Dell Reseller Agreement

Global Dell Outlet Americas Distributor Agreement

These terms and conditions (“Agreement”) will apply to the order and purchase of computer systems, related products and/or services by you (“you” or “Distributor”) from Dell Marketing LP (“Dell”) on DirectLiquidation.com (“Marketplace”) hosted by The Recon Group LLP (“Host”) for resale directly or indirectly through channel partners (“Resellers”) to consumers and small and medium businesses in the United States (“End Users”). Such computer systems and related products and services (collectively referred to as “Officially Refurbished Products” or “Products”) shall include refurbished Dell-branded computer systems, imaging products, monitors and third party software that may be installed on the foregoing, and related services (“Services”), as defined in Section 3 below. For consideration that both parties acknowledge as sufficient, the parties agree as follows:

  1. Term. Unless terminated as provided herein, the term of this Agreement begins on the date you execute this Agreement (“Effective Date”) and will continue for 12 months thereafter, automatically renewing for successive 12-month periods. Either party may terminate this Agreement for convenience, without liability, by providing the other party 30 days prior written notice. If either party breaches this Agreement, the non-breaching party may immediately terminate this Agreement upon written notice to the breaching party.
  2. Appointment.
    1. Subject to the provisions of this Agreement, you may resell Products only in the United States. All transactions under this Agreement may only be between United States based entities unless Dell expressly authorizes otherwise in writing. Any export of these Products outside of the United States is strictly prohibited unless Dell expressly authorizes otherwise.
    2. You and/or your Resellers may not resell outside of the United States unless Dell expressly authorizes such export pursuant to a written addendum to this Agreement expressly granting such right and setting forth any additional terms and conditions required to sell into such jurisdiction(s). You and/or your Resellers may not resell the Products to Dell’s large corporate account, global, government, education and/or healthcare segment customers.  
    3. If you or your Resellers wish to export Products outside of the United States, you shall be required to obtain Dell’s permission through its export waiver process, as defined solely by Dell. If such permission is given, all exports, transfers and re-exports shall be done in accordance with Section 13.
    4. You may resell through retail storefronts, but you may not resell to or through auction-type websites. You may not use Dell’s trade name, logos, trademarks or service marks. You may use the name “Dell” and Dell’s product names solely for the purpose of accurately identifying the Dell-branded Products you market and/or sell under this Agreement.  You agree to change or correct, at your own expense, any material or activity that Dell decides is inaccurate, objectionable misleading or a misuse of Dell’s name, trademarks, service marks,  Dell’s logo or copyrighted works. You are prohibited from referring to yourself as a Dell authorized distributor or reseller, implying that you and Dell are partners or creating the impression that Dell is affiliated with you or has sponsored, authorized, approved or endorsed your business, or any offer or any marketing, advertising or promotion thereof, except that you may use, if available, the current Dell Global Outlet logo (“Logo”) in marketing or on your website next to Product offerings you acquire directly from the Dell Global Outlet. Dell may revoke your ability to use Logo at its sole discretion. Should Dell revoke your ability to show Logo, you shall immediately remove it from your marketing or website. You will clearly and prominently identify itself in its offers, advertising, marketing, promotional materials, and on its stationery (including e-mail signatures), and its website.  You shall not use or display Dell trademarks, service marks, or trade names on its invoices, bills, or shipping memos.  You will not file any trademark applications containing Dell trademarks, service marks, or trade names and will not use Dell trademarks, service marks, or trade names or anything confusingly similar thereto, in domain names, business names, search engine advertising, either as a keyword or in advertisements appearing on search engines or in email addresses, without Dell Inc.’s prior written permission. This Agreement is not exclusive. Dell may market Products to any third party directly or indirectly without any obligation or liability to you. This Agreement does not guarantee that you will receive any Products from Dell or that you will make any sales of the Products. Dell does not have authority to determine or set your resale Product pricing. Dell reserves the right to restrict or prohibit your participation in certain promotions, and to add, modify or discontinue pricing, Products and/or parts. You may not use promotional gift cards, promos or coupons to purchase from Outlet website. Product re-engineering may occur between the time you order Products and when those Products are shipped. All Products shipped will meet or exceed all material specifications of the Products ordered. You agree to provide Dell with five days prior written notice of any material change related to your business, including alterations of plans for remarketing the Products to approved accounts. Dell may require you to meet additional obligations not outlined herein, which will be disclosed to you prior to your purchase of Products. You will provide Dell such information and reports as Dell may reasonably request.
  3. Classification of Products.  
    1. “Officially Refurbished Products” shall mean only such Products Dell offers and sells directly to Distributor that Dell currently sells on the Dell Outlet section of Dell.com and shall not refer to any off-lease, used, third party refurbished or otherwise non-new Dell Products in your possession or stores that were not sold to you by Dell. Furthermore, should any Officially Refurbished Products be further modified or refurbished by any party outside of Dell or Dell’s officially and specifically authorized agent, such product shall not be considered as an Officially Refurbished Product. You shall market Officially Refurbished Products, whether on retail shelves, online web pages or any other venue, separately and distinctly from all other refurbished systems. Officially Refurbished Products shall be designated as “Grade A” refurbished or some other similar title not given to other refurbished systems and shall not be located adjacent to or marketed alongside with any other refurbished systems.

      A.       Within the category of Officially Refurbished Products, there will be three distinct categories of refurbished goods (“Refurbished Categories”):
      (1)       “Outlet New” shall mean PCs and enterprise Products that were canceled orders, or systems that shipped out to a customer who decided to return the system without ever using it. Dell Outlet New systems do not have any cosmetic damages;
      (2)       “Dell Certified Refurbished Product” shall mean PCs and enterprise Products that have been returned to Dell and retested to ensure they meet all original factory specifications. Certified refurbished systems may have some observable cosmetic blemishes, but they will not affect performance; and,
      (3)       “Dell Scratch and Dent” shall mean Certified Refurbished Product with considerable cosmetic blemishes that do not affect performance. Scratch and Dent computers will not have scratches or pits on the screen, missing or illegible letters on the keyboard or damage on the touchpad or palm rest.

