HomeMy WebLinkAboutC-4710 - Master Maitnenance Agreement (Computer Aided Dispatch and Records Management)4 7, /d
NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
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This Agreement is entered into this Lday ofIA 11 20110 by and between Northrop
Grumman Systems Corporation, a Delaware coiporatio , acting through Northrop Grumman
Information Systems Sector, Civil Systems Division, with an office at 15010 Conference Center
Drive, Chantilly, VA 20151 -3801, hereinafter referred to as "Northrop Grumman ", and the City
of Newport Beach, hereinafter referred to as "Customer ".
1. SCOPE OF AGREEMENT
Northrop Grumman will provide the following services to maintain an existing software
and hardware system owned by Customer that provides automation of certain police
dispatch functions:
u Services provided for by the Northrop Grumman /Doll Maintenance Sub -
Agreement (copy attached as Exhibit 2), which includes Dell provided
maintenance for Dell Hardware, operating system software, and /or certain third
party equipment.
a Services provided for by the Northrop Grumman Software Maintenance Sub -
Agreement, (copy attached as Exhibit 3), which includes Northrop Grumman
provided software as shown on Exhibit A of the Software Agreement
The above shall be referred to as sub - agreements.
2. TERM OF AGREEMENT
The term of this Agreement shall commence on July 1, 2010, and shall continue for a
term of two (2) years, unless terminated earlier as provided for herein.
3. TERMINATION
This Agreement may be terminated at any time by customer by providing a 90 day written
notice of termination. If terminated as provided herein, the Agreement shall terminate
with no further financial obligation of the Customer with respect to payment of
obligations due after 90 days from the date of such notice.
4. TERMS AND CONDITIONS
In the event of conflicts or inconsistencies between this Agreement and any sub -
agreement entered herein, the terms of this Agreement shall take precedence over the
terms and conditions of the sub - agreements.
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NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
5. PRICE AND PAYMENT
The Customer shall pay the amount labeled "Total Due," with respect to the period
identified, in Exhibit 1 (attached).
The Customer and Northrop Grumman may change the price and payment schedule by
mutual agreement in order to add or delete items, or change the level of service for items
covered under the Northrop Grumman/Dell Maintenance Sub - Agreement. Such changes
must be agreed to in writing.
The fees for Basic Software Maintenance shall be paid annually in advance. Per call and
block time charges in Item 2 of Exhibit B of the Northrop Grumman Software
Maintenance Sub - Agreement, will be invoiced after the service is performed.
The fees for Northrop Grumman/Dell Maintenance shall be paid annually in advance.
Prices in this Agreement are exclusive of applicable taxes, if any. Taxes are the respon-
sibility of the Customer and will be added to the invoices.
Payment terms are net thirty (30) days from date of invoice. Northrop Grumman reserves
the right to charge interest for late payments at the rate of one and one -half percent (1.5 %)
per month.
6. AMENDMENT OF THIS AGREEMENT
The Customer reserves the right to make changes which would include alterations,
deviations, additions to or deletions from the scope of work of this Agreement, as may be
deemed by the Customer to be necessary or required for the proper completion of the
whole work contemplated.
Any such changes will be set forth in an Amendment/Changes Orders to this Agreement
which will specify the change in work to be performed and any increase /decrease in
compensation due Northrop Grumman for such work.
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NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
NOTICES
Any notice required to be given by the terms of this Agreement shall be deemed to have
been given when the same is sent by certified mail, postage prepaid, or courier service to
the respective parties as follow:
Customer:
Newport Beach Police Department
870 Santa Barbara Drive
Newport Beach, CA 92660
INDEPENDENT CONTRACTOR
Northrop Grumman Systems Corporation
Sue Jun
Contracts Administrator
15010 Conference Center Drive
Chantilly, VA 20151 -3801
Northrop Grumman is an independent contractor under this Agreement, and not an
employee or agent of Customer. All payments hereunder shall be made to Northrop
Grumman. No deductions shall be made from the payments provided for under Section 5
above for any reason including taxes, workman's compensation or insurance.
LIMITATION OF LIABILITY AND REMEDIES
a. Limited Warranty
NORTHROP GRUMMAN MAKES NO WARRANTIES HEREUNDER,
EITHER EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE).
b. Limitation of Remedy
Except for damages to third parties as set forth in Section 10, customer agrees that
Northrop Grumman's liability hereunder for damages shall not exceed the
maximum amount of its insurance coverage at the limits set forth in section 11 of
this contract.
C. Limitation of Damages
IN NO EVENT SHALL NORTHROP GRUMMAN BE LIABLE FOR ANY
INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE
DAMAGES.
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NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
10. INDEMNIFICATION
Northrop Grumman shall indemnify, defend, and hold harmless Customer from and
against any and all claim, demands, suits, actions, proceedings, judgments, losses,
damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities, of
by or with respect to third parties, which arise solely from the intentional misconduct or
negligence of Northrop Grumman, Northrop Grumman's employees, agents or sub
contractors. Northrop Grumman shall not be responsible for, and Customer shall, within
the limits of California law and without waiving any of its rights, privileges or
governmental immunities from suit or liability, indemnify, defend, and hold harmless
Northrop Grumman from and against, any and all claims, demands, suits, actions,
proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including
attorneys' fees) and liabilities, of, by or with respect to third parties, which arise solely
from Customers' negligence. With respect to any and all claims, demand, suits, actions,
proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including
attorney's fees) and liabilities, of, by or with respect to third parties, which arise from the
joint or concurrent negligence of Northrop Grumman and Customer, each party shall
assume responsibility in proportion to the degree of its respective fault.
Intellectual Property Indemnification - Northrop Grumman shall defend, indemnify and hold
Customer, its agents, officers, representatives, employees and City Council, boards and
commissions harmless from any proceeding brought against Customer for any intentional or
unintentional violation of the intellectual property rights of any third party with respect to
hardware, software, and software fixes provided under this Agreement. This indemnification
shall include, but is not limited lo, infringement of any United States' letters patent, trademark,
or copyright infringement, including costs, contained in Northrop Grumman's deliverables
provided under this Agreement.
11. INSURANCE
Without limiting Northrop Grumman's indemnification of Customer, and prior to
commencement of work Northrop Grumman shall obtain, provide and maintain at its own
expense during the term of this Agreement, policies of insurance of the type and amounts
described below and in a form satisfactory to Customer. The cost of such insurance shall be
included in Northrop Grumman's bid.
1. Coverage and Limit Requirements.
a. Workers' Compensation. Northrop Grumman shall maintain Workers' Compensation
Insurance providing statutory benefits and employer's liability insurance with limits of at
least one million dollars ($1,000,000) each type for Northrop Grumman's employees in
accordance with the laws of the State of California, Section 3700 of the Labor Code. In
addition, Northrop Grumman shall require each subcontractor to similarly maintain
Workers' Compensation Insurance and Employer's Liability Insurance in accordance
with the laws of the State of California, Section 3700 for all of the subcontractor's
employees. The insurer issuing the Workers' Compensation insurance shall amend its
policy by endorsement to waive all rights of subrogation against Customer, its elected or
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NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAIN'T'ENANCE AGREEMENT
appointed officers, agents, officials, employees and volunteers. Northrop Grumman shall
submit to Customer, along with the required certificate of insurance, a copy of such
waiver of subrogation endorsement.
b. General Liability. Northrop Grumman shall maintain commercial general liability
insurance in an amount not less than one million dollars ($1,000,000) per occurrence,
two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000)
Products and Completed Operations Aggregate for bodily injury, personal injury, and
property damage, including without limitation, blanket contractual liability. Coverage
shall be at least as broad as that provided by Insurance Services Office form CG 00 01.
None of the policies required herein shall be in compliance with these requirements if
they include any limiting endorsement that has not been first submitted to Customer and
approved in writing.
c. Automobile Liability. Northrop Grumman shall maintain automobile insurance covering
bodily injury and property damage for all activities of Northrop Grumman arising out of
or in connection with work to be performed under this Agreement, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount not less than one
million dollars ($1,000,000) combined single limit for each accident.
d. Builders Risk, For Contracts with Construction/Builders Risk property exposures,
Northrop Grumman shall maintain Builders Risk insurance or an installation floater as
directed by Customer, covering damages to the Work for "all risk" or special form causes
of loss with limits equal to one hundred percent (100 %) of the completed value of
contract, with coverage to continue until final acceptance of the Work by Customer. At
the discretion of Customer, the requirement for such coverage may include additional
protection for Earthquake and/or Flood. Customer shall be included as an insured on
such policy, and Northrop Grumman shall provide the Customer with a copy of the
policy.
2. Other Insurance Provisions or Requirements
a. Evidence of Insurance. Northrop Grumman shall provide certificates of insurance to
Customer as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation and an additional insured
endorsement for general liability. Insurance certificates and endorsements must be
approved by Customer's Risk Manager prior to commencement of performance or
issuance of any permit. Current evidence of insurance shall be kept on file with
Customer at all times during the term of this contract. All of the executed documents
referenced in this contract must be returned within ten (10) working days after the date
on the "Notification of Award," so that the Customer may review and approve all
insurance and bond documentation. Customer reserves the right to require complete,
certified copies of all required insurance policies, at any time.
b. General liability insurance provisions. Primary and excess or umbrella liability policies
are to contain, or be endorsed to contain, the following provisions:
i. Customer, its elected or appointed officers, agents, officials, employees, and
volunteers are to be covered as additional insureds as respects: liability arising out of
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NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
activities performed by or on behalf of Northrop Grumman, including the insured's
general supervision of Northrop Grumman; products and completed operations of
Northrop Grumman; premises owned, occupied or used by Northrop Grumman. The
coverage shall contain no special limitations on the scope of protection afforded to
Customer, its elected or appointed officers, officials, employees, agents or
volunteers. Northrop Grurmnan shall submit to Customer a copy of the additional
insured endorsement along with the required certificates of insurance.
ii. Northrop Grumman's insurance coverage shall be primary insurance and /or primary
source of recovery as respects Customer, its elected or appointed officers, agents,
officials, employees and volunteers as respects all claims, losses, or liability arising
directly or indirectly from Northrop Grumman's operations or services provided to
the Customer. Any insurance or self - insurance maintained by Customer, its officers,
officials, employees and volunteers shall be excess of Northrop Grumman's
insurance and shall not contribute with it.
iii. Northrop Grumman's insurance shall apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the insurer's
liability.
c. Acceptable Insurers. All insurance policies shall be issued by an insurance company
currently authorized by the Insurance Commissioner to transact business of insurance in
the State of California, with an assigned policyholders' Rating of A- (or higher) and
Financial Size Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the Customer's Risk Manager.
d. Notice of Cancellation. Northrop Grumman agrees to oblige its insurance broker and
insurers to endeavor to provide Customer with 30 days notice of cancellation (except for
nonpayment for which 10 days notice is required) or nonrenewal of coverage for each
required coverage except for builder's risk insurance. The builder's risk policy will contain
or be endorsed to contain a provision providing for 30 days written notice to Customer of
cancellation or nonrenewal, except for nonpayment for which 10 days notice is required.
e. Self - Insured Retentions. Northrop Grumman agrees not to self - insure or to use any self -
insured retentions on any portion of the insurance required herein and further agrees that
it will not allow any indemnifying party to self - insure its obligations to Customer. If
Northrop Grumman's existing coverage includes a self - insured retention, the self - insured
retention must be declared to Customer. Customer may review options with Northrop
Grumman, which may include reduction or elimination of the self - insured retention,
substitution of other coverage, or other solutions. Northrop Grumman agrees to be
responsible for payment of any deductibles on their policies.
Timely Notice of Claims. Northrop Grumman shall give Customer prompt and timely
notice of any claim made or suit instituted arising out of or resulting from Northrop
Grumman's performance under this agreement.
g. Waiver. All insurance coverage maintained or procured pursuant to this agreement shall
be endorsed to waive subrogation against Customer, its elected or appointed officers,
agents, officials, employees and volunteers, or shall specifically allow Northrop
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NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
Grumman or others providing insurance evidence in compliance with these requirements
to waive their right of recovery prior to a loss. Northrop Grumman hereby waives its own
right of recovery against Customer, and shall require similar written express waivers and
insurance clauses from each of its subcontractors.
h. [enforcement of Contract Provisions. Northrop Grumman acknowledges and agrees that
any actual or alleged failure on the part of the Customer to inform Northrop Grrurunan of
non - compliance with any requirement imposes no additional obligations on the Customer
nor does it waive any rights hereunder.
R
Rec uirements not Limiting. Requirements of specific coverage features or limits
contained in this Section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification only as it pertains to
a given issue and is not intended by any party or insured to be all inclusive, or to the
exclusion of other coverage, or a waiver of any type.
j. Customer's Remedies. Customer shall have the right to order Northrop Grumman to stop
Work under this Agreement and/or withhold any payment(s) that become due to
Northrop Grumman hereunder until Northrop Grumman demonstrates compliance with
the requirements of this article. In the alternative, Customer may purchase the required
coverage and charge Northrop Grumman the cost of the premiums or deduct the cost
from Northrop Grumman's payments.
k. Coverage not Limited. All insurance coverage and limits provided by Northrop
Grumman and available or applicable to this agreement are intended to apply to the full
extent of the policies. Nothing contained in this agreement or any other agreement
relating to the Customer or its operations limits the application of such insurance
coverage.
Coverage Renewal. Northrop Grumman will renew the coverage required here annually
as long as Northrop Grumman continues to provide any services under this or any other
contract or agreement with the Customer. Northrop Grumman shall provide proof that
policies of insurance required herein expiring during the term of this Agreement have
been renewed or replaced with other policies providing at least the same coverage. Proof
that such coverage has been ordered shall be submitted prior to expiration. A coverage
binder or letter from Northrop Grumman's insurance agent to this effect is acceptable. A
certificate of insurance and/or additional insured endorsement as required in these
specifications applicable to the renewing or new coverage must be provided to Customer
within five days of the expiration of the coverage.
12. FUNIDING
American Recovery and Reinvestment Act (ARRA )—Reporting Requirements, any
contract action funded in whole or in part by the Recovery Act, the contracting officer
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NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
shall indicate that the contract action is being made under the Recovery Act, and indicate
which products or services are funded under the Recovery Act. This requirement applies
whenever Recovery Act funds are used, regardless of the contract instrument. Customer
has not advised that FAR clause 52.204 -11 is applicable therefore Northrop Grumman
has made the assumption that ARRA funds will not be utilized at this time to fund this
effort upon award. Should after award the Customer utilize ARRA funds for this effort,
Northrop Grumman requests that at least two months notice, if possible , be given before
ARRA funds are obligated on the contract. This advance notice is to allow Northrop
Grumman enough time to comply with the reporting requirements stated in FAR 52.204-
11 - American Recovery and Reinvestment Act — Reporting Requirements.
13. SALES AND USE TAXES
The customer shall be liable for all federal, state, and local sales and use taxes, which
become due as a consequence of this Agreement. The customer shall be liable for any
increase in tax rates or change in the scope of tax assessments whether due to changes in
any statutes or interpretation by any taxing authority.
The customer shall not be liable for the payment of such taxes, provided it shall furnish to
Northrop Grumman an exemption certificate sufficient to exempt Northrop Grumman
from the payment of all such sales, use and excise taxes. Should any such certification
famished not be sufficient to exempt Northrop Grumman from the payment of such taxes
the customer shall indemnify and hold Northrop Grumman harmless for all such taxes
assessed.
14. ENTIRE CONTRACT
This Agreement and attached Sub - Agreement(s) represent the entire and integrated
agreement between the parties hereto and supersedes all prior and contemporaneous
negotiations, representations, understandings, and agreements, whether written or oral,
with respect to the subject matter hereof. This Agreement may be amended only by
written instrument signed by the parties hereto.
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NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
City of New rt
I
Michael F. Henn
Mayor
Printed Name
Date
Beach: /J Northrop Grumman Systems Corp.:
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By: )
n e eauchamp
Assis t ity Attorney
ATTEST:
By: %L- S�
Leilani 1. Brown �Au,
City Clerk
— ,,J�
Sue Jun
Contracts Administrator
Date
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NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
Exhibit I
Price and Payment Schedule:
Period No. 1: July 1, 2010 to June 30, 2011
NGSC /Dell Hardware /Software Support
NGSC / Altaris Software Maintenance:
Altaris CAD /MIS:
Altaris RMS:
Oracle Database Software Maintenance
Oracle DBA Support Services
Oracle DBA Monthly Admin Services
Total Due, Period No. 1
Period No. 2: July 1, 2011 to June 30, 2012
NGSC /Dell Hardware/Software Support
NGSC / Altaris Software Maintenance:
Altaris CAD/MIS:
Altaris RMS:
Oracle Database Software Maintenance
Oracle DBA Support Services
Oracle DBA Monthly Admin Services
HCL (Neuron) GUI
Total Due, Period No. 2
$21,044.83
$ 43,188.08
$ 39,260.83
$ 17,746.15
$ 19,720.39
$ 20,319.00
$161,279.29
$22,097.07
$ 45,347.48
$ 41,223.87
$ 18,633.46
$ 20,706.41
$ 21,334.95
$ 15,750.00
$185.093.24
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Exhibit 2 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
DELL MAINTENANCE SUB - AGREEMENT
This Sub - Agreement is entered into between Northrop Grumman Systems Corporation a
Delaware corporation, acting through Northrop Grumman Information Systems Sector, Civil
Systems Division, with an office at 15010 Conference Center Drive, Chantilly, VA 20151 -3801,
(hereinafter referred to as "NORTHROP GRUMMAN ") and the City of Newport Beach,
(hereinafter referred to as "Customer ").
