Wednesday, November 26, 2014


 TOS For Toad for Oracle

Software Transaction Agreement
Rev 06-02-14 CONFIDENTIAL Page 1 of 8
This Software Transaction Agreement (the “Agreement”) is made between you, the customer (“Customer” or “you”) and Dell, as defined below.
1 . Definitions. Capitalized terms not defined in context shall have the meanings assigned to them below:
(a) “Affiliate” means any legal entity controlling, controlled by, or under common control with a party to this Agreement, for so long as such control
relationship exists.
(b) “Appliance” means a computer hardware product upon which the Software is delivered.
(c) “Dell” means either (i) Dell Software Inc. (“DSI"), with its principal place of business located at 5 Polaris Way, Aliso Viejo, CA 92656, or (ii) if an
Order is placed through an Affiliate of DSI, the Affiliate of DSI that executed or approved the Order.
(d) “Documentation” means the user manuals and documentation that Dell makes available for the Software, and all copies of the foregoing.
(e) “eStore” means Dell’s online Software ordering system located at
(f) “License Type” means the model by which the Software is licensed (e.g., by server, by mailbox, by managed user) as indicated in the applicable
(g) “Maintenance Services” means Dell’s maintenance and support offering for the Products as identified in the Maintenance Services Section
(h) “Order” means the document by which Customer orders the Product(s) or, if Customer orders the Product(s) from the eStore, the process by
which Customer orders the Product(s). Orders that are executed by both Customer and Dell shall be governed solely by the terms of this Agreement
and the applicable Order. Orders placed with a Customer purchase order only, Orders placed through the eStore and all Orders placed through a
Partner shall be governed solely by the terms of this Agreement. Any conflicting or additional terms in or accompanying an Order will not be binding on
Dell unless Dell accepts such terms in writing. Each Order shall be subject to approval by Dell and shall represent the Customer’s irrevocable
commitment to purchase and pay for the Products and/or Maintenance Services stated in the Order.
(i) “Partner” means a reseller or distributor that is under contract with Dell or another Partner and is authorized via such contract to resell the
Products and/or Maintenance Services.
(j) “Product Guide” means the document located at that contains the Product Terms.
(k) “Product Terms” means the terms associated with each License Type and any other terms associated with an individual Product. The Product
Terms for Products that are identified in an Order that is signed by both Customer and Dell shall be as stated in the Order. If no Product Terms are
stated in the Order, if the Order is placed with a Customer purchase order only, if the Order is placed through the eStore, or if the Order is placed
through a Partner, then the Product Terms for such Products shall be as stated in the Product Guide as of the date of the Order.
(l) “Products” means the Software and Appliance(s) provided to Customer under this Agreement.
(m) “Software” means the object code version of the software that is provided or made available to Customer pursuant to an Order as well as any
corrections, enhancements, and upgrades to such software that are made available to Customer pursuant to this Agreement, and all copies of the
foregoing. Software includes On-Premise Software and SaaS Software (as defined in Section 2), along with software that is delivered on an Appliance.
2. Software License.
(a) General. Subject to the terms of this Agreement, Dell grants to Customer, and Customer accepts from Dell, a non-exclusive, non-transferable
(except as otherwise set forth herein) and non-sublicensable license to access and use the quantities of each item of Software identified in the
applicable Order within the parameters of the Product Terms associated with the applicable Software and License Type (the “License”). Except for
MSP Licenses (as defined below), Customer shall only use the Software to support the internal business operations of itself and its worldwide Affiliates.
(b) On-Premise Software. If Software is delivered to Customer for Customer’s installation and use on its own equipment (“On-Premise Software”),
the License shall be perpetual (unless otherwise stated on the Order) and shall also include the right to (i) make a reasonable number of additional
copies of the On-Premise Software to be used solely for non-productive archival or passive disaster recovery purposes, provided such copies are kept
in a secure location and are not used for production purposes unless the primary copy of the On-Premise Software is not being used for production
purposes, and (ii) make and use copies of the Documentation as reasonably necessary to support Customer’s authorized users in their use of the On
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Premise Software. Each License for On-Premise Software shall only be used by Customer in the country in which the On-Premise Software is initially
delivered to Customer.
(c) Software as a Service. If an Order provides Customer with a right to access and use Software installed on equipment operated by Dell or its
suppliers (“SaaS Software”), (i) the License for such SaaS Software shall be granted for the duration of the term stated in the Order (the “SaaS
Term”), as such SaaS Term may be extended by automatic or agreed upon renewals, and (ii) the SaaS Provisions set forth in Section 1 7 of this
Agreement shall apply to all use of such Software. If any On-Premise Software is provided in connection with SaaS Software, the License term for such
On-Premise Software shall be for the corresponding SaaS Term, and Customer shall promptly install any updates to the On-Premise Software
provided by Dell.