  4. Distribution.
    1. For Products classified as Dell Scratch and Dent or Dell Certified Refurbished Product, you may distribute to any legal party within the United States subject to the conditions of this Agreement. Dell may at its sole discretion dictate to whom you may sell Dell branded Products. Dell will notify you in writing of such requests and you shall comply with such requests immediately.  
    2. You agree not to resell to any party where you have reason to know that such party intends to resell (a) outside of the United States unless Dell explicitly authorizes such export pursuant to a written addendum to this Agreement, or (b) to Dell’s large corporate account, global, government, education and/or healthcare segment customers.  
    3. You may not, directly or indirectly, authorize any Reseller to resell the Products to an End User unless and until such Reseller is bound by a written reseller agreement with You (the “Reseller Agreement”). The Reseller Agreement (i) cannot be inconsistent with or less protective of Dell’s proprietary and intellectual property rights than the terms of this Agreement, (ii) cannot grant a Reseller any rights that are inconsistent with the rights granted to you under this Agreement, and (iii) must include a pass through of the restrictions and requirements that apply to your performance under this Agreement, including, without limitation, a prohibition against exporting Products outside of the U.S. You will enforce each Reseller Agreement with the same degree of diligence that you use to enforce similar agreements for your own or other products that you distribute, but in no event less than reasonable efforts.  You will notify Dell within a reasonable time if you become aware of any breach of a Reseller Agreement that affects Dell. Dell may review these Reseller Agreements at any time pursuant to Section 10.
  5. Bids.
    1. Dell reserves the right to withdraw product listings from the Marketplace at any time. You may not violate the terms of any product listing or concession. Dell is not responsible for pricing, typographical or other errors in any Dell product listing. Dell may, in its sole discretion, cancel any bid it receives or accepts in whole or in part. “Purchase Order” means any bid for Products you place under this Agreement. You may not cancel a Purchase Order once Dell accepts it. Prices may vary and fluctuate due to cost, changes in market conditions, competition and volume. Dell reserves the right to change, alter or amend pricing at any time, but such price changes do not apply to previously accepted Purchase Orders. When Dell accepts a Purchase Order, Dell will provide you an estimated ship date(s). Dell will designate shipping option(s). If Dell ships Products freight collect or freight prepaid by you, you will bear the risk of loss of or any damage to the Products during shipping. Dell may invoice and/or ship parts of an order separately. If you breach this Agreement, Dell may charge or re-debit your account or credit card the full list price for your purchase (in lieu of a discounted or special price included in the offer or concession). Except for software, title to Products passes from Dell to you when Dell or its supplier(s) ships the Products from its location. Shipping dates Dell provides are estimates only. You and your End Users are bound by and agree to abide by the license terms distributed with the software. Unless you have provided Dell a valid tax exemption certificate, you will pay all sales, value-added and other taxes associated with the sale of Products (excluding taxes assessed on Dell’s net income). Dell is not obligated to offer you credit or credit terms. Your payment terms will be net 30 days from the date of the invoice, subject to continuing credit approval by Dell. You will pay Dell in U.S. dollars from a U.S. bank account, as invoiced by Dell. For invoices not paid within 30 days of the invoice date, Dell reserves the right to charge you a late penalty charge of 1.5% per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, if Dell determines that an invoice balance is overdue, Dell may (a) refuse to accept additional orders under this Agreement, (b) terminate this Agreement, (c) refuse to ship ordered Products and (d) seek collection of overdue balance from you, including all legal fees and other collection costs. The rights set forth in this section are in addition to any other rights or remedies Dell may have in law or equity. You hereby grant Dell, and Dell hereby retains, a purchase money security interest and lien on any and all of your rights, title and interest in Products, wherever located, and all replacements or proceeds of the Products, until the invoice for the applicable Products is paid in full, including any late charges and costs of collection. You consent to Dell’s use of this Agreement, as well as Product invoices, as financing statements for protecting this security interest and appoint Dell as your agent for service of process.  
    2. You agree and acknowledge that Dell Products may not be stored longer than six months from the invoice date and that storage for longer than six months invalidates the manufacturer warranty. You are responsible for all End User warranty claims for units stored longer than six months; provided, however, that Dell may, in its discretion, reinstate the warranty in exchange for you paying an additional fee. Dell reserves the right to withhold the fee from any amounts due to you from Dell.
  6. Indemnity.
    1. Dell’s Indemnity for Infringement of Third Party Intellectual Property Rights. Dell will (a) defend you from any third party claim that Officially Refurbished Products (but excluding hardware, software, or services that are not “Dell” branded (“Third Party Products”) and open source software) (“Indemnified Products”) infringes that third party’s patent, copyright or trade secret enforceable in the country where you purchased the Indemnified Products from Dell (an “Indemnified Claim”); and (b) indemnify you by paying: (1) the resulting costs and damages finally awarded against you by a court of competent jurisdiction to the extent that such are the result of the third party Indemnified Claim; or (2) the amounts stated in a written settlement negotiated and approved by Dell. Dell will not settle any Indemnified Claim under Section 6.1 that obligates you to admit liability and/or require monetary payment by you without your prior written consent, such consent not to be unreasonably withheld. In addition, should any Indemnified Product become, or in Dell’s opinion be likely to become, the subject of such an Indemnified Claim, Dell may, at its expense and in its discretion: (a) obtain a right for you to continue using the affected Indemnified Product; (b) modify the affected Indemnified Product to make them non-infringing; (c) replace the affected Indemnified Product with non-infringing substitutes; or (d) provide a reasonable depreciated or pro rata refund for the affected Indemnified Product.
      • (A)        Exclusions from Indemnity. Dell has no obligation under section 6.1 above: (a) if you are in material breach of this Agreement; or (b) for any Indemnified Claim resulting or arising from: (1) any combination, operation or use of an Indemnified Product with any other products, Services, items or technology, including Third Party Products and open source software; (2) use for a purpose or in a manner for which the Indemnified Product was not designed, or use after Dell notifies you to cease such use due to a possible or pending claim; (3) any modification to the Indemnified Product made by any person other than Dell or its authorized representatives; (4) any modification to the Indemnified Product made by Dell pursuant to instructions, designs, specifications or any other information provided to Dell by or on behalf of you; (5) use of any version of an Indemnified Product when an upgrade or newer iteration of the Indemnified Product made available by Dell would have avoided the infringement; (6) services provided by you (including claims seeking damages based on any revenue you derive from your services); or (7) any data or information that you or a third-party records on or utilizes in connection with the Indemnified Products.
      • (B)        Except as otherwise provided by law, this section 6.1 states your exclusive remedies for any third party intellectual property claim relating to Indemnified Products, and nothing in this Agreement or elsewhere will obligate Dell to provide any greater indemnity.  Dell shall have no obligation to provide any indemnity to your End Users.
    2. Your Indemnity to Dell. To the fullest extent provided by law, you will indemnify and defend Dell, including Dell’s partners, officers, directors, agents, employees, subsidiaries, affiliates, parents, successors and assigns, from any claim, demand, cause of action, debt or liability (including reasonable attorneys’ fees and court costs) arising from:  
      • (A)        your or your Resellers modification(s) of and/or addition(s) to Officially Refurbished Product(s);
      • (B)        the relationship or transactions between you and your customers, whether Resellers or End Users, other than an Indemnified Claim;
      • (C)        your or your Resellers breach of this Agreement;
      • (D)        your or your Resellers omission, misrepresentation or negligence;
      • (E)        any false or inaccurate representation by you, your customers, your Resellers or your agent regarding the existence of an export license or the applicability or inapplicability of a license requirement or exception;
      • (F)        your or your Resellers violation of Dell’s proprietary rights;
      • (G)        any violation or alleged violation of any applicable customs, export control or sanctions laws or regulation (except to the extent that such violation or alleged violation is a direct result of Dell’s violation of applicable export control laws or regulations); and
      • (H)        if the Products sold by you damage a third party to the extent such Claim is based on:
      • (1)        your or your Resellers modification of and/or addition to the Products, misuse or abuse of the Products, negligence or breach of any provision in this Agreement;
        (2)        your or your Resellers failure to abide by all applicable laws, rules, regulations and orders that affect the Products; or
        (3)        you, your Resellers or your End Users cause intentional harm to any person or property.
    3. Indemnification Process. A party’s duty to defend and indemnify under this section is contingent upon the party seeking indemnity: (a) sending prompt written notice of the Indemnified Claim to the party providing indemnity and taking reasonable steps to mitigate damages, (b) granting to the party providing indemnity the sole right to control the defense and resolution of the Indemnified Claim; and (c) cooperating with the party providing indemnity in the defense and resolution of the Indemnified Claim and in mitigating any damages.
  7. Insurance. You will maintain comprehensive general liability, including products liability, insurance of at least USD$1,000,000.00 with an insurance company having a Best rating of A. Upon Dell’s request, you will provide to Dell a certificate of such insurance (including any new or amended certificates of insurance) and/or name Dell as an additional insured. You will give Dell at least 30 days prior written notice of any cancellation or termination of said insurance.
  8. Warranties.
    1. Dell distributes Officially Refurbished Products “AS IS” and Dell does not make any express or implied warranties except those included in the limited warranty statements set forth at Dell.com. Products, parts and assemblies used for warranty repairs and Services may be new or reconditioned. Those limited warranty statements are the exclusive controlling terms and conditions of the limited warranties for Products. Dell may, in its sole discretion, revise its limited warranties. No revision in limited warranties will affect Products you already ordered. Dell reserves the right to discontinue or otherwise void any warranty, Service or technical support it offers in whole or in part if you breach any of your obligations under this Agreement or if you fail to pay amounts due and payable to Dell. Dell disclaims all other warranties, express or implied, including without limitation, (i) any implied warranties of noninfringement, merchantability, fitness for a particular purpose, or title, and (ii) any warranty arising by statute, operation of law, course of dealing or performance or usage of trade. The publisher or original manufacturer provide any warranty on non-Dell branded Products. You shall be solely responsible for providing and fulfilling any warranty you make to your End Users.
    2. You may purchase Services, if any, for certain Products in accordance with the terms and conditions applicable at the time of your purchase located at Dell.com. To transfer service, contact Dell’s customer service. Except for warranty purposes, Dell’s return policies (including but not limited to Dell’s “21-day Hardware Return Period”) are not available to you. You may not return any Officially Refurbished Products to Dell unless Dell shipped such to you in error. You will inform your End Users of Dell’s rights and obligations with respect to the limited warranties Dell offers under this Agreement and that Dell’s return policies are not available on Products.  

      All warranties sold with these Products shall be Dell’s U.S. based warranty. If Dell approves you to export these Products to countries besides the United States, you must do so at your own expense and request of Dell a transfer of service tag to that region subject to approval at Dell’s sole discretion. There may be additional fees associated with warranties that are applicable to that region which will be charged to you.  