Northrop Grumman is an authorized dealer of computer products, services and distributed software
of Dell Company (hereinafter referred to as "Dell "). Northrop Grumman hereby sells to Customer,
the maintenance services of Dell products, appropriate third party products and/or Dell operating
system software that are part of the Customer's existing police dispatch system, as described herein,
on the terms and conditions as follows:
1. TERM OF AGREEMENT
This Sub - Agreement shall be valid from July 1, 2010. This Agreement shall be valid for two (2)
years from the effective date. This Sub - Agreement may be terminated according to the terms of the
Northrop Grumman Master Maintenance Agreement.
2. SCOPE OF MAINTENANCE
The services to be performed by Dell are as detailed on the Dell Customers Master Services
Agreement attached as Exhibit "A" hereto, and made a part hereof, for all purposes. It is understood
that Northrop Grumman is selling the Dell level of service as shown on said Customers Master
Services Agreement. Should Dell at any time alter any of the terms, conditions, or services offered
under such Description such changes shall automatically become part of this Sub - Agreement.
Should Customer not be able to comply with such changes, Customer may terminate this Sub -
Agreement with thirty (30) days prior written notice to Northrop Grumman.
3. EQUIPMENT SERVICES
The equipment, which shall be maintained under this Sub - Agreement, is as described on Exhibit `B"
attached hereto and made apart hereof, for all purposes. Equipment is eligible for service under this
Sub - Agreement provided it is in good operating condition and Dell's serviceability requirements and
site environmental conditions are met.
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Exhibit 2 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
DELL MAINTENANCE SUB- AGREEMENT
4. CUSTOMER RESPONSIBILITIES
The customer is responsible for notifying Northrop Grumman in writing, either by electronic mail or
letter, of the addition or deletion of any equipment outlined in the attached Exhibit "B ". When
changes occur, the customer must provide to Northrop Grumman a detail of model numbers, serial
numbers and installation/de - installation information. Failure to notify Northrop Grumman of
changes could result in the new equipment not being covered under the hardware maintenance
agreement. Any omissions or inaccuracies resulting from the addition/deletion of such equipment
without written notification to Northrop Grumman are the responsibility of the customer.
5. DELL STANDARD TERMS
This Sub - Agreement is subject to the terms of Dell's current published U.S. Standard Terms and
Conditions, a copy of which is attached as Exhibit "C" hereto. Should Dell at any time alter such
Standard Terms and Conditions, this Sub - Agreement shall be deemed to have incorporated such
alterations into Exhibit "C ".
G. NORTHROP GRUMMAN MASTER AGREEMENT
This Sub - Agreement is subject to the tern-is and conditions of a Northrop Grumman Master
Maintenance Agreement, and the terms and conditions of such Master Maintenance Agreement shall
prevail in the event of a conflict with the terms of this Sub - Agreement.
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EXHIBIT "A"
to
Northrop Grumman/Dell Maintenance Sub - Agreement
(See attached Dell Customers Master Services Agreement.)
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THIS CUSTOMER MASTER SERVICES AGREEMENT ( °MSA ") is entered into by you ( "Customer ") as evidenced by your use of the Services
(defiined below). "Customer' shall include Customer's corporate subsidiaries. as well as corporate parents, affiliates, antl other related entities
(collectively, "Affiliates ") approved by Dell to receive Services under this MSA. For purposes of (his MSA the term "Dell" shall mean Dell
Marketing LP. or, when applicable, the Dell entity identified on Customer's invoice. Dell and Custorer agree to the following terms antl
conditions:
1. Services
All services provided by Dell under [his MSA (the "Services') will be described in one or more Service Agreements. "Service Agreements" are
order forms or service contracts that incorporate the terms of [his MSA, including "Service Descriptions" available at
www.Oell.com /ServiceConbacts, Technical Specification Fonns' ", "Statements of Work ", and any other such mutually agreed upon document.
The MSA and each Service Agreement will be interpreted as a single agreement, independent of each other Service Agreement, so that all of
the provisions are given as full effect as possible. In no event will the description of Services under any Service Agreement be deemed by
implication or otherwise to exclude any Services described in this MSA or another Service Agreement.
In the event of a conflict between the terms of the MSA and a Service Agreement, the terms of these documents will be interpreted according to
the following order of precedence: (1) Service Agreements and (2) the MSA.
2. Terms of Purchase
2.1. Requests for Service; Quotes and Orders. All orders for Services must specify Dell's quotation (if any), antl reference the
Service(s) requested and invoice address. All orders are subject to acceptance by Dell. If Customer orders on -line, Dell may issue to Customer
user names and passwords (the "Purchase Codes "). By accepting and using the Purchase Codes, Customer acknowledges the validity of an
electronic order. which shall be deemed to be a writing for all purposes hereunder, and agrees to be responsible for full payment of any Services
ordered using Customers Purchase Codes. Customer is responsible for keeping the Purchase Codes confidential and controlling their use.
2.2. Prices. The prices charged for Services purchased under this MSA will be Dell's "thencurrent" charges for such services in each
geographic region or as quoted by Dell. Dell reserves the right to revise pricing if prices for Services are based upon written assumptions and
those assumptions are determined inaccurate. If Customer and Dell are not able to reach agreement on the revised pricing, Customer or Dell
may terminate the applicable Service Agreement. All prices are exclusive of all applicable country, provincial, slate and local sales, use, value
added, excise, privilege, franchise and similar taxes. If the Services are being performed oh a time and materials basis, any estimates provided
by Dell are for planning purposes only. Any required deposits are non - refundable.
2.3. Additional Fees; Taxes. Customer shall be responsible for all applicable taxes and fees assessed or imposed upon the Services
provided or the amounts charged under this MSA, including any sales, use. excise, value- added, or comparable taxes, but excluding taxes
related to Dell's net assets or net income or for which Customer has provided a valid resale or exemption certificate. Should any payments to
Dell become subject to withholding tax, then Customer shall deduct these taxes from the amount owed to Dell and pay the taxes to the
appropriate tax authority in accortlance with the laws thereof. Customer shall promptly provide Dell with receipts or other applicable evidence of
substantiating the payments as required under the laws of the applicable taxing authority. Dell shall not be liable for any withholding lax, penally,
or interest due as a result of Customer's failure to withhold any applicable tax.
2.4. Invoicing and Payment. Customer's payment terms will be net thirty (30) days from the date of invoice, subject to continuing
credit approval by Dell. Customer will pay Dell in US dollars or in the currency of the country in which the Dell affiliate that supplied the Services
is domiciled, as invoiced by Dell or an affiliate of Dell. Additional charges may apply if Customer requests services that are performed outside
contracted hours or are beyond the normal coverage for the particular service.
2.5. Nonpayment. For invoices not paid within thirty (30) days of the invoice date, Dell reserves the right to charge Customera late
penalty charge of one and a half percent (1.5 %) per month applied against undisputed overdue amounts, or the maximum rate permitted bylaw,
whichever is less. In addition, Dell, w thout waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or
terminate the Services until such payment is received and may decide not to accept additional orders from Customer and /or seek collection of all
amounts due, including reasonable legal fees and costs of collections. Dell shall have no liability to Customer for any such suspension or
termination of Services, or non - acceptance of orders.
2.6. Purchases by Affiliates. Unless otherwise agreed in writing, any Affiliate who submits an order to Dell for Services shall agree to
abide by the terms of this MSA. Dell, in its sole discretion, may discontinue selling Services to any Affiliate or may require additional payment
and /or credit conditions for such AfFliate.
2.7. Purchases from a Third -Party Reseller. This Section 2.7 shall not apply to Customers who purchase Services directly from Dell.
If Customer purchases from a party other than Dell (each a "Reseller'), (hen Customer acknowledges that its payment for the Services is subject
to the agreement between the Customer and the Reseller (the "End -User Reseller Agreement "). Otherwise, Customer agrees mat this MSA,
except for the "Terms of Purchase" provisions above, shall apply to such Customer's use of the Services notwithstanding .anything to the
contrary in the End -User Reseller Agreement. DeII shall not be liable to Customer for any representations, warranties, indemnities or damages
beyond those set form in this MSA. Customer acknowledges that to the extent Dell does not receive payment for the Services from the Reseller,
DeII shall have the right to suspend or terminate the Services until such payment is received. Dell shall have no liability to Customer for such
suspension or termination of Services and Customer shall look solely and exclusively to the Reseller for any and all damages and liability
associated with such suspension or termination of the Services.
3. Term & Renewal
This MSA has a one year term, beginning on the earlier of the date on Customer's invoice with DeII, the dale on which Service delivery begins or
the dale on which your use of the Service begins ( "Effective Date ). The MSA will automatically renew on the anniversary of the Effective Dale
for subsequent one year terms ("Term ") unless terminated in accortlance with Section 4 below. Each Service Agreement will continue for the
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term slated therein, unless otherwise terminated pursuant to this MSA. In addition. Dell may, al its option, propose to renew the Service by
sending Customer an invoice or continuing to make the Service available to Customer. Customer may (where permitted by law) agree to such
renewal of (he Service by paying such invoice by its due date or by continuing to use the Service. If Customer renews a Service Agreement by
continued use of the Service, Customer will be invoiced in a manner substantially similar to their initial term of Service.
4. Termination
Either party may terminate this MSA for convenience by providing at leas( thirty (30) days prior written notice to the other. Termination of this
MSA for convenience will not terminate any outstanding Service Agreement (hat provitles for a specific term over which the Services are 10 be
provided. In such case, this MSA, as incorporated into the Service Agreement, and the Service Agreement that provitles for a specific term will
remain in effect for the remainder of such term. Upon termination of this MSA, all rights antl obligations of me parties under this MSA 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 lernlinalion.
Either party may terminate an individual Service Agreement it the other party commits a material breach of such agreement and the breach is
not cured within thirty (30) days of receipt of written notice from the injured party. Termination of one or more Service Agreements will not
terminate this MSA.
5. Third -Party Products 8 Warranties
'Third Party Products" means any third -parry hardware, services or software. Some manufacturers' warranties or service contract terms and
conditions for Third Party Products may become void if Dell or anyone else, other than the manufacturer or its authorized representative.
provides services for or works on the hardware or software (such as providing maintenance antl repair services). DELL DOES NOT TAKE
RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE DELL SERVICES MAY HAVE ON THOSE
WARRANTIES. Except as agreed to in writing between Customer and Dell, Third Party Products shall be exclusively subject to terms and
conditions between the third party and Customer. Dell shall have no liability for Thirtl Party Products and Customer shall look exclusively to the
third party provider for any damages or liability with respect to the provision of such Third Party Products.
Except as otherwise specifically agreed to in a Service Agreement, Customer authorizes Dell (or otherwise obtains the rights for Dell) to copy,
install and modify, when necessary and as required by the Service Agreement, all Third Party Products, including software, to be usetl in the
Services or to be copied or stored for subsequent re- installation of a backup system or data. Customer warrants to Dell that it has obtained any
licenses, consents, regulatory certifications or approvals required to give Dell antl its subcontractors or employees such rights or licenses to
access, copy, distribute, use and /or modify ( including creating derivative works) or install any Third Party Products to be usetl in the Services,
without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products.
6. Proprietary Rights
6.1. Deliverables. Except as otherwise specifically agreed to in a Service Agreement, Dell will retain exclusive ownership in all
Deliverables created by Dell hereunder and will own all intellectual property rights, title antl interest in any ideas, concepts, know how,
documentation or techniques developed by Dell under this MSA. Subject to payment in full for the applicable Services, Dell grants Customer a
non-exclusive. non - transferable, royally -free right to use the Deliverables solely in the country(ies) in which Customer does business and solely
for Customer's internal use. "Deliverables- means the tangible and intangible materials, including reports, studies, base rases, drawings,
fiindings, manuals, procedures and recommendations that are prepared by Dell or its subcontractors in the course of performing the Services.
62. Tools 8 Software. Dell will retain all intellectual property rights with respect to the processes, tools and software related to the
Services. Any use by Customer, including the execulion, reverse engineering, decompilation, reproduction, modification, distribution,
transmission, republication, display, transfer or performance, except as specifically permitted by Dell during the term of Services is prohibited
7. Software License Provided by Dell
Customer use of Software in connection with the Services is pursuant to the terms accompanying the Software. "Software" includes software
locally installed on Customer's systems antl software remotely accessed by Customer through the Internet or other means (including, but not
limited to websites. Internet portals and "cloud- based" software services). In the absence of such terms, Customer use of Software is pursuant
to the Dell Services License Agreement & Acceptable Use Policy ( "AUP ") available al www.Dell.com /AUP. By accessing, downloading,
installing, activating or otherwise using such Software, Customer agrees to be bound by the terms of the AUP.
8. Customer Responsibilities
It is the Customer's responsibility to backup data on Customer's system(s). Customer acknowledges that Dell's performance and delivery of the
Services are contingent upon: (A) Customer providing safe and hazard -free access to its personnel, facilities, equipment, hardware, software,
network and information for Services to be performed at Customer's location, and (B) Customer's timely decision - making, notification of relevant
issues or information and granting of approvals or permissions. Customer will promptly obtain and provide to Dell any required licenses,
approvals or consents necessary for Dell's performance of the Services.
9. Confidentiality
In the performance of the Services, Customer and Dell may have access to or be exposed to information of the other party not generally known
to the public, including, but not limited to software, product plans, marketing and sales information, customer lists, "know -how; or trade secrets
which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential
(collectively, "Confidential Information "). Confidential Information may not be shared with Thirtl parties unless such disclosure is to personnel of
Dell or Customer, including employees, agents and subcontractors, on a "need -to- know" basis in connection with its performance of this MSA,
so long as such personnel have agreed to (real such Confidential Information under terms at least as restrictive as those herein. Each party
agrees to lake the necessary precautions to maintain the confidentiality of Confitlential Information by using at least the same degree of care as
such party employs with respect to its own Confitlential Information of a like -kind nature, but in no case less than a commercially reasonable
standard of care to maintain confidentiality, antl shall only make such information available to its employees on a "need- to-know basis. The
foregoing shall not include information, which, (A) was known by one party prior to its receipt from the other or is or becomes public knovrledge
without the fault of the recipient, (B) is received by the recipient from a source other than a party to this MSA, or (C) a party is required to
ABU CMSA Rev. 4.2 Page 2 of 4
07/30/2009
s
disclose in response to an order by a coon or governmental agency. provided that advance notice of the disclosure is provided to other party
The obligations with respect to Confidential Information shall continue for three (3) years from the dale of disclosure
10. Support Services
When Services consist of repair of Dell - branded systems, such Services shall be those repair services that are necessary because of any
existing defect or a defect occurs in materials or workmanship in (hc system or in any system component covered by this MSA. Preventive
maintenance is not included. Repairs necessitated by software problems. or as a result of alteration, adjustment. or repair by anyone other than
Dell (or its representatives) are not included. Unless otherwise expressly provided in a Service Agreement. Services do not include repair of any
system or system component which has been damaged as a result of: (A) accident. misuse, or abuse of the system or component (such as, but
not limited lo, use of incorrect line voltages, use of incorrect fuses, use of incompatible devices or accessories, improper or insufficient
ventilation, or failure to follow operating instructions) by anyone other than Dell (or its representatives), (B) an act of God such as, but not limited
to, lightning, flooding. tomado, earthquakes, and hurricanes, or (C) the moving of the system from one geographic location or entity to another.
11. LIMITED WARRANTY & LIMITATION OF LIABILITY; HIGH -RISK DISCLAIMER
11.1. Limited Warranty. DELL WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER.
EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, DELL (INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND
AGENTS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY. THE "DELL PARTY(IES) -)
MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE SERVICES OR DELIVERABLES, INCLUDING BUT NOT
LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR
NON - INFRINGEMENT; ANY WARRANTY RELATING TO THIRD -PARTY PRODUCTS OR THIRD -PARTY SERVICES; ANY WARRANTY WITH
RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES; OR ANY WARRANTY
CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION THE DELL
PARTIES MAY MAKE.
11.2. Limitation of Liability. NEITHER THE DELL PARTIES NOR CUSTOMER WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
PUNITIVE. SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY
DELL WHETHER DIRECT OR INDIRECT, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING, (A) LOSS OF REVENUE,
INCOME, PROFIT, OR SAVINGS, (B) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK, OR
THE RECOVERY OF SUCH, (C) LOSS OF BUSINESS OPPORTUNITY, (D) BUSINESS INTERRUPTION OR DOWNTIME, OR (E)
SERVICES, DELL PRODUCTS OR THIRD -PARTY PRODUCTS NOT BEING AVAILABLE FOR USE BY CUSTOMER. THE DELL PARTIES'
AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ALL CLAIMS OF LIABILITY ARISING OUT OF, OR IN
CONNECTION WITH ANY SERVICE PROVIDED PURSUANT TO THIS MSA SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER
FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE (12) MONTH PERIOD.
