By participating in the Dell EMC Partner Program (“Program”), the company or entity submitting the channel partner application (“you” or “Channel Partner” – “your” shall be construed accordingly) being a party to these terms and conditions (“Terms”) with Dell EMC agrees to be bound by these Terms as from your acceptance of these Terms (“Effective Date”). Unless otherwise specified by Dell EMC, these Terms shall govern subprograms, including marketing and incentive programs that are offered to you as a participant in the Program. For the purposes of this Program, “Dell EMC” means, as applicable, the Dell Affiliate with which you have executed the Dell Ordering Agreement (as described in Section 2.2 below) or if no such Dell Ordering Agreement exists, then Dell Affiliate means Dell Products, with a place of business at Raheen Industrial Estate, Limerick, Co. Limerick, Republic of Ireland, (herein referred to as “Dell”) and/or the EMC Affiliate with which you have executed the EMC Ordering Agreement (as described in Section 2.2 below) or if no such EMC Ordering Agreement exists, then EMC Affiliate means EMC Information Systems International, with a place of business at IDA Industrial Estate, Ovens, County Cork, Republic of Ireland (herein referred to as “EMC”) (collectively, referred to herein as “Dell EMC”). “Affiliate” means any legal entity controlling, controlled by, or under common control with either Dell or EMC and “Dell EMC Affiliate” shall be construed accordingly.
1. ELIGIBILITY. Throughout your participation in the Program, you must (a) maintain good credit standing with Dell, EMC and/or all Dell EMC Affiliates as applicable; (b) maintain a current Program registration profile, including yearly updates and (c) provide prompt, written notification to Dell EMC of any changes that may affect your participation in the Program. Additional requirements regarding your Channel Partner status may be found here and may be updated upon reasonable notice to Channel Partners at Dell EMC’s sole discretion.
2. GOVERNING DOCUMENTS.
2.1 Program Terms. These Terms shall apply to your participation in the Program and supersede any previous program terms or agreements in place between you and Dell or EMC.
2.2 Ordering Agreements. These Terms do not authorize Channel Partner to purchase Dell EMC products or services for re-sale/licensing directly from a Dell EMC Affiliate or to perform implementation, installation or support services for any Dell EMC product. If Channel Partner purchases products or services directly from Dell, Channel Partner will order from the applicable Dell entity until further notice, and such purchases are subject to and governed by either the then-current applicable Dell entity Reseller Terms of Sale, or any existing agreement that you have with Dell, or a Dell EMC Affiliate, that authorizes you to purchase Dell products directly (collectively the “Dell Ordering Agreement”). If Channel Partner purchases products or services directly from EMC, Channel Partner will order from the applicable EMC entity until further notice, and such purchases are subject to and governed by the existing purchasing agreement with EMC or a Dell EMC Affiliate that authorizes you to purchase EMC products directly (“EMC Ordering Agreement”). Channel Partners with no EMC Ordering Agreement or Dell Ordering Agreement may purchase Dell EMC products and services from a Dell EMC authorized distributor only.
2.3 Precedence. To the extent there are any conflicting provisions regarding Program, Information, Confidential Information (as defined herein), incentives, rebates, pricing (each provided as a result of the Program) or interpretation of these Terms, these Terms shall prevail and control, followed by the EMC Ordering Agreement or Dell Ordering Agreement.
3. PARTNER PORTAL ACCESS.
3.1 Scope and Grant of License. Dell EMC may provide to you, or you may receive, (i) information through Program websites, currently identified as the “Partner Portal” which contain information, materials, and tools pertaining to Dell EMC products and services; (ii) other information related to the Program not obtained through the Partner Portal; (iii) customer data (collectively the “Information”). Dell EMC grants Channel Partner a limited, non-exclusive, nontransferable, non-sublicenseable right and license, during the period in which these Terms are in effect, to access such Partner Portals and to use the Information solely in accordance with the provisions of this Section 3 (Partner Portal Access), and Section 7 (Confidential Information), as applicable. All Information shall remain the property of Dell EMC.
