Exhibit 10.3
AGREEMENT NUMBER:
Remarketer/Integrator: Emtec, Inc.
This (this "Agreement") between Dell Marketing
L.P. ("Dell") and the entity named above ("Remarketer/Integrator") is effective
as of the date signed by Dell (the "Effective Date"). Dell and
Remarketer/Integrator agree that the following terms and conditions will apply
to the purchase and remarketing of Dell products ("Products") in the United
States.
1. Relationship
1.1. Dell appoints Remarketer/Integrator as a "Dell Authorized
Remarketer/Integrator" for the Products Dell sells to
Remarketer/Integrator under this Agreement.
Remarketer/Integrator agrees to sell Products only as
authorized and described in attached Schedule A.
Remarketer/Integrator may purchase for resale additional
services described in Schedule B attached subject to the
provision set forth therein and this Agreement.
1.2. Remarketer/Integrator represents that the business it will
derive from Products will be based on value-added remarketing
or integration. A description of said value-added offerings
shall be listed in the attached Schedule.
Remarketer/Integrator may acquire Products under this
Agreement for internal use, but only in connection with the
marketing, distribution, or support of Products, or the
development of new or upgrades Products application.
Remarketer/Integrator may present other marketing
opportunities to Dell, and Dell may, but is in no way
obligated to, waive the provisions of this Section. Except for
additions to a customer's installation, Remarketer/Integrator
will not remarket Products by themselves, or market Products
when the only added value is installation of devices that Dell
markets as part of its systems, such as disk and tape drives,
and monitors. Remarketer/Integrator agrees to remarket the
resultant products and services directly, or through third
party financing, to end users. Remarketer/Integrator may not
use distributors, other remarketers, third party sales agents
or others without Dell's prior written consent. The Products
the Remarketer/Integrator markets as an integrator must be
integrated and sold or licensed in association with other
products and/or services.
1.3. Remarketer/Integrator agrees that the prices, terms and
conditions for the marketing by Remarketer/Integrator of
Products are at the discretion of Remarketer/Integrator, but
will be in accordance with the conditions established in this
Agreement and Dell's warranty statements.
1.4. Dell's appointment of Remarketer/Integrator as a "Dell
Authorized Remarketer/Integrator" is not exclusive in any way.
Remarketer/Integrator may market products considered
competitive to the Products. Dell retains the right to change
its distribution channels and add and terminate other
resellers and distributors, including resellers and
distributors who compete with Remarketer/Integrator. At any
time during or after the term of this Agreement, Dell may sell
to and accept orders from any buyer or end user, including
Remarketer/Integrator's customers.
2. Term; Termination
2.1. Unless otherwise terminated as provided by this Agreement,
this Agreement is in effect beginning on the Effective Date
and will continue in effect for one (1) year thereafter,
automatically renewing for successive one (1) year terms.
2.2. This Agreement will terminate upon the termination of the
Authorized Contract(s), if any, listed on the attached
Schedule. Upon termination of an Authorized Contract,
Remarketer/Integrator agrees to promptly notify Dell of the
termination. Termination of an Authorized Contract will not
affect Remarketer/Integrator's duty to timely pay Dell for
orders accepted by Dell on or before the date of Dell's
receipt of the notice required by this Subpart 2.2.
2.3. Either party may terminate this Agreement at any time on at
least thirty (30) days' prior written notice to the other.
Dell may terminate this Agreement immediately upon notice in
the event of Remarketer/Integrator's material breach or
failure to pay on a timely basis any sum due or upon Dell's
good faith belief that Remarketer/Integrator is exporting
Products in violation of applicable
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AGREEMENT NUMBER:
export control laws. If Remarketor/Integrator materially
breaches this Agreement, Remarketor/Integrator will assign
the New Jersey State Contract it holds to Dell to the extent
permitted by law and by the State of New Jersey.
Remarketor/Integrator will cooperate with Dell in good faith
and use reasonable efforts to work with the appropriate
entities including but not limited to the State of New
Jersey to assign the State of New Jersey Contract to Dell.
Remarketer/Inegrator will execute any such documents as may
be necessary to execute any such assignment. Termination of
this Agreement, regardless of the reason, will not affect
the rights and obligations of the parties with respect to
orders accepted and timely paid for before termination and
the Products sold under those orders.
2.4. Each party accepts the risk of termination by the other. On
termination, neither party will have any claim against the
other for the investment it may have made in the relationship
established under this Agreement or in anticipation of the
sales and other revenue to be gained because of it.
3. Remarketer/Integrator Responsibilities
3.1. Remarketer/Integrator will use reasonable efforts to market
the Products.
3.2. Remarketer/Integrator will maintain a list of all end users
acquiring Products sold by Dell to Remarketer/Integrator and
will make the list available to Dell upon request, so Dell may
notify the end users concerning the Products if Dell notifies
other users of such a Product generally. Remarketer/Integrator
agrees that Dell may treat Remarketer/Integrator's failure to
comply with this Section as a breach of this Agreement.
Remarketer/Integrator will provide its customers with the
Product warranty statements, registration cards, software
license agreements and other materials included with the
Products at the time of delivery and will accurately present
the capabilities, function, and performance of Products.
3.3. Remarketer/Integrator will provide Dell with written notice
within five (5) business days of any material change in the
information provided as part of its application for
appointment as a Dell Authorized Remarketer/Integrator,
including Remarketer/Integrator's plans for marketing Products
as part of Remarketer/Integrator's value-added offerings.
Material changes may include any change in the ownership of
Remarketer/Integrator or a change in any credit information
and references contained in the application. Likewise,
Remarketer/Integrator will provide Dell a written report on
the first day of every month outlining all changes in
personnel, subcontractors and personnel of subcontractors
directly or indirectly supporting the New Jersey State
contract.
3.4. Remarketer/Integrator will transfer title upon delivery of
product to the customer, in accordance with Dell's
then-current procedures. Remarketer/Integrator shall ensure
that ownership is promptly transferred from
Remarketer/Integrator to the designated end-user. Ownership
transfer is accomplished by Remarketer/Integrator submittal of
individual system warranty registration cards; on-line
registration of ownership change via Dell's website at
xxxx://xxxxxxx.xxxx.xxx/xx/xx/ or as otherwise agreed upon by
Dell and Remarketer/Integrator. Remarketer/Integrator
acknowledges that failure to ensure timely ownership transfer
may adversely affect Dell and the designated end-user, and may
result in additional expenses to Dell. In the event a
designated end-user seeks warranty or other service from Dell
that requires evidence of ownership, and Remarketer/Integrator
has not yet accomplished such ownership transfer,
Remarketer/Integrator hereby expressly authorizes Dell to
immediately effect ownership transfer.