EACH PARTY ACKNOWLEDGES THAT THESE LIMITATIONS APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, THE FEE FOR
THE SERVICES PROVIDED HEREUNDER WOULD BE HIGHER.
11.3. High -Risk Application Disclaimer. The Services are not fault - tolerant and are not designed or intended for use in hazardous
environments requiring fail -safe performance without limitation, in the operation of nuclear facilities, aircraft navigation or
communication systems, air traffic control, weapons systems, life- support machines, or any other application in which the failure of the Services
could lead directly to death, personal injury, or severe physical or property damage (collectively, "High -Risk Activities "). Dell expressly
disclaims any express or implied warranty of fitness for High -Risk Activities.
12. Indemnification
Dell shall defend, indemnify and hold harmless Customer from any third -parry claim or action that the Services or any Deliverables (excluding
Third -Party Products) prepared or produced by Dell and delivered pursuant to this Agreement infringe or misappropriate that third party's patent,
copyright, trade secret, or other intellectual property rights enforceable in the country(ies) in which the Services or Deliverables are sold to
Customer by Dell ( "Indemnified Claims"). In addition, if Dell receives notice of a claim that, in Dell's reasonable opinion, is likely to result in an
adverse ruling, then Dell shall at its option, (A) obtain a right for Customer to continue using such Service or Deliverable; (B) modify such
Service or Deliverable to make it non- infringing; (C) replace such Service or Deliverable with a non - infringing equivalent; or (D) refund any pre-
paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated refund for the allegedly
infringing Deliverable. Notwithstanding the foregoing, Dell shall have no obligation under this Section for any claim resulting or arising from (A)
Customer's modifications of the Services or Deliverables that were not performed by or on behalf of Dell; (B) the combination, operation or use
of the Service or Deliverable in connection with a third -party product or service (the combination of which causes the infringement); or (C) Dell's
compliance with Customer's written specifications or directions, including the incorporation of any software or other materials or process
provided by or requested by Customer.
Customer shall defend, indemnify and hold Dell harmless from, any third -party claim or action arising out of (A) the failure of Customer to obtain
the appropriate license, intellectual property rights, or any other permissions, regulatory certifications or approvals associated with Customer -
provided technology, software or other components related to the Service, as well as software directed or requested by Customer to be installed
or integrated as part of Services, or (B) any inaccurate representations regarding the existence of an export license or any allegation made
against Dell due to Customer's violation or alleged violation of applicable export laws, regulations, and orders.
Each party agrees to indemnify and hold harmless the other party from any third -party claim or action for personal bodily injuries, including
death, resulting from the indemnifying party's gross negligence or willful misconduct resulting from the Services (excluding Third -Party Products)
provided hereunder. This section stales each party's exclusive remedies for any third -party claim or action, and nothing in this MSA or
elsewhere will obligate either party to provide any greater indemnity to the other.
ABU CMSA Rev. 4.2 Page 3 of 4
07/30/2009
13. Export; Regulatory Requirements
13.1. Export. Customer and Dell acknowledges (hat the Services sold under this MSA, which may include technology and software. are
subject to the customs and export control laws and regulations of the United Slates ('U.S. "), may be rendered and /or performed in countries
outside the U.S.. and may also be subject to the customs and export laws and regulations of the country in which the Services are rendered
and /or received. Customer and Dell agrees to abide by those laws and regulations. Customer further represents [hat any software provided by
Customer and used as part of the Services contains no encryption or, to the extent that it contains encryption, such software is approved for
export without a license. If Customer cannot make the preceding representation. Customer agrees to provide Dell with all of the information
needed for Dell to obtain export licenses from the U.S. Government and to provide Dell with such additional assistance as may be necessary to
obtain such licenses. Notwithstanding the foregoing. Customer is solely responsible for obtaining any specific licenses relating to the export of
software if a license is needed. Dell may also require export certifications from Customer for Customer - provided software. Dell's acceptance of
any order for Services is contingent upon the issuance of any applicable export license required by the U.S. Government; Dell is not liable for
delays or failure to deliver Services or a product resulting from Customer's failure to obtain such license or to provide such certification.
13.2. Regulatory Requirements. Dell is not responsible for determining if Third Party Products to be used in performance of the
Services satisfy the local regulatory requirements of the country to which the products are to be shipped, nor shall Dell be obligated to perform
any Services where the resulting products or software do not satisfy the local regulatory requirements.
14. Important Additional Terms
14.1. Independent Contractor Relationship; MSA Assignment; Subcontracting. The parties are independent contractors. Neither
party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in
this MSA. Dell has the right [o assign, subcontract of delegate in whole or in part this MSA, or any rights, duties, obligations or liabilities under
this MSA, by operation of law or otherwise, provided that Dell shall remain responsible for the performance of Services under this MSA.
Otherwise, neither party may assign this MSA without the permission of the other.
14.2. Entire Agreement; Severability; Section Headings. This MSA and Service Agreements is the entire agreement between Dell
and Customer with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements. No
amendment to or modification of this MSA, in whole or in part, will be valid or binding unless it is in writing and executed by authorized
representatives of both parties. If any provision of (his MSA is void or unenforceable, the remainder of this MSA will remain in full force and
effect. Section headings are for reference only and shall not affect the meaning or interpretation of this MSA.
14.3. Force Majeure. Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment
obligations) under [his MSA during any period in which such performance is delayed by circumstances beyond its reasonable control including,
but not limited to, fire, flood war, embargo, strike, riot or the intervention of any governmental authority (a "Force Majeure "). In such event,
however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party's time for
performance will be excused for the duration of the Force Majeure, but if the Force Majeure events lasts longer than thirty (30) days, the other
party may immediately terminate the applicable Service Agreement by giving written notice to the delayed party.
14.4. Notices. Notice to Dell under [his MSA must be in writing and sent by postage prepaid first-class mail or receipted courier service
to the address below or to such other address (incl, facsimile or electronic) as specified in writing and will be effective upon receipt.
Dell Marketing L.P., Attn: Contracts Manager
One Dell Way, Round Rock, Texas 78682
14.5. Governing Law, Forum and Language. THE PARTIES AGREE THAT THE MSA, ANY SALES THERE UNDER, OR ANY
CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING. PRESENT OR
FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL arising from or
relating to the MSA, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement or any
related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW.
The parties agree that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the MSA shall be
brought exclusively in the courts located in Travis County, Texas. Customer and Dell agree to submit to the personal jurisdiction of the courts
located within Travis County, Texas, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and
to venue in such courts.
This MSA will be interpreted and construed in accordance with the English language.
14.6. Dispute Resolution. Customer and the Dell Parties will attempt to resolve any claim, or dispute or controversy (whether in
contract, tort or otherwise) arising out of or relating to this MSA. Dell's advertising, or any related purchase (a `Dispute ") through face- lo-face
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. Notwithstanding the foregoing, either party will
have 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 limitations period, or preserve a superior position with
respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the
parties are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, the parties shall be free to pursue all
remedies available at law or equity.
14.7. Limitation Period. Neither party may institute any action in any form arising out of this MSA more than two (2) years after the
cause of action has arisen, or in the case of nonpayment, more than two (2) years from the date of last payment.
14.8. Updates. Dell reserves the right to update its MSA at any time, effective upon posting an updated version at www.Dell.comfCMSA,
however. Customer's rights and obligations shall be as provided in the version of the MSA executed by Customer or available to Customer at
the time of customers purchase of Services or, when applicable, Customer's renewal of Services.
14.9. Counterparts. If a signature block is appended hereto, this MSA may be executed in counterparts, each of which shall be deemed
an original, but all such counterparts shall together constitute one and the same instrument.
ABU CMSA Rev. 4.2 Page 4 of 4
07/30/2009
EXHIBIT "B"
to
Northrop Grumman/Dell Maintenance Sub - Agreement
(See attached the listed equipment to be maintained along with service tag number and model
number.)
City of Newport Beach Police Dept. - Exhibit "B" 06/30/2012
Service Tag #: 7J6GN81
Product Description: Power Edge 2850
Service Contract Type: 4 HR. 7x24 Service; Gold; IT ProSupport Mission Cricial
H7206 Assembly, Carrier, Hard Drive Scsi (small Computer Systems Interface), Universal, IIN 07/01/2010 06/30/2012
X1955 Assembly, Heatsink, Processor PE2850, 2800 07/01/2010 06/30/2012
Quanti
1
2
1
1
2
1
2
1
1
1
2
1
Effective
Term
Parts #
Part Description
Date
Date
C8511
Processor, 80546K, 3.6G, 2M, XNI 800, NO
07/01/2010
06/30/2012
T7971
Assembly, Printed Wiring Assy Planar, Server Chassis, FOX PE2850, V3
07/01/2010
06/30/2012
Y0982
Printed Wiring Assy, Backplane Server, Dell Computer Corporation, PE2850
07/01/2010
06/30/2012
OR215
Cord, Power, 15A,125V,10,5- 15/C13
07/01/2010
06/30/2012
JD 195
Power Supply, 70OW, Redundant Delta Products
07/01/2010
06/30/2012
DC181
Kit, Documentation On Compact Disk, Document Object Model V4.5, World Wide
07/01/2010
06/30/2012
X1563
Dual In -line Memory Module, 2G 400M, 128X72, 8, 240, 2RX4
07/01/2010
06/30/2012
C8511
Processor, 80546K, 3.6G, 2M, XNI800, NO
07/01/2010
06/30/2012
Assembly, Compact Disk Read Write/Digital Video Disk DriveCombo, 650M, Toshiba
K8957
Samsung Storage Technology, Black
07/01/2010
06/30/2012
M4989
Assembly, Cable, Flexible Compact Disk Drive, PE2800/50
07/01/2010
06/30/2012
Printed Wiring Assy, Riser Server, Server Chassis, Dell Computer Corporation, PE2850,
U8373
V3
07/01/2010
06/30/2012
J4950
Assembly, Cable, Flexible, FloppyDrive, PE2800/50
07/01/2010
06/30/2012
Assembly, Floppy Drive, 3.5 inchForm Factor, Controller /no Cable, Teac, Black, Lead
T7421
Free
07/01/2010
06/30/2012
T8677
Assembly, Cable, Scsi, Backplane Riser, Channel A
07/01/2010
06/30/2012
4D554
Dual In -line Memory Module 256, 400M, 32X72, 8, 240, Raid On Mother Board
07/01/2010
06/30/2012
H1813
Printed Wiring Assy Input/output, RAID -KEY, Server Dell, Trio
07/01/2010
06/30/2012
Y4707
Hard Drive, 146GB, S, U320, 15K SOP, Seagate
07/01/2010
06/30/2012
PC935
Overpack Kit, Windows Server 2003 Enterprise Edition, SP English
07/01/2010
06/30/2012
J1679
Card, Network, Ethernet, Intel PROl000MT
07/01/2010
06/30/2012
C5542
Assembly, Bezel, Plastic, PE2850
07/01/2010
06/30/2012
X1955
Assembly, Heatsink, Processor PE2850, 2800
07/01/2010
06/30/2012
H7206 Assembly, Carrier, Hard Drive Scsi (small Computer Systems Interface), Universal, IIN 07/01/2010 06/30/2012
X1955 Assembly, Heatsink, Processor PE2850, 2800 07/01/2010 06/30/2012
Quanti
1
2
1
1
2
1
2
1
1
1
2
1
CD519
Assembly, Chassis, Server, Server Chassis, PE2850, V2
07/01/2010
06/30/2012
G3399
Battery, Primary, 3.7V, 6MM Lithium, Raid On Mother Board
07/01/2010
06/30/2012
J0162
Kit, Compact Diskette, Compact Disk Read Write, Roxio, V5.3.4, Server
07/01/2010
06/30/2012
H7511
Assembly, Carrier, Blank, Hard Drive, Universal, I IN, 2
07/01/2010
06/30/2012
H2401
Assembly, Fan, 60X60X38MM, 12V PE2850
07/01/2010
06/30/2012
H2846
Kit, Rail, Rack, Versarail, PE2850
07/01/2010
06/30/2012
Dell I EMC CX300 DAS Disk Processor Enclosure Array with10x146GB 10K Drives
07/01/2010
06/30/2012
PV 114T, 2U LTO2 Tape Rack Enclosure, 1 Drive
07/01/2010
06/30/2012
PV 114T, 2U LTO2 Tape Rack Enclosure, 2 Drives
07/01/2010
06/30/2012
Smart -UPS 1500VA 120V Basic System
07/01/2010
1
1
4
1
1
1
1
City of Newport Beach Police Dept. - Exhibit "B"
Service Tag #: 9J6GN8I
Product Description: Power Edge 2850
Service Contract Type: 4 HR. 7x24 Service; Gold; IT ProSupport Mission Cricial
Effective
Term
Parts #
Part Description
Date
Date
Quantity
C8511
Processor, 80546K, 3.6G, 2M, XNI 800, N0
07/01/2010
06/30/2012
I
T7971
Assembly, Printed Wiring Assy Planar, Server Chassis, FOX PE2850, V3
07/01/2010
06/30/2012
1
Y0982
Printed Wiring Assy, Backplane Server, Dell Computer Corporation, PE2850
07/01/2010
06/30/2012
1
OR215
Cord, Power, 15A,125V,10,5-151C13
07/01/2010
06/30/2012
2
JD195
Power Supply, 70OW, Redundant Delta Products
07/01/2010
06/30/2012
1
X1563
Dual In -line Memory Module, 2G 400M, 128X72, 8, 240, 2RX4
07/01/2010
06/30/2012
2
C8511
Processor, 80546K, 3.6G, 2M, XNI 800, NO
07/01/2010
06/30/2012
1
Assembly, Compact Disk Read Write/Digital Video Disk DriveCombo, 650M, Toshiba
K8957
Samsung Storage Technology, Black
07/01/2010
06/30/2012
1
M4989
Assembly, Cable, Flexible Compact Disk Drive, PE2800/50
07/01/2010
06/30/2012
1
Printed Wiring Assy, Riser Server, Server Chassis, Dell Computer Corporation,
U8373
PE2850, V3
07/01/2010
06/30/2012
1
J4950
Assembly, Cable, Flexible, FloppyDrive, PE2800/50
07/01/2010
06/30/2012
1
Assembly, Floppy Drive, 3.5 inchForm Factor, Controller /no Cable, Teac, Black, Lead
T7421
Free
07/01/2010
06/30/2012
1
T8677
Assembly, Cable, Scsi, Backplane Riser, Channel A
07/01/2010
06/30/2012
1
4D554
Dual In -line Memory Module 256,400M, 32X72, 8, 240, Raid On Mother Board
07/01/2010
06/30/2012
1
H1813
Printed Wiring Assy Input/output, RAID -KEY, Server Dell, Trio
07/01/2010
06/30/2012
1
Y4707
Hard Drive, 146GB, S, U320, 15K 80P, Seagate
07/01/2010
06/30/2012
2
PC935
Overpack Kit, Windows Server 2003 Enterprise Edition, SP English
07/01/2010
06/30/2012
1
J1679
Card, Network, ETHERNET, Intel PROIOOOMT
07/01/2010
06/30/2012
1
C5542
Assembly, Bezel, Plastic, PE2850
07/01/2010
06/30/2012
1
X1955
Assembly, Heatsink, Processor PE2850, 2800
07/01/2010
06/30/2012
1
H7206
Assembly, Carrier, Hard Drive Scsi (small Computer Systems Interface), Universal, IIN
07/01/2010
06/30/2012
2
X1955
Assembly, Heatsink, Processor PE2850, 2800
07/01/2010
06/30/2012
1
CD519
Assembly, Chassis, Server, Server Chassis, PE2850, V2
07/01/2010
06/30/2012
1
G3399 Battery, Primary, 3.7V, 6MM Lithium, Raid On Mother Board 07/01/2010 06/30/2012
H7511 Assembly, Carrier, Blank, Hard Drive, Universal, IIN, 2 07/01/2010 06/30/2012
H2401 Assembly, Fan, 60X60X381\4M, 12V PE2850 07/01/2010 06/30/2012
H2846 Kit, Rail, Rack, Versarail, PE2850 07/01/2010 06/30/2012
City of Newport Beach Police Dept. - Exhibit "B"
Service Tag #: D7P`VGGI
Product Description: Power Edge 1950
Service Contract Type: 4 HR. 7x24 Service; IT ProSupport Mission Critical, Keep Your Hard Drive
Effective
Term
Parts #
Part Description
Date
Date
Quantity
NN040
Processor, 80556, Xeon Woodcrest5148LV, LGA771, GO
07/01/2010
06/30/2012
1
J243G
Printed Wiring Assy, Planar Server, Dell Computer Corporation, PE1950, MID -LIFE KICKER...
