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HomeMy WebLinkAbout114178 DELL MARKETING LP - CONTRACT - PURCHASE ORDER - 9125034Pap.? yLd � S 6l ` VY 3°� / H.sc�a- Dell is pleased to offer this Storage Swap Promotion (the "Promotion") where upon the purchase of Dell EqualLogic or Dell Compellent products ("Dell Storage") and the return to Dell (through the Pick Up process described below) of any storage array that is eligible under the Promotion ("Replaced Boxes" or "Equipment), a Customer may receive an amount ("Amount") of three -hundred and fifty -dollars ($350) per terabyte of rated capacity contained in the Replaced Boxes (capacity to be validated by Dell upon receipt), up to a maximum of the number of terabytes of rated capacity of Dell Storage purchased by the Customer. Such Amount shall be paid in the form of (i) an account credit if you are a Direct Customer or (ii) a check if you are an End User, as that term is defined below. Such Amount will be provided to Customer, as that term is defined below, if the following conditions are met ("Payment Conditions"): 1) Customer complies with the Customer Responsibilities outlined below; 2) Pick Up of Replaced Boxes is completed within ninety (90) days from the date of Dell's original invoice to you (if you are a Direct Customer) or to the Dell PartnerDirect channel partner (if you are an End User) for the Dell Storage equipment; 3) Customer must complete this Acknowledgement Form at the same time as the Purchase Order for the new -Dell Storage products; and 4) End User must complete the Vendor Maintenance Form provided by Dell. Customer acknowledges and agrees that the Amount is forfeited if any of the Payment Conditions are not satisfied. Any credit issued in connection with the Promotion can be used to purchase any Dell branded products at standard list price for up to one hundred and eighty (180) days after the credit has been earned. Credits not used within one hundred and eighty (180) days of issuance shall expire and become unusable. All eligibility to Amount shall be subject to the Payment Conditions and the Promotion terms and conditions. This Customer Acknowledgement Form ("Form") is accepted and made by customer who purchase Dell Storage directly from Dell ("Direct Customer") or from a Dell Partner -Direct channel partner ("End User')( Direct Customers and End Users are referred collectively as "Customer"). By participating in the Promotion, Customer agrees to be bound by all terms and conditions set forth in this Form. This Promotion is provided in connection with Dell's Commercial Terms of Sale ("CTS"), which can be obtained at www.dell.com/terms and in hardcoov from Dell upon re uest and is incorporated by reference in its entirety herein. Customer acknowledges having read and agrees to be bound by such online terms. Nothing herein, including your participation in this Promotion, alters payment terms defined in the CTS related to the Direct Customer's purchase of Dell Storage products. In the event of a conflict between the provisions set forth in this Form and the CTS, Customer hereby agrees the provisions set forth in this Form shall govern for transactions relating to the Promotion only. Any terms on your purchase order shall be given no force or effect, and no terms of a purchase order that conflict with this Form shall be binding on Dell. As used in this Form, the following definitions will apply: a. "Dell's Logistics Provider" will mean logistics provider acting on instructions from Dell. b. "Pick Up" will mean the collection process for Replaced Boxes from the Site. c. "Site" will mean the Customer designated location at which the Pick Up is to be performed. Replaced Boxes Pick Up 1. Scheduling. a. -Pick Up. Dell will assign Dell's Logistics Provider for Pick Upend shipping of Replaced Boxes.' Dell's Logistics Provider will contact Customer to schedule Pick Up at a mutually agreeable date and time. The scheduling call will be made by Dell's logistics provider only after the new Dell Storage equipment Customer purchases is shipped... All Pick Ups must be scheduled to occur not more than ninety (90) days from the date of Dell's original invoice for the Dell Storage equipment. Pick Up will generally be scheduled no earlier than three (3) business days after the date of the scheduling call. b. Changes Two (2) business days' notice prior to the scheduled date for Pick Up is required for changes. 2. Pick Up. Dell's Logistics Provider shall arrive at the Site, contact Customers Site representative and complete Pick Up. Page 1 2012Q013 Storage Swap Promotion Customer Acknowledgement Farm Customer Responsibilities ("Customer Responsibilities") 1. General. CUSTOMER SHALL BACKUP ANY DATA OR SOFTWARE CUSTOMER DESIRES TO RETAIN PRIOR TO EQUIPMENT BEING MADE AVAILABLE TO DELL FOR PICK UP. Neither Pick Up nor the Promotion includes the restoration of any data or software from Replaced Boxes. 