Common use of Exclusions from Indemnity Clause in Contracts

Exclusions from Indemnity. Dell has no obligation under section “Dell Intellectual Property Indemnity” above: (i) if Partner is in material breach of this Agreement; or (ii) for any Claim resulting or arising from (1) any combination, operation, or use of a Dell Product with any other products, services, items, or technology, including Third Party Products and open source software; (2) use for a purpose or in a manner for which the Dell Product was not designed, or use after Dell notifies Partner or End User to cease such use due to a possible or pending Claim; (3) any modification made by any person other than Dell or its authorized representatives; (4) any modifications made by Dell pursuant to instructions, designs, specifications or any other information provided to Dell by or on behalf of Partner or End User; (5) use of any version of a Dell Product when an upgrade or newer iteration of the Dell Product made available by Dell would have avoided the infringement; (6) services provided by Partner or End User (including Claims seeking damages based on any revenue Partner or End User derives from Partner’s or End User’s services); or (7) any data or information which Partner or a third party records on or utilizes in connection with the Dell Products (subsections 1 through 7 are collectively the “Excluded Claims”). Dell has no obligation to defend or indemnify any End User or any other third party.

Exclusions from Indemnity. Dell has no obligation under section “Dell Intellectual Property Indemnity” above: : (i) if Partner is in material breach of this Agreement; or (ii) for any Claim resulting or arising from (1) any combination, operation, or use of a Dell Product with any other products, services, items, or technology, including Third Party Products and open source software; (2) use for a purpose or in a manner for which the Dell Product was not designed, or use after Dell notifies Partner or End User to cease such use due to a possible or pending Claim; (3) any modification made by any person other than Dell or its authorized representatives; (4) any modifications made by Dell pursuant to instructions, designs, specifications or any other information provided to Dell by or on behalf of Partner or End User; (5) use of any version of a Dell Product when an upgrade or newer iteration of the Dell Product made available by Dell would have avoided the infringement; (6) services provided by Partner or End User (including Claims seeking damages based on any revenue Partner or End User derives from Partner’s or End User’s services); or (7) any data or information which Partner or a third party records on or utilizes in connection with the Dell Products (subsections 1 through 7 are collectively the “Excluded Claims”). Dell has no obligation to defend or indemnify any End User or any other third party.