07/01/2010
06/30/2012
1
OR215
Cord, Power, 15A, 125V, 10, 5 -15 /C 13
07/01/2010
06/30/2012
1
GG460
Kit, Strain Relief, Cable, Power
07/01/2010
06/30/2012
1
NTN040
Processor, 80556, Xeon Woodcrest5148LV, LGA771, GO
07/01/2010
06/30/2012
1
G052C
Dual In -Line Memory Module, 1G 667M, 128X72, 8, 240, 1RX8
07/01/2010
06/30/2012
4
J7846
Printed Wiring Assy, Riser Server, Dell Computer Corporation, PE1950, PERIPHERAL COMPONENT IN" 07/01/2010
06/30/2012
1
JH879
Assembly, Printed Wiring Assy Riser, Center, Multi Sheet Inserter, PEX950
07/01/2010
06/30/2012
1 .
F937D
Flash Storage Device, UniversalSerial Bus, IGB, Vmware EmbeddedHypervisor Basic, BLANK ...,
FACTO 07/01/2010
06/30/2012
1
OR215
Cord, Power, 15A, 125V, 10, 5 -15 /C 13
07/01/2010
06/30/2012
1
TX846
Assembly, Cable, Controller SAS, POWEREDGE EXPANDABLE RAID CONTROLLER NUMBER...
07/01/2010
06/30/2012
1
R707G
Kit, Media, Digital Video Disk Drive, Document Object Model V5.4
07/01/2010
06/30/2012
1
K639G
Kit, Compact Disk Drive Software, VEM3.51, UPD 1
07/01/2010
06/30/2012
1
WY335
Assembly, Card, PERC6I4NT Serial Attached, Scsi, Sled
07/01/2010
06/30/2012
1
U7820
Printed Wiring Assy, Backplane Server, Server Chassis DELL1950, 2.5SASX4
07/01/2010
06/30/2012
1
OR215
Cord, Power, 15A, 125V, 10, 5-15/C 13
07/01/2010
06/30/2012
l
4D175
Cord, Power, 125V, 10 Feet, 2TO1, SIT...
07/01/2010
06/30/2012
1
P424D
POWER SUPPLY..., 670W, PMBUS, DELTA PRODUCTS...
07/01/2010
06/30/2012
2
RY466
Assembly, Cdrw /dvd, 12.7MM Hitachi Lg Data Storage, Black
07/01/2010
06/30/2012
1
XT764
Hard Drive, 73G, Serial AttachedSCSI, 3, 15K, 2.5, SGT2, Maverick
07/01/2010
06/30/2012
3
FG027
Card, Backplane, Key, TOE, 2PORT Enterprise Systems Group
07/01/2010
06/30/2012
1
JC867
Assembly, Heatsink, Central Processing Unit, PEI 950
07/01/2010
06/30/2012
1
UN441
KIT..., Rack Rail, Rapid/Versa RaillU, Slide, P1950, V4
07/01/2010
06/30/2012
1
U8735
Battery, Primary, 7WH, IOMM Lithium Ion, PERC5I
07/01/2010
06/30/2012
I
J 120C
Assembly, Filler, Blank, Hard Drive, 2.5
07/01/2010
06/30/2012
2
YM087
ASSEMBLY..., CHASSIS..., 2.511D, IU, PE1950, III
07/01/2010
06/30/2012
1
FCO23
Assembly, Bezel, IU, PE1950
07/01/2010
06/30/2012
1
F830C Assembly, Carrier, Hard Drive Direct Current, 2.5 07/01/2010 06/30/2012
City of Newport Beach Police Dept. - Exhibit "B"
Service Tag #: JHXRT71
System Type: EMC CX300
Service Contract Type: 4 HR. 7x24 Service; Gold
Parts # Part Description
Dell I EMC CX300 DAS Disk Processor Enclosure Array with10xl46GB IOK Drives
PV 114T 2U LTO2 Tape Rack Enclosure, 1 Drive (Not covered by Dell HW Maintenance)
PV 114T 2U LTO2 Tape Rack Enclosure, 1 Drive (Not covered by Dell HW Maintenance)
Smart-UPS 1500VA 120V Basic System (Not covered by Dell HW Maintenance)
Effective Term
Date Date
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
Quantity
1
I
t
1
1
1
2
Rail, Electro Mechanical Compatible, Standby Power Supply, Electro Mechanical
04031 Assembly
Compatible
Base (Assembly or group), Disk Processor Enclosure, CX300, 146GB, Electro
R4777 Assembly
Mechanical Compatible
License Key, Navi -Bndl, CX300, Work Group Connection, Electro Mechanical
P4968 Software
Compatible
P4995 Kit
Compact Diskette, Navi -Bndl, CX3, 5, 7, Work Group Connection\
X5432 Kit
Software, A'avi -Agt, CX3, Electro Mechanical Compatible
PV 114T 2U LTO2 Tape Rack Enclosure, 1 Drive (Not covered by Dell HW Maintenance)
PV 114T 2U LTO2 Tape Rack Enclosure, 1 Drive (Not covered by Dell HW Maintenance)
Smart-UPS 1500VA 120V Basic System (Not covered by Dell HW Maintenance)
Effective Term
Date Date
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
Quantity
1
I
t
1
1
1
2
EXHIBIT "C"
151
Northrop Grumman/Dell Maintenance Sub - Agreement
(See attached Dell US Standard Terms and Conditions.)
U.S. Terms and Conditions of Sale - Direct (Applies to all direct purchases -by internet, phone, or Dell Direct
Store)
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT
YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO
YOU. THIS DOCUMENT CONTAINS A BINDING ARBITRATION CLAUSE.
NOTE: These U.S. Terms and Conditions of Sale apply to direct purchases made from Dell by phone; the Internet, or
the Dell Direct store.
These terms and conditions ( "Agreement ") apply to your purchase of products and /or services and support
( "Product ") sold in the United States by Dell, including its affiliates or subsidiaries. By placing your order for Product,
you accept and are bound to the terms and conditions of this Agreement. If you do not wish to be subject to these
terms and conditions, you must promptly cancel your order before it goes into production. If you return your purchase
within 21 days, we'll refund your purchase price minus shipping, handling, and up to a 15% restocking fee. You may
also be responsible for the cost of the return shipping back to Dell. See: www.dell.com /returnpolicy THIS
AGREEMENT SHALL APPLY UNLESS (1) YOU HAVE A SEPARATE PURCHASE AGREEMENT WITH DELL, IN
WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (11) OTHER DELL TERMS AND CONDITIONS
APPLY TO THE TRANSACTION.
1. Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any
other document(s) unless otherwise agreed to in a written agreement signed by both you and Dell. If you do
not receive an invoice or acknowledgement in the mail, via e-mail, or with your Product, information about
your purchase may be obtained at hUps: // support.dell.com /dellcare /invoice.aspx or by contacting your sales
representative.
2. Payment Terms; Orders; Quotes; Interest. Terms of payment are within Dell's sole discretion, and unless
otherwise agreed to by Dell, payment must be received by Dell prior to Dell's acceptance of an order.
Payment for the products will be made by credit card, wire transfer, or some other prearranged payment
method unless credit terms have been agreed to by Dell. Invoices are due and payable within the time
period noted on your invoice, measured from the date of the invoice. Dell may invoice parts of an order
separately. Your order is subject to cancellation by Dell, in Dell's sole discretion. Unless you and Dell have
agreed to a different discount, Dell's standard pricing policy for Dell- branded systems, which include both
hardware and services in one discounted price, allocates the discount off list price applicable to the service
portion of the system to be equal to the overall calculated percentage discount off list price on the entire
system. Dell is not responsible for pricing, typographical, or other errors in any offer by Dell and reserves the
right to cancel any orders arising from such errors. Invoices must be paid within 30 days of the invoice date.
For all but consumer purchases, 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. Every 30 days thereafter, you will continue to be charged an additional late penalty charge.
3. Shipping Charges; Taxes; Title; Risk of Loss. Shipping and handling are additional unless otherwise
expressly indicated at the time of sale. Title to products passes from Dell to Customer upon shipment to
Customer. Loss or damage that occurs during shipping by a carrier selected by Dell is Dell's responsibility.
Loss or damage that occurs during shipping by a carder selected by you is your responsibility. You must
notify Dell within 21 days of the date of your invoice or acknowledgement if you believe any part of your
purchase is missing, wrong or damaged. Unless you provide Dell with a valid and correct tax exemption
certificate applicable to your purchase of Product and the Product ship -to location, you are responsible for
sales and other taxes associated with the order. Shipping and delivery dates are estimates only.
4. Warranties. THE LIMITED WARRANTIES APPLICABLE TO DELL - BRANDED HARDWARE PRODUCT
CAN BE FOUND AT www.dell.com /warranty OR IN THE DOCUMENTATION DELL PROVIDES WITH
DELL - BRANDED PRODUCT. DELL MAKES NO WARRANTIES FOR SERVICE, SOFTWARE, OR NON -
DELL BRANDED PRODUCT, SERVICE, MAINTENANCE OR SUPPORT. SUCH PRODUCT, SOFTWARE,
SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY DELL "AS IS" AND ANY THIRD -PARTY
WARRANTIES, SERVICES, MAINTENANCE AND SUPPORT ARE PROVIDED BY THE ORIGINAL
MANUFACTURER OR SUPPLIER, NOT BY DELL. DELL MAKES NO EXPRESS WARRANTIES EXCEPT
THOSE STATED IN DELL'S APPLICABLE DELL - BRANDED WARRANTY OR SERVICE DESCRIPTION IN
EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT. DELL - BRANDED
WARRANTIES AND SERVICES ARE EFFECTIVE ON PAYMENT IN FULL, AND DELL IS NOT
OBLIGATED TO HONOR ANY WARRANTY OR PROVIDE SERVICE UNTIL DELL RECEIVES PAYMENT
IN FULL. DELL MAY REQUEST CANCELLATION OF THIRD - PARTY - BRANDED SOFTWARE LICENSES,
SERVICES, MAINTENANCE OR SUPPORT IF DELL DOES NOT RECEIVE PAYMENT. IF YOU
PURCHASE THIRD - PARTY- BRANDED PRODUCT, SERVICES, MAINTENANCE, OR SUPPORT,
ADDITIONAL THIRD -PARTY TERMS AND CONDITIONS MAY APPLY.
5. Software. All software is provided subject to a license agreement and you agree that you will be bound by
such license agreement in addition to these terms. Title to software remains with the applicable licensor(s).
6. Return Policies; Exchanges. Dell's return policy can be found at www.dell.com /retumpolicy and you agree
to those terms. You must contact us directly before you attempt to return Product to obtain a Return Material
Authorization Number for you to include with your return. You must return Product to us in their original or
equivalent packaging. You are responsible for risk of loss, shipping and handling fees for returning or
exchanging Product. Additional fees, including up to a 15% restocking fee, may apply. If you fail to follow the
return or exchange instructions and policies provided by Dell, Dell is not responsible for Product that is lost,
damaged, modified or otherwise processed for disposal or resale. At Dell's discretion, credit for partial
returns may be less than invoice or individual component prices due to bundled or promotional. pricing.
7. Changed or Discontinued Product. Dell's policy is one of ongoing update and revision. Dell may revise
and discontinue Product at any time without notice to you and this may affect information saved in your
online "cart." Dell will ship Product that has the functionality and performance of the Product ordered, but
changes between what is shipped and what is described in a specification sheet or catalog are possible.
Parts used in repairing or servicing Product may be new, equivalent -to -new, or reconditioned.
8. Service and Support.
A. Consumer Customers. Service offerings may vary. In addition to these terms and conditions, Dell
and /or your third -party service provider may provide such service and support to you in accordance
with term and conditions of Dell Service Descriptions located at www.dell.com /servicecontracts or
as otherwise delivered to you. Dell and /or your third -party service provider may in their discretion
revise their general and optional service and support programs and the terms and conditions that
govern them without prior notice to you.Your purchase of services is pursuant to this Agreement
and the terns and conditions of Dell Service Descriptions, if applicable, published online at the time
of your purchase. Dell has no obligation to provide service or support until Dell has received full
payment for the Product or service /support contract you purchased. Dell is not obligated to provide
third -party branded service or support, or service or support for any products or services that you
purchased through a third -party and not Dell. It is your responsibility to backup all existing
data, software, and programs before receiving services or support (including telephone
support). Dell and /or your third -party service provider will have no liability for loss or
recovery of data, programs or loss of use of system(s) arising out of the services or support
or any act or omission, including negligence, by Dell or your- third -party service provider.
Dell and /or your third -party service provider is not permitted by law to copy pirated or copyrighted
materials or to copy or handle illegal data. Prior to Dell and /or your third -party service provider
providing service or support, you represent that your system(s) does not contain illegal files or data.
You also represent that you own the copyright or have a license to make copies to all files on your
system and do not have any data that would cause Dell or your third -party service provider to be
liable for copyright infringement if such data was copied by Dell and /or your third -party service
provider. Parts used in repairing or servicing Product(s) may be new, equivalent -to -new or
reconditioned.
B. Commercial Customers, including Small, Medium and Large Business and the Public Sector
Customers. Services and /or support offerings are provided to you pursuant to Dell's Customer
Master Services Agreement ( "CMSA "), which is available for review at
www.dell.com /servicecontracts and incorporated herein in its entirety by reference.
9. Limitation of Liability. DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH
HEREIN, 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 AND SUPPORT. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, DELL WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT,
OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY
CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE
OF PRODUCT, DELL IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE
THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT. NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY
EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
10. Not For Resale or Export. You agree to comply with all applicable laws and regulations of the various
states and of the United States. You agree and represent that you are buying only for your own internal use
only, and not for resale or export. Dell has separate terms and conditions governing resale of Product by
third parties and transactions outside the United States. Terns and conditions for resale are located at:
www.dell.com/terms/#reseller.
11. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THEREUNDER, OR
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE,
WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER
PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL arising
from or relating to this agreement, its interpretation, or the breach, termination or validity thereof, the
relationships which result from this agreement, Dell's advertising, or any related purchase SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW.
12. Dispute Resolution and Binding Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER
IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND
INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND
EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL, its agents, employees, principals, successors,
assigns, affiliates (collectively for purposes of this paragraph, "Dell ") arising from or relating to this
Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result
from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties
who are not signatories to this Agreement), Dell's advertising, or any related purchase SHALL BE
RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE
AMERICAN ARBITRATION ASSOCIATION (AAA) or JAMS. Arbitration proceedings shall be governed by
this provision and the applicable procedures of the selected arbitration administrator, including any
applicable procedures for consumer - related disputes, in effect at the time the claim is filed. Consumer
claimants (individuals whose transaction is intended for personal family or household use) may elect to
pursue their claims in small - claims court rather than arbitration.The arbitration or small - claims court
proceeding will be limited solely to the dispute or controversy between customer and Dell.ln any
dispute,NEITHER CUSTOMER NOR DELL SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS
BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR
CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual (non - class) nature
of this dispute provision goes to the essence of the parties' dispute resolution agreement, and if found
unenforceable, the entire arbitration and dispute resolution provision shall not be enforced.The arbitrator
shall be empowered to grant whatever relief would be available in court under law or in equity. This
transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1 -16 (FAA). Any award of the
arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court
of competent jurisdiction. Dell will be responsible for paying any individual consumer's arbitration fees. If any
customer prevails on any claim that affords the prevailing party attorneys' fees, or if there is a written
agreement providing for fees, the Arbitrator may award reasonable fees to the prevailing party, under the
standards for fee shifting provided by Iaw.YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR
RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS
ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO SUCH A CLAIM. OTHER RIGHTS THAT
YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY ALSO BE
UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. For information on AAA or JAMS, contact the
following: American Arbitration Association, 335 Madison Avenue, 10th Floor, New York, NY 10017,
www.adr.org; JAMS, 45 Broadway, New York, NY 10005, (800) 352 -5267, www.jamsadr.com.
(REV 110109)
Retail Purchaser End User Agreement (Applies to all purchases from retail sellers)
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT
YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU.
THIS DOCUMENT CONTAINS A BINDING ARBITRATION CLAUSE.
This Retail Purchaser End User Agreement ( "Agreement ") governs your retail purchase and use of products and /or
services and support ( "Product ") sold in the United States by Dell, including its affiliates or subsidiaries. BY
PURCHASING AND USING THE PRODUCT, YOU ( "CUSTOMER ") AGREE TO BE BOUND BY THE TERMS OF
THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT USE THE PRODUCT, AND RETURN THE PRODUCT TO
YOUR PLACE OF PURCHASE (subject to its return policy).
1. Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any
other document(s) unless otherwise agreed to in a written agreement signed by both you and Dell.
