilometers from a Dell stocking location. 2-Hour Response/6-Hour Fix. If you follow these procedures, a service technician will, in most cases, be dispatched to arrive at your location for On-Site Service within two (2) hours and complete repair of your Gold Supported System within six (6) hours after dispatch, twenty-four (24) hours a day, seven (7) days a week (including holidays). This service is only available on select Dell PowerEdge and PowerVault models if you are located within a radius of 50 kilometers from a Dell stocking location. Remote Gold. If you follow these procedures, a service technician will, in most cases, use commercially reasonable efforts to be dispatched to arrive at your location for On-Site Service within a reasonable period of time after dispatch. This service is only available if you are located greater than a radius of 200 kilometers from a Dell stocking location. Limits of Support Services: THIS AGREEMENT IS OF LIMITED DURATION AND COVERAGE. This Agreement extends only to original purchasers of the Gold Supported System shown on the Invoice and located within Canada as determined by Dell. This Agreement extends only to uses for which the Gold -9- 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 System or 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, fire 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. - 10 - Your Responsibilities. 1). General: To receive Support, you are responsible for complying with the following: a. Cooperate with the technician. Experience shows that most System problems and errors can be corrected over the phone as a result of close cooperation between the user and the technician. Listen carefully to the technician and follow the technician’s suggestions. The service technician must receive full access to the System and (at NO cost to Dell) have working space, electricity, and a local telephone line. A monitor or display, a mouse (or pointing device), and keyboard must also be provided (at NO cost to Dell), if the system does not already include these items. If these requirements are lacking, Dell is not obligated to provide On-Site Service. b. If You Miss The Service Visit. If you or your authorized representative is not at the location when the service technician arrives, we regret that the service technician cannot service your Gold Supported System. The service technician will leave a card to let you know he or she was there. If this occurs, you may be charged an additional charge for a follow-up Service call. c. Software/Data Backup. You understand and agree that Dell is not responsible for any lost or corrupted software or data. Dell strongly recommends that you maintain a complete data backup and disaster recovery plan. 2). How and When to Use: a. Call For Assistance. For service support call the following toll free number. These phone lines are answered twenty-four (24) hours a day, seven days a week, including regularly observed holidays: Gold Premier Enterprise Support Service Customers call: 1-800-945-DELL (3355). b. 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. c. 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. UNTIL YOU HAVE COMPLIED WITH THE ABOVE PROCEDURES, DELL CANNOT DISPATCH A SERVICE TECHNICIAN TO PERFORM ON-SITE REPAIRS UNLESS YOU HAVE PURCHASED THE OPTIONAL ON-SITE TROUBLESHOOTING SERVICE. Dell is not liable for any failure or delay in performance due to any cause beyond its control. Customer Replaceable Units and Whole System Replacement. If the telephone technician determines that the defective unit within the Gold Supported System is one that is easily disconnected and reconnected, such as a keyboard, monitor, or any other component designated by Dell from time to time as a component that may be replaced by the customer, you may receive such component to install without a service technician arriving on site. Also, if the technician determines that the Gold Supported System is one that should be replaced as a whole unit, Dell reserves the right to send to you a whole replacement Gold Supported System with a prepaid return mailing label for defective return. If a service technician delivers the replacement unit to you in person, you must relinquish the defective unit or Gold Supported System to the service technician. If you do not relinquish the defective unit or Gold Supported System to the service technician as required above, or if (in the - 11 - event the replacement unit was not delivered in person by a service technician) the defective unit or Gold Supported System is not returned within ten (10) days, you agree to pay Dell for the replacement unit upon receipt of invoice. Failure to honor the invoice within ten (10) days after receipt will cause the cancellation of this Agreement and may result in other legal steps. Parts Ownership. All service parts removed from your Gold Supported System become the property of Dell. You will be obligated to pay at the current retail price(s) for any service parts removed from your Gold Supported System and retained by you. Dell uses new and reconditioned parts made by various manufacturers in performing warranty repairs. Parts Stocked. Based on our experience, we have stocked parts in various locations throughout Canada. Selected parts may not be