Cloud Solutions Agreement - Australia
Your Relationship with Dell. Agreement refers collectively to these terms and conditions and, as applicable, (i) the Solution Description for the applicable Solution; (ii) if you purchased directly from Dell, any order form referencing or incorporating the Solution Description, (an Order Form); (iii) the Cloud Solutions Agreement Acceptable Use Policy, (AUP); and (iv) any applicable Regional Addendum that will govern the use of and access to the Solution by Customers and End Users outside of Australia.
This Agreement is effective upon your (a) execution of a Solution Description or an Order Form; (b) acceptance of these terms pursuant to an online or offline process; or (c) accessing or using the Solution. You, your or Customer means the end-user entity which you represent, and which may be further identified in the applicable Solution Description, Order Form, End User Acknowledgment Form or online order process, and includes any of your affiliates that expressly agree to, or are otherwise legally bound by, this Agreement or, access or use the Solution. Dell, us, we or our means Dell Australia Pty Ltd, on behalf of itself and its’ suppliers and licensors, or the Dell entity identified on your Solution Description or Order Form and includes any Dell subsidiary with which you place an order for the Solution. You agree that your purchase of the Solution is solely for your internal business use. Unless otherwise stated in your Order Form, the Solutions purchased under this Agreement are not for resale by you. [*Note: The Solutions are not currently available for purchase through resellers in Australia.]
Table of Contents:
2. Quotes, Ordering and Payment
4. Term; Renewals
7. Proprietary Rights
8. Cloud Partners
9. Customer Solutions
10. Suspension, Deletion and Modification
13. Customer Obligations
14. Customer License Grant to Dell
15. High-Risk Disclaimer
16. Important Additional Information
Supplemental Terms and Conditions:
· Regional Addendum
· Cloud Solutions Agreement Acceptable Use Policy
Activation Instructions means any instructions, user IDs, software license keys or passwords that Dell or the applicable Cloud Partner (as defined in Section 8) may provide you in respect of specific Solutions to enable you to activate or access the Solution.
Australian Consumer Law means the laws as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and equivalent State and Territory Fair Trading legislation in Australia regarding consumer guarantees to the extent that such guarantees cannot be excluded by law.
Confidential Information means (i) data you transmit to us or store as part of the Solution or information provided to us on an Order Form; (ii) Dell pricing and other Solution terms, Activation Instructions, marketing and sales information, know-how, audit and security reports, product development plans, data centre designs, (including non-graphic information you may observe on a tour of a data centre), or other proprietary information or technology provided to you, (including Software); and (iii) Trade Secrets or any information designated as confidential. Information developed without reference to another party’s Confidential Information, or that is a part of or enters the public domain or otherwise is made available to a party other than through a violation of confidentiality, will not be Confidential Information.
Customer Content means any information or data provided by you or your End Users in connection with your or your End Users’ use of the Solution, including any text, software, music, sound, photographs, graphics, video, messages, files, attachments or other materials you transmit to us or store or use on the Solution.
End User means each individual or entity that Customer has authorized to access and use a Solution, including any individual or entity that purchases a Customer Solution.
Intellectual Property means all patents, applications for patents, copyrights, moral rights, author’s rights, rights of publicity, mask works, Trade Secrets, know-how, contract rights, licensing rights and/or any other intellectual or proprietary rights recognised by any jurisdiction, whether now existing or hereafter arising. Intellectual Property also includes corporate names, trade names, trademarks, service marks or other proprietary designations.
Services means any and all services performed by us, a Cloud Partner, or a combination thereof as described in one or more Solution Descriptions .
Software means any software, library, utility, tool or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by us in connection with a Solution. Software includes software locally installed on your systems and software accessed through the Internet or by other remote means including websites, portals and cloud-based solutions to utilise a Solution in accordance with this Agreement.
Solution means the combination of the Services performed and Software provided by us (or our Cloud Partner, if applicable) to you pursuant to a Solution Description. Solutions include any Partner Solutions (as defined in Section 8).
Solution Description means (i) a statement of work, service description, solution description or other agreement that references this Agreement or, if applicable, Cloud Partner Terms, (as defined in Section 8), or (ii) a specification sheet or online description referenced in an Order Form .