2. Warranties. THE LIMITED WARRANTIES APPLICABLE TO DELL - BRANDED HARDWARE PRODUCT
CAN BE FOUND AT www.dell.com/warranty OR IN THE DOCUMENTATION FOUND WITH YOUR DELL-
BRANDED PRODUCT. DELL MAKES NO WARRANTIES FOR SERVICE, SOFTWARE, OR NON -DELL
BRANDED PRODUCT, SERVICE, MAINTENANCE OR SUPPORT. SUCH PRODUCT, SOFTWARE,
SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY DELL "AS IS" AND ANY THIRD -PARTY
WARRANTIES, SERVICES, MAINTENANCE AND SUPPORT ARE PROVIDED BY THE ORIGINAL
MANUFACTURER OR SUPPLIER, NOT BY DELL. DELL MAKES NO EXPRESS WARRANTIES EXCEPT
THOSE STATED IN DELL'S APPLICABLE DELL - BRANDED WARRANTY OR SERVICE DESCRIPTION IN
EFFECT ON THE DATE OF THE PURCHASE OF YOUR PRODUCT. DELL - BRANDED WARRANTIES
AND SERVICES ARE EFFECTIVE WHEN YOU HAVE TRANSFERRED THE OWNERSHIP OF THE
PRODUCT INTO YOUR NAME, ALTHOUGH THE WARRANTY PERIOD COMMENCES ON THE DATE
OF THE PURCHASE. YOU MAY FIND THE INSTRUCTIONS FOR HOW TO TRANSFER OWNERSHIP
INTO YOUR NAME IN THE DOCUMENTATION FOUND WITH YOUR COMPUTER OR BY VISITING
http: / /www.dell.com /register. LIKE YOUR USE OF THE PRODUCT, TRANSFERRING OWNERSHIP OF
THE PRODUCT INTO YOUR NAME EXPRESSES YOUR INTENT TO BE BOUND BY THE TERMS OF
THIS AGREEMENT. IF YOU PURCHASE THIRD - PARTY- BRANDED PRODUCT, SERVICES,
MAINTENANCE, OR SUPPORT ADDITIONAL THIRD -PARTY TERMS AND CONDITIONS MAY APPLY.
3. Software. All software is provided subject to a license agreement and you agree that you will be bound by
such license agreement in addition to these terms. Title to software remains with the applicable licensor(s).
4. Return Policies; Exchanges. Returns and exchanges are governed by the policies of the retailer where
you purchased the Product.
5. Service and Support.
A. Consumer Customers. Service offerings may vary. In addition to terms and conditions, Dell
and /or your third -party service provider may provide such service and support to you in accordance
with the terms and conditions of Dell Service Descriptions located at
www.dell.com /servicerontracts or as otherwise delivered to you. Dell and /or your third -party service
provider may in their discretion revise their general and optional service and support programs and
the terms and conditions that govern them without prior notice to you. Your purchase of services is
pursuant to this Agreement and the terms and conditions of the Dell Service Descriptions, if
applicable, published online at the time of your purchase. Dell has no obligation to provide service
or support until Dell has received full payment for the service /support contract you purchased. Dell
is not obligated to provide third -party branded service or support, or service or support for any
products or services that you purchased through a third -party and not Dell. It is your
responsibility to backup all existing data, software, and programs before receiving services
or support (including telephone support). Dell and /or your third -party service provider will
have no liability for loss or recovery of data, programs or loss of use of system(s) arising
out of the services or support or any act or omission, including negligence, by Dell or your
third -party service provider. Dell and/or your third -party service provider is not permitted by law
to copy pirated or copyrighted materials or to copy or handle illegal data. Prior to Dell and /or your
third -party service provider providing service or support, you represent that your system(s) does not
contain illegal files or data. You also represent that you own the copyright or have a license to
make copies to all files on your system and do not have any data that would cause Dell to be liable
for copyright infringement if those files were copied by Dell and/or your third -party service provider.
Parts used in repairing or servicing Product may be new, equivalent -to -new, or reconditioned.
B. Commercial Customers, including Small, Medium and Large Business and Public Sector
Customers. Services and /or support offerings are provided to you pursuant to Dell's Customer
Master Agreement ( "CMSA "), which is available for review at www.dell.com /servicecontracts and
incorporated herein in its entirety by reference.
6. Limitation of Liability. DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH
HEREIN, 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 AND SUPPORT. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, DELL WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT,
OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY
CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE
OF PRODUCT, DELL IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE
THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT. NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY
EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
7. Not For Resale or Export. You agree to comply with all applicable laws and regulations of the various
states and of the United States. You agree and represent that you are buying for your own internal use only,
and not for resale or export. Dell has separate terms and conditions governing resale of Product by third
parties and transactions outside the United States. Terms and conditions for resale are located at:
www.dell.com/terrns/#reseller.
8. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, THE PURCHASE AND USE OF THE
PRODUCT, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR
OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY,
CONSUMER PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND
DELL arising from or relating to this Agreement, its interpretation, or the breach, termination or validity
thereof, the relationships which result from this Agreement, Customer's purchase or use of the Product,
Dell's advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW.
9. Dispute Resolution and Binding Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER
IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND
INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND
EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL, ITS AGENTS, EMPLOYEES, PRINCIPALS,
SUCCESSORS, ASSIGNS, AFFILIATES (COLLECTIVELY FOR PURPOSES OF THIS PARAGRAPH,
"DELL ") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity
thereof, the relationships which result from this Agreement (including, to the full extent permitted by
applicable law, relationships with third parties who are not signatories to this Agreement), Customer's
purchase or use of the Product, Dell's advertising, or any related purchase SHALL BE RESOLVED
EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN
ARBITRATION ASSOCIATION(AAA) or JAMS. Arbitration proceedings shall be governed by this provision
and the applicable procedures of the selected arbitration administrator, including any applicable procedures
for consumer - related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose
transaction is intended for personal family or household use) may elect to pursue their claims in small - claims
court rather than arbitration.. The arbitration or small - claims court proceeding will be limited solely to the
dispute or controversy between Customer and Dell.ln any dispute. NEITHER CUSTOMER NOR DELL
SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR
ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY
GENERAL CAPACITY. The individual (non - class) nature of this dispute provision goes to the essence of the
parties'dispute resolution agreement, and if found unenforceable, the entire arbitration and dispute resolution
provision shall not be enforced.The arbitrator shall be empowered to grant whatever relief would be
available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9
U.S.C. sec. 1 -16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and
may be entered as a judgment in any court of competent jurisdiction. Dell will be responsible for paying any
individual consumers' arbitration fees. If any Customer prevails on any claim that affords the prevailing party
attorneys' fees, or if there is a written agreement providing for fees, the Arbitrator may award reasonable
fees to the prevailing party, under the standards for fee shifting provided by law. YOU ACKNOWLEDGE
THAT YOU ARE GIVING UP YOUR RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY
OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO
SUCH A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS
ACCESS TO DISCOVERY, MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. For
information on AAA or JAMS, contact the following: American Arbitration Association, 335 Madison Avenue,
10th Floor, New York, NY 10017, www.adr.org; JAMS, 45 Broadway, New York, NY 10005, (800) 352 -5267,
www.jamsadr.com.
(REV 110109)
Terms and Conditions of Sale for Persons or Entities Purchasing to Resell (applies to all purchases of
Products that buyer intends to resell to others)
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION ABOUT
YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU.
These terns and conditions (this "Agreement" ) apply to your purchase and resale of certain products ("Products")
and Dell services ( "Services ") from Dell or a Dell distributor in the United States or Canada (collectively, Products
and Services shall be referred to as "Dell Products and Services" ). This Agreement does not apply to you if you
are buying Dell Products and Services for your own end use. Not all Dell Products and Services are available for
purchase under this Agreement. "Dell" means the direct or indirect affiliate or subsidiary of Dell Inc. named on your
invoice, order confirmation, or other sales documents. "You" or "you" shall include your subsidiaries and affiliates
that are majority owned or controlled by you, and are approved by Dell to resell Dell Products and Services under this
Agreement (collectively, "Affiliates"). These terms and conditions are subject to change at any time in Dell's sole
discretion without prior written notice. If you do not wish to be bound by this Agreement, you must promptly notify
Dell. Products must remain in the boxes in which they were shipped and you must notify us immediately to arrange a
Product return, for which YOU WILL BE RESPONSIBLE FOR SHIPPING & HANDLING CHARGES. ADDITIONAL
RETURN OR RESTOCKING FEES MAY APPLY. THIS AGREEMENT SHALL APPLY UNLESS YOU HAVE A
SEPARATE WRITTEN AGREEMENT WITH DELL THAT EXPRESSLY APPLIES TO YOUR PURCHASE AND
RESALE OF DELL PRODUCTS AND SERVICES.
By purchasing Dell Products and Services for resale, you agree to be bound by and accept the terms and conditions
of this Agreement.
TERMS AND CONDITIONS
1. Appointment. Subject to your compliance with this Agreement, you may resell Dell Products and Services
to certain third parties ( "End- users" ) as authorized by Dell in writing, in Dell's sole discretion, only after you
have added value to the Products through the addition of hardware, software, or services. Approval by Dell
shall not be deemed from the sale of Product to you. You may not resell to Consumer, Education,
Healthcare, Federal, Stale, Provincial or Local or other Public- sector customers, or to distributors or third -
party sales agents, and you may not remarket or resell through retail storefronts or auction -type web sites.
You may not resell to customers outside the United States or Canada, whichever is the country covered by
the Dell entity from which you purchased Dell Products and Services. This Agreement is not exclusive. Dell
may appoint other dealers, distributors, resellers, licensees or sales agents (including those who may
compete with you) to sell Dell Products and Services. Dell may market Dell Products and Services to any
third -party directly or indirectly without any obligation or liability to you. This Agreement does not guarantee
that you will make any sales of Dell Products and Services. You determine or set your resale pricing. Dell
reserves the right to restrict or prohibit your participation in certain promotions, and to add, modify, or
discontinue pricing, Products, Services, or parts. Dell may require you to meet additional obligations not
outlined herein, which will be disclosed to you prior to your purchase of Dell Products and Services for
resale. You will provide Dell such information and reports pertinent to your relationship with Dell as may
reasonably be requested by Dell.
2. Trademarks; Copyrights.. You may use the "Dell" name and the names of Dell's Products and Services
(collectively, "Names" ) solely for the purpose of accurately identifying the Dell Products and Services you
market or sell under this Agreement. You may not use the Names for any other purpose, and may not use
any other Dell trademarks, service marks, or copyrighted works. You agree to change or correct, at your
own expense, any materials or activity that Dell decides is inaccurate, objectionable or misleading, or a
misuse of the Names, trademarks, service marks, logos, or copyrighted works. You are prohibited from
using Dell's logos, referring to yourself as an authorized reseller of Dell, or creating the impression that Dell
is affiliated with you other than as permitted expressly by the terms of the PartnerDirect program. You may
not claim or imply that you and Dell are legal partners or that Dell has sponsored, authorized, approved, or
endorsed your business or any offer or marketing, advertising, or promotion thereof in any manner. You may
not register or use any domain name or business name containing or confusingly similar to any name or
mark of Dell's. You will clearly and prominently identify yourself in all your offers and advertising, marketing,
and promotional materials.
3. Intellectual Property Ownership. All right, title and interest in the intellectual property rights in Dell
Products and Services, including technology and trade secrets embodied therein and any custom
developments created or provided in connection with or related to this Agreement, and any derivative works
thereof, shall belong solely and exclusively to Dell or its licensors, and you shall have no rights whatsoever
in any of the foregoing other than the rights set forth in this Agreement. Nothing in this Agreement or
otherwise will be deemed to grant to you an ownership interest in the intellectual property rights in Dell
Products and Services, in whole or in part.
4. WARRANTIES. DELL MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN (i) DELL'S
APPLICABLE LIMITED WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE,
PACKING SLIP, OR ACKNOWLEDGEMENT FOUND AT WWW.DELL.COM/WARRANTY OR THE
DOCUMENTATION PROVIDED WITH THE PRODUCT(S) OR SERVICES OR (ii) WITH RESPECT TO
THE SERVICES IN AN APPLICABLE SERVICE CONTRACT OR SERVICES DESCRIPTION FOUND AT
WWW.DELL.COM /SERVICECONTRACTS OR A SEPARATELY SIGNED STATEMENT OF WORK. DELL
DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES
BY DELL FOR NON -DELL BRANDED PRODUCTS, SERVICES, OR SOFTWARE PRODUCTS. ALL SUCH
PRODUCTS AND SERVICES ARE PROVIDED BY DELL "AS IS " NO REVISION IN LIMITED
WARRANTIES WILL AFFECT PRODUCTS OR SERVICES ALREADY ORDERED BY YOU.
5. REMEDIES & RESPONSIBILITIES. DELL RESERVES THE RIGHT TO MODIFY OR DISCONTINUE
SERVICE, MAINTENANCE, OR SUPPORT IT OFFERS IN WHOLE OR IN PART PROVIDED SUCH
MODIFICATION OR DISCONTINUANCE SHALL NOT VOID ANY WARRANTY, SERVICE,
MAINTENANCE, OR SUPPORT IN EXISTENCE AND PAID FOR PRIOR TO SUCH MODIFICATION OR
DISCONTINUANCE. DELL MAY CANCEL SOFTWARE LICENSES, SERVICES, MAINTENANCE, OR
SUPPORT IF DELL DOES NOT RECEIVE PAYMENT. IF YOU PURCHASE THIRD - PARTY- BRANDED
PRODUCTS, SERVICES, MAINTENANCE, OR SUPPORT, ADDITIONAL THIRD -PARTY TERMS AND
CONDITIONS MAY APPLY. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL
REPRESENTATIONS AND OMISSIONS YOU MAKE OR FAIL TO MAKE TO YOUR CUSTOMERS OR TO
THE PUBLIC. YOU WILL INFORM YOUR CUSTOMERS OF DELL'S RIGHTS AND YOUR OBLIGATIONS
UNDER THIS AGREEMENT.
6. This Agreement may NOT be altered, supplemented, or amended by you via the use of any other
document(s) unless otherwise agreed to in a separate written agreement signed by Dell. Any use of pre-
printed forms, such as purchase orders, are for convenience only, and any terms set forth therein shall not
apply to the purchase of Dell Products and Services in accordance with this Agreement.
7. Limitation of Liability. DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN
THIS AGREEMENT. DELL WILL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL,
INDIRECT, OR PUNITIVE DAMAGES, OR FOR ANY LIABILITY FOR PRODUCTS OR SERVICES NOT
BEING AVAILABLE FOR USE, LOST OR CORRUPTED DATA OR SOFTWARE, LOST PROFITS OR
SAVINGS, LOSS OF BUSINESS, OR THE PROVISION OF SERVICES OR SUPPORT NOT OTHERWISE
PAID FOR OR SUBJECT TO ANY WARRANTY ASSOCIATED WITH SUCH PRODUCT OR SERVICE
WHETHER DIRECT OR INDIRECT, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT OR ON OUR WEB SITE TO THE CONTRARY, DELL IS NOT RESPONSIBLE FOR
INFORMATION OR DATA YOU PROVIDE TO US UNLESS YOU HAVE A SEPARATE WRITTEN
AGREEMENT TO THE CONTRARY. YOU AGREE THAT FOR ANY LIABILITY ARISING FROM OR
RELATED TO THE PURCHASE OF ANY PRODUCTS OR SERVICES, DELL IS NOT LIABLE OR
RESPONSIBLE FOR ANY AMOUNT OF DAMAGES: IN THE CASE OF PRODUCTS ABOVE THE
AGGREGATE DOLLAR AMOUNT YOU PAID TO DELL FOR SUCH PRODUCTS THAT CAUSED THE
LIABILITY OR IN THE CASE OF SERVICES THE AGGREGATE DOLLAR AMOUNT YOU PAID TO DELL
FOR SUCH SERVICES THAT CAUSED THE LIABILITY IN THE PREVIOUS 12 MONTHS PRIOR TO
SUCH CLAIM FOR LIABILITY. THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN
IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
8. Limitation Period. Neither party may institute any action in any form arising out of this Agreement more
than two (2) years after the cause of action has arisen, or in the case of nonpayment, more than two (2)
years from the date of last payment.
9. Your Indemnity to Dell. To the fullest extent permitted by law, you will indemnify, defend, and hold
harmless Dell, including Dell's officers, directors, agents, employees, subsidiaries, affiliates, parents,
successors and assigns, from any claim, demand, cause of action, debt, or liability (including reasonable
attorneys' or legal fees, expenses, and court costs) that relates to: (a) your modification of or addition to Dell
Products and Services; (b) your breach of this Agreement, including your failure to secure assent by your
End -Users to be bound by the CMSA (as defined below) or such other End -User terms provided by Dell to
you in connection with this Agreement; (c) your omission, misrepresentation, or negligence; (d) warranties
you provide to End -Users outside the terms of this Agreement with respect to Dell Products and Services;
and (d) damage to a third party by Dell Products and Services sold by you to the extent such claim is based
on (i) your modification of or addition to Dell Products and Services, misuse or abuse of Dell Products and
Services, or breach of any provision in this Agreement; (ii) your failure to abide by all applicable laws, rules,
regulations, and orders that affect Dell Products and Services; (iii) your omission, misrepresentation, or
negligence; or (iv) intentional harm to any person or property caused by you. Indemnified claims, debts, and
liabilities include the amount of any discount in price or concession that is made available by Dell to you.
10. Marketing. Reseller shall make no representations or warranties concerning Dell Products and Services
except as Dell may itself approve in writing.