  9. Limitation of Liability.
    1. Dell does not accept liability beyond the remedies set forth in this Agreement, including but not limited to any liability for Product not being available for use, lost profits, loss of business or for lost or corrupted data or software or the provision of Services or support. Except for your breach of Section 2, your payment obligations and violation of Dell’s intellectual property rights, both parties expressly agree that in no event shall either party be liable to the other for any incidental, indirect, special or consequential damages whatsoever, even if such party has been advised, knew of or should have known of the possibility thereof. You will include in all agreements provisions similar to the above disclaiming as to Dell liability for all damages identified herein. Notwithstanding any other provision of this Agreement, Dell’s, including Dell’s affiliates, officers, directors, employees or agents, liability is strictly limited to the total dollar amount of Products and Services purchased and paid for by you pursuant to this Agreement during the twelve months immediately preceding the date Dell is notified by you of any claim of liability.
    2. Limitation Period. Except as stated in this section, all claims must be made within the period specified by applicable law. If the law allows the parties to specify a shorter period for bringing claims, or the law does not provide a time at all, then claims must be made within 18 months after the cause of action accrues.
  10. Administration.
    1. You will maintain legible, accurate and complete books and records for the term of this Agreement and a period of five years thereafter concerning this Agreement and your activities under this Agreement. All Product sales agreements must be in writing. Sales invoice side agreements, whether oral or written, are forbidden, and no undisclosed or unrecorded fund or asset related to any Dell Outlet transaction may be established or maintained for any purpose. Records to be retained include, but are not limited to: names and contact information of your Resellers and End Users, copies of purchase orders,  invoices, bills of lading or air waybills, packing lists, proof of delivery, receipt of payment from your  Resellers and End Users, electronic export information filed in AES system if Products were exported and any correspondence between yourself and your Resellers or End Users relating to ultimate Product destination and end use. At the end of this retention period, you will appropriately dispose of all records.
    2. Upon Dell’s request, you will cooperate with and assist Dell with any audit, review or investigation (“Audit”) that relates to (a) this Agreement or your compliance with applicable laws; (b) your marketing, sale, distribution, licensing or delivery of Products and Services, whether sourced from Dell or a third-party; (c) any rebates, incentives, concessions or other amounts paid or payable by Dell; or (d) any amounts due to Dell. In connection with an Audit, you will deliver all records, information and documents Dell reasonably requests. Dell has the right to conduct onsite Audits, and you will grant Dell and its employees and representatives with reasonable access to information, records, personnel, Resellers and End Users (including Reseller Agreements and End User agreements to verify your compliance with this Agreement) and provide entry and access to your premises or other locations (during normal business hours) where such information and records are located. Failure to cooperate with an Audit or provide the information or records Dell requests is a material breach of this Agreement. Dell will pay the costs of an Audit except where a discrepancy of 5% or more is discovered in the information you disclose, in which case you agree to be responsible for all reasonable costs. Dell may deny any claim that it believes, in its sole discretion, does not conform to this Agreement or subprogram terms. Dell may, without prior notice, immediately suspend or terminate an order if you provide to Dell, Resellers or End Users any inaccurate, incomplete or fraudulent claims or information, fail to provide adequate documentation to assist with an audit or investigation, or if you engage in activities that may cause damage, embarrassment or adverse publicity to Dell, or any of its officers, directors or employees.  
    3. Upon Dell’s written request, you will provide sales-out and inventory reports to Dell.  All reports must meet the requirements set forth in a Sales Out and Inventory Reporting Requirements document provided to you by Dell (the “Reporting Requirements”). Dell may modify the Reporting Requirements, and you will be given thirty (30) days to comply with any such modifications. Accuracy, completeness and timeliness of the reports are of the essence and failure to provide reports in accordance with the Reporting Requirements is a material breach of this Agreement.  The reports and information you provide under this Agreement are considered Dell Confidential Information.  You warrant that you have the right and approvals to disclose the reports and information to Dell and for Dell to use the reports and information.
  11. Business Conduct. At all times you shall conduct business in a manner which reflects favorably on Dell’s Products, Services, goodwill and reputation. In your marketing and sales of Products, you will conduct your business in an ethical manner and avoid any business practices that may be perceived as deceptive, misleading or otherwise improper. You shall not make any false or misleading statement concerning Dell or any Products in any of your advertising, marketing or promotional materials or in any content. In connection with marketing activities related to Dell Products or Services, you will comply with all applicable marketing communication laws and regulations, such as but not limited to the U.S. CAN-SPAM Act of 2003 and Canada’s Anti-Spam Law. Furthermore, you shall not make any representations, warranties or guarantees with respect to the specifications, features or capabilities of Dell Products that are inconsistent with or absent from Dell’s published product specifications, service descriptions or software license agreements available on Dell.com. You shall comply with all laws and regulations applicable to your activities in connection with this Agreement, including your marketing and sale of Products and Services. You are required to maintain effective policies, documentation and business controls capable of preventing and detecting unlawful conduct by your employees, contractors, suppliers, agents and downstream partners. You agree that your business controls contain: (a) periodic risk assessments and (b) a written code of conduct that expressly confirms your commitment to, and states objectives for, a compliance and ethics program.
  12. Anti-Corruption Laws
    . “Anti-Corruption Laws” means the anti-corruption or anti-bribery laws in effect in jurisdictions where you market or sell Dell Products or Services, and Anti-Corruption Laws specifically include the Foreign Corrupt Practices Act of the United States and, if you conduct business in Canada, the Corruption of Foreign Public Officials Act of 1999.