(d) MSP License. If an Order indicates that Software is to be used by Customer as a managed service provider, Customer shall be granted a License
to use such Software and the associated Documentation to provide Management Services (an “MSP License”). “Management Services” include,
without limitation, application, operating system, and database implementation, performance tuning, and maintenance services provided by Customer
for the benefit of its customers (each, a “Client”). Each MSP License is governed by the terms of this Agreement and the MSP terms in the Product
If an Order for an MSP License expressly permits Customer to install copies of the Software on its Clients’ equipment or to provide its Clients access to
the Software, then Customer shall ensure that (i) each Client only uses the Software and Documentation as part of the Management Services provided
to it by Customer, (ii) such use is subject to the restrictions and limitations contained in this Agreement, including, but not limited to those in the Export
Section, and the applicable Order, and (iii) each Client cooperates with Dell during any compliance review that may be conducted by Dell or its
designated agent. At the conclusion of any Management Services engagement with a Client, Customer shall promptly remove any Software installed
on its Client’s computer equipment or require the Client to do the same. Customer agrees that it shall be jointly and severally liable to Dell for the acts
and omissions of its Clients in connection with their use of the Software and Documentation and shall, at its expense, defend Dell against any action,
suit, or claim brought against Dell by a Client in connection with or related to Customer’s Management Services and pay any final judgments or
settlements as well as Dell’s expenses in connection with such action, suit, or claim.
(e) Evaluation License. If an Order indicates that Software is to be used by Customer for evaluation purposes, or if Software is otherwise obtained
from Dell for evaluation purposes, Customer shall be granted a License to use such Software and the associated Documentation solely for Customer’s
own non-production, internal evaluation purposes (an “Evaluation License”). Each Evaluation License shall be granted for an evaluation period of up
to thirty (30) days from the date of delivery of the On-Premise Software or from the date that access is granted to the SaaS Software, plus any
extensions granted by Dell in writing (the "Evaluation Period"). There is no fee for an Evaluation License during the Evaluation Period, however,
Customer is responsible for any applicable shipping charges or taxes which may be incurred, and any fees which may be associated with usage
beyond the scope permitted herein. Customer will only be granted one Evaluation License per release of any item of Software. Notwithstanding
anything otherwise set forth in this Agreement, Customer understands and agrees that Evaluation Licenses are provided “AS IS” and that Dell does not
provide warranties or Maintenance Services for Evaluation Licenses.
(f) Freeware License. If a freeware version of Software is downloaded by Customer from a Dell website, the terms of use of such Software shall be
governed by the applicable Freeware definition set forth in the Product Guide (a “Freeware License”). Notwithstanding anything otherwise set forth in
this Agreement, Customer understands and agrees that Freeware Licenses are provided “AS IS” and that Dell does not provide warranties or
Maintenance Services for Freeware Licenses.
(g) Use by Service Providers. If Customer contracts with a third party who performs Software implementation, configuration, consulting or
outsourcing services (a “Service Provider”), the Service Provider may use the Software and Documentation provided to Customer hereunder solely
for purposes of providing such services to Customer, provided that Customer ensures that (i) the Service Provider’s use of the Software and
Documentation is subject to the restrictions and limitations contained in this Agreement, including, but not limited to those in the Export Section, and
the applicable Order(s), (ii) the Service Provider cooperates with Dell during any compliance review that may be conducted by Dell or its designated
agent, and (iii) the Service Provider promptly removes any Software installed on its computer equipment upon the completion of the Service Provider’s
need to use the Software as permitted by this Section. Customer agrees that it shall be jointly and severally liable to Dell for the acts and omissions of
its Service Providers in connection with their use of the Software and Documentation.
3. Restrictions. Except and only to the extent where such exclusions and limits are prohibited by applicable law, Customer may not reverse
engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of the Software, or any part thereof. In
addition, Customer may not (i) modify, translate, localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a patent based on the
Products, Documentation or any part thereof, (ii) resell, sublicense or distribute the Products or Documentation, (iii) provide, make available to, or
permit use of the Products, in whole or in part, by any third party (except as expressly set forth herein) without Dell's prior written consent, (iv) use the
Products or Documentation to create or enhance a competitive offering or for any other purpose which is competitive to Dell, (v) remove Software that
was delivered on an Appliance from the Appliance on which it was delivered and load such Software onto a different appliance without Dell’s prior
written consent, or (vi) perform or fail to perform any act which would result in a misappropriation or infringement of Dell’s intellectual property rights in
the Products or Documentation. Each permitted copy of the Software and Documentation made by Customer hereunder must contain all titles,
trademarks, copyrights and restricted rights notices as in the original. Customer understands and agrees that the Products may work in conjunction
with third party products and Customer agrees to be responsible for ensuring that it is properly licensed to use such third party products.
Notwithstanding anything otherwise set forth in this Agreement, the terms and restrictions set forth herein shall not prevent or restrict Customer from
exercising additional or different rights to any open source software that may be contained in or provided with the Products in accordance with the
applicable open source licenses. Customer may not use any license keys or other license access devices not provided by Dell, including but not limited
to “pirate keys”, to install or access the Software.
4. Proprietary Rights. Customer understands and agrees that (i) the Products are protected by copyright and other intellectual property laws and
treaties, (ii) Dell, its Affiliates and/or its suppliers own the copyright, and other intellectual property rights in the Products, (iii) the Software is licensed,
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and not sold, (iv) this Agreement does not grant Customer any rights to Dell’s trademarks or service marks, and (v) Dell reserves any and all rights,
implied or otherwise, which are not expressly granted to Customer in this Agreement.