3.2 Restriction on Usage. Channel Partner shall use the Information only for the purposes of (i) marketing and delivery of Dell EMC products or services obtained by Channel Partner from Dell EMC or a Dell EMC authorized distributor; (ii) development of Channel Partner services utilizing Dell EMC products and services; and/or (iii) assisting Dell EMC to sell and/or license Dell EMC products and services. If Partner obtains customer data, use and management of such customer data will be subject to the Customer Data Terms located here. Channel Partner shall promptly notify Dell EMC of the termination or reassignment of any Channel Partner personnel who have been granted access hereunder.
4. PARTNER TRAINING OBLIGATIONS.
Channel Partner shall use good faith and reasonable efforts to conform to any training obligations required by Dell EMC for its Channel Partner status, currently located at the Partner Portal, within ninety (90) days after the training becomes available from Dell EMC, or such earlier date as specified by Dell EMC. The charges associated with this training, if any, shall be payable by the Channel Partner.
5. PARTNER COMMUNICATIONS. In connection with your participation in the Program, Dell EMC may contact you and/or any of your personnel (by email, SMS, mail, telephone or other means) regarding news or information related to any element of the Program, including sub-programs and Program related marketing activities and incentives aimed at end user customers ("Channel Partner Communications"). It is a condition of your participation in the Program and your access and use of the Portal that you and your personnel receive such Channel Partner Communications. Separately, Dell EMC may contact you or any of your personnel (by email, mail, SMS, telephone or other means) regarding Dell EMC offers and promotions (“Marketing Communications”).
6. AVAILABILITY. Access to the Partner Portal may be unavailable without notice at certain times, and Dell EMC will not be liable for any damages that may result from such lack of availability.
7.1 Confidential Information. This provision covers confidential information disclosed only in connection with the Program. In connection with these Terms, you may have access to or be exposed to Dell EMC Information that is not generally known to the public, whether such information is in written, oral, electronic, web site-based, or other forms (collectively, "Confidential Information"). You will keep all Dell EMC Confidential Information strictly confidential for a period of three (3) years after the termination of these Terms, using at least the same degree of care as you use to protect your own confidential information, but no less than reasonable care. These confidentiality obligations do not apply to any Confidential Information that (a) you can demonstrate was in your possession before your receipt from Dell EMC; (b) is or becomes publicly available through no fault by you; or (c) you rightfully received from a third party without a duty of confidentiality. If you are required by a government body or court of law to disclose any Dell EMC Confidential Information, you agree to give Dell EMC reasonable advance notice so that Dell EMC may contest the disclosure or seek a protective order. Notwithstanding any separate confidentiality agreement you may have with Dell EMC, you agree that information regarding your business with Dell EMC and information you provide to Dell EMC in connection with the Program, including end user information, may be accessed and used by Dell EMC and Dell EMC Affiliates and their employees and contractors for sales and marketing purposes and for any purpose related to the Program or the relationship between you and Dell EMC and may be disclosed to relevant Dell EMC distributors, resellers, governing body or end-users for the purposes of fulfilling Dell EMC’s obligations to you and your end-user. To the extent necessary in provision of Dell EMC products or services, you agree that Dell EMC may communicate directly with Channel Partner’s end users.
7.2 Personal data. If you provide Dell EMC with any personal data (as defined in the EU Data Protection Directive 95/46/EC) you represent and warrant that you have given the appropriate notices and obtained any necessary consents from the individuals who are the subject of that data (“Data Subjects”) to the disclosure of their personal data to Dell EMC in connection with the Program and you hereby grant Dell EMC permission to use, store, share and transfer such personal data for the purposes of performing Dell EMC’s obligations under these Terms, or any Dell Ordering Agreement, or EMC Ordering Agreement. If you disclose any personal data for the purpose of Dell EMC sending Marketing Communications (as defined in clause 5), you agree to obtain the relevant Data Subjects' prior consent to such disclosure and use. Dell EMC will process such personal data in compliance with applicable data protection laws.