    1. You agree to comply with the Anti-Corruption Laws. You will not, in connection with this Agreement, take or allow any third party to take, any action or engage in any practice that would violate the Anti-Corruption Laws.
    2. You agree that in the event that you subcontract the provision of any element of this Agreement to any person, or receive any services in connection with your performance of this Agreement from any person (each such person being an “Associated Person”), you shall impose upon such Associated Person Anti-corruption obligations that are no less onerous than those imposed upon you in this Agreement.
    3. You warrant and represent that neither you nor any of your officers or employees has been convicted of any offense involving bribery, corruption, fraud or dishonesty or, to the best of your knowledge, has been or is the subject of any investigation, inquiry or enforcement proceeding by any governmental, administrative or regulatory body regarding any offence or alleged offence under the Anti-Corruption Laws.
    4. You shall (a) maintain, throughout the duration of dealings between you and Dell, your own anti-corruption policies and procedures, including without limitation, adequate procedures designed to ensure that you and your Associated Persons comply with the Anti-Corruption Laws; (b) provide a copy of such policies and procedures to Dell on request; and (c) monitor and enforce such policies and procedures as appropriate. You shall provide information, documentation and reasonable assistance to Dell and its authorized representatives for purposes of ensuring your compliance with the Anti-Corruption Laws or to support an inquiry or investigation of a suspected violation of those laws.
    5. Dell may immediately terminate this Agreement or suspend its performance hereunder if: (a) Dell has reason to believe that you have breached this Section 12, or that a breach may occur; or (b) you refuse to provide information Dell requests to confirm your compliance with this Section 12. Dell shall not be liable to you for any claims or damages related to its decision to withhold payments under this paragraph. Any incentive which Dell pays to you shall be automatically terminated and cancelled, and such incentive shall be promptly refunded to Dell, if you violate the Anti-Corruption Laws with regard to any transaction for which the incentive was paid.
    6. You shall ensure every agreement entered or maintained with any party for the resale or distribution of Dell Products or Services shall include business conduct requirements that are consistent with, and no less protective of Dell than, the requirements set forth in this Section 12.  
  13. Customs, Export Controls and Sanctions Compliance.
    1. Our acceptance of any order for any Products or Services is contingent upon your compliance with the provisions of this clause. You shall require your Resellers and End Users to agree to terms no less restrictive than those contained in this Section 13. You agree to abide by, and to assume sole responsibility for obtaining, and complying with the requirements of, all required export, in-country transfer, and import licenses, registrations, and other government authorizations relating to the Products and Services provided under this Agreement.
    2. You agree that, in connection with the Products and Services supplied to you by us and any goods or services that you provide to us, you will not contract with or otherwise do business with any individual, company, organization or other entity, or with, in or involving any country or territory (including without limitation, North Korea, Cuba, Iran, Syria, and Crimea), that is the subject or target of any U.S. or other government sanctions or trade embargoes or otherwise identified on a list of prohibited, sanctioned, debarred, or denied parties, including but not limited to those imposed, administered or enforced from time to time by the U.S. government through the Office of Foreign Assets Controls (“OFAC”) of the U.S. Department of Treasury, the Bureau of Industry and Security (“BIS”) of the U.S. Department of Commerce, or the U.S. Department of State, the European Union or Her Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”), without having first obtained any required license or other government authorization or in any manner which would result in a violation of Sanctions by you or us.
    3. Neither you nor any of your subsidiaries nor any of your or your subsidiaries’ directors, administrators, officers, board of directors (supervisory and management), members or employees is the subject or target of any Sanctions.
    4. You have adequate controls and systems in place to screen, and are fully responsible for screening, transactions of all other third parties who may assist, benefit from, or provide goods or services to, or received goods or services from, you and to ensure compliance with applicable laws pertaining to Sanctions.
    5. You have appropriate procedures in place to comply with (and to ensure timely reporting under) the requirements of the anti-boycott laws and regulations of the United States and other jurisdictions in which Dell does business.
    6. You have adequate policies and procedures in place to ensure that, and will ensure that, the Products and Services produced in connection with this Agreement will not be exported, re-exported, sold, leased or otherwise transferred to, or utilized by, an End User engaged in any of the following activities: (i) activities related to weapons of mass destruction, including any activities related to the design, development, production or use of: (A) nuclear weapons, materials or facilities; (B) missiles or the support of missile projects; or (C) chemical or biological weapons; (ii) terrorist activities (iii) military end uses in or connected with certain government owned or controlled corporations of such countries as identified by U.S. and other applicable government licensing authorities; (iv) exploration or productions of oil and gas in Arctic deepwater (greater than 500 feet), or shale formations in Russia or in, by, or with Russian companies, territories or any other entities as identified by BIS and/or OFAC.
    7. Unless prohibited by law or compulsory governmental process, you agree to provide notice to us in a commercially reasonable manner (if not herein elsewhere stated with specificity) of any government action or communication that you received or become aware of concerning Sanctions or trade compliance relating to the Products and/or Services provided herein by or to you and to or by us.
    8. Any goods, software, technology, or source or object code provided by you and installed on, exported with or used as part of the Products or Services that contain encryption are authorized for export, re-export or transfer pursuant to an export license obtained by you or is otherwise covered by a license exception. You are responsible for accurately reporting and providing all applicable export license, Product classification information, End User and end use statements, and destination control statement required by applicable customs, export controls, and sanctions laws.
    9. Nothing in this clause is to be construed as authorization by us for you to market or resell Products and Services in violation of the provisions of the Section 13.
    10. To the extent this clause applies, you are not authorized to import to or export out of the Territory under Ex Works terms unless you have received written approval from us (at a Sales Vice President level or higher) and you have signed an Ex Works addendum with us and comply with such addendum.
    11. You agree not to provide any written regulatory certifications or notifications on behalf of Dell. In addition, you agree to indemnify, defend and hold Dell harmless from any loss, expense, penalty or claim against Dell due to your violation or alleged violation of any applicable laws and regulations related to Section 13. If purchased goods are resold in violation of Section 13, Dell shall not be obligated to provide any warranty service or technical support.
  14. Privacy. When you register on the Marketplace, Host is collecting the information that you provide and will protect and use it in accordance with Host’s Privacy Policy. Should you bid on and win Product on the Marketplace, you will become a Dell customer and Host will share the information required for Dell to fulfill your purchase. Dell will use that information according to the terms of its privacy policy located at Dell.com. Therefore, by registering to use the Dell Marketplace, you are agreeing to both Host’s and Dell’s privacy policies.
  15. Confidential Information. 
    1. The term “Dell Confidential Information” means any confidential or proprietary information pertaining to or provided by Dell, including product plans, software, pricing, discounts, marketing and sales information, business plans, customer and supplier data, financial and technical information, “know-how,” trade secrets, and other information, whether such information is in written, oral, electronic, web-based, or other form.
    2. You will keep all Dell Confidential Information confidential for a period of three years from the date of Dell’s disclosure to you and use at least the same degree of care as you use to protect your own confidential information but no less than reasonable care. Notwithstanding anything to the contrary in this Agreement, your confidentiality obligations with respect to customers’ personally-identifiable information and Dell trade secrets shall never expire. You may not disclose Dell Confidential Information to any third party without Dell’s prior written consent. You may share Dell Confidential Information with only your employees who have a need to know and who are subject to legally binding obligations of confidentiality no less restrictive than those imposed by this Agreement. These confidentiality obligations do not apply to any Dell Confidential Information that (i) you can demonstrate was in your possession before receipt from Dell; (ii) is or becomes publicly available through no fault by you; or (iii) you rightfully received from a third party without a duty of confidentiality.
    3. If you are required by a government body or court of law to disclose any Dell Confidential Information, you agree to give Dell reasonable advance notice so that Dell may contest the disclosure or seek a protective order. You may use the Dell Confidential Information solely for the purpose of, and in connection with, your business relationship with Dell. No license or conveyance of any rights under any patent, copyright, trade secret, trademark or any other intellectual property right to Dell Confidential Information is granted under this Agreement except the limited rights to use the Dell Confidential Information as expressly set forth in this paragraph.
    4. Dell makes no warranties as to the accuracy or completeness of the Dell Confidential Information. ALL DELL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. To the extent permitted by law, Dell disclaims all express, implied and statutory warranties and conditions, and assumes no liability to you for any damages of any kind in connection with the Dell Confidential Information or any intellectual property in them.
    5. Upon Dell’s written request, you will promptly return all Dell Confidential Information, together with all copies, or certify in writing that all such Dell Confidential Information and copies thereof have been destroyed. You acknowledge that damages for improper disclosure of Dell Confidential Information may be irreparable and that Dell shall be entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available at law or in equity. You agree to adhere to all applicable United States, Canadian and foreign export control laws and regulations and will not export or re-export any technical data or products, to any proscribed country listed in the U.S. Export Administration regulations, or foreign national thereof, unless properly authorized by the U.S. Government. Dell may disclose Dell Confidential Information (including pricing information) to third parties, if Dell believes the Dell Confidential Information is useful in conducting any investigation or other proceeding that involves compliance, fraud, corruption, antitrust, or collection efforts.
  16. Miscellaneous.
    1. You may not publicly release any information relating to this Agreement, including the existence of this Agreement, without first receiving Dell’s prior express written approval
    2. Dell grants no licenses or other rights, title or interest under this Agreement.
    3. Notice. Notice to Dell Marketing L.P. under this Agreement or any related transaction must be in writing and sent (a) by registered or certified mail, postage prepaid first-class mail with return receipt requested; or (b) by overnight delivery service with verification of receipt, to the address below; or (c) by electronic mail to: [email protected] All such notices will be effective upon receipt.

      Dell Marketing L.P.
      Attn. Contracts Manager
      Dell Legal Department
      One Dell Way, Round Rock, Texas, 78682

    4. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated. Your obligations related to confidentiality, payment, security interest, indemnification, general regulatory compliance and miscellaneous provisions in this Section as well as provisions related to warranties and limitation of liability will survive any termination or expiration of this Agreement.
    5. Excused Performance. Except for payment of amounts due and owing, neither you nor Dell will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to circumstances beyond that party’s reasonable control.
    6. Governing Law; Informal Dispute Resolution; Attorney’s Fees. This Agreement, and any dispute, claim or controversy (whether in contract, tort or otherwise) related to or arising out of this Agreement or any quote or Order (“Dispute”) is governed by the laws of the State of Texas (excluding the conflicts of law rules) and the federal laws of the United States. The U.N. Convention on Contracts for the International Sale of Goods does not apply. To the extent permitted by law, the state and federal courts located in Texas will have exclusive jurisdiction for any Disputes. Distributor and Dell agree to submit to the personal jurisdiction of the state and federal courts located within Travis or Williamson County, Texas, and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute. Neither Distributor nor Dell are entitled to join or consolidate claims by or against other resellers, or pursue any claim as a representative or class action, or in private attorney general capacity. As a condition precedent to filing any lawsuit, the parties will attempt to resolve any Dispute against Dell or any Dell Affiliate through negotiation with persons fully authorized to resolve the Dispute, or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Although the merits of the underlying Dispute will be resolved in accordance with this Section, any party has the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitation periods or preserve a superior position with respect to other creditors. If the parties are unable to resolve the Dispute within 30 days (or other mutually agreed time) of notice of the Dispute to the other party, the parties will be free to pursue all remedies available at law or in equity. In any Dispute (other than Dell’s efforts to collect overdue amounts from Distributor) each party will bear its own attorneys’ fees and costs and expressly waives any statutory right to attorneys’ fees under § 38.001 of the Texas Civil Practices and Remedies Code.
    7. Except in the case of Dell or its subsidiaries and parent corporation, neither party may assign this Agreement. No provision of this Agreement will or shall be deemed to create a partnership, joint venture or other combination between you and Dell. You and Dell are independent contractors. Neither party will make any warranties or representations or assume any obligations on the other party’s behalf. Neither party is nor will claim to be a legal representative, partner, franchisee, agent or employee of the other party.
    8. Each party is responsible for the amounts it incurs arising from this Agreement and for the direction and compensation, and is liable for the actions of, its employees and subcontractors.
    9. This Agreement is the entire agreement between Dell and you with respect to its subject matter and supersedes all prior verbal and written understandings, communications or agreements between you and Dell. Dell may modify this Agreement at any time without prior notice to you. Your continued use of the Marketplace will constitute your binding acceptance of the changes..

 

By checking the box to the left, I acknowledge that I have read, that I understand, and that I accept the terms and conditions of the Global Dell Outlet Americas Distributor Agreement set forth above and that I have the authority to do so. I further understand that if I do not agree to these terms and conditions, or if I do not have the authority to accept these terms and conditions, I should not check this box and my application to access the Dell Marketplace will be declined.