4. Orders; Prices
4.1. Purchase orders must be placed with Dell via Dell's online
configurator as presented by Dell, pursuant to Dell's On Line
Purchasing Requirements. Dell recognizes on line orders
submitted by the Remarketer/Integrator as valid purchase
orders. The Remarketer/Integrator agrees that orders submitted
online are deemed legally binding purchase orders, that it
will not contest such orders as to their validity or
enforcement, and that it will pay in full any such OnLine
Purchase Orders in accordance with this Agreement. An order is
subject to acceptance by Dell. Remarketer/Integrator may
change or cancel an order or any part of it at any time up
until Dell begins manufacture of the affected Products.
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AGREEMENT NUMBER:
4.2. Except for special pricing, prices are Dell's then current
published prices less Remarketer/Integrator's applicable
discount. Dell reserves the right to change the published
prices at any time for any reason but will not change the
special pricing agreed to under contract with
Remarketer/Intergrator. Notwithstanding anything contained
herein to the contrary, quotations issued by Dell are valid
for a period of thirty (30) calendar days from the date the
quotation is issued.
4.3. Remarketer/Integrator will pay charges for shipping and
handling unless end users under the State and City contracts
referenced in Schedule A, would be exempt from such charges
when dealing directly with Dell. If Remarketer/Integrater is
required to pay shipping and handling and Dell's designated
carrier ships Products, then a separate charge will be shown
on Dell's invoice. If Remarketer/Integrator selects a carrier
other than Dell's designated carrier, then Dell will ship
freight collect. Except for Dell's franchise taxes and taxes
on Dell's net income, Remarketer/Integrator is responsible for
sales and all other taxes associated with the transaction and
the taxes will be shown on Dell's invoice. If
Remarketer/Integrator provides Dell with a valid tax exemption
certificate, Dell will not invoice Remarketer/Integrator for
the affected taxes.
4.4. For each order, Remarketer/Integrator will identify on the
order the name of the designated end user to which the
Products will be resold to.
5. Discounts; Product Classification (Excluding Single Projects)
5.1. Discount percentages are based on Remarketer/Integrator's
discount level and Annual Commitment with Single Project(s)
opportunities excluded. The discount percentages that apply to
a particular discount level are subject to change from time to
time by Dell without prior notice if Dell changes the
discounts for that level for remarketer/integrators generally.
Any discount changes will be applicable to subsequent orders
placed by Remarketer/Integrator under this Agreement. The
current discount percentages that are applicable to Products
purchased are listed by Product classification on the attached
Schedule. Notwithstanding Dell's right to change discount
percentages, during the term of Emtec's contract with the
State of New Jersey, Dell will not decrease the Category A
discount on Schedule A for product that Emtec purchases for
resale to entities purchasing under the State of New Jersey
contract. Classification of Products is subject to change by
Dell at any time if Dell changes classifications for its
remarketer/integrators generally.
5.2. During each annual term, Dell may review quarterly the total
dollar volume of purchases, net of cancellations and returns,
under this Agreement. If this dollar volume does not meet the
Annual Commitment, Dell may reduce the discounts for
subsequent purchases to a level (including no discount) that
would apply under Dell's then-current discount policy for the
actual dollar volume of purchases.
5.3. Dell will discuss at any time with Remarketer/Integrator an
adjustment of the Annual Commitment and applicable discounts,
based on revision of Remarketer/Integrator's forecasted
purchases, but any adjustment requires Dell's prior written
consent. For Agreement terms after the first year, Dell and
Remarketer/Integrator will agree on the applicable discounts.
Remarketer/Integrator may not assume any discounts will be
continued for a subsequent term.
5.4. Remarketer/Integrator understands that the discounts will not
apply retroactively to any Products ordered before the date of
execution by Dell.
6. Payment
Invoices are due and payable in full as presented within
twenty (20) days of the date of Dell's invoice, provided
that Remarketer/Integrator's credit history qualifies for
such credit in Dell's sole discretion. The invoice date will
not be earlier than the shipment date of the Products
invoiced. Dell may invoice parts of an order separately.
Remarketer/Integrator will pay each invoice accordingly. If
any payment due from a Remarketer/Integrator is late, Dell
may, in addition to all other remedies, refuse to ship
Products ordered by the Remarketer/Integrator until
Remarketer/Integrator's account is current.
7. Products
7.1. Dell's policy is one of on-going product update and revision.
Dell may revise and discontinue Products at any time, without
notice. The Products shipped to a Remarketer/Integrator will
meet or exceed the material specifications of Products
ordered; however, minor differences between
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AGREEMENT NUMBER:
Products as shipped and products as described in a
specification sheet or catalog are possible. The parts and
assemblies used in building the Products sold under this
Agreement are selected from new and equivalent to new parts
and assemblies in accordance with industry practices.
7.2. Remarketer/Integrator understands that the Products licensed
or sold under this Agreement are subject to the export control
laws of the United States. Remarketer/Integrator agrees it
will not export Products from the United States.
7.3. Remarketer/Integrator understands that the Products have been
designed, manufactured, and tested by Dell or its suppliers
for use in general-use office/business and/or consumer
environments. The certifications and approvals obtained by
Dell and its suppliers from various domestic and international
regulatory and testing agencies are based on one or both of
these environments, as the case may be. Remarketer/Integrator
will be responsible for any regulatory or testing approvals
which may be required, which go beyond those obtained by Dell
that may be applicable with respect to Remarketer/Integrator's
value-add solution offering. Remarketer/Integrator warrants
that the Products purchased hereunder will not be used in a
mission-critical operation of a nuclear facility, missile
system, life support system, medical patient care or
diagnostic system, or mass transportation solution. Exceptions
to this provision will require Dell's express prior written
permission.
8. Delivery; Title and Risk of Loss
8.1. All ship dates are Dell's estimates. Many factors, including
supply of parts and assemblies, affect Dell's production
scheduling.
8.2. Loss or damage that occurs during shipping is
Remarketer/Integrator's responsibility. Title to Dell-branded
hardware Products passes from Dell to Remarketer/Integrator on
shipment from Dell's facility.
9. "Total Satisfaction" Return Policy Not Applicable
Remarketer/Integrator agrees that Dell's policy of accepting Products
for refund is not available to Remarketer/Integrator or its end users.