11. Dispute Resolution - Arbitration. The parties will attempt to resolve any claim, dispute, or controversy
(whether in contract, tort or otherwise, whether preexisting, present or future, and including statutory,
consumer protection, common law, intentional tort and equitable claims) between you and Dell, its agents,
employees, principals, successors, assigns, or affiliates (collectively for purposes of this paragraph, "Dell ")
arising from or relating to the parties' written agreements, their interpretation, or the breach, termination or
validity thereof, the relationships which result from the written agreements, the partner direct program, the
reseller program, Dell's advertising, or any related purchase (each a "Dispute ") through face -to -face
negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually
agreeable mediator, rather than through litigation. If the parties are unable to resolve the Dispute through
negotiation or mediation within a reasonable time after written notice from one party to the other that a
Dispute exists, the Dispute will be settled by binding individual arbitration in accordance with the then current
CPR Rules for Non - Administered Arbitration . The Arbitration will be conducted before a single arbitrator
mutually agreed to by the parties. If such arbitrator cannot be agreed upon Dell will appoint one (1) arbitrator
and you will appoint one (1) arbitrator. The two (2) appointed arbitrators will then select a third arbitrator,
who shall be the presiding arbitrator. NEITHER YOU NOR DELL SHALL BE ENTITLED TO JOIN OR
CONSOLIDATE CLAIMS BY OR AGAINST OTHER RESELLERS OR PARTNERS, OR ARBITRATE ANY
CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL
CAPACITY. The individual (non- class) nature of this dispute provision goes to the essence of the parties'
arbitration agreement, and if found unenforceable, the entire arbitration provision shall not be enforced. The
arbitration hearing shall take place in Austin. Texas, and will be governed by the United States Federal
Arbitration Act to the exclusion of any inconsistent state laws. The arbitrators shall base their award on the
terms of any written Agreement(s), and will follow the law and judicial precedents that a United States
District Judge sifting in the Western District of Texas would apply to the Dispute. (For Canadian entities: the
arbitration hearing shall take place in Toronto, Ontario, and will be governed by the Arbitration Act of Ontario
and the applicable laws of Ontario and Canada.) The arbitrator shall render its award in writing and will
include the findings of fact and conclusion of law upon which their award is based. Judgment upon the
arbitration award may be entered by any court of competent jurisdiction. Notwithstanding the foregoing,
either party will have 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 or prevent irreparable harm,
although the merits of the underlying Dispute will be resolved in accordance with this paragraph.
12. Independent Contractors. No provision of this Agreement will or shall be deemed to create a legal
partnership, joint venture, or other combination between Dell and you. 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 or will claim to be a legal representative, franchisee, agent, or employee
of the other party. 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.
13. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THEREUNDER, OR
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE,
WHETHER PREEXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW,
AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL arising from or relating to this Agreement,
its interpretation, or the breach, termination, or validity thereof, the relationships which result from this
Agreement, Dell's advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF TEXAS (OR FOR CANADIAN ENTITIES, THE PROVINCE OF ONTARIO), WITHOUT REGARD
TO CONFLICTS -OF -LAWS RULES.
14. Export. You acknowledge that the purchased Dell Products and Services licensed or sold under this
agreement may include technology and software that are subject to the customs and export control laws and
regulations of the United States ( "U.S. ") or Canada and may also be subject to the customs and export laws
and regulations of the country in which Dell Products and Services are manufactured and /or in the case of
both Dell Products and Services are received. For any authorized resale under this Agreement, you
acknowledge that it is your sole responsibility to comply with those laws and regulations and you agree to
fully abide by those laws and regulations. Further, under those laws, Dell Products and Services shipped
pursuant to this Agreement may not be sold, leased or otherwise transferred to restricted End -Users
(including those on the U.S. Department of Commerce, Bureau of Industry and Security "Entity List' and
other lists of denied parties) or to restricted countries (currently Cuba, Iran, North Korea, Sudan, and Syria).
In addition, the shipped Dell Products and Services may not be sold, leased or otherwise transferred to, or
utilized by an End -User engaged in activities related to weapons of mass destruction, including without
limitation, activities related to the design, development, production or use of nuclear weapons, materials, or
facilities, missiles or the support of missile projects, and chemical or biological weapons. 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 such applicable laws and regulations. If purchased Dell Products
and Services are resold in violation of the foregoing restrictions, Dell shall not be obligated to provide any
warranty service or technical support.
15. Regulatory Compliance. Dell has not tested the Products for use in specialized or high -risk applications or
hazardous environments, including but not limited to any life- sustaining, chemical, or mission - critical use.
DELL WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE
PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING BUT NOT LIMITED TO THE OPERATION OF
NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC
CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT, OR WEAPONS SYSTEMS. You are responsible for
ensuring continued regulatory compliance, including but not limited to compliance to electrostatic discharge
and radiated emissions standards, for any modifications or additions made to the Products after the
Products are shipped from Dell. You are also responsible for obtaining any regulatory compliance marks that
may be required to ship into locations other than United States and Canada.
16. Headings. The section headings used herein are for convenience of reference only and do not form a part
of these terms and conditions, and no construction or inference shall be derived there from. 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.
17. Language. The parties confirm that it is their wish that this Agreement, as well as other documents relating
to this Agreement, including all notices, have been and will be drawn up in the English language only. Les
parties aux presentes conferment leur volonte quo cette convention, de meme que tous les documents, y
compris tout avis, qui s'y rattachent, soient rediges en langue anglaise.
18. Audit. You will maintain accurate and legible records for a period of five years and will grant to Dell, or its
designee, reasonable access to and copies of, any information reasonably requested by Dell with respect to
your performance under this Agreement.
19. Termination. Dell may terminate this Agreement for any reason upon written notice to you at the address
provided to Dell in accordance with the terms of this Agreement. This Agreement may be terminated by
written notice of termination by either party if the other party breaches any of its obligations under this
Agreement and the breach is not substantially cured within 30 days of receipt of notice of such breach (or, if
an effort to cure is being diligently pursued, within such time as is reasonably necessary to complete the
cure).
20. Purchases by Affiliates. Unless otherwise agreed in writing, any Affiliate who submits an order to Dell
shall have thereby agreed to abide by the terms of this Agreement. Dell, in its sole discretion, may
discontinue selling Dell Products and Services to any Affiliate or may require additional payment and /or
credit conditions for such Affiliate. In consideration of Dell's agreement to extend credit to your Affiliates at
the same or similar level as the credit extended to you, you hereby unconditionally guarantee complete and
timely payment of any and all amounts due to Dell from any Affiliate.
21. Assignment; Subcontracting. You may not assign this Agreement without the prior written consent of
Dell. Dell has the right to subcontract the Services provided under this Agreement.
22, Force Majeure. Dell shall not be liable to you for any failure to perform any of its obligations under this
Agreement during any period in which such performance is delayed by circumstances beyond its reasonable
control including, but not limited lo, fire, flood, war, embargo, strike, riot or the intervention of any
governmental authority (a "Force Majeure").
23. Notices. To give notice under this Agreement, your notice must be in writing and sent by postage prepaid
first -class mail, receipted courier service, facsimile telecommunication or electronic mail to the address
below. Notice to you may be sent to you by postage prepaid first -class mail, receipted courier service,
facsimile telecommunication or electronic mail to the address and contact information provided by you to
Dell in connection with this Agreement.
Dell Marketing L.P.
Attn: Mgr Contracts
One Dell Way
Round Rock, TX 78682
24. Quotes; Orders; Payment Terms; Interest. Payment terms for Dell Products and Services are within
Dell's sole discretion and shall be set forth at the time of purchase of such Dell Products and Services. You
agree not to violate the terms of any offer or concession made available by Dell. Dell may invoice or ship
parts of an order separately. Dell reserves the right to cancel an order or transaction, in whole or in part. If
you breach the provisions of this Agreement or the terms of any offer, 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). You agree to pay interest on all past -due sums at the highest rate allowed by law. 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. Unless you and Dell have agreed
to a different discount, Dell's standard pricing policy for Products, which include both hardware and support
services in one discounted price, allocates the discount off list price applicable to the service portion of the
system to be equal to the overall calculated percentage discount off list price on the entire system.
25. Shipping Charges; Risk of Loss; Taxes. Shipping dates provided by Dell are estimates only. Shipping
and handling are additional and will be shown on the invoice(s) or other documentation. Loss or damage to
Products that occurs during shipping by a carrier selected by Dell is Dell's responsibility. Loss or damage
that occurs during shipping by a carrier selected by you is your responsibility. Unless you provide Dell with a
valid and correct tax - exemption certificate at the time of purchase, you will be responsible for any and all
taxes and fees associated with the order of Dell Products and Services, however designated, except for
Dell's franchise taxes and taxes on Dell's net income.
26. Title; Insurance. Title to Products (except software) passes from Dell to you on shipment from Dell's facility
or third -party manufacturer's facility. Title to software will remain with the applicable licensor(s). You will
maintain comprehensive general liability, including products liability, insurance in an amount appropriate for
your business, but in no event less than $1,000,000.00 (US) with an insurance company having a Best
rating of A. Upon request, you will name Dell as an additional insured and provide to Dell a certificate of
such insurance (including any new or amended certificates of insurance).
27. Software; End -User License Agreement.
A. Products. All software distributed with Products is provided subject to the End -User license
agreement that is provided with the Product. You agree that you and your End -Users will be bound
by such license agreement.
B. Services. All software services, online services, hosted solutions, cloud computing services and
software- enabled services are provided pursuant to the license agreement and Acceptable Use
Policy set forth at www.dell.com /AUP.
28. No Returns. All sales are final. Neither you nor your customers may return Products to Dell. If you refuse
delivery of Products that you ordered, you will be responsible for shipping and handling charges and
additional return or restocking fees may apply.
29. Order Support; Other. If you do not receive an invoice or acknowledgement in the mail or with your Dell
Products and Services, information about your purchase may be obtained at
www. support.dell.com /DellCare /index.aspx (or in Canada at www.dell.ca /support) or by contacting your
sales representative. You are obligated to ensure that you transfer the asset/service identification number
(e.g. the Service Tag or Asset Number) to your End -User that is associated with Dell Products and Services
you have purchased for resell in accordance with this Agreement. The process to complete such transfer is
located at www.support.dell.com, which process may change from time to time. It is your responsibility to
ensure compliance with the latest version of the posted process. You acknowledge that your failure to
property transfer the asset/service identification number will result in the End - User's inability to receive
services from Dell.
30. Dell Products and Services Updates. Dell's policy is one of ongoing Dell Products and Services update
and revision. Dell may revise and discontinue Dell Products and Services at any time without notice to you.
Dell will ship Products and offer Services that have the functionality and performance of Dell Products and
Services ordered, but changes between what is provided to you and what is described in a specification
sheet or catalog are possible.
31. Support Services Parts. The parts and assemblies used in building Products, service parts and spare
parts are selected from new, equivalent -to -new, or reconditioned parts and assemblies.
32. Your Resale of Dell Services.
A. Dell Terms & Conditions Applicable to End - Users. You will only resell Services, including
support services sold with Products, to End -Users who agree to be bound to Dell's Customer
Master Services Agreement set forth at www.dell.com /servicecontracts ( "CMSA "), including terms
and conditions incorporated by reference therein. You will incorporate in an enforceable manner
the CMSA into your own agreement with End -Users ( "End -User Reseller Agreement"), or where
required by Dell, enable the CMSA to be presented directly to End -Users prior to their use of
Services. Where Dell requires the CMSA to be presented directly to End - Users, the specific
implementation and presentation of such terms will be mutually agreed, but at a minimum shall
include i) direct links to the CMSA in an enforceable manner; ii) consentlaccept provisions; and iii)
continued accessibility by End -Users to the CMSA. You will immediately notify Dell if you become
aware of any End - User's violation of the CMSA and any actions you have taken or will take in
connection with the violation. At Dell's request, you will promptly discontinue further sales and
suspend or terminate End - User's access to the Services in response to a violation of the CMSA.
You acknowledge and agree that Dell is a third party beneficiary of the agreement used to engage
the End User with respect to the Services and that you shall require the End User to acknowledge
and agree as to such in the End -User Reseller Agreement. For avoidance of doubt, to ensure
compliance with this Section, you shall provide the following provision in your End -User Reseller
Agreement (or such other agreement you have with the End User as it relates to the Services):
"Services being provided to you pursuant to this agreement that are provided by Dell Marketing,
L.P. or one of its worldwide affiliates ( "Dell "), are being provided to you in accordance with the
terms and conditions of Dell's Customer Master Services Agreement and any and all applicable
Service Descriptions set forth at www.dell.com /servicecontracts. You hereby acknowledge and
agree to be bound by the terms set forth therein and that Dell is a third party beneficiary to this
agreement."
To ensure compliance with the terms of this Agreement, Dell reserves the right to audit your
agreements with the End Users. Such audit shall take place during normal business hours upon
seven days prior written notice.
B. Internal Use by Reseller. If you use or otherwise are the recipient of Services, including support
services sold with Products, in any manner in connection with your resale of Services, such as
serving as a managed service provider or participating in the delivery or deployment of Services to
your customers, such use shall be governed by the CMSA.
C. Updates. Dell reserves the right to update the CMSA at any time and from lime -to -time, effective
upon posting of an updated version to the Dell website available at www.dell.com /servicecontracts.
You are responsible for regularly reviewing the CMSA. You should closely monitor the revision date
on the CMSA and any change of its posted date shall be deemed notice to you that the CMSA has
been changed or amended. Continued resale or use of Services after any such changes shall
constitute your consent to such changes.
D. Dell Enforcement. Dell reserves the right, in its sole discretion, to suspend or terminate any End -
User in response to a violation or suspected violation of the CMSA or terms and conditions
incorporated by reference therein.
E. Dell Access to End -User Usage Data. "End -User Usage Data" means data or information
collected or received by Dell relating to an End -Users use of the Service, including preferences,
images, files and documents. Dell reserves the right to access, preserve, or disclose End -User
Usage Data if required to do so by law or in a good faith belief that such access, preservation or
disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce Dell's CMSA; (iii)
respond to claims that any End -User Usage Data violates the rights of third parties; (iv) respond to
your or your End Users' requests for technical support; or (v) protect the rights, property or personal
safety of Dell, its users and the public.
(Rev 110109)
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB- AGREEMENT
SUB - AGREEMENT effective July 1, 2010, between Northrop Grumman Systems
Corporation, a Delaware corporation, acting through Northrop Grumman Information Systems
Sector, Civil Systems Division, with an office at 15010 Conference Center Drive, Chantilly, VA
20151 -3801 ( "Northrop Grumman ") and the City of Newport Beach, ( "Customer ").
1. SOFTWARE SYSTEM
For the purpose of this Sub - Agreement, the "Software System" shall mean the Northrop
Grumman Computer Software System (Software System) identified in Exhibit A of this
Sub - Agreement.
2. SOFTWARE SUPPORT SERVICES
a. With respect to the Software System, Northrop Grumman agrees to perform, or
cause to be performed, the following maintenance services:
1. Northrop Grumman will retain a complete copy of the Software System
source code.
2. If during the term of this Agreement, (a.) the Customer discovers defects
in the Software System such that same will not perform in accordance with
Northrop Grumman's design; (b.) the Customer notifies Northrop
Grumman of such defects; and, (c.) such defects are reproducible, then
Northrop Grumman shall provide, or cause to be provided, timely
corrections of such defects.
3. If problems arise concerning the Software System, Northrop Grumman
will provide telephone assistance as required within the schedule stated in
Exhibit B.
4. If Serious problems arise from the Northrop Grumman application (see 3.
Severity Levu and the Customer cannot correct them by following system
management procedures previously supplied by Northrop Grumman,
Northrop Grumman will provide assistance to restore the Software System
operations 24 hours a day, 365 days a year without additional charge to the
Customer.
Document Prepared 11/29/10 SMK_0410 Page 1
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUIT- AGREEMENT
b. Microsoft Windows Patches
Application of Microsoft Windows Software Patches to the Public Safety Servers that are
currently using Northrop Grumman's applications software (i.e. CADLIVE Server, MIS
(CADTRAIN) RMS (RMS Live, RMS Test) Server is not included in the annual SW
Maintenance pricing. Northrop Grumman will apply a specific critical patch (if needed)
in order to fix a reported Northrop Grumman SW problem. Northrop Grumman does not
apply the periodic Microsoft Windows patch updates as part of the yearly Software
Maintenance. This type of SW patch update service task could be added as a standalone
quote or completed under a On -Demand or T &M Service agreement.