Dell Reseller Agreement

Global Dell Outlet Americas Distributor Agreement

These terms and conditions (“Agreement”) will apply to the order and purchase of computer systems, related products and/or services by you (“you” or “Distributor”) from Dell Marketing LP (“Dell”) on DirectLiquidation.com (“Marketplace”) hosted by The Recon Group LLP (“Host”) for resale directly or indirectly through channel partners (“Resellers”) to consumers and small and medium businesses in the United States (“End Users”). Such computer systems and related products and services (collectively referred to as “Officially Refurbished Products” or “Products”) shall include refurbished Dell-branded computer systems, imaging products, monitors and third party software that may be installed on the foregoing, and related services (“Services”), as defined in Section 3 below. For consideration that both parties acknowledge as sufficient, the parties agree as follows:

  1. Term. Unless terminated as provided herein, the term of this Agreement begins on the date you execute this Agreement (“Effective Date”) and will continue for 12 months thereafter, automatically renewing for successive 12-month periods. Either party may terminate this Agreement for convenience, without liability, by providing the other party 30 days prior written notice. If either party breaches this Agreement, the non-breaching party may immediately terminate this Agreement upon written notice to the breaching party.
  2. Appointment.
    1. Subject to the provisions of this Agreement, you may resell Products only in the United States. All transactions under this Agreement may only be between United States based entities unless Dell expressly authorizes otherwise in writing. Any export of these Products outside of the United States is strictly prohibited unless Dell expressly authorizes otherwise.
    2. You and/or your Resellers may not resell outside of the United States unless Dell expressly authorizes such export pursuant to a written addendum to this Agreement expressly granting such right and setting forth any additional terms and conditions required to sell into such jurisdiction(s). You and/or your Resellers may not resell the Products to Dell’s large corporate account, global, government, education and/or healthcare segment customers.  
    3. If you or your Resellers wish to export Products outside of the United States, you shall be required to obtain Dell’s permission through its export waiver process, as defined solely by Dell. If such permission is given, all exports, transfers and re-exports shall be done in accordance with Section 13.
    4. You may resell through retail storefronts, but you may not resell to or through auction-type websites. You may not use Dell’s trade name, logos, trademarks or service marks. You may use the name “Dell” and Dell’s product names solely for the purpose of accurately identifying the Dell-branded Products you market and/or sell under this Agreement.  You agree to change or correct, at your own expense, any material or activity that Dell decides is inaccurate, objectionable misleading or a misuse of Dell’s name, trademarks, service marks,  Dell’s logo or copyrighted works. You are prohibited from referring to yourself as a Dell authorized distributor or reseller, implying that you and Dell are partners or creating the impression that Dell is affiliated with you or has sponsored, authorized, approved or endorsed your business, or any offer or any marketing, advertising or promotion thereof, except that you may use, if available, the current Dell Global Outlet logo (“Logo”) in marketing or on your website next to Product offerings you acquire directly from the Dell Global Outlet. Dell may revoke your ability to use Logo at its sole discretion. Should Dell revoke your ability to show Logo, you shall immediately remove it from your marketing or website. You will clearly and prominently identify itself in its offers, advertising, marketing, promotional materials, and on its stationery (including e-mail signatures), and its website.  You shall not use or display Dell trademarks, service marks, or trade names on its invoices, bills, or shipping memos.  You will not file any trademark applications containing Dell trademarks, service marks, or trade names and will not use Dell trademarks, service marks, or trade names or anything confusingly similar thereto, in domain names, business names, search engine advertising, either as a keyword or in advertisements appearing on search engines or in email addresses, without Dell Inc.’s prior written permission. This Agreement is not exclusive. Dell may market Products to any third party directly or indirectly without any obligation or liability to you. This Agreement does not guarantee that you will receive any Products from Dell or that you will make any sales of the Products. Dell does not have authority to determine or set your resale Product pricing. Dell reserves the right to restrict or prohibit your participation in certain promotions, and to add, modify or discontinue pricing, Products and/or parts. You may not use promotional gift cards, promos or coupons to purchase from Outlet website. Product re-engineering may occur between the time you order Products and when those Products are shipped. All Products shipped will meet or exceed all material specifications of the Products ordered. You agree to provide Dell with five days prior written notice of any material change related to your business, including alterations of plans for remarketing the Products to approved accounts. Dell may require you to meet additional obligations not outlined herein, which will be disclosed to you prior to your purchase of Products. You will provide Dell such information and reports as Dell may reasonably request.
  3. Classification of Products.  
    1. “Officially Refurbished Products” shall mean only such Products Dell offers and sells directly to Distributor that Dell currently sells on the Dell Outlet section of Dell.com and shall not refer to any off-lease, used, third party refurbished or otherwise non-new Dell Products in your possession or stores that were not sold to you by Dell. Furthermore, should any Officially Refurbished Products be further modified or refurbished by any party outside of Dell or Dell’s officially and specifically authorized agent, such product shall not be considered as an Officially Refurbished Product. You shall market Officially Refurbished Products, whether on retail shelves, online web pages or any other venue, separately and distinctly from all other refurbished systems. Officially Refurbished Products shall be designated as “Grade A” refurbished or some other similar title not given to other refurbished systems and shall not be located adjacent to or marketed alongside with any other refurbished systems.

      A.       Within the category of Officially Refurbished Products, there will be three distinct categories of refurbished goods (“Refurbished Categories”):
      (1)       “Outlet New” shall mean PCs and enterprise Products that were canceled orders, or systems that shipped out to a customer who decided to return the system without ever using it. Dell Outlet New systems do not have any cosmetic damages;
      (2)       “Dell Certified Refurbished Product” shall mean PCs and enterprise Products that have been returned to Dell and retested to ensure they meet all original factory specifications. Certified refurbished systems may have some observable cosmetic blemishes, but they will not affect performance; and,
      (3)       “Dell Scratch and Dent” shall mean Certified Refurbished Product with considerable cosmetic blemishes that do not affect performance. Scratch and Dent computers will not have scratches or pits on the screen, missing or illegible letters on the keyboard or damage on the touchpad or palm rest.