Remarketer/Integrator will inform its customers of this fact before
they receive Products.
10. Limited Warranties on Hardware
10.1. Dell-branded hardware Products carry either a one-year or
three-year limited warranty. The warranty period for a Product
will be referenced on Remarketer/Integrator's invoice as
listed by individual SKU. The limited warranty statements for
Dell-branded hardware Products are included in the
documentation provided with the Products. Dell may revise its
limited warranties from time to time, but no change will be
effective for Products that have already been ordered. Dell
Software and Peripherals Products and other third party
products are not covered by this Section and any warranties
for those products are provided by the original manufacturers.
10.2. Dell-branded hardware Products will conform to the
specifications current when the Products are shipped. Dell
will pass good title to Dell-branded hardware Products to
Remarketer/Integrator or its end users.
10.3. Dell does not warrant that Products will function in any
specific configuration that includes hardware or software not
provided by Dell or will function to produce a particular
result, even if the specific configuration or the desired
result has been discussed with Dell personnel.
Remarketer/Integrator represents that it will evaluate for
itself that the Products it remarkets will function properly
as part of its value-added offerings.
10.4. The start of the warranty period for Dell-branded hardware
Products remarketed by Remarketer/Integrator is the date the
Dell-branded hardware Products are placed in service with the
end user or sixty (60) days from the date the Dell-branded
hardware Products are shipped from Dell's facility, whichever
occurs first. Dell owns all warranty repair parts removed from
repaired Products. Dell uses new and reconditioned parts made
by various manufacturers in performing warranty repairs and
building replacement products.
11. Software
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AGREEMENT NUMBER:
All software, including Microsoft software, is provided subject to the
license agreement that is part of the package. Remarketer/Integrator
will notify the end-user that it will be bound by the license agreement
once the package is opened or the seal is broken.
12. Dell Software and Peripherals Products
12.1. Returns: Dell Software and Peripherals Products carry
different return and warranty policies than Dell-branded
hardware Products. The Dell Software and Peripherals Products
that are in the same condition as when received by Buyer may
be returned to Dell in accordance with the then-current Dell
Software and Peripherals return policy, which may be found at
xxxx://xxx.xxxx.xxx/xx/xx/xxx/xxxx/xxxxxx_000_xxxxxx.xxx .
12.2 Refund or Replacement: To qualify for refund or replacement, a
Dell Software and Peripherals Product must be returned in 100%
complete condition, with the original packing material and all
manuals and other accessories originally provided with the
Product by the original manufacturer. Credits for return will
be issued upon receipt of all of these items and satisfaction
of the other requirements of the then-current Dell Software
and Peripherals return policy, which may be found at
xxxx://xxx.xxxx.xxx/xx/xx/xxx/xxxx/xxxxxx_000_xxxxxx.xxx . All
Dell Software and Peripherals Product returns must be
accompanied by a return authorization number issued by Dell.
13. WARRANTY DISCLAIMER
DELL MAKES NO EXPRESS WARRANTIES FOR DELL-BRANDED HARDWARE PRODUCTS
EXCEPT THOSE INCLUDED IN THE DOCUMENTATION PROVIDED WITH THE PRODUCT.
ANY WARRANTIES, SERVICE, OR TECHNICAL SUPPORT WILL BE EFFECTIVE ONLY
UPON DELL'S TIMELY RECEIPT OF PAYMENT IN FULL OF THE APPLICABLE
INVOICE. DELL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. ANY WARRANTY PROVIDED ON A SOFTWARE
OR DELL SOFTWARE AND PERIPHERALS PRODUCT IS PROVIDED BY THE PUBLISHER
OR ORIGINAL MANUFACTURER AND MAY VARY FROM PRODUCT TO PRODUCT.
14. On-site Service Contracts
Remarketer/Integrator may contract for on-site service similar to that
which Dell may market to Dell customers generally. Any on-site service
acquired by Remarketer/Integrator may be transferred to
Remarketer/Integrator's customers in accordance with the applicable
service contract. If a transfer is accomplished within sixty (60) days
of the date the covered Products were shipped from Dell's facility, the
transferee will have a full twelve months of on-site service coverage.
It is the sole responsibility of the Remarketer/Integrator to transfer
such on-site coverage and/or notify the end user.
15. Remarketer/Integrator and Technical Support
Remarketer/Integrator agrees that it will establish and maintain
support services for its customers. Dell will accept reasonable
requests for support from Remarketer/Integrator's customers when
Remarketer/Integrator is unable to handle them. Dell will accept
requests for support from Remarketer/Integrator that are unusual, new
to Remarketer/ Integrator, and not of a general nature. Dell's support
personnel will attempt to handle any such request over the telephone.
However, Remarketer/Integrator agrees that Dell's support personnel may
not be able to understand or resolve every problem. Dell is not
obligated to provide support and may withhold any or all support if any
sum owed under this Agreement is past due.
16. Remarketer/Integrator and Customer Care
Remarketer/Integrator agrees that it will utilize Dell's Customer Care
website for any and all questions and concerns that develop regarding
invoices, order status, etc. Remarketer/Integrator may find the Dell
will not accept telephone calls regarding any of these issues.
17. Infringement of Third Party Rights
Dell will indemnify, defend and hold the Remarketer/Integrator harmless
from a claim that a Dell-branded hardware Product infringes on another
person's or company's patent, copyright, trade secret or other
intellectual property rights in the United States. Dell will have no
obligation under this Section with respect to any claim of infringement
resulting from an unauthorized modification of the Products by
Remarketer/Integrator or from any combination, operation, or use of the
Products with systems other than
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AGREEMENT NUMBER:
those provided by Dell. Following notice of a claim or a threat of
actual suit, Dell will, at its own expense and at Dell's option, (1)
resolve the claim in a way that permits continued ownership and use of
the Product; (2) provide a comparable replacement at no cost; or (3)
accept return of the Product, freight collect, and provide a
reasonable, depreciated refund. This Section is the exclusive
statement of Dell's liability and responsibility for the infringement
of intellectual property rights.
18. Indemnification
18.1. If Dell is notified promptly in writing and given sole control
of the defense and all related settlement negotiations, it
will take responsibility for any claim based on an allegation
that a Product did not meet Dell's warranty when received by
an end user, or that Dell failed on request to provide
warranty service in accordance with the applicable warranty
statement, or otherwise alleging Dell fault with respect to
Products. Dell will pay any resulting costs and damages
finally awarded against Remarketer/Integrator with regard to
any such claim if and to the extent that they are Dell's fault
and do not exceed costs or damages that would have been
finally awarded against Dell had the claim been made directly
against Dell.