5. Title, Risk of Loss and Delivery. Dell, its Affiliates and/or its suppliers own the title to all Software. Title and risk of loss to an Appliance shallpass from Dell to Customer upon shipment (unless the Appliance is rented, leased or loaned to Customer). Delivery of Products shall be by electronicdownload or FOB Shipping Point.6. Payment. Customer agrees to pay to Dell (or, if applicable, the Partner) the fees specified in each Order, including any applicable shipping fees.Customer will be invoiced promptly following delivery of the Products or prior to the commencement of any Renewal Maintenance Period and Customershall make all payments due to Dell in full within thirty (30) days from the date of each invoice or such other period (if any) stated in an Order signed byDell. Any amounts payable to Dell by Customer that remain unpaid after the due date shall be subject to a late charge of 1.5% of the invoice amountper month from the due date until such amount is paid, or the maximum rate permitted by law if less.7. Taxes. The fees stated in an Order may not include taxes. If Dell is required to pay sales, use, property, value-added or other taxes based on theProducts or Maintenance Services provided under this Agreement or on Customer’s use of Products or Maintenance Services, then such taxes shallbe billed to and paid by Customer. This Section does not apply to taxes based on Dell’s income.8. Termination. This Agreement or the Licenses granted hereunder may be terminated (i) by mutual agreement of Dell and Customer, or (ii) byeither party if the other party or a Service Provider commits a material breach of this Agreement or an Order and, if such breach is reasonably capableof being cured, fails to cure the breach to the other party’s reasonable satisfaction within thirty (30) days following its receipt of notice of the breach.Upon termination of this Agreement or expiration or termination of a License for any reason, all rights granted to Customer for the applicable Softwareshall immediately cease and Customer shall immediately: (i) cease using the applicable Software and Documentation, (ii) remove all copies,installations, and instances of the applicable Software from all Customer computers and any other devices on which the Software was installed, andensure that all applicable Service Providers and Clients do the same, (iii) return the applicable Software to Dell together with all Documentation andother materials associated with the Software and all copies of any of the foregoing, or destroy such items, (iv) cease using the Maintenance Servicesassociated with the applicable Software, (v) pay Dell or the applicable Partner all amounts due and payable up to the date of termination, and (vi) giveDell a written certification, within ten (10) days, that Customer, its Service Providers and Clients, as applicable, have complied with all of the foregoingobligations. Termination of this Agreement or a License shall be without prejudice to any other remedies that the terminating party may have underlaw, subject to the limitations and exclusions set forth in this Agreement.Any provision of this Agreement that requires or contemplates execution after termination of this Agreement or expiration or termination of a License isenforceable against the other party and their respective successors and assignees notwithstanding termination or expiration, including, withoutlimitation, the “Restrictions,” “Payment,” “Taxes,” “Termination,” “Warranty Disclaimer,” “Infringement” "Limitation of Liability," "ConfidentialInformation," “Compliance Verification,” and “General” Sections of this Agreement.9. Export. Customer acknowledges that the Products and Maintenance Services are subject to the export control laws, rules, regulations, restrictionsand national security controls of the United States and other applicable foreign agencies (the "Export Controls") and agrees to abide by the ExportControls. Customer hereby agrees to use the Products in accordance with the Export Controls, and shall not export, re-export, sell, lease or otherwisetransfer the Products or any copy, portion or direct product of the foregoing in violation of the Export Controls. Customer is solely responsible forobtaining all necessary licenses or authorizations relating to the export, re-export, sale, lease or transfer of the Products and for ensuring compliancewith the requirements of such licenses or authorizations. Customer hereby (i) represents that Customer is not an entity or person to which shipment ofProducts, or provision of Maintenance Services, is prohibited by the Export Controls; and (ii) agrees that it shall not export, re-export or otherwisetransfer the Products to (a) any country subject to a United States trade embargo, (b) a national or resident of any country subject to a United Statestrade embargo, (c) any person or entity to which shipment of Products is prohibited by the Export Controls, or (d) anyone who is engaged in activitiesrelated to the design, development, production, or use of nuclear materials, nuclear facilities, nuclear weapons, missiles or chemical or biologicalweapons. Customer shall, at its expense, defend Dell and its Affiliates from any third party claim or action arising out of any inaccurate representationmade by Customer regarding the existence of an export license, Customer’s failure to provide information to Dell to obtain an export license or anyallegation made against Dell due to Customer’s violation or alleged violation of the Export Controls (an “Export Claim”) and shall pay any judgmentsor settlements reached in connection with the Export Claim as well as Dell’s costs of responding to the Export Claim.10. Maintenance Services.(a) Description. During any Maintenance Period and for the applicable fees, Dell shall make available to Customer the following MaintenanceServices:(i) Dell shall make available to Customer new versions and releases of the Software, including Software corrections, enhancements andupgrades, if and when Dell makes them generally available without charge as part of Maintenance Services.(ii) Dell shall respond to communications from Customer that report Software failures not previously reported to Dell by Customer. Nothing in theforegoing shall operate to limit or restrict follow up communication by Customer regarding Software failures.