C. HCL Software GUI Patches
Application of HCL GUI Software Patches to the Public Safety CAD Clients that are
currently using Northrop Grumman's applications software (i.e. CADLIVE, MIS
(CADTRAIN) is not included in the annual SW Maintenance pricing. Northrop
Grumman will apply a specific HCL SW critical patch (if needed) in order to fix a
reported Northrop Grumman SW problem. Northrop Grumman does not apply the
periodic HCL Software patch updates as part of the Software Maintenance. This type of
HCL SW update service task could be added as a standalone quote or completed under a
On -Demand or T &M Service agreement.
d. Oracle Database and Software Patches
Application of Oracle Database and Software Patches to the Public Safety Servers that are
currently using Northrop Grumman's applications software (i.e. CADLIVE Server, MIS
(CADTRAIN) RMS (RMS Live, RMS Test) Server is not included in the annual SW
Maintenance pricing. Northrop Grumman will apply a specific critical patch (if needed)
in order to fix a reported Northrop Grumman SW problem. Northrop Grumman does not
apply the periodic Oracle patch updates as part of the Software Maintenance. This type of
Oracle SW patch update service task could be added as a standalone quote or completed
under a On -Demand or T &M Service agreement.
e. Oracle Database Software Maintenance and DBA Administration Services:
The database is the single most critical element of the Public Safety systems. Northrop
Grumman Oracle and DBA services provide remote access support and system tuning.
Regular monitoring and tuning is vital to minimizing downtime and data loss.
Document Prepared 11/29/10 SMK_0410 Page 2
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB - AGREEMENT
Included in the Oracle DBA Services is monthly monitoring of the database space, the
Alert Log, backup procedures, table spaces and ensuring maximum efficiency in space
utilization and minimal space fragmentation.
1. Monitor Database Space - If the database is running low on space, the DBA
will create additional space within the existing configuration to prevent Oracle
database errors. These errors prevent transfers from going across and prevent
users from entering additional data.
2. Monitor Alert Log - The DBA will check the log file that records problems
with the database. The problems reported in the alert log will be addressed.
3. Ensure Maximum Efficiency in Space Utilization - The DBA will de- fragment
the free space in the database, as needed.
4. Ensure Minimal Fragmentation in the Space Used - The DBA will monitor the
growth of the database and make proper adjustments to segments. This will result
in optimal performance and an efficient use of space.
5. Monitor Table Spaces - The DBA will ensure that all table spaces are in proper
status and that none of them are left in, the very dangerous, backup status. This
would require database recovery in case of a system crash or even a normal
shutdown.
6. Database recovery - The DBA will recover the Oracle Database should it
become necessary due to a system crash or abnormal shutdown.
7. The DBA will monitor and modify the Oracle listener configuration if
necessary.
8. Oracle Software Error Reporting, the DBA will open up a ticket with Oracle
and track the errors in order to determine SW fixes for any Oracle related software
errors covered under the Oracle SW maintenance agreement.
3. SEVERITY LEVEL
Problems that prevent the actual execution of a critical function of the Software System
specified in Exhibit A shall be defined as "Serious ". Serious system problems include:
Document Prepared 11/29/10 SMK 0410 Page 3
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB- AGREEMENT
a complete system outage;
b. the failure of a major portion of the database engine or message switching system;
C. in CAD systems, the loss of a major portion of complaint receiving or dispatch
terminals;
d. in CAD systems, the inability to dispatch an area or areas;
e. in CAD systems, the loss of unit suggestion;
f. in CAD systems, the loss of the geographical validation applications;
g. in records systems, the failure of the MUX process;
h. in records systems, the failure of the INCIDENT or INTAKE modules;
i. loss of communications with the mobile data controller, other than such loss due
to malfunction occurring outside of the Northrop Grumman system;
j. system response times doubling and continuing beyond fifteen (15) minutes, other .
than such doubling due to malfunction occurring outside of the Northrop
Grumman system.
4. RESPONSIBILITIES OF CUSTOMER
The obligations of Northrop Grumman under this Agreement are conditioned upon:
a. Customer assigning a Coordinator to ensure that Customer's assignments in
connection with this Agreement are met, to coordinate appropriate schedules in
connection with Northrop Grumman's services hereunder, and to serve to provide
other coordination activities which are necessary for Northrop Grumman to perform
its services hereunder.
b. Customer assigning at least two technically capable individuals, as required by
Northrop Grumman to assist Northrop Grumman in performing its services
hereunder.
c. Customer establishing an on -site VPN access to enable Northrop Grumman to
remotely access the Software System.
d. Customer shall be responsible for controlling security and access to the computer
systems. The Customer shall provide the appropriate usemames and authorization
codes to Northrop Grumman whenever maintenance work is to be done.
e. Customer shall not perform any modifications or enhancements to the Software
System or allow any person or entity not specifically authorized by Northrop
Grumman to perform any modifications or enhancements to the Software System.
Document Prepared 11/29/10 SMK_0410 Page 4
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUE- AGREEMENT
f. As applicable and necessary, during the tenn of the Master Maintenance Agreement,
and any subsequent extensions of the tern, Customer shall keep a verified copy of the
Software System back -up, at no cost to Northrop Grumman, for use in assisting the
Customer during disaster recovery efforts if requested. Northrop Grumman
recommends that system and tape backups are routinely kept offsite.
g. It is the Customer's sole responsibility for insuring System Management Procedures
are performed for continuous operation of the CAD and RMS /MIS systems. This
includes, but is not limited to, performing full monthly system and daily database file
backups, routine configuration changes, installation of operating system and
application patches, system and database backups, system and database performance
tuning, network problem diagnosis, and system monitoring and preventive
maintenance. Detailed System Management duties and responsibilities are outlined in
the System Management Guide.
h. Northrop Grumman and Customer shall coordinate hardware repairs with the
appropriate third -party hardware maintenance provider.
5. TERM
The term during which Northrop Grumman shall be obligated to perform under Section 2
shall commence July 1, 2010, and, unless terminated pursuant to terms provided in the
Northrop Grumman Master Maintenance Agreement, shall continue for a period of two
(2) years. Northrop Grumman and Customer may, by mutual agreement in writing, renew
the term or any renewal thereof, for an additional period of one year.
6. LICENSE
With respect to each correction to the Software System furnished to Customer under this
Agreement, Customer is granted a perpetual non - exclusive, non - assignable, non-
transferable license to use such correction solely as appropriate as part of the Software
System as defined in the "License" Article of the Agreement for the System(s).
Document Prepared 11/29/10 SMK 0410 Page 5
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB - AGREEMENT
- EXHIBIT A -
SOFTWARE SYSTEM
The software system to be maintained under this Agreement including any unique technical
conditions is as follows:
The Altaris Customer's Computer Aided Dispatch as defined in the original Functional
Specification Document as submitted to and accepted by the Customer including any
additional contractual work performed by Northrop Grumman.
The Altaris Management Information System as defined in the Functional Specification
Document as submitted to and accepted by the Customer including any additional
contractual work performed by Northrop Grumman.
3. The Altaris Records Management System as defined in the original Functional Specifica-
tion Document as submitted to and accepted by the Customer including any additional
contractual work performed by Northrop Grumman.
4. The GDI Tools as defined in the original Functional Specification Document as submitted
to and accepted by the Customer including any additional contractual work performed by
Northrop Grumman
Document Prepared 11/29/10 SMK_0410 Page 6
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB- AGREEMENT
- EXHIBIT B -
SERVICES TO BE PROVIDED
Basic software service shall be provided five (5) days per week from 5:30 a.m. through 5:30 p.m. Pacific
Time excluding NORTHROP GRUMMAN holidays.
Calls made outside the above Basic service times will be billable as follows:
Year 1 - $1,140 per call for the first four hours of consultation and $285 /hour for an additional consultation
Year 2 - $1,200 per call for the first four hours of consultation and $300 /hour for an additional consultation
However, if Serious problems arise. (see 3. Severity Level) and the Customer cannot correct them by
following the system management procedures previously supplied by Northrop Grumman, calls
made outside of the Basic service times will not be billable. The determination of whether an after-
hours call is billable will be made solely by Northrop Grumman.
2. ON DEMAND MAINTENANCE SERVICES - ODMS
ODMS is defined as forty (40) contiguous hours of remote Northrop Grumman Programmer services for
the " Northrop Grumman installed system" (System). Services to be performed by the Northrop Grumman
Programmer are at the discretion of the Customer. It is advisable to transmit to Northrop Grutmnan, prior
to the Northrop Grumman Programmer service, a list of work descriptions desired by the Customer. The
ODMS to be performed by the Northrop Grumman Programmer will be on a "best effort" basis. If the work
is not complete or task finished by the Northrop Grumman Programmer at the end of forty (40) hours, the
Customer has the option to contract for additional ODMS or have Northrop Grumman complete the work
Document Prepared 11/29/10 SMK_0410 Page 7
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SIDE- AGIYEEMENT
on a "time and materials" (T &M) basis. The additional ODMS or T &M work will have to be mutually
agreed to and scheduled. ODMS work completed by Northrop Grmnman will then be transferred and
maintained under the Master Maintenance Agreement.
The annual ODMS rates for forty (40) hour blocks is as follows:
Year 1 - $10,000
Year 2 - $10,500
Customer has the option to have the Northrop Grumman Programmer on site. Travel is not included in the
rates as defined as above. Travel shall be billed at cost plus 10 %.
Document Prepared 11 /29/10 SMK_0410 Page
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 18
January 11, 2011
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Police Department
Jay R. Johnson, Chief of Police, 949 - 644 -3701, JJohnson @nbpd.org
Jon Lewis, Lieutenant, 949 - 644 -3660, JLewis @nbpd.org
John Veale, Computer Systems Manager, 949 - 644 -3649, JVeale @nbpd.org
SUBJECT: FUNDING FOR MULTI -YEAR SUPPORT FOR COMPUTER AIDED
DISPATCH AND RECORDS MANAGEMENT SYSTEMS
ISSUE:
The maintenance agreement for the support of the Police Department's Computer Aided
Dispatch and Records Management Systems has lapsed. A new agreement is proposed
to continue to provide for the support of these critical systems.
RECOMMENDATIONS:
1. Approve an expenditure of $161,279.28 for hardware and software support for the
Police Department's Computer Aided Dispatch (CAD) and Records Management
System (RMS) from Northrop Grumman (formerly PRC), for July 1, 2010, to
June 30, 2011.
2. Approve an expenditure of $185,093.24 for hardware and software support for the
Police Department's CAD and RMS from Northrop Grumman for July 1, 2011, to
June 30, 2012.
3. Authorize a single- source contract from Northrop Grumman, the product
manufacturer of the Police Department's CAD and RMS systems.
4. Authorize the Mayor to execute a standard Professional Services Agreement
contract with the vendor, as approved by the Office of the City Attorney.
Funding for CAD and RMS Support
January 11, 2011
Page 2 of 3
DISCUSSION:
The Police Department's CAD and RMS systems were installed in 1999. CAD systems
allow public safety operations and communications to be augmented, assisted, or partially
controlled by an automated system. It can include, among other capabilities, computer -
controlled emergency vehicle dispatching, vehicle status, incident reporting, and
management information (National Institute of Justice, Law Enforcement Information
Technology Standards Council, 2009). RMS is an agency -wide system that provides for
the storage, retrieval, retention, manipulation, archiving, and viewing of information,
records, documents, or files pertaining to law enforcement operations (Standard
Functional Specifications for Law Enforcement Records Management Systems Version ll,
Law Enforcement Information Technology Standards Council, 2008). CAD and RMS are
critical, core systems that touch virtually every aspect of Police Department operations.
Since the original installation, these systems have been supported and maintained by the
original developer, Northrop Grumman. The Department has continued to secure
maintenance agreements with Northrop Grumman every five years to sustain the
operational capability of these systems. Over the many years these systems have been
in place, Northrop Grumman has provided reliable support and a number of system
upgrades as part of these maintenance agreements. Further, Northrop Grumman
received City Council approval on June 22, 2010, to upgrade the CAD workstations from
the Windows 2000 Operating System to Windows XP Professional.
The support and maintenance of these systems requires access to the source code for
the software of the systems. The source code for these systems is a proprietary product
and is owned by and in the sole possession of Northrop Grumman. Due to this, the
Police Department is limited to Northrop Grumman as the sole provider for the
Department's CAD and RMS servicing and upgrades.
ENVIRONMENTAL REVIEW:
The purchase of this maintenance agreement has been determined not to be a project for
purposes of the California Environmental Quality Act.
PUBLIC NOTICE:
Public Notice is not required.
FUNDING AVAILABILTY:
The hardware and software support of the Department's CAD and RMS systems
($161,279.28) will be funded from the Police Department's computer software
maintenance account, #1820 -8181 and the Police Department's computer hardware
maintenance account, #1820 -8182 for budget year 2010/2011.
Funding for CAD and RMS Support
January 11, 2011
Page 3 of 3
For budget year 2011/2012, the hardware and software support of the Department's CAD
and RMS systems ($185,093.24) will be funded from the Police Department's computer
software maintenance account, #1820 -8181 and the Police Department's computer
hardware maintenance account, #1820 -8182.
Prepared by:
J Lewis
Support Services Lieutenant
veo&
Jo ale
Computer Systems Manager
Attachments:
1 Northrop Grumman Systems Corp - Master Maintenance Agreement
2. Northrop Grumman Systems Corp - Dell Maintenance Sub - Agreement
3. Dell Customer Master Services Agreement
4. NBPD Dell On Site Hardware List
5. Dell — U.S. Terms and Conditions of Sale
6. Northrop Grumman Systems Corp — Software Maintenance Sub - Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
This Agreement is entered into this _day of , 2010 by and between Northrop
Grumman Systems Corporation, a Delaware corporation, acting through Northrop Grumman
Information Systems Sector, Civil Systems Division, with an office at 15010 Conference Center
Drive, Chantilly, VA 20151 -3801, hereinafter referred to as "Northrop Grumman ", and the City
of Newport Beach, hereinafter referred to as "Customer ".
1. SCOPE OF AGREEMENT
Northrop Grumman will provide the following services to maintain an existing software
and hardware system owned by Customer that provides automation of certain police
dispatch functions:
o Services provided for by the Northrop Grumman /Dell Maintenance Sub -
Agreement (copy attached as Exhibit 2), which includes Dell provided
maintenance for Dell Hardware, operating system software, and/or certain third
party equipment.
Services provided for by the Northrop Grumman Software Maintenance Sub -
Agreement, (copy attached as Exhibit 3), which includes Northrop Grumman
provided software as shown on Exhibit A of the Software Agreement.
The above shall be referred to as sub - agreements.
2. TERM OF AGREEMENT
The term of this Agreement shall commence on July 1, 2010, and shall continue for a
term of two (2) years, unless terminated earlier as provided for herein.
3. TERMINATION
This Agreement may be terminated at any time by customer by providing a 90 day written
notice of termination. If terminated as provided herein, the Agreement shall terminate
with no further financial obligation of the Customer with respect to payment of
obligations due after 90 days from the date of such notice.
4. TERMS AND CONDITIONS
In the event of conflicts or inconsistencies between this Agreement and any sub -
agreement entered herein, the terms of this Agreement shall take precedence over the
terms and conditions of the sub - agreements.
Document Prepared 11/29/10 MMKO410 Page 1 of 10
NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
5. PRICE AND PAYMENT
The Customer shall pay the amount labeled "Total Due," with respect to the period
identified, in Exhibit 1 (attached).
The Customer and Northrop Grumman may change the price and payment schedule by
mutual agreement in order to add or delete items, or change the level of service for items
covered under the Northrop Grumman/Dell Maintenance Sub - Agreement. Such changes
must be agreed to in writing.
The fees for Basic Software Maintenance shall be paid annually in advance. Per call and
block time charges in Item 2 of Exhibit B of the Northrop Grumman Software
Maintenance Sub - Agreement, will be invoiced after the service is performed.
The fees for Northrop Grumman/Dell Maintenance shall be paid annually in advance.
Prices in this Agreement are exclusive of applicable taxes, if any. Taxes are the respon-
sibility of the Customer and will be added to the invoices.
Payment terms are net thirty (30) days from date of invoice. Northrop Grumman reserves
the right to charge interest for late payments at the rate of one and one -half percent (1.5 %)
per month.
6. AMENDMENT OF THIS AGREEMENT
The Customer reserves the right to make changes which would include alterations,
deviations, additions to or deletions from the scope of work of this Agreement, as may be
deemed by the Customer to be necessary or required for the proper completion of the
whole work contemplated.
Any such changes will be set forth in an Amendment/Changes Orders to this Agreement
which will specify the change in work to be performed and any increase/decrease in
compensation due Northrop Grumman for such work.
Document Prepared 11/29/10 MMK0410 Page 2 of 10
7.
91
9
NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
NOTICES
Any notice required to be given by the terms of this Agreement shall be deemed to have
been given when the same is sent by certified mail, postage prepaid, or courier service to
the respective parties as follow:
Customer:
Newport Beach Police Department
870 Santa Barbara Drive
Newport Beach, CA 92660
INDEPENDENT CONTRACTOR
Northrop Grumman Systems Corporation
Sue Jun
Contracts Administrator
15010 Conference Center Drive
Chantilly, VA 20151 -3801
Northrop Grumman is an independent contractor under this Agreement, and not an
employee or agent of Customer. All payments hereunder shall be made to Northrop
Grumman. No deductions shall be made from the payments provided for under Section 5
above for any reason including taxes, workman's compensation or insurance.