18.2. REMARKETER/INTEGRATOR AGREES TO INDEMNIFY AND HOLD DELL AND
DELL COMPUTER CORPORATION ("DCC"), AND ANY OF ITS SUBSIDIARIES
OR AFFILIATES, HARMLESS FROM ANY AND ALL DAMAGES, COSTS AND
EXPENSES IN CONNECTION WITH ANY CLAIM BY ANYONE, INCLUDING,
WITHOUT LIMITATION, CLAIMS FOR BODILY INJURY, OR DAMAGE TO
REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENCE OF
EMPLOYEES OR REPRESENTATIVES OF REMARKETER/INTEGRATOR THAT
ARISES OUT OF REMARKETER/INTEGRATOR'S ACTS (OTHER THAN
MARKETING PRODUCTS IN COMPLIANCE WITH THIS AGREEMENT AND ALL
APPLICABLE INSTRUCTIONS GIVEN BY DELL), OMISSIONS OR
MISREPRESENTATIONS, REGARDLESS OF THE FORM OF ACTION.
REMARKETER/INTEGRATOR'S OBLIGATION TO INDEMNIFY WILL APPLY
REGARDLESS OF WHETHER THE DAMAGE, LOSS, LIABILITY, COST, OR
EXPENSE IN QUESTION ARISES IN WHOLE OR IN PART FROM ANY
NEGLIGENT ACT OR OMISSION OF AN INDEMNIFIED PERSON OR ENTITY,
FROM STRICT LIABILITY IN TORT OF AN INDEMNIFIED PERSON OR
ENTITY, OR OTHERWISE. NOTHWISTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, IN NO EVENT WILL
REMARKETER/INTEGRATOR BE RESPONSIBLE FOR THAT PORTION OF THE
DAMAGE, LOSS, LIABIILTY, COST, OR EXPENSE THAT RESULTS FROM
THE NEGLIGENT ACT OR OMISSION OF AN INDEMNIFIED PERSON OR
ENTITY.
19. Insurance
Remarketer/Integrator will maintain One Million ($1,000,000.00) Dollars
Comprehensive General Liability (including Products Liability)
Insurance based on Annual Commitment and Product use, with a reputable
insurance company having a Best rating of least A+.
Remarketer/Integrator will obtain certificates of such insurance and
provide them to Dell, on request. If Dell requests,
Remarketer/Integrator will name Dell as an additional insured, and
ensure that Dell will be notified at least thirty (30) calendar days
prior to cancellation or termination of any policy. Dell may withhold
shipment of Products pending compliance with such a request.
20. Limitation of Remedies and Liability
20.1. Except as provided in Section 2 ("Term; Termination"), in the
event of the failure or threatened failure of either party to
fulfill any obligation, the remedy of the other party is to
request that the obligation be fulfilled. If fulfillment does
not occur within thirty (30) calendar days after notice to the
party, the other party may terminate this Agreement and, if
appropriate, bring an action for moneys due or to seek
enforcement of its rights at law or in equity.
20.2. EXCEPT FOR LIABILITY UNDER SECTIONS 17 (INFRINGEMENT OF THIRD
PARTY RIGHTS) OR 18 (INDEMNIFICATION), OR BREACHES UNDER
SECTIONS 21 (TRADEMARKS; ADVERTISING) OR 22 (CONFIDENTIAL
INFORMATION), OR FOR CLAIMS FOR BODILY INJURY OR DAMAGE TO
REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENCE OF
EMPLOYEES OR REPRESENTATIVES
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OF DELL, NEITHER PARTY HAS ANY LIABILITY TO THE OTHER FOR
LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL,
SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY
THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS
AGREEMENT. DELL WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES
ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH RISK
ACTIVITY, INCLUDING THE OPERATION OF NUCLEAR FACILITIES,
AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC
CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT OR WEAPONS SYSTEMS.
21. Trademarks; Advertising
21.1. Remarketer/Integrator may refer to itself during the term of
this Agreement as a "Dell Authorized Remarketer/Integrator"
but only in connection with marketing of Products.
21.2. Remarketer/Integrator may use Dell's trademarks and trade
names to market Products with the written approval of Dell.
Remarketer/Integrator agrees to change or correct, at its own
expense, any material or activity which Dell decides is
inaccurate, objectionable or misleading, or a misuse of Dell
trademarks or trade names.
21.3. Remarketer/Integrator will provide Dell with proof copies of
all advertising and other publicity that refers to Dell or
uses Dell trademarks or trade names in time for Dell to have
at least five (5) business days to review the references to
Dell and use of Dell trademarks and trade names.
Remarketer/Integrator agrees to change or correct, at its own
expense, any advertising and other publicity, which Dell
decides is inaccurate, objectionable or misleading, or a
misuse of Dell trademarks or trade names. Dell will
communicate any such changes and corrections to
Remarketer/Integrator within five (5) business days of receipt
of the proof copies; Remarketer/Integrator may treat Dell's
failure to communicate as Dell's consent for
Remarketer/Integrator to use the advertising and publicity as
submitted.
21.4. Remarketer/Integrator receives no rights to use Dell
trademarks and trade names except as provided in this Section.
The limited rights granted in this Section end with
termination of this Agreement.
22. Confidential Information
In order to protect certain confidential information, Dell and
Remarketer/Integrator (individually referred to as a "Party" and
collectively referred to as the "Parties"), agree that:
22.1. The Parties disclosing Confidential Information (each, a
"Discloser") may be Dell or Remarketer/Integrator.
22.2. The Confidential Information disclosed under this Agreement
("Confidential Information") is described generally as current
and future product information, financial and other business
information including, but not limited to all confidential and
proprietary information so designated in writing or verbally
by the words "Confidential", "Proprietary" or similar.
22.3. This Section is applicable only to Confidential Information
that is disclosed between the Effective Date and the
termination of this Agreement.
22.4. The Parties receiving Confidential Information (each, a
"Recipient") will use the Confidential Information only for
the purpose of evaluating potential business relationships.
22.5. A Recipient's duty to protect Confidential Information expires
three (3) years from the End Date. A Recipient, upon
Discloser's written request, will promptly return all
Confidential Information received from the Discloser, together
with all copies, or certify in writing that all such
Confidential Information and copies thereof have been
destroyed.