2. Data Removal. CUSTOMER SHALL REMOVE ANY AND ALL CONFIDENTIAL, PROPRIETARY, SENSITIVE OR OTHER NON-PUBLIC DATA AND ANY THIRD PARTY SOFTWARE FROM ALL EQUIPMENT PRIOR TO PICK UP BY DELL'S LOGISTICS PROVIDER. DELL SHALL HAVE NO LIABILITY FOR ANY BREACHES OF CONFIDENTIALITY OR VIOLATION OF PRIVACY LAWS RESULTING FROM CUSTOMER'S FAILURE TO REMOVE ANY SUCH DATA FROM EQUIPMENT PRIOR TO PICK UP. 3. Pick Up. Prior to Pick Up, Customer shall: a. declare, at time of Pick Up scheduling, any Site access issues or time restrictions; b. remove from Replaced Boxes, and retain all loose data storage media (e.g. CD, DVD, ZIP); c. consolidate the Replaced Boxes at each Site in a ground level location which is reasonably accessible by the Dell Logistics Provider ("Pick Up Site"); d. provide a Site representative to direct Dell's Logistics Provider to the Replaced Boxes; e. unpack/unbox all Replaced Boxes and clearly segregate such Replaced Boxes from equipment not for Pick Up (please note: if Replaced Boxes are packed or boxed by Customer prior to Pick Up, Dell may require the Pick Up to be rescheduled at Customer's expense); f. verify Replaced Boxes contains only computer hardware and no other products, materials, packaging or boxes; g. terminate or transfer all licenses associated with third party software (including but not limited to any theft deterrent contained in or on Replaced Boxes); and h. Verify Replaced Boxes are complete, properly assembled and meet all Promotion configuration criteria. The Amount may be reduced or eliminated if Replaced Boxes are dissembled (for example, hard drives, memory or cards missing from the system) or incomplete. Hard drives may be removed and destroyed by the Customer. 4. Customer Warranty. Customer represents and warrants as follows: (a) Customer has good and marketable title to the Replaced Boxes free and clear of all liens, claims and encumbrances of any kind; (b) Customer has removed all confidential, proprietary, sensitive or other non-public data from Replaced Boxes; (c) Customer is duly authorized to sell or otherwise transfer such Replaced Boxes and that such sale or transfer shall not result in a breach by Customer of any agreement or judgment binding upon Customer; and (d) unless otherwise disclosed by Customer and acknowledged by Dell in writing prior to shipping, the Replaced Boxes will be operating to the manufacturer's published specifications upon delivery to Dell. If Customer breaches any of its obligations or warranties set forth in this Form, in addition to any other remedies available to Dell, Customer agrees, to the extent allowed under applicable law, to fully indemnify, defend and hold Dell harmless and pay for all costs and fees arising from any third party claim, liability or legal obligation asserted against or imposed upon Dell in connection with such breach, including, but not limited to any claim relating to data that is contained in or may possibly be accessed on the Replaced Boxes. Further, Dell shall not be obligated to provide Amount or any other benefit under the Promotion or to Pick Up any equipment, nor be liable for any damages resulting from Customer's breach. Additionally Customer may be liable to pay additional fees, expenses, loss or damages that may be incurred by Dell as a result of Customer's failure to follow the prescribed Pick Up procedures. These additional fees and expenses may include, but are not limited to time and materials costs for Dell's Logistics Providers. Services Not Included with the Promotion Pick up and/or recycling of Customer's packaging/boxes are not included. Page 2 2012-2013 Storage Swap Promotion Customer Acknowledgement Form Important Additional Information Not Transferable. Neither the Promotion, Amount, nor Pick Up are transferable by Customer. Dell Partners. Customer hereby acknowledges and agrees that Dell may utilize affiliates and subcontractors to perform the Promotion or Pick Up, in whole or in part. No Returns. Replaced Boxes cannot be returned to Customer once Pick Up occurs No Contaminated Products. The Promotion, Amount and Pick Up will not apply or be provided for any Replaced Box that is or has become contaminated or is suspected of being contaminated with chemicals, biological agents or other substances that are not integral to the original new Replaced Boxes or otherwise associated with normal office environments. Customer is liable for all costs and expenses associated