  4. Distribution.
    1. For Products classified as Dell Scratch and Dent or Dell Certified Refurbished Product, you may distribute to any legal party within the United States subject to the conditions of this Agreement. Dell may at its sole discretion dictate to whom you may sell Dell branded Products. Dell will notify you in writing of such requests and you shall comply with such requests immediately.  
    2. You agree not to resell to any party where you have reason to know that such party intends to resell (a) outside of the United States unless Dell explicitly authorizes such export pursuant to a written addendum to this Agreement, or (b) to Dell’s large corporate account, global, government, education and/or healthcare segment customers.  
    3. You may not, directly or indirectly, authorize any Reseller to resell the Products to an End User unless and until such Reseller is bound by a written reseller agreement with You (the “Reseller Agreement”). The Reseller Agreement (i) cannot be inconsistent with or less protective of Dell’s proprietary and intellectual property rights than the terms of this Agreement, (ii) cannot grant a Reseller any rights that are inconsistent with the rights granted to you under this Agreement, and (iii) must include a pass through of the restrictions and requirements that apply to your performance under this Agreement, including, without limitation, a prohibition against exporting Products outside of the U.S. You will enforce each Reseller Agreement with the same degree of diligence that you use to enforce similar agreements for your own or other products that you distribute, but in no event less than reasonable efforts.  You will notify Dell within a reasonable time if you become aware of any breach of a Reseller Agreement that affects Dell. Dell may review these Reseller Agreements at any time pursuant to Section 10.
  5. Bids.
    1. Dell reserves the right to withdraw product listings from the Marketplace at any time. You may not violate the terms of any product listing or concession. Dell is not responsible for pricing, typographical or other errors in any Dell product listing. Dell may, in its sole discretion, cancel any bid it receives or accepts in whole or in part. “Purchase Order” means any bid for Products you place under this Agreement. You may not cancel a Purchase Order once Dell accepts it. Prices may vary and fluctuate due to cost, changes in market conditions, competition and volume. Dell reserves the right to change, alter or amend pricing at any time, but such price changes do not apply to previously accepted Purchase Orders. When Dell accepts a Purchase Order, Dell will provide you an estimated ship date(s). Dell will designate shipping option(s). If Dell ships Products freight collect or freight prepaid by you, you will bear the risk of loss of or any damage to the Products during shipping. Dell may invoice and/or ship parts of an order separately. If you breach this Agreement, Dell may charge or re-debit your account or credit card the full list price for your purchase (in lieu of a discounted or special price included in the offer or concession). Except for software, title to Products passes from Dell to you when Dell or its supplier(s) ships the Products from its location. Shipping dates Dell provides are estimates only. You and your End Users are bound by and agree to abide by the license terms distributed with the software. Unless you have provided Dell a valid tax exemption certificate, you will pay all sales, value-added and other taxes associated with the sale of Products (excluding taxes assessed on Dell’s net income). Dell is not obligated to offer you credit or credit terms. Your payment terms will be net 30 days from the date of the invoice, subject to continuing credit approval by Dell. You will pay Dell in U.S. dollars from a U.S. bank account, as invoiced by Dell. For invoices not paid within 30 days of the invoice date, Dell reserves the right to charge you a late penalty charge of 1.5% per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, if Dell determines that an invoice balance is overdue, Dell may (a) refuse to accept additional orders under this Agreement, (b) terminate this Agreement, (c) refuse to ship ordered Products and (d) seek collection of overdue balance from you, including all legal fees and other collection costs. The rights set forth in this section are in addition to any other rights or remedies Dell may have in law or equity. You hereby grant Dell, and Dell hereby retains, a purchase money security interest and lien on any and all of your rights, title and interest in Products, wherever located, and all replacements or proceeds of the Products, until the invoice for the applicable Products is paid in full, including any late charges and costs of collection. You consent to Dell’s use of this Agreement, as well as Product invoices, as financing statements for protecting this security interest and appoint Dell as your agent for service of process.  
    2. You agree and acknowledge that Dell Products may not be stored longer than six months from the invoice date and that storage for longer than six months invalidates the manufacturer warranty. You are responsible for all End User warranty claims for units stored longer than six months; provided, however, that Dell may, in its discretion, reinstate the warranty in exchange for you paying an additional fee. Dell reserves the right to withhold the fee from any amounts due to you from Dell.
  6. Indemnity.
    1. Dell’s Indemnity for Infringement of Third Party Intellectual Property Rights. Dell will (a) defend you from any third party claim that Officially Refurbished Products (but excluding hardware, software, or services that are not “Dell” branded (“Third Party Products”) and open source software) (“Indemnified Products”) infringes that third party’s patent, copyright or trade secret enforceable in the country where you purchased the Indemnified Products from Dell (an “Indemnified Claim”); and (b) indemnify you by paying: (1) the resulting costs and damages finally awarded against you by a court of competent jurisdiction to the extent that such are the result of the third party Indemnified Claim; or (2) the amounts stated in a written settlement negotiated and approved by Dell. Dell will not settle any Indemnified Claim under Section 6.1 that obligates you to admit liability and/or require monetary payment by you without your prior written consent, such consent not to be unreasonably withheld. In addition, should any Indemnified Product become, or in Dell’s opinion be likely to become, the subject of such an Indemnified Claim, Dell may, at its expense and in its discretion: (a) obtain a right for you to continue using the affected Indemnified Product; (b) modify the affected Indemnified Product to make them non-infringing; (c) replace the affected Indemnified Product with non-infringing substitutes; or (d) provide a reasonable depreciated or pro rata refund for the affected Indemnified Product.
      • (A)        Exclusions from Indemnity. Dell has no obligation under section 6.1 above: (a) if you are in material breach of this Agreement; or (b) for any Indemnified Claim resulting or arising from: (1) any combination, operation or use of an Indemnified Product with any other products, Services, items or technology, including Third Party Products and open source software; (2) use for a purpose or in a manner for which the Indemnified Product was not designed, or use after Dell notifies you to cease such use due to a possible or pending claim; (3) any modification to the Indemnified Product made by any person other than Dell or its authorized representatives; (4) any modification to the Indemnified Product made by Dell pursuant to instructions, designs, specifications or any other information provided to Dell by or on behalf of you; (5) use of any version of an Indemnified Product when an upgrade or newer iteration of the Indemnified Product made available by Dell would have avoided the infringement; (6) services provided by you (including claims seeking damages based on any revenue you derive from your services); or (7) any data or information that you or a third-party records on or utilizes in connection with the Indemnified Products.
      • (B)        Except as otherwise provided by law, this section 6.1 states your exclusive remedies for any third party intellectual property claim relating to Indemnified Products, and nothing in this Agreement or elsewhere will obligate Dell to provide any greater indemnity.  Dell shall have no obligation to provide any indemnity to your End Users.
    2. Your Indemnity to Dell. To the fullest extent provided by law, you will indemnify and defend Dell, including Dell’s partners, officers, directors, agents, employees, subsidiaries, affiliates, parents, successors and assigns, from any claim, demand, cause of action, debt or liability (including reasonable attorneys’ fees and court costs) arising from:  
      • (A)        your or your Resellers modification(s) of and/or addition(s) to Officially Refurbished Product(s);
      • (B)        the relationship or transactions between you and your customers, whether Resellers or End Users, other than an Indemnified Claim;
      • (C)        your or your Resellers breach of this Agreement;
      • (D)        your or your Resellers omission, misrepresentation or negligence;
      • (E)        any false or inaccurate representation by you, your customers, your Resellers or your agent regarding the existence of an export license or the applicability or inapplicability of a license requirement or exception;
      • (F)        your or your Resellers violation of Dell’s proprietary rights;
      • (G)        any violation or alleged violation of any applicable customs, export control or sanctions laws or regulation (except to the extent that such violation or alleged violation is a direct result of Dell’s violation of applicable export control laws or regulations); and
      • (H)        if the Products sold by you damage a third party to the extent such Claim is based on:
      • (1)        your or your Resellers modification of and/or addition to the Products, misuse or abuse of the Products, negligence or breach of any provision in this Agreement;
        (2)        your or your Resellers failure to abide by all applicable laws, rules, regulations and orders that affect the Products; or
        (3)        you, your Resellers or your End Users cause intentional harm to any person or property.
    3. Indemnification Process. A party’s duty to defend and indemnify under this section is contingent upon the party seeking indemnity: (a) sending prompt written notice of the Indemnified Claim to the party providing indemnity and taking reasonable steps to mitigate damages, (b) granting to the party providing indemnity the sole right to control the defense and resolution of the Indemnified Claim; and (c) cooperating with the party providing indemnity in the defense and resolution of the Indemnified Claim and in mitigating any damages.
  7. Insurance. You will maintain comprehensive general liability, including products liability, insurance of at least USD$1,000,000.00 with an insurance company having a Best rating of A. Upon Dell’s request, you will provide to Dell a certificate of such insurance (including any new or amended certificates of insurance) and/or name Dell as an additional insured. You will give Dell at least 30 days prior written notice of any cancellation or termination of said insurance.
  8. Warranties.
    1. Dell distributes Officially Refurbished Products “AS IS” and Dell does not make any express or implied warranties except those included in the limited warranty statements set forth at Dell.com. Products, parts and assemblies used for warranty repairs and Services may be new or reconditioned. Those limited warranty statements are the exclusive controlling terms and conditions of the limited warranties for Products. Dell may, in its sole discretion, revise its limited warranties. No revision in limited warranties will affect Products you already ordered. Dell reserves the right to discontinue or otherwise void any warranty, Service or technical support it offers in whole or in part if you breach any of your obligations under this Agreement or if you fail to pay amounts due and payable to Dell. Dell disclaims all other warranties, express or implied, including without limitation, (i) any implied warranties of noninfringement, merchantability, fitness for a particular purpose, or title, and (ii) any warranty arising by statute, operation of law, course of dealing or performance or usage of trade. The publisher or original manufacturer provide any warranty on non-Dell branded Products. You shall be solely responsible for providing and fulfilling any warranty you make to your End Users.
    2. You may purchase Services, if any, for certain Products in accordance with the terms and conditions applicable at the time of your purchase located at Dell.com. To transfer service, contact Dell’s customer service. Except for warranty purposes, Dell’s return policies (including but not limited to Dell’s “21-day Hardware Return Period”) are not available to you. You may not return any Officially Refurbished Products to Dell unless Dell shipped such to you in error. You will inform your End Users of Dell’s rights and obligations with respect to the limited warranties Dell offers under this Agreement and that Dell’s return policies are not available on Products.  

      All warranties sold with these Products shall be Dell’s U.S. based warranty. If Dell approves you to export these Products to countries besides the United States, you must do so at your own expense and request of Dell a transfer of service tag to that region subject to approval at Dell’s sole discretion. There may be additional fees associated with warranties that are applicable to that region which will be charged to you.  