22.6. A Recipient will use the same degree of care, but no less than
a reasonable degree of care, as the Recipient uses with
respect to its own similar information to protect the
Confidential Information and to prevent (a) any use of
Confidential Information not authorized in this Agreement, (b)
dissemination of Confidential Information to any employee of
Recipient without a need to know, (c) communication of
Confidential Information to any third party or (d) publication
of Confidential Information.
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AGREEMENT NUMBER:
22.7. A Recipient will have a duty to protect Confidential
Information (a) if it is marked or accompanied by documents
clearly and conspicuously designating them as "confidential"
or the equivalent;(b) or if it is identified by the Discloser
as confidential before, during or promptly after the
presentation or communication.
22.8. This Agreement imposes no obligation upon a Recipient with
respect to Confidential Information which (a) was known to the
Recipient before receipt from the Discloser; (b) is or becomes
publicly available through no fault of the Recipient; (c) is
rightfully received by the Recipient from a third party
without a duty of confidentiality; (d) is disclosed by the
Discloser to a third party without a duty of confidentiality
on the third party; (e) is independently developed by the
Recipient without a breach of this Agreement; or (f) is
disclosed by the Recipient with the Discloser's prior written
approval. If a Recipient is required by a government body or
court of law to disclose Confidential Information, the
Recipient agrees to give the Discloser reasonable advance
notice so that Discloser may contest the disclosure or seek a
protective order.
22.9. Each Discloser warrants that it has the right to disclose its
Confidential Information.
22.10. This Agreement imposes no obligation on a Party to exchange
Confidential Information or to purchase, sell, license,
transfer or otherwise make use of any technology, services or
products.
22.11. A Recipient will adhere to all applicable laws and regulations
of the U.S. Export Administration and will not export or
re-export any technical data or products received from a
Discloser, or the direct product of such technical data, to
any proscribed country listed in the U.S. Export
Administration regulations unless properly authorized by the
U.S. government.
22.12. No Party acquires any intellectual property rights under this
Agreement except the limited rights necessary to carry out the
purposes as set forth in this Agreement. Subject to the
obligations of this Agreement, no Party will be precluded from
independently developing technology or pursuing business
opportunities similar to those covered by this Agreement. Each
Party retains sole discretion to assign or reassign the job
responsibilities of its employees.
22.13. Each Party acknowledges that damages for improper disclosure
of Confidential Information may be irreparable; therefore, the
injured Party is entitled to seek equitable relief, including
injunction and preliminary injunction, in addition to all
other remedies.
22.14. The obligations and duties imposed by this Agreement with
respect to any Confidential Information may be enforced by the
Discloser of such Confidential Information against any and all
Recipients of such Confidential Information.
23. Miscellaneous
23.1. Amendments. Except as otherwise stated in this Agreement, this
Agreement may not be amended except by a subsequently dated
written instrument signed on behalf of both parties by a duly
authorized representative
23.2. Assignment. Remarketer/Integrator may not assign this
Agreement without Dell's prior written consent, which Dell
will not unreasonably withhold or delay. Dell may assign this
Agreement, with notice to Remarketer/Integrator, to any entity
owned or controlled by Dell Computer Corporation.
23.3. Compliance. Remarketer/Integrator agrees to comply with all
applicable laws, rules, regulations and orders of the United
States and any other state or country with jurisdiction over
Remarketer/Integrator or Remarketer/Integrator's activities
under this Agreement.
23.4. Currency; Collection. All payments due to either party for any
reason will be made in U.S. currency, unless otherwise agreed
in writing. In the event that Dell is required to pursue the
collection of past due amounts from Remarketer/Integrator,
Dell will be entitled to recover all costs associated with
collection, including attorneys' fees and court costs, as well
as interest accrued at the lesser of 1-1/2% per month or the
highest rate allowed by law from the date notice of
non-payment is given by Dell.
23.5. GOVERNING LAW. TEXAS LAW, EXCLUSIVE OF ANY PROVISIONS OF THE
UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS,
AND WITHOUT
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AGREEMENT NUMBER:
REGARD TO PRINCIPLES OF CONFLICTS OF LAW GOVERNS THIS
AGREEMENT. THIS AGEEMENT IS PERFORMABLE IN XXXXXXXXXX
COUNTY, TEXAS.
23.6. INDEMNITY. UNDER CERTAIN CIRCUMSTANCES, THIS AGREEMENT IMPOSES
INDEMNIFICATION OBLIGATIONS ON THE PARTIES.
23.7. Independent Contractors. Dell and Remarketer/Integrator are
independent contractors. Neither party will state, imply or
knowingly permit anyone to infer that any other relationship
exists between the parties without the other party's prior
written consent.
23.8. Notices. All notices under this Agreement, except as otherwise
expressly provided, will be in writing and served by
machine-confirmed facsimile, overnight personal service or by
certified or registered mail, return receipt requested, and
will be deemed to have been given or received on the earlier
of actual receipt or, if mailed, on the fifth (5th) day after
it is properly addressed to the party to be notified,
certified or registered with return receipt requested, and
properly stamped, sealed and deposited in the U.S. mail.
Notices will be sent to the respective address listed under
the parties' signatures below. Either party may change its
address for notices by giving notice of the new address to the
other party. Notices to Dell will be sent to the attention of
Dell's Contracts Manager. Notices to Remarketer/Integrator
will be sent to the attention of Remarketer/ Integrator's
then-current liaison.
23.9. Security Interest. Remarketer/Integrator agrees that Dell
retains a purchase money security interest in, and
Remarketer/Integrator grants Dell a lien on
Remarketer's/Integrator's right, title, and interest in, all
Products (and all replacements or proceeds) until the
applicable invoice is paid in full. Remarketer/Integrator
further agrees that Dell may use this Agreement, as well as
any applicable invoices, as a financing statement for
perfecting this interest. When payment is made to Dell for
product prior to shipment, Dell will not retain a purchase
money security interest in such product. Notwithstanding
anything in this Agreement to the contrary, Dell will not
retain a purchase money security interest in any product
shipped that is financed by IBM Global Financing on behalf of
Emtec and that is also subject to the flooring agreement
between Dell and IBM Global Financing. It is Emtec's intent to
purchase product from Dell under a cash in advance or floor
planning scenario. Modification of this provision 23.9 may be
made via e-mail if expressly accepted by authorized
representatives of both parties.
23.10. Severability. If any provision of this Agreement is void or
unenforceable, the parties agree to delete it and agree that
the remainder of this Agreement will continue to be in effect.