8. ADMINISTRATION and AUDIT. During the term of these Terms and a period of five (5) years thereafter you will maintain legible, accurate and complete books and records concerning these Terms and your activities hereunder. At the end of this retention period, you will appropriately dispose of all records. Upon Dell EMC's request, you will cooperate with and assist Dell EMC with any audit, review, or investigation ("Audit") that relates to (i) these Terms or your compliance with Laws and Regulations (as defined below); (ii) your marketing, sale, distribution, licensing, or delivery of Dell EMC products and services, whether sourced from Dell EMC or a third-party; (iii) any rebates, incentives, concessions, or other amounts paid or payable by Dell EMC; (iv) compliance with logo use standards, or (v) any amounts due to Dell EMC. In connection with an Audit, you will deliver all records, information, and documents reasonably requested by Dell EMC. Dell EMC has the right to conduct onsite Audits, and you will grant Dell EMC and its employees and representatives reasonable access to information, records, personnel, and customers (including customer agreements to verify your compliance with these Terms) 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 requested by Dell EMC is a material breach of these Terms. Dell EMC will pay the costs of an Audit except where a discrepancy of five (5) percent or more is discovered in the information disclosed by you, in which case you agree to be responsible for all reasonable costs. Dell EMC may deny any claim that it believes, in its sole discretion, does not conform to these Terms, the Program, or subprogram terms. Dell EMC may, without prior notice, immediately suspend or terminate an order or your participation in the Program if you provide to Dell EMC or end-users any inaccurate, incomplete, or fraudulent claims or information or if you engage in activities that may cause damage, embarrassment or adverse publicity to Dell EMC, or any of its officers, directors or employees. Dell EMC’s records and systems shall be authoritative and conclusive for purposes of determining your eligibility and Program benefits and for performing any computation under the Program. Dell EMC reserves the right to interpret the rules of the Program in its sole discretion.
9. BUSINESS CONDUCT AND ANTI-CORRUPTION LAWS.
You represent and warrant that you understand and agree to comply with your obligations under the Dell EMC Partner Code of Conduct available here. At all times, you are required to comply with all applicable laws and regulations, including anti-bribery, export, trade, privacy, antitrust and competition laws and regulations (“Laws and Regulations”). You will not take or allow any third party to take any action or engage in any practice that would violate Laws and Regulations. Any violation of this Section 9 by you or by persons working for you or on your behalf will constitute the basis for the immediate termination of your business relationship(s) with Dell EMC, including all related contracts.
10. INCENTIVE, REBATE, MDF AND OTHER PORTAL TERMS. You will comply with all terms posted to the Partner Portal regarding any subprograms, tools or products, including, but not limited to:
a. Dell EMC’s Rebate and Incentive Terms that are posted here;
b. Dell EMC’s Deal Registration and Line of Business Registration Official Guidelines that are posted here.
11. LOGO AND TRADEMARK.
11.1 Dell EMC Logo, Trademark and Domain Usage. You agree that trademarks, service marks, trade or company names, product and service identifications, internet domains/internet addresses, logos, artwork and other symbols and devices associated with Dell EMC, Dell EMC Affiliates, and Dell EMC’s products and services (the “Dell EMC Marks”) are and shall remain Dell EMC’s property. You acknowledge that any provided images and artwork of Dell EMC products or services are subject to Dell EMC copyright and you will not alter these images or use them outside of the context in which they were provided to you. You agree that you will not use the Dell EMC Marks in search engine advertising, either as a keyword or in advertisements appearing on search engines or in email addresses, without Dell EMC’s prior written permission. Additionally, you may not register or use any domain name or business name containing or confusingly similar to any Dell EMC Marks.
11.2 Program Logo. All Dell EMC Program Logos will be governed by the Dell EMC Channel Partner Logo and Trademark Use Document found here.
12. INDEMNIFICATION. To the fullest extent permitted by law, you shall indemnify, defend, and hold harmless Dell EMC, Dell EMC Affiliates, and their respective successors and assigns from any claim, demand, cause of action, debt, or liability (including reasonable attorney or legal fees, expenses, and court costs) arising from your violation of Laws and Regulations.