(iii) Dell shall respond to requests from Customer’s technical coordinators for assistance with the operational/technical aspects of the Softwareunrelated to a Software failure. Dell shall have the right to limit such responses if Dell reasonably determines that the volume of such non-error relatedrequests for assistance is excessive or overly repetitive in nature.Rev 06-02-14 CONFIDENTIAL Page 4 of 8(iv) If Customer has purchased a License to use Software in the “Privileged Account” family of products (“PA Software”) and has purchasedMaintenance Services for the PA Software continuously since the purchase of such License, Dell shall make available to Customer an ApplianceReplacement Program (as described in the Product Guide) for the Appliance on which the PA Software is delivered (the “PA Appliance”).(v) Customer shall have access to Dell’s software support web site at (the “Support Site”).Maintenance Services are available during regional business support hours (“Business Hours”) as indicated on the Support Site, unless Customerhas purchased 24x7 Support. The list of Software for which 24x7 Support is available and/or required is listed in the Global Support Guide on theSupport Site. The Maintenance Services for Software that Dell has obtained through an acquisition or merger may, for a period of time following the effective date ofthe acquisition or merger, be governed by terms other than those in this Section. The applicable different terms, if any, shall be stated on the SupportSite.(b) Maintenance Period. For On-Premise Software, the first period for which Customer is entitled to receive Maintenance Services begins on thedate of the initial delivery of the Software following an Order and ends twelve (12) months thereafter unless otherwise set forth in the applicable Order(the “Initial Maintenance Period”). Following the Initial Maintenance Period, Maintenance Services for On-Premise Software shall automaticallyrenew for additional terms of twelve (12) months (each, a “Renewal Maintenance Period”) unless the renewal has been cancelled by either partygiving written notice, by email or otherwise, to the other at least sixty (60) days prior to the first day of the applicable Renewal Maintenance Period. Forpurposes of this Agreement, the Initial Maintenance Period and each Renewal Maintenance Period shall be considered a “Maintenance Period.”Cancellation of Maintenance Services for On-Premise Software will not terminate Customer’s rights to continue to use the On-Premise Software.Maintenance fees shall be due in advance of each Renewal Maintenance Period and shall be subject to the payment requirements set forth in thisAgreement. The procedure for reinstating Maintenance Services for On-Premise Software after it has lapsed is posted at SaaS Software, the Maintenance Period is equal to the duration of the applicable SaaS Term.11 . Warranties and Remedies.(a) Software Warranties. Dell warrants that, during the applicable Warranty Period (as defined in Section 11(c) below),(i) the operation of the Software, as provided by Dell, will substantially conform to its Documentation (the “Operational Warranty”);(ii) the Software, as provided by Dell, will not contain any viruses, worms, Trojan Horses, or other malicious or destructive code designed by Dellto allow unauthorized intrusion upon, disabling of, or erasure of the Software, except that the Software may contain a key limiting its use to the scope ofthe License granted, and license keys issued by Dell for temporary use are time-sensitive (the “Virus Warranty”);(iii) the media provided by Dell, if any, on which the On-Premise Software is recorded will be free from material defects in materials andworkmanship under normal use (the “Media Warranty”); and(iv) it will make commercially reasonable efforts to make the SaaS Software available twenty four hours a day, seven days a week except forscheduled maintenance, the installation of updates, those factors that are beyond the reasonable control of Dell, Customer’s failure to meet anyminimum system requirements communicated to Customer by Dell, and any breach of this Agreement by Customer that impacts the availability of theSaaS Software (the “SaaS Availability Warranty”).(b) Appliance Warranties. Except for the PA Appliance, Appliances are warranted in accordance with the warranty document delivered with theAppliance and/or included on the hardware manufacturers’ website. For the PA Appliance, Dell warrants that, during the applicable Warranty Period,the PA Appliance will operate in a manner which allows the PA Software to be used in substantial conformance with the Documentation (the “PAAppliance Warranty”).(c) Warranty Periods. The “Warranty Period” for each of the above warranties shall be as follows: for the Operational Warranty as it applies to OnPremise Software, the Virus Warranty and the Media Warranty, thirty (30) days following the initial delivery of the Software following an approvedOrder; for the Operational Warranty as it applies to SaaS Software and the SaaS Availability Warranty, the duration of the SaaS Term; and for the PAAppliance Warranty, one (1) year following the initial delivery of the PA Appliance following an approved Order.(d) Remedies. Any breach of the foregoing warranties must be reported by Customer to Dell during the applicable Warranty Period. Customer’s soleand exclusive remedy and Dell’s sole obligation for any such breach shall be as follows:(i) For a breach of the Operational Warranty that impacts the use of On-Premise Software, Dell shall correct or provide a workaround forreproducible errors in the Software that caused the breach within a reasonable time considering the severity of the error and its effect on Customer or,at Dell’s option, refund the license fees paid for the nonconforming Software upon return of such Software to Dell and termination of the relatedLicense(s) hereunder.(ii) For a breach of the Operational Warranty that impacts the use of SaaS Software, Dell shall correct or provide a workaround for reproducibleerrors in the Software that caused the breach and provide a credit or refund of the fees allocable to the period during which the Software was notoperating in substantial conformance with the applicable Documentation.(iii) For a breach of the Virus Warranty, Dell shall replace the Software with a copy that is in conformance with the Virus Warranty.Rev 06-02-14 CONFIDENTIAL Page 5 of 8(iv) For a breach of the Media Warranty, Dell shall, at its expense, replace the defective media.(v) For a breach of the SaaS Availability Warranty, Dell shall provide a credit or refund of the fees allocable to the period during which theSoftware was not available for use.(vi) For a breach of the PA Appliance Warranty, Dell shall fulfill its obligations under the Appliance Replacement Program.Additional Product-specific warranties and remedies may be stated in an Order that is signed by both parties.