Third-Party Products means any non-Dell or non-Cloud Partner software or services provided, made available or otherwise used in connection with the Solution, including any Customer Solution or any other Customer provided software, hardware or services.
Trade Secret means any Dell or Cloud Partner information not commonly known or available to the public, which (i) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
2. Quotes, Ordering, Payment and Taxes. If you purchased a Solution through a reseller, the terms and conditions of sale (including pricing) for the purchase will be as agreed between you and the reseller. This Section 2 applies to direct sales only.
We will charge amounts for Solutions as set forth in the applicable Solution Description or Order Form or, if not specified, the current list pricing provided on our website. Quoted prices will remain in effect only until the expiration date of the quote. All orders are subject to our acceptance. The number of systems, units, (e.g., mailboxes, recipients, minutes, etc.) and End Users for which you have purchased Solution(s) is indicated on the Order Form. Usage in excess of these numbers or for a period of time longer than the Term will result in additional costs. The additional costs per billing period will be determined by multiplying the excess usage by the contracted fee per system, unit or End User in the original Order Form. Payment must be made by credit card, wire transfer or other prearranged payment method unless we agree in writing to credit terms. Solutions are invoiced in accordance with the applicable Solution Description or Order Form beginning on the Activation Date. We, or our local affiliate(s), will invoice you locally, per the billing address(es) you provide, in Australian dollars. Invoices are due and payable within thirty (30) days from the invoice date. We reserve the right to charge a late payment fee of 1.5% per month against overdue amounts or the maximum rate permitted by law, whichever is less. Late payment fees are recalculated every thirty (30) days based on your current outstanding balance, which may include any previously accrued and unpaid late payment fees.
The charges stated in any Order Form or invoice will include all duties, levies or any similar charges and will exclude GST, VAT or equivalent sales or use tax. You are responsible, on behalf of yourself and your affiliates, for the payment of all taxes and fees assessed or imposed on the Solution in any geography in which you or an End User receives the benefit of the Solution, including any sales, use, excise, value-added or comparable taxes, but excluding taxes for which you have provided a valid resale or exemption certificate. Should any payments become subject to withholding tax, you or your affiliates will deduct these taxes from the amount owed and pay the taxes to the appropriate tax authority in accordance with applicable tax laws. You will promptly provide us with receipts or documents evidencing these tax payments. We are not liable for any withholding tax, penalty or interest due as a result of your failure to withhold any applicable tax.
In this Section 2, a word or expression defined in the New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
(a) Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as GST inclusive, does not include an amount on account of GST.
(b) If a party (Supplier) makes a supply under or in connection with this Agreement on which GST is imposed, (not being a supply the consideration for which is specifically described in this Agreement as GST inclusive):
(i) the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
(ii) the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
(c) If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
3. Activation. With respect to certain Solutions, after our receipt and acceptance of an order (whether placed directly with Dell or through a reseller), you will receive Activation Instructions. The date Activation Instructions are transmitted or, in the event Activation Instructions are not required, the effective date of the applicable Solution Description or the date an online order is executed is the Activation Date. You are responsible for providing, maintaining and monitoring one dedicated email address for the receipt of notices and other communications related to the Solution.
4. Term; Renewals. The Term for any Solution begins on the Activation Date and extends for the period indicated in the Solution Description or Order Form (or, if you purchased through a reseller, the applicable period in your order with the reseller). If you purchased directly from Dell, unless you decline auto-renewal in writing at least thirty (30) days prior to the expiration of the Term or unless auto-renewal is explicitly disclaimed in a Solution Description or an Order Form, we may automatically renew this Agreement and the related Solution(s) for a successive Term at our then-current list price. By continuing to use the Solution(s) beyond the expiration of the applicable Term, we may renew this Agreement and the related Solution(s) in our discretion for a successive Term at our then-current list price. If you purchased through a reseller, the terms and conditions of renewal for the purchase will be as agreed between you and the reseller.