23.11. Force Majeure. Neither party shall be liable or deemed in
default for any delay or failure in performance under this
agreement or interruption of service resulting directly or
indirectly from acts of God, civil or military authority, acts
of the public enemy, war, riots, civil disturbances,
insurrections, accidents, fires, explosions, earthquakes,
floods, the elements or any other cause beyond the reasonable
control of such party.
23.12. Waiving of Rights. The failure or delay of either party to
insist, in any one or more instances, upon the performance of
any of the terms, covenants or conditions of this Agreement or
to exercise any right, power or privilege under this
Agreement, shall not operate or be construed as a
relinquishing of future performance under this Agreement or as
a waiver of any of the same or similar rights, power or
privileges in the future, and the obligation of the other
party with respect to such future rights or performance shall
continue in full force and effect as if such failure or delay
never occurred. No waiver of any term or condition is valid
unless it is in writing and signed by a duly authorized
representative of the waiving party. A valid waiver is limited
to the specific situation for which it was given.
23.13. Paragraph Headings. Paragraph headings used in this agreement
are for reference purposes only and shall not be interpreted
to limit or affect in any way the meaning of the language
contained is such paragraphs.
23.14. Entire Agreement. This Agreement is the exclusive statement of
the contract in effect between Dell and Remarketer/Integrator
regarding this subject matter and supersedes any prior
agreements, if any, made between the parties relative to such
subject matter. No oral understandings, statements, practice,
or other inducements contrary to the terms of this Agreement
exist.
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AGREEMENT NUMBER:
Preprinted terms and all other terms not requested in this
Agreement on any purchase order or other documents submitted
by a Remarketer/Integrator are of no force or effect unless
expressly accepted in writing by authorized representatives
of both parties.
23.15. Schedules: By the execution of this Agreement, Dell and
Remarketer/Integrator incorporate herein for all purposes the
attached schedules and their terms and conditions. In the
event of conflict between this Agreement and any of the above
Schedules, the Agreement controls.
This Agreement has been executed on behalf of the parties by their duly
authorized representatives, this ___________ day of _________________________,
20_____.
AGREED: Emtec, Inc. ACCEPTED: DELL MARKETING L.P.
By: ____________________________ By: ________________________________
Name: Xxxx X. Xxxxxxx Name:
Title: Chief Executive Officer Title: Contract Manager
Public Contracts
Address: 000 Xxxx Xxxx Xxxxx Address: Xxx Xxxx Xxx
Xx. Xxxxxx, XX 00000 XX0 Xxx 0000
Xxxxx Xxxx, Xxxxx 00000
Telephone: (000) 000-0000 Telephone: 000-000-0000
Fax: (000) 000-0000 Fax: 000-000-0000
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AGREEMENT NUMBER:
SCHEDULE A
Annual Minimum Commitment: Million $5M
Authorized Segment(s): State and Local Government Sales &Education
Authorized Contract: New Jersey Contract # T0483
City of Philadelphia - OA contract
DISCOUNTS: Product Classifications and Categories may be changed by Dell without
notice.
---------------------------------------------------------------------------------------------------------
Category Products Classifications Discounts
---------------------------------------------------------------------------------------------------------
A Performance PowerEdge, PowerVault, PowerApp, Workstations, OptiPlex 11%
and Latitude; Peripherals; Customer Kits on Dell Stocked
Accessories and Options
---------------------------------------------------------------------------------------------------------
H Value Latitude, OptiPlex, Workstation; Future Products to be 0%
Determined.
---------------------------------------------------------------------------------------------------------
M Dell Software and Peripherals - Mainstream 8.2%
---------------------------------------------------------------------------------------------------------
O Directline Service; 4-Hr On-Site Critical Care Plus; Business Care 20%
Plus On-Site Service (all years)
---------------------------------------------------------------------------------------------------------
S Selected Promotional Offers; Consumer Inspiron; Consumer Latitude 0%
---------------------------------------------------------------------------------------------------------
Z Items Designated as Non-Discountable at any time; Dimension; 0%
Selected PowerEdge and Service
---------------------------------------------------------------------------------------------------------
VALUE-ADDED OFFERING: Remarketer/Integrator shall complete the following section describing their
value-added offering for the Authorized Segment named above:
---------------------------------------------------------------------------------------------------------
Consulting with the customer for the proper configuration of
Dell enterprise products, providing configuration
and integration services, and on -site
installation services.
----------------------------------------------------------------------------------------------------------
Remarketer: Dell Marketing L.P.:
Signature:___________________________________ Signature:___________________________________
Printed:_____________________________________ Printed:_____________________________________
Title:_______________________________________ Title:_______________________________________
Date:_______________________________________ Date:_______________________________________
----------------------------------------------------------------------------------------------------------
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AGREEMENT NUMBER:
SCHEDULE A
DELLPLUS INTEGRATION SERVICES
This Schedule between Dell and Remarketer/Integrator sets forth our
understanding with respect to the following services or offerings from Dell
(together, defined as "DellPlus Services"), which may be purchased by
Remarketer/Integrator as set forth herein:
Integration Services which may include:
o installation of Remarketer/Integrator's software image (which may include
industry standard and/or custom software),
o installation or integration of a pre-configured bundle of third party
hardware and/or software, in a Dell system ("Order Ready"), and
o asset tagging, hardware integration (which may include standard
Dell-branded components or non-standard third party components) or other
system integration services; and
Image Management Services which may include:
o development by Dell of the Remarketer/Integrator-specific DellPlus
Configuration; and
o validation by Dell of the Remarketer/Integrator-specific DellPlus
Configuration.
Any wholly-owned subsidiary or affiliated company under common control with
Remarketer/Integrator may obtain DellPlus Services from Dell or any wholly-owned
subsidiary or affiliate of Dell under the authority of, and in accordance with,
the terms and conditions of the Agreement.
"Dell Standard Products" refers to those portions of a DellPlus Configuration
that are Dell-branded and that are originally listed on Dell's standard parts
lists. "Third Party Products" refers to any hardware or software, other than
Dell Standard Products, that are part of a DellPlus Configuration, whether
provided by Remarketer/Integrator or procured for Remarketer/Integrator by Dell.
B. How to Buy DellPlus Services
1. Terms of Purchase. Remarketer/Integrator's purchase of Dell products with
DellPlus Services (in each case, a "DellPlus Configuration") will, in each case,
be governed by this Schedule between Dell and Remarketer/Integrator. If the
terms and conditions of this Schedule differ from the terms of this Agreement,
this Agreement shall control.