(e) Warranty Exclusions. The warranties set forth in this Section shall not apply to any non-conformance (i) that Dell cannot recreate after exercisingcommercially reasonable efforts to attempt to do so; (ii) caused by misuse of the applicable Product or by using the Product in a manner that isinconsistent with this Agreement or the Documentation; or (iii) arising from the modification of the Product by anyone other than Dell.(f) Third Party Products. Certain Software may contain features designed to interoperate with third-party products. If the third-party product is nolonger made available by the applicable provider, Dell may stop providing the related product feature, and Customer will not be entitled to any refund,credit or other compensation. In such event, Dell will provide reasonable notice to Customer.(g) Warranty Disclaimer. THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION OR IN AN ORDER ARE THE ONLYWARRANTIES AND REMEDIES PROVIDED BY DELL HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALLOTHER WARRANTIES OR REMEDIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIEDWARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, ANDANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. DELL DOES NOT WARRANTUNINTERRUPTED OR ERROR-FREE OPERATION OF THE PRODUCTS.(h) High-Risk Disclaimer. CUSTOMER UNDERSTANDS AND AGREES THAT THE PRODUCTS ARE NOT FAULT-TOLERANT AND ARE NOTDESIGNED OR INTENDED FOR USE IN ANY HIGH-RISK OR HAZARDOUS ENVIRONMENT, INCLUDING WITHOUT LIMITATION, THEOPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES, WEAPONS SYSTEMS,OR ANY OTHER APPLICATION WHERE THE FAILURE OR MALFUNCTION OF ANY PRODUCT CAN REASONABLY BE EXPECTED TO RESULTIN DEATH, PERSONAL INJURY, SEVERE PROPERTY DAMAGE OR SEVERE ENVIRONMENTAL HARM (A “HIGH RISK ENVIRONMENT”).ACCORDINGLY, (I) CUSTOMER SHOULD NOT USE THE PRODUCTS IN A HIGH RISK ENVIRONMENT, (II) ANY USE OF THE PRODUCTS BYCUSTOMER IN A HIGH RISK ENVIRONMENT IS AT CUSTOMERS OWN RISK, (III) DELL, ITS AFFILIATES AND SUPPLIERS SHALL NOT BELIABLE TO CUSTOMER IN ANY WAY FOR USE OF THE PRODUCTS IN A HIGH RISK ENVIRONMENT, AND (IV) DELL MAKES NO WARRANTIESOR ASSURANCES, EXPRESS OR IMPLIED, REGARDING USE OF THE PRODUCTS IN A HIGH RISK ENVIRONMENT.1 2. Infringement. Dell will at its own expense defend or settle any claim, suit, action, or proceeding brought against Customer by a third party to theextent it is based on an allegation that the Software directly infringes any patent, copyright, trademark, or other proprietary right enforceable in thecountry in which the Software is delivered to Customer, or misappropriates a trade secret in such country (a “Claim”). Additionally, Dell shall pay anyjudgments finally awarded against Customer under a Claim or any amounts assessed against Customer in any settlements of a Claim, and reasonableadministrative costs or expenses, including without limitation reasonable attorneys’ fees, necessarily incurred by Customer in responding to the Claim.Dell’s obligations under this Section are conditioned upon Customer (i) giving prompt written notice of the Claim to Dell; (ii) permitting Dell to retain solecontrol of the investigation, defense or settlement of the Claim, and (iii) providing Dell with such cooperation and assistance as Dell may reasonablyrequest from time to time in connection with the investigation, defense or settlement of the Claim. Dell shall have no obligation hereunder to defendCustomer against any Claim (a) resulting from use of the Software other than as authorized in this Agreement, (b) resulting from a modification of theSoftware other than by Dell, or (c) based on Customer’s use of the Software after Dell recommends discontinuation because of possible or actualinfringement, (d) based on Customer’s use of a superseded or altered release of Software if the infringement would have been avoided by use of acurrent or unaltered release of the Software made available to Customer, or (e) to the extent the Claim arises from or is based on the use of theSoftware with other products, services, or data not supplied by Dell if the infringement would not have occurred but for such use. If Customer’s use ofthe Software is enjoined as a result of a Claim, Dell shall, at its expense and option either (1 ) obtain for Customer the right to continue using theSoftware, (2) replace the Software with a functionally equivalent non-infringing product, (3) modify the Software so that it is non-infringing, or (4)terminate the License for the infringing Software and (A) for On-Premise Software, accept the return of the infringing Software and refund the licensefee paid for the infringing Software, pro-rated over a sixty (60) month period from the date of initial delivery of the Software following an Order, or, (B)for SaaS Software, discontinue Customer’s right to access and use the infringing Software and refund the unused pro-rated portion of any license feespre-paid by Customer for the infringing Software. This Section states the entire liability of Dell, and Customer’s sole and exclusive remedy, with respectto a Claim.1 3. Limitation of Liability. EXCEPT FOR (A) ANY BREACH OF THE “RESTRICTIONS” OR “CONFIDENTIAL INFORMATION” SECTIONS OF THISAGREEMENT, (B) AMOUNTS CONTAINED IN JUDGMENTS OR SETTLEMENTS WHICH DELL IS LIABLE TO PAY ON BEHALF OF CUSTOMERUNDER THE “INFRINGEMENT” SECTION OF THIS AGREEMENT AND CUSTOMER IS LIABLE TO PAY ON BEHALF OF DELL UNDER THE“CONDUCT,” “EXPORT,” “MSP LICENSE,” AND “USE BY SERVICE PROVIDERS” SECTIONS OF THIS AGREEMENT, OR (C) ANY LIABILITY TOTHE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW, IN NO EVENT SHALL CUSTOMER, DELL,DELL’S AFFILIATES OR SUPPLIERSBE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE OFANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSSOF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OFDATA, HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIESAND WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OROTHERWISE.Rev 06-02-14 CONFIDENTIAL Page 6 of 8EXCEPT FOR (A) ANY BREACH OF THE “SOFTWARE LICENSE,” “RESTRICTIONS,” OR “CONFIDENTIAL INFORMATION” SECTIONS OF THISAGREEMENT, OR ANY OTHER VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (B) DELL’S EXPRESSOBLIGATIONS UNDER THE “INFRINGEMENT” SECTION OF THIS AGREEMENT AND CUSTOMER’S EXPRESS OBLIGATIONS UNDER THE“CONDUCT,” “EXPORT,” “MSP LICENSE,” AND “USE BY SERVICE PROVIDERS” SECTIONS OF THIS AGREEMENT, (C) DELL’S COSTS OFCOLLECTING DELINQUENT AMOUNTS WHICH ARE NOT THE SUBJECT OF A GOOD FAITH DISPUTE; (D) A PREVAILING PARTY’S LEGALFEES PURSUANT TO THE “LEGAL FEES” SECTION OF THIS AGREEMENT; OR (E) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BEEXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF CUSTOMER,DELL, DELL’S AFFILIATES AND SUPPLIERS UNDER THIS AGREEMENT, WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL NOT EXCEED (Y) THE GREATER OF THE FEES PAIDAND/OR OWED (AS APPLICABLE) BY CUSTOMER FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE BREACH OR FIVE HUNDREDDOLLARS ($500.00), OR (Z) FOR MAINTENANCE SERVICES OR A PRODUCT SUBJECT TO RECURRING FEES, THE GREATER OF THEAMOUNT PAID AND/OR OWED (AS APPLICABLE) FOR SUCH MAINTENANCE SERVICE OR PRODUCT DURING THE TWELVE (1 2) MONTHSPRECEDING THE BREACH OR FIVE HUNDRED DOLLARS ($500.00). THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY AREAGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR DELL PROVIDING PRODUCTS AND SERVICES TOCUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDYAND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES OR FAILURES.Dell’s Affiliates and suppliers shall be beneficiaries of this “Limitation of Liability” Section and Customer’s Clients and Service Providers are entitled tothe rights granted under the “MSP License” and “Use by Service Providers” Sections of this Agreement; otherwise, no third party beneficiaries existunder this Agreement. Dell expressly excludes any and all liability to Customer’s Service Providers, Clients and to any other third party.1 4. Confidential Information.(a) Definition. “Confidential Information” means information or materials disclosed by one party (the “Disclosing Party”) to the other party (the“Receiving Party”) that are not generally available to the public and which, due to their character and nature, a reasonable person under likecircumstances would treat as confidential, including, without limitation, financial, marketing, and pricing information, trade secrets, know-how,proprietary tools, knowledge and methodologies, the Software (in source code and/or object code form), information or benchmark test resultsregarding the functionality and performance of the Software, any Software license keys provided to Customer, and the terms and conditions of thisAgreement.Confidential Information shall not include information or materials that (i) are generally known to the public, other than as a result of an unpermitteddisclosure by the Receiving Party after the date that Customer accepts this Agreement; (ii) were known to the Receiving Party without an obligation ofconfidentiality prior to receipt from the Disclosing Party; (iii) the Receiving Party lawfully received from a third party without that third party’s breach ofagreement or obligation of trust; (iv) are protected by Dell in accordance with its obligations under the “Protected Data” Section below, or (v) are orwere independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information.(b) Obligations. The Receiving Party shall (i) not disclose or permit disclosure of the Disclosing Party’s Confidential Information to any third party,except as permitted in Section 14(c) below, (ii) only use the Disclosing Party’s Confidential Information to exercise the rights granted to it under thisAgreement, and (iii) protect the Disclosing Party’s Confidential Information from unauthorized use or disclosure by exercising at least the same degreeof care it uses to protect its own similar information, but in no event less than a reasonable degree of care. The Receiving Party shall promptly notifythe Disclosing Party of any known unauthorized use or disclosure of the Disclosing Party’s Confidential Information and will cooperate with theDisclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights. For the avoidance of doubt, thisSection shall apply to all disclosures of the parties’ Confidential Information as of the date that Customer accepts this Agreement, whether or notspecifically arising from a party’s performance under this Agreement.(c) Permitted Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information withoutthe Disclosing Party’s prior written consent to any of its Affiliates, directors, officers, employees, consultants, contractors or representatives(collectively, the “Representatives”), but only to those Representatives that (i) have a “need to know” in order to carry out the purposes of thisAgreement or to provide professional advice in connection with this Agreement, (ii) are legally bound to the Receiving Party to protect information suchas the Confidential Information under terms at least as restrictive as those provided herein, and (iii) have been informed by the Receiving Party of theconfidential nature of the Confidential Information and the requirements regarding restrictions on disclosure and use as set forth in this Section. TheReceiving Party shall be liable to the Disclosing Party for the acts or omissions of any Representatives to which it discloses Confidential Informationwhich, if done by the Receiving Party, would be a breach of this Agreement.Additionally, it shall not be a breach of this Section for the Receiving Party to disclose the Disclosing Party’s Confidential Information as may berequired by operation of law or legal process, provided that the Receiving Party provides prior notice of such disclosure to the Disclosing Party unlessexpressly prohibited from doing so by a court, arbitration panel or other legal authority of competent jurisdiction.15. Protected Data. For purposes of this Section, “Protected Data” means any information or data that is provided by Customer to Dell during thisAgreement that alone or together with any other information relates to an identified or identifiable natural person or data considered to be personal dataas defined under applicable Privacy Laws, and “Privacy Laws” means any law, statute, directive or regulation regarding privacy, data protection,information security obligations and/or the processing of Protected Data.Except as permitted herein or to the extent required by Privacy Laws or legal process, Dell shall not disclose Protected Data to any third party for anyreason. Dell shall implement appropriate technical and organizational measures to prevent unauthorized disclosure of or access to Protected Data bythird parties, and shall only store and process Protected Data as required to fulfill its obligations under this Agreement and any applicable Orders. Dellshall make reasonable efforts to comply with Customer’s written instructions with respect to the Protected Data; however, Dell shall have no liability toCustomer for any breach of this Section resulting from Dell’s acts or omissions in accordance with any such instructions. Dell shall promptly notifyRev 06-02-14 CONFIDENTIAL Page 7 of 8Customer of any disclosure of or access to the Protected Data by a third party in breach of this Section and shall cooperate with Customer toreasonably remediate the effects of such disclosure or access. Dell further affirms to Customer that Dell Software Inc. currently abides by the safeharbor framework as set forth by the U.S. Department of Commerce regarding the collection, use and retention of data from the European Union.Customer hereby (i) represents that it has the right to send the Protected Data to Dell, (ii) consents for Dell to store and use the Protected Dataworldwide for the sole purpose of performing its obligations under this Agreement and any applicable Orders, (iii) agrees that the Protected Data maybe accessed and used by Dell and its Representatives worldwide as may be needed to support Dell’s standard business operations, and (iv) agreesthat Protected Data consisting of Customer contact information (e.g., email addresses, names) provided as part of Maintenance Services may be sentto Dell’s third party service providers as part of Dell’s services improvement processes. 