5. Termination. Either party may terminate this Agreement if the other party commits a material breach and the breach is not cured within ninety (90) days of receipt of written notice describing the nature of the breach. If you purchased multiple Solutions, termination of an individual Solution will not terminate this Agreement or other Solutions you have purchased unless the circumstances giving rise to termination generally affect all purchased Solutions. Notwithstanding the foregoing, we may terminate this Agreement or the affected Solutions upon written notice to you if (i) you are delinquent on your payment obligations for thirty (30) days or more ; (ii) you violate the AUP, the Cloud Partner’s AUP or the Cloud Partner Terms (as applicable); (iii) the Cloud Partner is entitled to or exercises its rights to terminate the Solution pursuant to the Cloud Partner Terms; (iv) a change in our relationship with a third-party Software or technology provider or Cloud Partner has had a material adverse effect on our ability to provide the Solution; (v) you declare bankruptcy, are adjudicated bankrupt or a receiver or trustee is appointed for you or substantially all of your assets; (vi) you are a or you are controlled by a direct competitor of Dell, or (vii) you purchased through a reseller and as applicable: the agreement between you and such reseller expires or is terminated, the agreement between Dell and such reseller expires or is terminated or your reseller is delinquent on its payment obligations to Dell. In the event we terminate pursuant to this Section 5, we will not be liable to you. Where applicable, you may terminate this Agreement if you are entitled to exercise any rights to terminate the Solution pursuant to the Cloud Partner Terms. You must provide Dell with the same period of notice required to be given to the Cloud Partner pursuant to the Cloud Partner Terms.
Upon expiration of the Term for all Solutions purchased pursuant to this Agreement, either party may terminate this Agreement by providing thirty (30) days written notice. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination.
6. Assignment. You may not assign this Agreement or novate any rights or obligations under this Agreement to a third-party without our prior written consent. We may assign, sell, novate or otherwise transfer our rights under this Agreement, without notice, to a business, product line or substantially all of our assets, provided the transferee agrees to perform the obligations under this Agreement. We may subcontract or delegate in whole or in part this Agreement, provided that we remain responsible for the performance of the Solution. For purposes of this Agreement, any change of control of a party will be deemed an assignment.
7. Proprietary Rights. Except for information created or otherwise owned by you or licensed by you from third-parties, including all information provided by you to us through the Solution or for use in connection with the Solution, all right, title, and interest in the Intellectual Property embodied in the Solution, including the know-how and methods by which the Solution is provided and the processes that make up the Solution, will belong solely and exclusively to us or our licensors or our Cloud Partners, and you will have no rights in any of the above, except as expressly granted in this Agreement. The Services and the Software used to provide the Solution embody valuable Trade Secrets and proprietary rights of Dell and/or our licensors or Cloud Partners and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Any Intellectual Property developed by us during the performance of the Solution will belong solely and exclusively to us and/or our licensors or Cloud Partners.
8. Cloud Partners. Should you purchase a Solution from Dell that is performed by a member of Dell’s cloud partner program, (a Cloud Partner) your Solution, (a Partner Solution) may be governed by and subject to additional terms and conditions that will be presented on your Order Form or during the online order process or that may be notified to you by Dell prior to your purchase of or access and use of the Solutions, (Cloud Partner Terms).
9. Customer Solutions. If you provide End Users with any non-Dell hardware, software or services, (including management services), with, through or using the Solution, (a Customer Solution), you must provide your End Users with this Agreement and your End Users must agree that their use of the Customer Solution is subject to the terms and conditions of this Agreement. You are responsible for any Customer Solution, including (i) controlling the access to, and use and security of, the Customer Solution and the data residing in or processed via the Customer Solution, including the use of appropriate encryption; (ii) maintaining the security of the passwords and other measures used to protect access to any end-user account; (iii) properly configuring the Solution to work with the Customer Solution and taking your own steps to maintain appropriate back-up of the Customer Solution, including the use of appropriate archiving ; and (iv) properly handling and processing notices claiming that the Customer Solution violates a person’s rights. Customer agrees to indemnify and hold Dell harmless from and against any claims by End Users using the Customer Solution against Dell relating to the Customer Solution.
10. Suspension, Deletion and Modification. We may suspend all or part of the Solution or your access to or use of data stored in the cloud (i) if you, (or your reseller, if you purchased through a reseller), are delinquent on payment obligations for fifteen (15) days or more; (ii) upon receipt of a subpoena or law-enforcement request; (iii) if we believe that use of the Solution may subject Dell or the Cloud Partner to liability for infringement of third party intellectual property rights; (iv) if we believe that you are using the Solution in contravention of applicable laws; (v) for any right of suspension the Cloud Partner has or exercises pursuant to the Cloud Partner Terms; or (vi) when we have a commercially reasonable belief that you have breached this Agreement or that your use of the Solution poses an imminent security risk or may subject Dell to liability. We will use commercially reasonable efforts to give you at least twelve (12) hours’ notice of a suspension unless we, (or the Cloud Partner, if applicable), determine in our commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect us, the Cloud Partner (if applicable) or our customers.
