BY ACCEPTING THE SERVICES AND SUPPORT DESCRIBED ON YOUR INVOICE,... TO BE BOUND BY AND ACCEPT THE TERMS AND CONDITIONS... Services Agreement - Terms and Conditions

BY ACCEPTING THE SERVICES AND SUPPORT DESCRIBED ON YOUR INVOICE,... TO BE BOUND BY AND ACCEPT THE TERMS AND CONDITIONS... Services Agreement - Terms and Conditions

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
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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,
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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.
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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.
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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
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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.
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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.
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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
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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.
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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
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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
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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
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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:
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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.