13. LIMITATION OF LIABILITY. In no event will Dell EMC be liable for any loss of business, income, or profits, or for lost or corrupted data or software. Dell EMC will have no liability for any consequential, special, punitive, reliance, exemplary, incidental, or indirect loss or damages. Dell EMC’s aggregate liability for all claims in connection with these Terms shall be limited to $500 (five hundred U.S. dollars) or the equivalent amount in the currency of the country in which your company headquarters is located. The aforementioned limitations shall not apply to limit liability for fraud and any other liability that cannot be excluded by law.
14. TERM AND TERMINATION.
14.1 Term and Termination. These Terms shall commence upon the Effective Date and continue until terminated in the manner set forth below. You may withdraw from the Program at any time by notifying Dell EMC in writing. Dell EMC may suspend or terminate your participation in the Program, in whole or in part, without prior written notice: (i) for any breach of these Terms or any other agreement related to your participation in the Program, (ii) for any attempt to impair the integrity of the Program as determined by Dell EMC or (iii) for any violation of Laws and Regulations as set out in Section 9. In addition, Dell EMC, in its sole discretion, may terminate these Terms or the Program, in whole or in part, for all participants, or for you alone, with or without cause, upon ten (10) days’ notice.
14.2 Effect of Termination. Upon termination of these Terms or the Program, the license and rights granted hereunder shall terminate completely and Channel Partner shall cease to use Information and shall promptly return to Dell EMC all tangible copies of the Information in its possession at Channel Partner’s own cost. Nothing in this Section shall limit Dell EMC's rights to pursue other legal remedies, including immediate court or judicial relief. All provisions that by their nature are intended to survive the termination shall survive.
14.3 Termination of Partner Portal Access. Dell EMC has the right to terminate or discontinue access to the Information or Partner Portal, at its convenience, by sending written notice thereof which will be effective upon receipt.
15.1 Assignment. You may not assign these Terms, or any benefits due to you under the Program, nor delegate any obligations hereunder, to any third party without the express written consent of Dell EMC.
15.2 Independent Contractors. You and Dell EMC are independent contractors and shall have no authority to bind the other. Neither these Terms nor your participation in the Program shall be deemed to create a partnership, agency, joint venture, franchise, or other similar arrangement, and the employees, agents, or representatives of one party shall not be deemed to be employees, agents, or representatives of the other party.
15.3 Force Majeure. Except for payment obligations where applicable, neither party will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to reasonably unforeseeable circumstances beyond that party’s reasonable control.
15.4 Governing Law. You agree that these Terms, any dispute arising from, out of, or relating to the Program or these Terms hereunder will be governed exclusively by the laws of England, except where local mandatory laws cannot be derogated from by way of contract.
15.5 Modifications. Dell EMC reserves the right to modify the Program, including, without limitation, the eligibility requirements, Program benefits (including any discounts and pricing), and these Terms, at any time without prior notice via the Partner Portal. Your continued participation in the Program will constitute your binding acceptance of the changes and your consideration supporting any such modification. Any future updates are deemed to be incorporated to this Terms by reference to this clause.
15.6 Severability. If any provision herein is void or unenforceable, you and Dell EMC agree to delete such provision and agree that the remainder of these Terms will continue to be in effect.
15.7 Publicity. You shall not directly or indirectly issue or release any written publicity, marketing collateral or other public announcement, relating in any way to these Terms, without the prior written approval of Dell EMC.
15.8 Entire Agreement. The entire relationship between you and Dell EMC is defined in these Terms and the further Dell EMC Program related terms referenced herein. Both parties expressly disclaim any reliance on any oral statements, representations, or courses of conduct or any representations or statements not expressly set forth in these Terms.
15.9 Territory scope. If you are situated outside the European Economic Area (“EEA”) and purchase Dell EMC products and/or services from a Dell EMC authorized distributor located outside the EEA, you are allowed to sell such Dell EMC products and services in the territory only in which the Dell EMC authorized distributor, from whom you purchased such Dell EMC products and/or services, is authorized by Dell EMC to sell into. For the avoidance of doubt, this section 15.9 shall NOT apply within the EEA.