with not informing Dell of any such contamination, including, but not limited to any damage caused to Dell or its employees or subcontractors as a result of such contaminated products. Title. Title to Replaced Boxes will be deemed to pass to Dell or Dell's Logistics Provider upon receipt and possession of the Replaced Boxes by Dell or Dell's Logistics Provider. Software/Data Backup. DELL HEREBY DISCLAIMS ANY AND ALL LIABILITY FOR ANY RESTORATION OF DATA OR SOFTWARE ON EQUIPMENT. US Regulation of PHI. For Customers with operations in the United States or who are otherwise subject to the US Health Insurance Portability and Accountability Act ("HIPAA"), Customer warrants and represents that prior to providing Dell access to Replaced Boxes which have been used for processing and/or storage of Protected Health Information as defined in 45 C.F.R. Section 160.103 ("PHI"), all PHI on such Replaced Boxes has been rendered unusable, unreadable or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the U.S. Secretary of Health ("Secretary") by either: (i) clearing, purging, or destroying PHI from any electronic media in a manner consistent with NIST Special Publication 800-88, Guidelines for Media Sanitization; or (I) encrypting PHI as defined in 45 C.F.R. 164.304 (currently the Secretary has identified the process for encrypting data set out NIST Special Publication 800-111 as meeting this standard), or Customer shall be responsible for confirming any updated guidance from the Secretary on how to secure PHI in order to render it unusable, unreadable, or indecipherable to unauthorized individuals, and will comply with any applicable guidance as it relates to PHI found on equipment or materials submitted to Dell for processing. Healthcare Programs. Customer is solely responsible for accurately reporting any discounts as part of this Promotion to a federal healthcare program to the extent required under any federal healthcare program. Commercially Reasonable Limits to Scope of Promotion. Dell may refuse to provide the Promotion or Pick Up if, in its sole discretion, the condition, size or location of the Replaced Boxes creates an unreasonable risk to Dell or Dell's Logistics Providers or that the equipment proffered to Dell by Customer is beyond the scope of the Promotion. Dell is not liable for any failure or delay in performance, including but not limited to delays in payment or credit, due to any cause beyond its control. Dell makes no (i) recommendations regarding the Customer's data removal requirements or (ii) representations regarding the effectiveness of one method of data removal over another. Terms and Conditions. As it relates specifically to the Promotion and services provided under this Form only, and despite any conflicting terms in the CTS, the following terms and conditions apply: A. Warranty. DELL MAKES NO WARRANTY AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE CUSTOMER WARRANTS THAT TITLE WILL PASS TO DELL OR DELL'S LOGISTICS PROVIDER UPON RECEIPT AND POSSESSION OF THE REPLACED BOXES BY DELL OR DELL'S LOGISTICS PROVIDER. Page 3 2012-2013 Storage Swap Promotion Customer Acknowledgement Form B. Limitation of Liability. IN NO EVENT SHALL DELL OR ITS SERVICE PROVIDERS BE LIABLE (WHETHER IN CONTRACT, TORT OR OTHERWISE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY, FOR ANY OF THE FOLLOWING: (I) LOSS OF PROFITS, LOSS OF BUSINESS OR COMPLIANCE WITH THIRD PARTY REQUIREMENTS THAT MAY APPLY TO DATA ON EQUIPMENT, (II) DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE (IF APPLICABLE) DAMAGES, (III) ANY THIRD PARTY CLAIM; (IV) DAMAGES ARISING FROM OR RELATING TO THE CORRUPTION, LOSS, DISCLOSURE OR USE OF DATA, CONFIDENTIAL INFORMATION OR THIRD PARTY SOFTWARE WHICH CUSTOMER FAILS TO REMOVE FROM ANY EQUIPMENT PRIOR TO MAKING SUCH EQUIPMENT AVAILABLE TO DELL FOR PICK UP HEREUNDER; OR (V) DAMAGES ARISING FROM OR RELATING TO LOSS OF ANY PHYSICAL ITEM OF EQUIPMENT. IN THE EVENT APPLICABLE LAW PROHIBITS IN ANY PART ANY LIMITATION OF LIABILITY IN THIS FORM, THE PARTIES AGREE THAT SUCH LIMITATION SHALL BE MODIFIED, WITHOUT FURTHER ACTION OF EITHER PARTY, SO AS TO BROADLY APPLY TO THE MAXIMUM EFFECT ALLOWED BY APPLICABLE LAW. IN WITNESS WHEREOF, the Customer has caused this Form to be signed and delivered by its duly authorized representative as of the date of signature below (the "Effective Date"). Number of terabytes to be returned: ! 0 7;. Brand of equipment to be returned: 4? Customer ( f Customer Entity Name: Signature: Al �ok� Printed Name: �kyS %� Title: SYJ i e IN S ij1 \ P, �b G `C ACT- A C UIZ c'f Date: `1-l0 - 1 2 q _ 1 `/', —/ Page 4 2012-2073 Storage Swap Promotion Customer Acknowledgement Forth