  9. Limitation of Liability.
    1. Dell does not accept liability beyond the remedies set forth in this Agreement, including but not limited to any liability for Product not being available for use, lost profits, loss of business or for lost or corrupted data or software or the provision of Services or support. Except for your breach of Section 2, your payment obligations and violation of Dell’s intellectual property rights, both parties expressly agree that in no event shall either party be liable to the other for any incidental, indirect, special or consequential damages whatsoever, even if such party has been advised, knew of or should have known of the possibility thereof. You will include in all agreements provisions similar to the above disclaiming as to Dell liability for all damages identified herein. Notwithstanding any other provision of this Agreement, Dell’s, including Dell’s affiliates, officers, directors, employees or agents, liability is strictly limited to the total dollar amount of Products and Services purchased and paid for by you pursuant to this Agreement during the twelve months immediately preceding the date Dell is notified by you of any claim of liability.
    2. Limitation Period. Except as stated in this section, all claims must be made within the period specified by applicable law. If the law allows the parties to specify a shorter period for bringing claims, or the law does not provide a time at all, then claims must be made within 18 months after the cause of action accrues.
  10. Administration.
    1. You will maintain legible, accurate and complete books and records for the term of this Agreement and a period of five years thereafter concerning this Agreement and your activities under this Agreement. All Product sales agreements must be in writing. Sales invoice side agreements, whether oral or written, are forbidden, and no undisclosed or unrecorded fund or asset related to any Dell Outlet transaction may be established or maintained for any purpose. Records to be retained include, but are not limited to: names and contact information of your Resellers and End Users, copies of purchase orders,  invoices, bills of lading or air waybills, packing lists, proof of delivery, receipt of payment from your  Resellers and End Users, electronic export information filed in AES system if Products were exported and any correspondence between yourself and your Resellers or End Users relating to ultimate Product destination and end use. At the end of this retention period, you will appropriately dispose of all records.
    2. Upon Dell’s request, you will cooperate with and assist Dell with any audit, review or investigation (“Audit”) that relates to (a) this Agreement or your compliance with applicable laws; (b) your marketing, sale, distribution, licensing or delivery of Products and Services, whether sourced from Dell or a third-party; (c) any rebates, incentives, concessions or other amounts paid or payable by Dell; or (d) any amounts due to Dell. In connection with an Audit, you will deliver all records, information and documents Dell reasonably requests. Dell has the right to conduct onsite Audits, and you will grant Dell and its employees and representatives with reasonable access to information, records, personnel, Resellers and End Users (including Reseller Agreements and End User agreements to verify your compliance with this Agreement) and provide entry and access to your premises or other locations (during normal business hours) where such information and records are located. Failure to cooperate with an Audit or provide the information or records Dell requests is a material breach of this Agreement. Dell will pay the costs of an Audit except where a discrepancy of 5% or more is discovered in the information you disclose, in which case you agree to be responsible for all reasonable costs. Dell may deny any claim that it believes, in its sole discretion, does not conform to this Agreement or subprogram terms. Dell may, without prior notice, immediately suspend or terminate an order if you provide to Dell, Resellers or End Users any inaccurate, incomplete or fraudulent claims or information, fail to provide adequate documentation to assist with an audit or investigation, or if you engage in activities that may cause damage, embarrassment or adverse publicity to Dell, or any of its officers, directors or employees.  
    3. Upon Dell’s written request, you will provide sales-out and inventory reports to Dell.  All reports must meet the requirements set forth in a Sales Out and Inventory Reporting Requirements document provided to you by Dell (the “Reporting Requirements”). Dell may modify the Reporting Requirements, and you will be given thirty (30) days to comply with any such modifications. Accuracy, completeness and timeliness of the reports are of the essence and failure to provide reports in accordance with the Reporting Requirements is a material breach of this Agreement.  The reports and information you provide under this Agreement are considered Dell Confidential Information.  You warrant that you have the right and approvals to disclose the reports and information to Dell and for Dell to use the reports and information.
  11. Business Conduct. At all times you shall conduct business in a manner which reflects favorably on Dell’s Products, Services, goodwill and reputation. In your marketing and sales of Products, you will conduct your business in an ethical manner and avoid any business practices that may be perceived as deceptive, misleading or otherwise improper. You shall not make any false or misleading statement concerning Dell or any Products in any of your advertising, marketing or promotional materials or in any content. In connection with marketing activities related to Dell Products or Services, you will comply with all applicable marketing communication laws and regulations, such as but not limited to the U.S. CAN-SPAM Act of 2003 and Canada’s Anti-Spam Law. Furthermore, you shall not make any representations, warranties or guarantees with respect to the specifications, features or capabilities of Dell Products that are inconsistent with or absent from Dell’s published product specifications, service descriptions or software license agreements available on Dell.com. You shall comply with all laws and regulations applicable to your activities in connection with this Agreement, including your marketing and sale of Products and Services. You are required to maintain effective policies, documentation and business controls capable of preventing and detecting unlawful conduct by your employees, contractors, suppliers, agents and downstream partners. You agree that your business controls contain: (a) periodic risk assessments and (b) a written code of conduct that expressly confirms your commitment to, and states objectives for, a compliance and ethics program.
  12. Anti-Corruption Laws
    . “Anti-Corruption Laws” means the anti-corruption or anti-bribery laws in effect in jurisdictions where you market or sell Dell Products or Services, and Anti-Corruption Laws specifically include the Foreign Corrupt Practices Act of the United States and, if you conduct business in Canada, the Corruption of Foreign Public Officials Act of 1999.