For Customers purchasing a Dell-delivered Solution, we may delete your Customer Content (a) sixty (60) days following any termination by us pursuant to Section 5 of this Agreement, or (b) if you (or your reseller, if you purchased the Solution from a reseller) fail to renew an applicable Solution Description within sixty (60) days of expiration. For Customers purchasing a Partner Solution, the retention and deletion of Customer Content will be governed by the applicable Cloud Partner Terms or, in the absence of such provision in the applicable Cloud Partner Terms, the retention period set out in this section 10 will apply.
If we are providing the Solution in connection with a trial program such as a demo, evaluation, pilot or proof of concept (a Trial), immediately following the conclusion of the Trial we may delete Customer Content stored in the cloud and are under no obligation to return Customer Content to you. If, however, immediately following the conclusion of the Trial you renew the Solution for the standard term, we will keep Customer Content in the cloud in accordance with this Agreement.
We or the Cloud Partner, if applicable, may modify the functionality or features of the Solution at any time, provided that the modification does not materially denigrate the functionality of the Solution, (as described in the applicable Solution Description), during the Term. We or the Cloud Partner, if applicable, will not be liable to you or any third-party for any such modification. From time to time, we or the Cloud Partner, if applicable, may change the location where the Solution is provided; provided, however, we will remain responsible for the delivery of the Solution.
It may be necessary for us or the Cloud Partner to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Software, which may temporarily degrade the quality of the Solution or result in a partial or complete outage of the Solution. Although we cannot guarantee that you will receive advance notice of repairs or maintenance, we will endeavour to provide at least seven (7) days’ notice of scheduled updates and patches or such notice as is set forth in the Cloud Partner Terms, if applicable.
11. License. To the extent Software is provided as a part of the Solution, such Software is provided subject to the following terms:
A. Grant. For the applicable Term, and subject to the restrictions below, we grant you and your End Users a non-exclusive, limited, revocable license under our Intellectual Property rights to access and use the applicable Software as permitted by this Agreement.
B. Restrictions. Unless otherwise expressly permitted in this Agreement and to the extent permitted by applicable law, without our prior written consent, you will not:
(i) permit any third-party to use the Software, unless such third-party is an authorized End User using the Software solely as necessary for Customer or the End User (as applicable) to enjoy the benefits of the Solution, is bound by terms no less restrictive than those set forth herein and Customer is responsible for any breaches by such third-party;
(ii) copy, modify, translate, alter, adapt, publish, transmit, remove, reverse engineer, decompile, disassemble, reproduce, distribute, display, create derivative works, compilations or collective works based on or otherwise exploit any of the Software;
(iii) merge the Software with any other software;
(iv) sell, sublicense, rent, lease, grant a security interest in or otherwise transfer rights to the Software;
(v) benchmark the performance of the Software or Solution without our prior written consent;
(vi) use the Software to operate in or as a time-sharing, outsourcing or service bureau environment or in any way allow third-party access to the Solution; or
(vii) perform or fail to perform any act which would result in a misappropriation of Dell’s intellectual property rights in the Solution.
You acknowledge and agree that you are liable for any breach of this Agreement by any End User.
C. Rights Reserved. The software is licensed, not sold. Except for the license expressly granted herein, Dell, on behalf of itself and its licensors and suppliers, retains all right, title and interest in and to the Software and in all related Intellectual Property and its derivative works, including registrations, applications, renewals and extensions of such rights (the Works). The rights in these Works are valid and protected in all forms, media and technologies existing now or hereinafter developed and any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, display, re-publication or performance of the Works, except as specifically permitted herein, is strictly prohibited. Dell, on behalf of itself and its’ licensors and suppliers, retains all rights not expressly granted herein.
D. Open Source Software. A portion of the Software may come bundled or otherwise distributed with open source software, which you may use under the terms and conditions of the specific license under which the open source software is distributed.