16. Compliance Verification. Customer agrees to maintain and use systems and procedures to accurately track, document, and report itsinstallations, acquisitions and usage of the Software. Such systems and procedures shall be sufficient to determine if Customer’s deployment of theSoftware or, if applicable, use of the SaaS Software is within the quantities, Product Terms, and maintenance releases to which it is entitled. Dell or itsdesignated auditing agent shall have the right to audit Customer's deployment of the Software or, if applicable, use of the SaaS Software forcompliance with the terms and conditions of this Agreement and the applicable Order(s). Any such audits shall be scheduled at least ten (10) days inadvance and shall be conducted during normal business hours at Customer's facilities. Customer shall provide its full cooperation and assistance withsuch audit and provide access to the applicable records and computers. Without limiting the generality of the foregoing, as part of the audit, Dell mayrequest, and Customer agrees to provide, a written report, signed by an authorized representative, listing Customer's then current deployment of OnPremise Software and/or the number of individuals that have accessed and used SaaS Software. If Customer's deployment of the Software or, ifapplicable, use of the SaaS Software is found to be greater than its purchased entitlement to such Software, Customer will be invoiced for the overdeployed quantities at Dell’s then current list price plus the applicable Maintenance Services and applicable over-deployment fees. All such amountsshall be payable in accordance with this Agreement. Additionally, if the unpaid fees exceed five percent (5%) of the fees paid for the applicableSoftware, then Customer shall also pay Dell's reasonable costs of conducting the audit. The requirements of this Section shall survive for two (2) yearsfollowing the termination of the last License governed by this Agreement.17. SaaS Provisions.(a) Data. Customer may store data on the systems to which it is provided access in connection with its use of the SaaS Software (the “SaaSEnvironment”). Dell may periodically make back-up copies of Customer data, however such back-ups are not intended to replace Customer’sobligation to maintain regular data backups or redundant data archives. Customer is solely responsible for collecting, inputting and updating allCustomer data stored in the SaaS Environment, and for ensuring that it does not (i) knowingly create and store data that actually or potentially infringesor misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) use the SaaS Environment forpurposes that would reasonably be seen as obscene, defamatory, harassing, offensive or malicious. If the Order states where Customer data is to bestored, Dell will not move the data from the specified region without notifying Customer, except if Dell is required to do so by law or legal process. Dellshall have the right to delete all Customer data stored in connection with the use of the SaaS Software thirty (30) days following any termination of thisAgreement or any License to SaaS Software granted hereunder.Customer represents and warrants that it has obtained all rights, permissions and consents necessary to use and transfer all Customer and/or thirdparty data within and outside of the country in which Customer or the applicable Customer Affiliate is located (including providing adequate disclosuresand obtaining legally sufficient consents from Customer’s employees, customers, agents, and contractors). If Customer transmits data to a third-partywebsite or other provider that is linked to or made accessible by the SaaS Software, Customer will be deemed to have given its consent to Dellenabling such transmission and Dell shall have no liability to Customer in connection with any claims by a third party in connection with suchtransmission.(b) Conduct. In connection with the use of SaaS Software, Customer may not (i) attempt to use or gain unauthorized access to Dell’s or to any thirdparty's networks or equipment; (ii) permit other individuals or entities to copy the SaaS Software; (iii) provide unauthorized access to or use of anySaaS Software or the associated access credentials; (iv) attempt to probe, scan or test the vulnerability of the SaaS Software, the SaaS Environment,or a system, account or network of Dell or any of Dell’s customers or suppliers; (v) interfere or attempt to interfere with service to any user, host ornetwork; (vi) engage in fraudulent, offensive or illegal activity of any nature or intentionally engage in any activity that infringes the intellectual propertyrights or privacy rights of any individual or third-party; (vii) transmit unsolicited bulk or commercial messages; (viii) intentionally distribute worms, Trojanhorses, viruses, corrupted files or any similar items; (ix) restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent,purpose or knowledge, to use or enjoy the SaaS Software (except for tools with safety and security functions); or (x) restrict, inhibit, interfere with orotherwise disrupt or cause a performance degradation to any Dell (or Dell supplier) facilities used to provide the SaaS Environment. Customer shallcooperate with Dell’s reasonable investigation of SaaS Environment outages, security issues, and any suspected breach of this Section, and shall, atits expense, defend Dell and its Affiliates from any claim, suit, or action by a third party (a “Third Party Claim”) alleging harm to such third partycaused by Customer’s breach of any of the provisions of this Section. Additionally, Customer shall pay any judgments or settlements reached inconnection with the Third Party Claim as well as Dell’s costs of responding to the Third Party Claim.