2. Technical Specifications. Dell may, from time to time at
Remarketer/Integrator's request, deliver a DellPlus Configuration for a
per-system fee to be determined between the parties. Remarketer/Integrator
acknowledges that the DellPlus Configurations are of its choosing, and that
Remarketer/Integrator is responsible for determining its technical
specifications for each DellPlus Configuration and for ensuring that those
technical specifications are properly documented to Dell in a verified and
signed "Technical Specification" or "Statement of Work" (SOW) form. Dell shall
be entitled to rely on the Technical Specification and/or the SOW form as well
as all statements of Remarketer/Integrator set forth therein. Dell is not
responsible for liability or damage arising from the installation of a DellPlus
Configuration performed in accordance with the Technical Specifications, SOW, or
Remarketer/Integrator's instructions. Dell is not responsible for the operation
or suitability of any DellPlus Configuration or for any revision or engineering
changes in any third party products included in a DellPlus Configuration. If
Dell is of the reasonable view that the DellPlus Configuration or Image
Management Services requested by Remarketer/Integrator are not technically
feasible, Dell reserves the right to refuse to proceed with the development of
such configuration or the performance of the SOW at any time.
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AGREEMENT NUMBER:
3. Purchase of Third Party Products. Remarketer/Integrator shall be responsible
for procuring any Third Party Products included in a DellPlus Configuration
including items on Dell's Dell Software and Peripherals Price List or Gigabuys
website. If Remarketer/Integrator elects to have Dell procure such Third Party
Products, Remarketer/Integrator shall provide to Dell a firm purchase order for
the number of DellPlus Configurations to be ordered for which Dell is requested
to procure such products. In the event the Third Party Products procured by Dell
are not used for DellPlus Configuration orders within a reasonable time
following purchase of the parts by Dell, the Third Party Products will be
shipped and invoiced to Remarketer/Integrator, and Remarketer/Integrator will
pay for these parts within thirty (30) days after the date of invoice.
Remarketer/Integrator warrants that it has read and accepted the terms and
conditions of the software license for all software Third Party Products, and
has the right to authorize Dell to make, copies, alterations, modifications or
adjustments to any software included in a custom software image for purposes of
installation of the DellPlus Configuration. If purchasing for internal use,
Remarketer/Integrator accepts responsibility for the licensing, copying and or
distribution of any such software for the benefit of its employees or agents who
are end users of the DellPlus Configuration. If purchasing for resale,
Remarketer/Integrator accepts responsibility for the licensing, copying and or
distribution of any such software by or for any end user purchaser or recipient
of such DellPlus Configuration. Remarketer/Integrator warrants that it has
obtained the right to authorize Dell to copy, maintain, store and install any
software included in a DellPlus Configuration.
C. For DellPlus Integration Services Purchased
Software Installation- Remarketer/Integrator or End User-Provided Image.
Remarketer/Integrator will provide Dell with any custom software image to be
installed in a DellPlus Configuration and authorizes Dell to copy, install and
modify, if necessary, all software to be installed in each DellPlus
Configuration or to be recorded in electronic media for subsequent
re-installation or back-up of the DellPlus Configuration.
D. For DellPlus Image Management Services Purchased
1. Image Management Services. Dell will perform the selected IM Services as
specified in a written Statement of Work ("SOW") as agreed by Dell and
Remarketer/Integrator. Each IM Services transaction may include one or more of
the following service offerings:
a) Image Development & Validation: DellPlus Configuration development by
a Dell technical team, creating a unique DellPlus Configuration that
is compatible with Dell Standard Products. Validation is the execution
of a Remarketer/Integrator or end user-defined testing protocol to
test application and networked peripheral functionality with the newly
developed DellPlus Configuration and specified in the SOW.
b) Image Maintenance: Notification of changes to Dell Standard Products
that affect the DellPlus Configuration and correction to the DellPlus
Configuration.
2. IM Services Description. Dell will assign a Project Manager to each IM
Services transaction. The Project Manager will work with Remarketer/Integrator
to establish the SOW for the transaction and coordinate the scheduling and
performance of the development work on the Remarketer/Integrator's site.
Remarketer/Integrator may elect to purchase two separate IM Services: (1) image
development and validation and (2) image maintenance.
2.1 Image development and validation may include, if specified in
the SOW:
Verify BIOS is set to Remarketer/Integrator specifications
Load core operating system and drivers Configure network
environment settings
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AGREEMENT NUMBER:
Check device manager for hardware conflicts
Load and configure applications
Configure user (G.U.I.) interface as specified by
Remarketer/Integrator
Execute validation steps as provided by Remarketer/Integrator.
The Remarketer/Integrator will provide its validation
requirements to Dell as part of the SOW.
2.2 Image Maintenance. For each IM Services transaction in which
Remarketer/Integrator elects to purchase Image Maintenance, Dell will
revise the Remarketer/Integrator's factory-installed DellPlus
Configuration to address Covered Hardware Transitions. A Covered
Hardware Transition is: (i) any Hardware transitions or Hardware
end-of-life applying to Dell standard hardware parts or other hardware
parts specified by Remarketer/Integrator's applicable DellPlus
configuration and installed during Dell's manufacturing process; (ii)
changes to processors and motherboards installed by Dell at Dell's
factory; and (iii) changes to drivers installed by Dell at Dell's
factory.
Remarketer/Integrator changes to the factory-installed DellPlus
Configuration, including adding new software applications to the core
hard drive image or transitioning a hard drive image to a new software
platform or a new DellPlus Configuration will require the development
of a new hard drive image and will be treated as a separate IM Services
transaction.
3. Remarketer/Integrator Responsibilities. Dell's performance and delivery of
the IM Services are, in part and necessary, contingent upon: (i)
Remarketer/Integrator or end user providing access, upon Dell's reasonable
request, to Remarketer/Integrator's or end user's personnel, facilities,
equipment, hardware, software, network, and information, and (ii)
Remarketer/Integrator's or end user's timely decision-making, notification of
relevant issues or information, and granting of approvals or permission.
4. General.
4.1 Year 2000 Language. The IM Services do not address the capability
of Remarketer/Integrator systems to handle date data within and between
the twentieth and twenty-first centuries. Remarketer/Integrator
acknowledges that it is Remarketer/Integrator's responsibility to
assess its current systems and the software provided by
Remarketer/Integrator to Dell for the development of the DellPlus
Configuration and take appropriate action to migrate to Year 2000 ready
systems and software.