stocked in the location closest to your site. If a part that is needed to repair your Gold Supported System has to come from another location, it will be shipped using overnight delivery. Term and Renewal Dell|EMC. You may renew those Gold Support Services described in this Supplemental Hardware Service Terms for additional renewal terms following the expiration of your initial term such that the total term (initial term plus any renewal terms) for such services does not exceed a total of five (5) years. All original terms and conditions related to Gold Support Services described in this Supplemental Hardware Service Terms remain in full force and effect for all renewal terms. The renewal fees are listed in Exhibit A attached hereto. Exhibit A: Dell | EMC PESS Gold Support and Software Support Services Renewal Rates - 12 - Supplemental Terms and Conditions Applicable to Remote Software and Storage Support With your GOLD Software Support resolutions, Dell will provide software support services to you pursuant to the following terms and conditions. 1. Products Covered (“Covered Software”): Software Support covers the following operating systems and applications on Dell PowerEdge & PowerApp (if applicable) servers PowerVault and Dell | EMC storage (referred to as the “covered software” in this document): • Microsoft Windows 2000 Server and Windows 2000 Advanced Server • Microsoft NT 4.x • Novell NetWare 4.x and 5.x, Novell ICS, and IntraNetWare 4.x • Microsoft Small Business Server 4.5 • Microsoft SQL Server 7.0 and 2000 • Microsoft Exchange Server 5.5 and 2000 • Microsoft Internet Information Server 4.0 and 5.0 • Microsoft Proxy Server 2.0 • Red Hat Linux 6.1, 6.2 and 7.0 • Dell OpenManage PowerSuites for Tape Backup • PowerApp.Big-IP F5 load-balancing software • PowerVault Advanced Software • Dell | EMC Advanced Software • Inktomi Traffic Server Engine caching software The Software Support Service also included expert technical phone assistance with the operation and configuration of your PowerVault Fibre Channel and Dell | EMC storage systems. This service supplements Dell’s toll-free hardware support line that provides troubleshooting assistance and diagnostics of any Dell hardware. For NAS systems, this service includes the Filer’s “Auto Support” feature to proactively alert Dell of potential system problems. Autosupport Feature: Exclusive to the PowerVault 7x0N series products, the Autosupport feature will recognize any critical failure condition and generate an e-mail containing detailed filer configuration and status information. This e-mail is transmitted to a Dell Technical Support mailbox, as well as up to 4 optional e-mail addresses. Dell Technical Support will always call the customer contact before dispatching hardware repair services, in response to an Autosupport notification. Dell Technical Support will have the option to respond to non-critical alerts using the customer contact's email address - to ask the customer if they need assistance, to suggest action by the customer or to request further diagnosis by the customer. Dell will respond to Autosupport alerts during the term of the filer's Advanced Support agreement. If an agreement expires without renewal, the customer will be requested to disable the feature. Further Autosupport emails from the filer will not be acted upon until the customer renews this Software Support offering. 2. Scope of Services: a. Dell will help you to resolve your problems by providing electronic and telephone assistance to your designated representatives. You may purchase additional resolution packs of Software Support Service as part of your GOLD Premier Enterprise Support. We will use commercially reasonable efforts to provide the following Software Support services to you: • Proposed corrections for covered software error messages. • Problem determination may include any of the following actions: - Information gathering - 13 - • • b. • • • • • • • c. Analysis Research including reproducing systems Acquiring additional information Problem Resolution may include any of the following actions: - Providing a resolution or steps towards a resolution - Workaround - Configuration changes - Escalate a bug report Additional administrative services, such as assistance with migration to Windows 2000, installation of the covered software, or assistance with other utility software or application, are handled on the basis of one issue (administrative service) per hour or any part of an hour. Limits on Software Support Service. Software Support includes support for the “covered software” only. The service is limited to the length of the contract or number of resolutions you purchased, whichever comes first. The service does not cover cases in which the compatibility of the system to the software is in question, or when the configuration is invalid. One resolution will be deducted for each issue resolved. Software Support does not include the following types of support: Non-Dell hardware, or applications software support except for specified “covered software.” Any on-site services. Remote or on-site training assistance. Software upgrades or new software releases. Remote administration of Dell systems. Scripting, programming, database design, or web development. Dell I EMC