(c) Suspension. Dell may suspend Customer’s use of SaaS Software (a) if so required by law enforcement or legal process, (b) in the event of animminent security risk to Dell or its customers, or (c) if continued use would subject Dell to material liability. Dell shall make commercially reasonableefforts under the circumstances to provide prior notice to Customer of any such suspension.18. General.(a) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, withoutgiving effect to any conflict of laws principles that would require the application of laws of a different state. Any action seeking enforcement of thisAgreement or any provision hereof shall be brought exclusively in the state or federal courts located in Travis or Williamson County, Texas. Each partyhereby agrees to submit to the jurisdiction of such courts.Rev 06-02-14 CONFIDENTIAL Page 8 of 8The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer InformationTransaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.(b) Assignment. Except as otherwise set forth herein, Customer shall not, in whole or part, assign or transfer any part of this Agreement, theLicenses granted under this Agreement or any other rights, interest or obligations hereunder, whether voluntarily, by contract, by operation of law or bymerger (whether that party is the surviving or disappearing entity), stock or asset sale, consolidation, dissolution, through government action or order,or otherwise without the prior written consent of Dell. Any attempted transfer or assignment by Customer that is not permitted by this Agreement shallbe null and void.(c) Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will beenforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. Notwithstanding theforegoing, the terms of this Agreement that limit, disclaim, or exclude warranties, remedies or damages are intended by the parties to be independentand remain in effect despite the failure or unenforceability of an agreed remedy. The parties have relied on the limitations and exclusions set forth inthis Agreement in determining whether to enter into it.(d) Use by U.S. Government. The Software is a “commercial item” under FAR 12.201. Consistent with FAR section 12.212 and DFARS section227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software or Documentation by the U.S.government is prohibited except as expressly permitted by the terms of this Agreement. In addition, when Customer is a U.S. government entity, thelanguage in Subsection 1 2(ii) of this Agreement and Section 1 8(h) of this Agreement shall not be applicable.(e) Notices. All notices provided hereunder shall be in writing and addressed to the legal department of the respective party or to such other addressas may be specified in an Order or in writing by either of the parties to the other in accordance with this Section. Except as may be expressly permittedherein, notices may be delivered personally, sent via a nationally recognized courier or overnight delivery service, or mailed by first class mail, postageprepaid. All notices, requests, demands or communications shall be deemed effective upon personal delivery or, if sent by mail, four (4) days followingdeposit in the mail in accordance with this paragraph.(f) Disclosure of Customer Status. Dell may include Customer in its listing of customers and, upon written consent by Customer, announceCustomer's selection of Dell in its marketing communications.(g) Waiver. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorizedrepresentative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure toenforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any otheroccasion.(h) Injunctive Relief. Each party acknowledges and agrees that in the event of a material breach of this Agreement, including but not limited to abreach of the “Software License," “Restrictions” or "Confidential Information" Sections of this Agreement, the non-breaching party shall be entitled toseek immediate injunctive relief, without limiting its other rights and remedies.(i) Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performingany obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts ofGod, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures. For the avoidance of doubt, an excuse of theobligation to pay fees due hereunder during the pendency of a force majeure event shall not operate to relieve Customer or its Affiliates of itscontractual obligations to pay such fees.(j) Equal Opportunity. Dell Software Inc. is a federal contractor and Affirmative Action employer (M/F/D/V) as required by the Equal Opportunityclause C.F.R. § 60-741.5(a).(k) Headings. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. ThisAgreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term“including” is used in this Agreement it will be construed in each case to mean “including, but not limited to.”(l) Legal Fees. If any legal action is brought to enforce any rights or obligations under this Agreement, the prevailing party shall be entitled to recoverits reasonable attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may be awarded.(m) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement with respect to the subject matter hereofand may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absenceof such an agreement, this Agreement and the applicable Order shall constitute the complete and exclusive statement of the terms and conditions andno extrinsic evidence whatsoever may be introduced in any judicial proceeding that may involve the Agreement. Each party acknowledges that inentering into the Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty(whether made negligently or innocently) other than as expressly set out in the Agreement. In those jurisdictions where an original (non-electronic)signature on agreements such as this Agreement or an Order is required by law or regulation, the parties hereby agree that, notwithstanding any suchlaw or regulation, a certified electronic signature on this Agreement or any Order shall be sufficient to create an enforceable and valid agreement. In theevent of a conflict between the terms of this Agreement and the terms contained in an Order, the terms in the Order shall only control if the Order issigned by both Dell and Customer; otherwise, the terms of this Agreement shall control. Neither this Agreement, nor an Order, may be modified oramended except by a writing executed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed toamend or modify this Agreement or an Order.<

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