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.