13. Customer Obligations. You are responsible for keeping your account permissions, billing and other account information up to date. If you purchased directly from Dell, you must pay when due the amounts for the Solution stated in the applicable Solution Description or other agreement between you and Dell. If you purchased from a reseller, you must pay when due the amounts for each Solution stated in the applicable agreement between you and the reseller. Certain Solutions may contain features designed to interoperate with Third-Party Products or Cloud Partner services. If the Third-Party Product or Cloud Partner services are no longer made available by the applicable provider, we may stop providing the related Solution feature and you will not be entitled to any refund, credit or other compensation. In our performance of the Solution, we may obtain information related to your use of the Solution. You agree that we may use such information in an aggregated, anonymized form to assist in improving and optimizing various aspects of the Solution or in support of generic marketing activities related to the Solution.
You represent and warrant that you have obtained all rights, permissions and consents necessary to use and transfer any Customer data or End User data within and outside of the country in which you are located in connection with our (or our Cloud Partners’) performance of the Service or your use of the Software, (including providing adequate disclosures and obtaining legally sufficient consents from your employees, agents, contractors and End Users). You are responsible for the data and software you use or store in the cloud, including its maintenance, operation and compatibility in and with the cloud, and any third-party claims regarding the same. You understand and agree that neither Dell nor the Cloud Partners have control over the content of the data processed and that Dell (or the Cloud Partner, as applicable) performs the Services on your behalf. If you or an End User transmits data to a third-party website or other provider that is linked to or made accessible by the Solution, you and the End User consent to our or the Cloud Partners, as applicable, enabling such transmission, but such transmission and any related interaction is solely between you and the third-party website or provider and may be subject to additional terms and conditions provided by the third-party website or provider. Neither Dell nor the Cloud Partners will be responsible for any disclosures, modifications or deletions of your data resulting from any such transmission. Neither Dell nor the Cloud Partners make any warranties about, or will have any liability for, such third-party websites or providers.
You must use reasonable security precautions in connection with your use of the Solution and comply with the AUP and laws and regulations applicable to your use of the Solution. You must cooperate with our reasonable investigation of Service outages, security issues and any suspected breach of this Agreement. We may revise the AUP to add or modify restrictions on use of the Solutions, provided that the changes are commercially reasonable, consistent with industry norms and apply to all customers.
You will be deemed to have taken any action that you permit, enable or facilitate any person or entity to take related to this Agreement or any use of any Solution. You are responsible for the use of the Solutions by any End User and any person who gains access to your or any End User’s data or the Solution as a result of your failure to use reasonable security precautions, even if the use was not authorized by you. You will ensure that End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement and are legally enforceable. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User’s access to the Solution.
You are responsible for selecting, obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Solution and for ensuring that the equipment is compatible with the Solution. You are responsible for properly configuring and using the Solution and taking your own steps to maintain appropriate security, protection and back-up of your data and software, including the use of appropriate encryption, back-up and archiving. You acknowledge that the Solutions are not intended to replace and do not replace the need for you to maintain regular data back-ups or redundant data archives. You are responsible for maintaining back-up copies of your data that may be stored or processed by us in the course of our provision of Solutions. You understand and agree that we are not responsible for any loss or corruption of your data or software. You remain responsible for properly handling and processing notices claiming that your data or software violates a person’s rights.
In connection with certain Solutions, we may provide you with hardware, software, equipment or other property (Equipment). The Equipment is our sole property and we may immediately take possession of the Equipment following the termination or expiration of this Agreement. You will (a) keep the Equipment free and clear of any lien and not pledge as security or otherwise encumber the Equipment; (b) use the Equipment only to access the Solution and comply with our reasonable Equipment use instructions; (c) not remove, relocate or move the Equipment from the specific location where it was first installed without our prior written approval; (d) provide adequate, secure and proper space at your facility to install Equipment, it being agreed that we are not obligated to install Equipment in poorly ventilated, poorly air conditioned or inadequately maintained room(s); (e) be responsible for risk of loss and damage to the Equipment equal to the present value of the Equipment’s fair market value; (f) not remove, cover or alter plates, labels or other markings on the Equipment; and (g) provide a secure link such as a static IP address for the Equipment.