    1. You agree to comply with the Anti-Corruption Laws. You will not, in connection with this Agreement, take or allow any third party to take, any action or engage in any practice that would violate the Anti-Corruption Laws.
    2. You agree that in the event that you subcontract the provision of any element of this Agreement to any person, or receive any services in connection with your performance of this Agreement from any person (each such person being an “Associated Person”), you shall impose upon such Associated Person Anti-corruption obligations that are no less onerous than those imposed upon you in this Agreement.
    3. You warrant and represent that neither you nor any of your officers or employees has been convicted of any offense involving bribery, corruption, fraud or dishonesty or, to the best of your knowledge, has been or is the subject of any investigation, inquiry or enforcement proceeding by any governmental, administrative or regulatory body regarding any offence or alleged offence under the Anti-Corruption Laws.
    4. You shall (a) maintain, throughout the duration of dealings between you and Dell, your own anti-corruption policies and procedures, including without limitation, adequate procedures designed to ensure that you and your Associated Persons comply with the Anti-Corruption Laws; (b) provide a copy of such policies and procedures to Dell on request; and (c) monitor and enforce such policies and procedures as appropriate. You shall provide information, documentation and reasonable assistance to Dell and its authorized representatives for purposes of ensuring your compliance with the Anti-Corruption Laws or to support an inquiry or investigation of a suspected violation of those laws.
    5. Dell may immediately terminate this Agreement or suspend its performance hereunder if: (a) Dell has reason to believe that you have breached this Section 12, or that a breach may occur; or (b) you refuse to provide information Dell requests to confirm your compliance with this Section 12. Dell shall not be liable to you for any claims or damages related to its decision to withhold payments under this paragraph. Any incentive which Dell pays to you shall be automatically terminated and cancelled, and such incentive shall be promptly refunded to Dell, if you violate the Anti-Corruption Laws with regard to any transaction for which the incentive was paid.
    6. You shall ensure every agreement entered or maintained with any party for the resale or distribution of Dell Products or Services shall include business conduct requirements that are consistent with, and no less protective of Dell than, the requirements set forth in this Section 12.  
  13. Customs, Export Controls and Sanctions Compliance.
    1. Our acceptance of any order for any Products or Services is contingent upon your compliance with the provisions of this clause. You shall require your Resellers and End Users to agree to terms no less restrictive than those contained in this Section 13. You agree to abide by, and to assume sole responsibility for obtaining, and complying with the requirements of, all required export, in-country transfer, and import licenses, registrations, and other government authorizations relating to the Products and Services provided under this Agreement.
    2. You agree that, in connection with the Products and Services supplied to you by us and any goods or services that you provide to us, you will not contract with or otherwise do business with any individual, company, organization or other entity, or with, in or involving any country or territory (including without limitation, North Korea, Cuba, Iran, Syria, and Crimea), that is the subject or target of any U.S. or other government sanctions or trade embargoes or otherwise identified on a list of prohibited, sanctioned, debarred, or denied parties, including but not limited to those imposed, administered or enforced from time to time by the U.S. government through the Office of Foreign Assets Controls (“OFAC”) of the U.S. Department of Treasury, the Bureau of Industry and Security (“BIS”) of the U.S. Department of Commerce, or the U.S. Department of State, the European Union or Her Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”), without having first obtained any required license or other government authorization or in any manner which would result in a violation of Sanctions by you or us.
    3. Neither you nor any of your subsidiaries nor any of your or your subsidiaries’ directors, administrators, officers, board of directors (supervisory and management), members or employees is the subject or target of any Sanctions.
    4. You have adequate controls and systems in place to screen, and are fully responsible for screening, transactions of all other third parties who may assist, benefit from, or provide goods or services to, or received goods or services from, you and to ensure compliance with applicable laws pertaining to Sanctions.
    5. You have appropriate procedures in place to comply with (and to ensure timely reporting under) the requirements of the anti-boycott laws and regulations of the United States and other jurisdictions in which Dell does business.
    6. You have adequate policies and procedures in place to ensure that, and will ensure that, the Products and Services produced in connection with this Agreement will not be exported, re-exported, sold, leased or otherwise transferred to, or utilized by, an End User engaged in any of the following activities: (i) activities related to weapons of mass destruction, including any activities related to the design, development, production or use of: (A) nuclear weapons, materials or facilities; (B) missiles or the support of missile projects; or (C) chemical or biological weapons; (ii) terrorist activities (iii) military end uses in or connected with certain government owned or controlled corporations of such countries as identified by U.S. and other applicable government licensing authorities; (iv) exploration or productions of oil and gas in Arctic deepwater (greater than 500 feet), or shale formations in Russia or in, by, or with Russian companies, territories or any other entities as identified by BIS and/or OFAC.
    7. Unless prohibited by law or compulsory governmental process, you agree to provide notice to us in a commercially reasonable manner (if not herein elsewhere stated with specificity) of any government action or communication that you received or become aware of concerning Sanctions or trade compliance relating to the Products and/or Services provided herein by or to you and to or by us.
    8. Any goods, software, technology, or source or object code provided by you and installed on, exported with or used as part of the Products or Services that contain encryption are authorized for export, re-export or transfer pursuant to an export license obtained by you or is otherwise covered by a license exception. You are responsible for accurately reporting and providing all applicable export license, Product classification information, End User and end use statements, and destination control statement required by applicable customs, export controls, and sanctions laws.
    9. Nothing in this clause is to be construed as authorization by us for you to market or resell Products and Services in violation of the provisions of the Section 13.
    10. To the extent this clause applies, you are not authorized to import to or export out of the Territory under Ex Works terms unless you have received written approval from us (at a Sales Vice President level or higher) and you have signed an Ex Works addendum with us and comply with such addendum.
    11. You agree not to provide any written regulatory certifications or notifications on behalf of Dell. In addition, you agree to indemnify, defend and hold Dell harmless from any loss, expense, penalty or claim against Dell due to your violation or alleged violation of any applicable laws and regulations related to Section 13. If purchased goods are resold in violation of Section 13, Dell shall not be obligated to provide any warranty service or technical support.
  14. Privacy. When you register on the Marketplace, Host is collecting the information that you provide and will protect and use it in accordance with Host’s Privacy Policy. Should you bid on and win Product on the Marketplace, you will become a Dell customer and Host will share the information required for Dell to fulfill your purchase. Dell will use that information according to the terms of its privacy policy located at Dell.com. Therefore, by registering to use the Dell Marketplace, you are agreeing to both Host’s and Dell’s privacy policies.
  15. Confidential Information. 
    1. The term “Dell Confidential Information” means any confidential or proprietary information pertaining to or provided by Dell, including product plans, software, pricing, discounts, marketing and sales information, business plans, customer and supplier data, financial and technical information, “know-how,” trade secrets, and other information, whether such information is in written, oral, electronic, web-based, or other form.
    2. You will keep all Dell Confidential Information confidential for a period of three years from the date of Dell’s disclosure to you and use at least the same degree of care as you use to protect your own confidential information but no less than reasonable care. Notwithstanding anything to the contrary in this Agreement, your confidentiality obligations with respect to customers’ personally-identifiable information and Dell trade secrets shall never expire. You may not disclose Dell Confidential Information to any third party without Dell’s prior written consent. You may share Dell Confidential Information with only your employees who have a need to know and who are subject to legally binding obligations of confidentiality no less restrictive than those imposed by this Agreement. These confidentiality obligations do not apply to any Dell Confidential Information that (i) you can demonstrate was in your possession before receipt from Dell; (ii) is or becomes publicly available through no fault by you; or (iii) you rightfully received from a third party without a duty of confidentiality.
    3. If you are required by a government body or court of law to disclose any Dell Confidential Information, you agree to give Dell reasonable advance notice so that Dell may contest the disclosure or seek a protective order. You may use the Dell Confidential Information solely for the purpose of, and in connection with, your business relationship with Dell. No license or conveyance of any rights under any patent, copyright, trade secret, trademark or any other intellectual property right to Dell Confidential Information is granted under this Agreement except the limited rights to use the Dell Confidential Information as expressly set forth in this paragraph.
    4. Dell makes no warranties as to the accuracy or completeness of the Dell Confidential Information. ALL DELL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. To the extent permitted by law, Dell disclaims all express, implied and statutory warranties and conditions, and assumes no liability to you for any damages of any kind in connection with the Dell Confidential Information or any intellectual property in them.
    5. Upon Dell’s written request, you will promptly return all Dell Confidential Information, together with all copies, or certify in writing that all such Dell Confidential Information and copies thereof have been destroyed. You acknowledge that damages for improper disclosure of Dell Confidential Information may be irreparable and that Dell shall be entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available at law or in equity. You agree to adhere to all applicable United States, Canadian and foreign export control laws and regulations and will not export or re-export any technical data or products, to any proscribed country listed in the U.S. Export Administration regulations, or foreign national thereof, unless properly authorized by the U.S. Government. Dell may disclose Dell Confidential Information (including pricing information) to third parties, if Dell believes the Dell Confidential Information is useful in conducting any investigation or other proceeding that involves compliance, fraud, corruption, antitrust, or collection efforts.
  16. Miscellaneous.
    1. You may not publicly release any information relating to this Agreement, including the existence of this Agreement, without first receiving Dell’s prior express written approval
    2. Dell grants no licenses or other rights, title or interest under this Agreement.
    3. Notice. Notice to Dell Marketing L.P. under this Agreement or any related transaction must be in writing and sent (a) by registered or certified mail, postage prepaid first-class mail with return receipt requested; or (b) by overnight delivery service with verification of receipt, to the address below; or (c) by electronic mail to: [email protected] All such notices will be effective upon receipt.

      Dell Marketing L.P.
      Attn. Contracts Manager
      Dell Legal Department
      One Dell Way, Round Rock, Texas, 78682

    4. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated. Your obligations related to confidentiality, payment, security interest, indemnification, general regulatory compliance and miscellaneous provisions in this Section as well as provisions related to warranties and limitation of liability will survive any termination or expiration of this Agreement.
    5. Excused Performance. Except for payment of amounts due and owing, neither you nor Dell will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to circumstances beyond that party’s reasonable control.
    6. Governing Law; Informal Dispute Resolution; Attorney’s Fees. This Agreement, and any dispute, claim or controversy (whether in contract, tort or otherwise) related to or arising out of this Agreement or any quote or Order (“Dispute”) is governed by the laws of the State of Texas (excluding the conflicts of law rules) and the federal laws of the United States. The U.N. Convention on Contracts for the International Sale of Goods does not apply. To the extent permitted by law, the state and federal courts located in Texas will have exclusive jurisdiction for any Disputes. Distributor and Dell agree to submit to the personal jurisdiction of the state and federal courts located within Travis or Williamson County, Texas, and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute. Neither Distributor nor Dell are entitled to join or consolidate claims by or against other resellers, or pursue any claim as a representative or class action, or in private attorney general capacity. As a condition precedent to filing any lawsuit, the parties will attempt to resolve any Dispute against Dell or any Dell Affiliate through negotiation with persons fully authorized to resolve the Dispute, or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Although the merits of the underlying Dispute will be resolved in accordance with this Section, any party has the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitation periods or preserve a superior position with respect to other creditors. If the parties are unable to resolve the Dispute within 30 days (or other mutually agreed time) of notice of the Dispute to the other party, the parties will be free to pursue all remedies available at law or in equity. In any Dispute (other than Dell’s efforts to collect overdue amounts from Distributor) each party will bear its own attorneys’ fees and costs and expressly waives any statutory right to attorneys’ fees under § 38.001 of the Texas Civil Practices and Remedies Code.
    7. Except in the case of Dell or its subsidiaries and parent corporation, neither party may assign this Agreement. No provision of this Agreement will or shall be deemed to create a partnership, joint venture or other combination between you and Dell. You and Dell are independent contractors. Neither party will make any warranties or representations or assume any obligations on the other party’s behalf. Neither party is nor will claim to be a legal representative, partner, franchisee, agent or employee of the other party.
    8. Each party is responsible for the amounts it incurs arising from this Agreement and for the direction and compensation, and is liable for the actions of, its employees and subcontractors.
    9. This Agreement is the entire agreement between Dell and you with respect to its subject matter and supersedes all prior verbal and written understandings, communications or agreements between you and Dell. Dell may modify this Agreement at any time without prior notice to you. Your continued use of the Marketplace will constitute your binding acceptance of the changes..

 

By checking the box to the left, I acknowledge that I have read, that I understand, and that I accept the terms and conditions of the Global Dell Outlet Americas Distributor Agreement set forth above and that I have the authority to do so. I further understand that if I do not agree to these terms and conditions, or if I do not have the authority to accept these terms and conditions, I should not check this box and my application to access the Dell Marketplace will be declined.

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