4.2 Changes/Project Change Control. Remarketer/Integrator may from time
to time during the term of this Agreement request that Dell implement a
change (a "Change") in the scope (including the performance of an
out-of-scope service) of the IM Services performed under a specific
SOW. Further, one of the following adjustment events (the "Adjustment
Events") may also result in a Change hereunder: (i) a change in
information which Remarketer/Integrator has supplied to Dell thereby
that impacts pricing or schedule associated with the performance of the
DellPlus Services; (ii) a change of law or other unanticipated event,
including without limitation a "Force Majeure" event experienced by
Dell; or (iii) an act or omission by Remarketer/Integrator that impacts
pricing or schedule associated with the performance of the DellPlus
Services.
When a Change occurs (whether by Remarketer/Integrator request or an
Adjustment Event), Dell will seek prior approval or authorization to
investigate the effect or impact of the Change. Such authorization will
be documented on a Change Authorization signed by both parties. Once
authorized, any Dell time for the investigation will be billed at the
development and validation rate specified in the SOW. Changes to this
SOW will be evaluated by Dell to determine feasibility and effects on
schedule, pricing or other terms and conditions of the SOW and aspects
of the engagement. Changes will only be implemented after they have
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AGREEMENT NUMBER:
been mutually agreed upon by Dell and Remarketer/Integrator, in
writing, and this document has been updated accordingly, via the Change
Authorization Form attached as Exhibit A.
4.3 Performance. The IM Services may include project management, if
purchased, and may be performed by Dell employees, subcontractors or
business partners. As necessary, the Dell Project Manager will develop
the desired DellPlus Configuration through a combination of on-site and
off-site activities during the course of engagement. Dell retains the
right to disengage from a project if it has become evident that current
systems, tools, and skill sets are incapable of developing the solution
requested by Remarketer/Integrator.
4.4 Required Approvals. Remarketer/Integrator will promptly obtain and
provide to Dell any custom software to be installed in a DellPlus
configuration and all required consents necessary to provide the IMS
described in the applicable Statement(s) of Work. A "Required Consent"
means any licenses, consents, or approvals required to give Dell and
its subcontractors or employees the right or license to access, copy,
distribute, use and/or modify (including creating derivative works) the
Third Party Products and all custom software to be included in the
DellPlus Configuration, without infringing the ownership or license
rights (including patent and copyright) of the providers or owners of
such products. Dell will be relieved of the performance of any SOW that
may be affected by Remarketer/Integrator's failure to promptly obtain
and provide any required consents to Dell. Remarketer/Integrator is
responsible: for specifying the software to be contained in the
DellPlus Configuration, and for the results obtained from the purchase
of the IM Services, including testing and validation of any DellPlus
Configuration provided by Dell.
E. Miscellaneous
1. Export. Remarketer/Integrator acknowledges that DellPlus Configurations and
Services licensed or sold under this Agreement are subject to the export control
laws and regulations of the USA or those of other countries from which they were
supplied and in which they are used. Remarketer/Integrator confirms that with
respect to the Products, it will not export or re-export them, directly or
indirectly, except in accordance with those laws and regulations which include
but are not limited to the US Export Administration Regulations, the Enhanced
Proliferation Control Initiative (EPCI) Regulations, the Foreign Asset Control
Regulations and any economic sanctions imposed by the US Government upon any
foreign country. Remarketer/Integrator confirms that the Products will not be
destined for a prohibited chemical, biological or nuclear weapons or missile
use.
Remarketer/Integrator hereby represents and warrants that the software provided
by Remarketer/Integrator and included in any DellPlus Configuration contains no
encryption or, to the extent that it contains encryption, the software is
approved for export without a license. If Remarketer/Integrator cannot make the
preceding representation, Remarketer/Integrator agrees to provide Dell with all
of the information needed for Dell to obtain export licenses from the United
States government and to provide Dell with such additional assistance as may be
necessary to obtain such licenses.
Remarketer/Integrator further represents and warrants the facts set forth on any
technical specification sheet or other document completed by
Remarketer/Integrator with or for Dell, which sets forth information regarding
the nature of any products which are supplied by Remarketer/Integrator for
inclusion in any Dell Products, and recognizes Dell's reliance on the accuracy
of such matters in connection with any export of the Products for or at the
request of Remarketer/Integrator. Remarketer/Integrator is also solely
responsible for obtaining any specific licenses relating to such export of
DellPlus Configurations with the integrated software in the event that such
licenses may be needed. Dell's acceptance of any order for a DellPlus
Configuration is contingent upon the issuance of any applicable export license
required by the United States Government, and in no event will Dell be liable
for any delays or failure to deliver such DellPlus Configurations that may
result from Remarketer/Integrator's failure to obtain such license.
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AGREEMENT NUMBER:
FOR SOFTWARE PROVIDED BY REMARKETER/INTEGRATOR OR OTHERWISE OBTAINED BY DELL FOR
PERFORMANCE OF DELLPLUS SERVICES AND INCORPORATED IN A DELLPLUS CONFIGURATION AT
REMARKETER/INTEGRATOR'S REQUEST, REMARKETER/INTEGRATOR INDEMNIFIES DELL FOR
INACCURATE REPRESENTATIONS REGARDING THE ELIGIBILITY FOR EXPORT OF SOFTWARE
WITHOUT A LICENSE, AND FOR ANY FAILURE TO PROVIDE INFORMATION NEEDED TO OBTAIN A
LICENSE.
2. Regulatory Requirements. Dell shall not be under any obligation to perform
any SOW or to install any Third Party Products as part of the DellPlus
Configuration or proceed with a DellPlus Configuration if such Third Party
Products, or the resulting DellPlus Configuration, do not satisfy the local
regulatory requirements of the country to which the DellPlus Configuration is to
be shipped.
3. Indemnity. Remarketer/Integrator accepts responsibility for, and agrees to
indemnify and hold Dell harmless from, any and all liability, damages, claims,
or proceedings arising out of (i) the failure of Remarketer/Integrator to obtain
the appropriate license or other intellectual property rights to support any SOW
signed by the parties or the installation of the DellPlus Configuration,
including the right to make any copies or reproductions of the software or (ii)
any inaccurate representations regarding the existence of an export license or
the eligibility for export of software without a license.
4. NO WARRANTIES. DELL MAKES NO WARRANTIES RELATING TO THIRD PARTY HARDWARE OR
SOFTWARE PRODUCTS INCLUDED IN ANY DELLPLUS CONFIGURATION. DELL DISCLAIMS, TO THE
FULLEST EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE RELATING TO SUCH THIRD
PARTY PRODUCTS.
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