Storage includes unlimited resolution support for term of contract. The support provided does not include assistance in training your personnel in the installation, administration or normal use of the Software. It does not include answering questions that are readily answered by consulting documentation that accompanies the Software. Dell may answer an occasional question that falls within these exclusions, but Dell may refuse any such question at any time. Dell will not supply you with upgrades or new releases of Software as part of the support provided. You must acquire upgrades and new releases from the Software publisher. Dell’s decision as to whether a certain change in Software is an update, a correction, an upgrade or a new release is final. Dell’s obligations under this agreement are limited to making available persons familiar with the Software and associated Dell hardware, and providing the results of Dell’s reasonable efforts in response to your questions. Dell does not warrant that any particular question will be resolved, or that the Software will produce any particular result. Dell does not provide on-site service or support for the Software UNLESS YOU HAVE PURCHASED THE OPTIONAL ON-SITE TROUBLESHOOTING OPTION. All support is provided over the telephone, or by transmission of software and other information through electronic means, or by shipping software and other information to you. Dell may conclude that a question is sufficiently complex, or that your system is of a nature that precludes effective analysis of the question through telephone discussions. You understand and accept that Dell may be unable to resolve questions of this sort, and you understand and accept that you will have to make independent arrangement for the resolution of such a question. 3. Your Responsibilities: a. General: To receive Support, you are responsible for complying with the following: - 14 - 1. Access to Support. You must confirm that the following conditions are true: • The situation giving rise to the question is reproducible on a single system, i.e., one central processing unit with its workstations and other peripherals; • The “covered software” is at the current release level supported by Dell; • Your designated representatives will submit all questions to Dell. Your designated representatives must have technical knowledge regarding the “covered software”, the hardware system, any other software involved, and in the facts and circumstances surrounding the incident; • The full system, including software and hardware, is available to the representative and accessible by him or her without limit during any telephone discussions with Dell support personnel; • The representative will follow the instructions and suggestions of Dell’s support personnel, using the full system. 2. Software/Data Backup. You understand and agree that Dell is not responsible for any lost or corrupted software or data. Dell strongly recommends that you maintain a complete data backup and disaster recovery plan. 3. Payment. Dell must have received payment for your Gold Premier Enterprise Support Services. Failure to comply with the foregoing responsibilities for any incident will result in the deduction of one resolution even if the issue is not resolved. b. How and When to Use: 1). Assistance. Software Support is available by calling the Gold Queue technical support number 1-800-945-DELL (3355). 2). Availability. Software Support is available 24 hours a day, seven (7) days a week, 365 days a year. Dell may subcontract Software Support services to a third party vendor. 4. General Terms: a. Term and Renewal: You may purchase additional resolution packages (the number of resolutions which is specified on your invoice) for period of thirty-six months for the covered software. You may use the resolutions during the period (which is indicated on your invoice) you purchased the resolutions. You may, subject to Dell's acceptance, purchase additional resolution packages at Dell's then-current rates, terms and conditions by submitting a purchase order to Dell. The terms and conditions in place at the time of purchase will apply to your purchase. When your resolutions are depleted or the contract period ends, then the terms and conditions (including pricing) at the time of renewal will apply to your purchase. You may renew this Contract subject to approval and acceptance by Dell. Dell may change its rates, terms, and conditions for providing support at any time. b. Term and Renewal Dell|EMC: You may renew your Software Support Service for additional renewal terms following the expiration of your initial term such that the total term (initial term plus any renewal terms) for such services does not exceed a total of five (5) years. All original terms and conditions related the Software Support Service remain in full force and effect for all renewal terms. The renewal fees are listed in Exhibit A attached hereto. Exhibit A: Dell | EMC PESS Gold Support and Software Support Services Renewal Rates Further Details: For more information regarding Dell’s Gold Premier Enterprise Support Service please visit Dell’s web site located at: http://www.dell.ca/en/biz/services/service_PESStiersGold.htm.
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