LIMITATION OF LIABILITY AND REMEDIES
a. Limited Warranty
NORTHROP GRUMMAN MAKES NO WARRANTIES HEREUNDER,
EITHER EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE).
b. Limitation of Remedy
Except for damages to third parties as set forth in Section 10, customer agrees that
Northrop Grumman's liability hereunder for damages shall not exceed the
maximum amount of its insurance coverage at the limits set forth in section 11 of
this contract.
C. Limitation of Damages
IN NO EVENT SHALL NORTHROP GRUMMAN BE LIABLE FOR ANY
INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE
DAMAGES.
Document Prepared 11/29/10 MMK0410 Page 3 of 10
NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
10. INDEMNIFICATION
Northrop Grumman shall indemnify, defend, and hold harmless Customer from and
against any and all claim, demands, suits, actions, proceedings, judgments, losses,
damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities, of,
by or with respect to third parties, which arise solely from the intentional misconduct or
negligence of Northrop Grumman, Northrop Grumman's employees, agents or sub
contractors. Northrop Grumman shall not be responsible for, and Customer shall, within
the limits of California law and without waiving any of its rights, privileges or
governmental immunities from suit or liability, indemnify, defend, and hold harmless
Northrop Grumman from and against, any and all claims, demands, suits, actions,
proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including
attorneys' fees) and liabilities, of, by or with respect to third parties, which arise solely
from Customers' negligence. With respect to any and all claims, demand, suits, actions,
proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including
attorney's fees) and liabilities, of, by or with respect to third parties, which arise from the
joint or concurrent negligence of Northrop Grumman and Customer, each parry shall
assume responsibility in proportion to the degree of its respective fault.
Intellectual Property Indemnification - Northrop Grumman shall defend, indemnify and hold
Customer, its agents, officers, representatives, employees and City Council, boards and
commissions harmless from any proceeding brought against Customer for any intentional or
unintentional violation of the intellectual property rights of any third party with respect to
hardware, software, and software fixes provided under this Agreement. This indemnification
shall include, but is not limited to, infringement of any United States' letters patent, trademark,
or copyright infringement, including costs, contained in Northrop Grumman's deliverables
provided under this Agreement.
11. INSURANCE
Without limiting Northrop Grumman's indemnification of Customer, and rip or to
commencement of work Northrop Grumman shall obtain, provide and maintain at its own
expense during the term of this Agreement, policies of insurance of the type and amounts
described below and in a form satisfactory to Customer. The cost of such insurance shall be
included in Northrop Grumman's bid.
1. Coverage and Limit Requirements.
a. Workers' Compensation. Northrop Grunnnan shall maintain Workers' Compensation
Insurance providing statutory benefits and employer's liability insurance with limits of at
least one million dollars ($1,000,000) each type for Northrop Grumman's employees in
accordance with the laws of the State of California, Section 3700 of the Labor Code. In
addition, Northrop Grumman shall require each subcontractor to similarly maintain
Workers' Compensation Insurance and Employer's Liability Insurance in accordance
with the laws of the State of California, Section 3700 for all of the subcontractor's
employees. The insurer issuing the Workers' Compensation insurance shall amend its
policy by endorsement to waive all rights of subrogation against Customer, its elected or
Document Prepared 11/29/10 MMK0410 Page 4 of 10
NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
appointed officers, agents, officials, employees and volunteers. Northrop Grumman shall
submit to Customer, along with the required certificate of insurance, a copy of such
waiver of subrogation endorsement.
b. General Liability. Northrop Grumman shall maintain commercial general liability
insurance in an amount not less than one million dollars ($1,000,000) per occurrence,
two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000)
Products and Completed Operations Aggregate for bodily injury, personal injury, and
property damage, including without limitation, blanket contractual liability. Coverage
shall be at least as broad as that provided by Insurance Services Office form CG 00 01.
None of the policies required herein shall be in compliance with these requirements if
they include any lim ting endorsement that has not been first submitted to Customer and
approved in writing.
c. Automobile Liability. Northrop Grumman shall maintain automobile insurance covering
bodily injury and property damage for all activities of Northrop Grumman arising out of
or in connection with work to be performed under this Agreement, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount not less than one
million dollars ($1,000,000) combined single limit for each accident.
d. Builders Risk, For Contracts with Construction/Builders Risk property exposures,
Northrop Grumman shall maintain Builders Risk insurance or an installation floater as
directed by Customer, covering damages to the Work for "all risk" or special form causes
of loss with limits equal to one hundred percent (100 %) of the completed value of
contract, with coverage to continue until final acceptance of the Work by Customer. At
the discretion of Customer; the requirement for such coverage may include additional
protection for Earthquake and/or Flood. Customer shall be included as an insured on
such policy, and Northrop Grumman shall provide the Customer with a copy of the
policy.
2. Other Insurance Provisions or Requirements
a. Evidence of Insurance. Northrop Grumman shall provide certificates of insurance to
Customer as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation and an additional insured
endorsement for general liability. Insurance certificates and endorsements must be
approved by Customer's Risk Manager prior to commencement of performance or
issuance of any permit. Current evidence of insurance shall be kept on file with
Customer at all times during the tern of this contract. All of the executed documents
referenced in this contract must be returned within ten (10) working days after the date
on the "Notification of Award," so that the Customer may review and approve all
insurance and bond documentation. Customer reserves the right to require complete,
certified copies of all required insurance policies, at any time.
b. General liability insurance provisions. Primary and excess or umbrella liability policies
are to contain, or be endorsed to contain, the following provisions:
i. Customer, its elected or appointed officers, agents, officials, employees, and
volunteers arc to be covered as additional insureds as respects: liability arising out of
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NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
activities performed by or on behalf of Northrop Grumman, including the insureds
general supervision of Northrop Grumman; products and completed operations of
Northrop Grumman; premises owned, occupied or used by Northrop Grumman. The
coverage shall contain no special limitations on the scope of protection afforded to
Customer, its elected or appointed officers, officials, employees, agents or
volunteers. Northrop Grumman shall submit to Customer a copy of the additional
insured endorsement along with the required certificates of insurance.
ii. Northrop Grumman's insurance coverage shall be primary insurance and/or primary
source of recovery as respects Customer, its elected or appointed officers, agents,
officials, employees and volunteers as respects all claims, losses, or liability arising
directly or indirectly from Northrop Grumman's operations or services provided to
the Customer. Any insurance or self - insurance maintained by Customer, its officers,
officials, employees and volunteers shall be excess of Northrop Grumman's
insurance and shall not contribute with it.
iii. Northrop Grummads insurance shall apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the insurers
liability.
c. Acceptable Insurers. All insurance policies shall be issued by an insurance company
currently authorized by the Insurance Commissioner to transact business of insurance in
the State of California, with an assigned policyholders' Rating of A- (or higher) and
Financial Size Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the Customer's Risk Manager.
d. Notice of Cancellation. Northrop Grumman agrees to oblige its insurance broker and
insurers to endeavor to provide Customer with 30 days notice of cancellation (except for
nonpayment for which 10 days notice is required) or nonrenewal of coverage for each
required coverage except for builder's risk insurance. The builder's risk policy will contain
or be endorsed to contain a provision providing for 30 days written notice to Customer of
cancellation or nonrenewal, except for nonpayment for which 10 days notice is required.
e. Self- Insured Retentions. Northrop Grumman agrees not to self - insure or to use any self -
insured retentions on any portion of the insurance required herein and further agrees that
it will not allow any indemnifying party to self - insure its obligations to Customer. If
Northrop Grumman's existing coverage includes a self - insured retention, the self - insured
retention must be declared to Customer. Customer may review options with Northrop
Grumman, which may include reduction or elimination of the self - insured retention,
substitution of other coverage, or other solutions. Northrop Grumman agrees to be
responsible for payment of any deductibles on their policies.
f. Timely Notice of Claims. Northrop Grurnman shall give Customer prompt and timely
notice of any claim made or suit instituted arising out of or resulting from Northrop
Grumman's performance under this agreement.
g. Waiver. All insurance coverage maintained or procured pursuant to this agreement shall
be endorsed to waive subrogation against Customer, its elected or appointed officers,
agents, officials, employees and volunteers, or shall specifically allow Northrop
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NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
Grurrinan or others providing insurance evidence in compliance with these requirements
to waive their right of recovery prior to a loss. Northrop Grumman hereby waives its own
right of recovery against Customer, and shall require similar written express waivers and
insurance clauses from each of its subcontractors.
h. Enforcement of Contract Provisions. Northrop Grurmnan acknowledges and agrees that
any actual or alleged failure on the part of the Customer to inform Northrop Grurnman of
non- compliance with any requirement imposes no additional obligations on the Customer
nor does it waive any rights hereunder.
Requirements not Limiting. Requirements of specific coverage features or limits
contained in this Section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification only as it pertains to
a given issue and is not intended by any party or insured to be all inclusive, or to the
exclusion of other coverage, or a waiver of any type.
j. Customer's Remedies. Customer shall have the right to order Northrop Grumman to stop
Work under this Agreement and/or withhold any payment(s) that become due to
Northrop Grumman hereunder until Northrop Grumman demonstrates compliance with
the requirements of this article. In the alternative, Customer may purchase the required
coverage and charge Northrop Grumman the cost of the premiums or deduct the cost
from Northrop Grumman's payments.
k. Coverage not Limited. All insurance coverage and limits provided by Northrop
Grumman and available or applicable to this agreement are intended to apply to the full
extent of the policies. Nothing contained in this agreement or any other agreement
relating to the Customer or its operations limits the application of such insurance
coverage.
Coverage Renewal. Northrop Grurrunan will renew the coverage required here amorally
as long as Northrop Grumman continues to provide any services under this or any other
contract or agreement with the Customer. Northrop Grumman shall provide proof that
policies of insurance required herein expiring during the term of this Agreement have
been renewed or replaced with other policies providing at least the same coverage. Proof
that such coverage has been ordered shall be submitted prior to expiration. A coverage
binder or letter from Northrop Grumman's insurance agent to this effect is acceptable. A
certificate of insurance and/or additional insured endorsement as required in these
specifications applicable to the renewing or new coverage must be provided to Customer
within five days of the expiration of the coverage.
12. FUNDING
American Recovery and Reinvestment Act (ARRA)— Reporting Requirements, any
contract action funded in whole or in part by the Recovery Act, the contracting officer
Document Prepared 11/29/10 MMK0410 Page 7 of 10
NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
shall indicate that the contract action is being made under the Recovery Act, and indicate
which products or services are funded under the Recovery Act. This requirement applies
whenever Recovery Act funds are used, regardless of the contract instrument. Customer
has not advised that FAR clause 52.204-11 is applicable therefore Northrop Grumman
has made the assumption that ARRA funds will not be utilized at this time to fund this
effort upon award. Should after award the Customer utilize ARRA funds for this effort,
Northrop Grumman requests that at least two months notice, if possible , be given before
ARRA funds are obligated on the contract. This advance notice is to allow Northrop
Grumman enough time to comply with the reporting requirements stated in FAR 52.204-
11 - American Recovery and Reinvestment Act — Reporting Requirements.
13. SALES AND USE TAXES
The customer shall be liable for all federal, state, and local sales and use taxes, which
become due as a consequence of this Agreement. The customer shall be liable for any
increase in tax rates or change in the scope of tax assessments whether due to changes in
any statutes or interpretation by any taxing authority.
The customer shall not be liable for the payment of such taxes, provided it shall furnish to
Northrop Grumman an exemption certificate sufficient to exempt Northrop Grumman
from the payment of all such sales, use and excise taxes. Should any such certification
furnished not be sufficient to exempt Northrop Grumman from the payment of such taxes
the customer shall indemnify and hold Northrop Grumman harmless for all such taxes
assessed.
14. ENTIRE CONTRACT
This Agreement and attached Sub - Agreement(s) represent the entire and integrated
agreement between the parties hereto and supersedes all prior and contemporaneous
negotiations, representations, understandings, and agreements, whether written or oral,
with respect to the subject matter hereof. This Agreement may be amended only by
written instrument signed by the parties hereto.
Document Prepared 11/29/10 MMK0410 Page 8 of 10
NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
City of Newport Beach: Northrop Grumman Systems Corp.:
Michael F. Henn
Mayor
Printed Name
Date
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By: )
e e eauchamp
Assistant Roy Attorney
ATTEST:
By:
Leilani I. Brown
City Clerk
Sue Jun
Contracts Administrator
Date
Document Prepared 11/29/10 MMKO410 Page 9 of 10
NORTHROP GRUMMAN SYSTEMS CORPORATION
MASTER MAINTENANCE AGREEMENT
Exhibit 1.
Price and Payment Schedule:
Period No. 1: July 1, 2010 to June 30, 2011
NGSC /Dell Hardware /Software Support
NGSC / Altaris Software Maintenance:
Altaris CAD /MIS:
Altaris RMS:
Oracle Database Software Maintenance
Oracle DBA Support Services
Oracle DBA Monthly Admin Services
Total Due, Period No. 1
Period No. 2: July 1, 2011 to June 30, 2012
NGSC /Dell Hardware /Software Support
NGSC / Altaris Software Maintenance:
Altaris CAD/MIS:
Altaris RMS:
Oracle Database Software Maintenance
Oracle DBA Support Services
Oracle DBA Monthly Admin Services
HCL (Neuron) GUI
Total Due, Period No. 2
$21,044.83
$ 43,188.08
$ 39,260.83
$ 17,746.15
$ 19,720.39
$ 20,319.00
$161.279.28
$22,097.07
$ 45,347.48
$ 41,223.87
$ 18,633.46
$ 20,706.41
$ 21,334.95
$ 15.750.00
63E�II
Document Prepared 11/29/10 MMK0410 Page 10 of 10
Exhibit 2 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORT14ROP GRUMMAN SYSTEMS CORPORATION
DELL MAINTENANCE SUB - AGREEMENT
This Sub - Agreement is entered into between Northrop Grumman Systems Corporation a
Delaware corporation, acting through Northrop Grumman Information Systems Sector, Civil
Systems Division, with an office at 15010 Conference Center Drive, Chantilly, VA 20151 -3801,
(hereinafter referred to as "NORTHROP GRUMMAN ") and the City of Newport Beach,
(hereinafter referred to as "Customer ").
Northrop Grumman is an authorized dealer of computer products, services and distributed software
of Dell Company (hereinafter referred to as "Dell "). Northrop Grumman hereby sells to Customer,
the maintenance services of Dell products, appropriate third party products and/or Dell operating
system software that are part of the Customer's existing police dispatch system, as described herein,
on the terms and conditions as follows:
1. TERM OF AGREEMENT
This Sub - Agreement shall be valid from July 1, 2010. This Agreement shall be valid for two (2)
years from the effective date. This Sub - Agreement may be terminated according to the terms of the
Northrop Grumman Master Maintenance Agreement.
2. SCOPE OF MAINTENANCE
The services to be performed by Dell are as detailed on the Dell Customers Master Services
Agreement attached as Exhibit "A" hereto, and made a part hereof, for all purposes. It is understood
that Northrop Grumman is selling the Dell level of service as shown on said Customers Master
Services Agreement. Should Dell at any time alter any of the terms, conditions, or services offered
under such Description such changes shall automatically become part of this Sub - Agreement.
Should Customer not be able to comply with such changes, Customer may terminate this Sub-
Agreement with thirty (30) days prior written notice to Northrop Grumman.
3.
The equipment, which shall be maintained under this Sub - Agreement, is as described on Exhibit `B"
attached hereto and made a part hereof, for all purposes. Equipment is eligible for service under this
Sub - Agreement provided it is in good operating condition and Dell's serviceability requirements and
site environmental conditions are met.
Document Prepared 11/29/10 FINK-0410 Page 1
Exhibit 2 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
DELL MAINTENANCE SUE- AGREEMENT
CUSTOMER RESPONSIBILITIES
The customer is responsible for notifying Northrop Grumman in writing, either by electronic mail or
letter, of the addition or deletion of any equipment outlined in the attached Exhibit "B ". When
changes occur, the customer must provide to Northrop Grumman a detail of model numbers, serial
numbers and installation/de- installation infonnation. Failure to notify Northrop Grumman of
changes could result in the new equipment not being covered under the hardware maintenance
agreement. Any omissions or inaccuracies resulting from the addition/deletion of such equipment
without written notification to Northrop Grumman are the responsibility of the customer.
5. DELL STANDARD TERMS
This Sub - Agreement is subject to the terms of Dell's current published U.S. Standard Terms and
Conditions, a copy of which is attached as Exhibit "C" hereto. Should Dell at any time alter such
Standard Terms and Conditions, this Sub - Agreement shall be deemed to have incorporated such
alterations into Exhibit "C ".
6. NORTHROP GRUMMAN MASTER AGREEMENT
This Sub - Agreement is subject to the terms and conditions of a Northrop Grumman Master
Maintenance Agreement, and the terms and conditions of such Master Maintenance Agreement shall
prevail in the event of a conflict with the terms of this Sub - Agreement.
Document Prepared 11/29/10 HNK -0410 Page 2
EXHIBIT "A"
to
Northrop Grumman /Dell Maintenance Sub - Agreement
(See attached Dell Customers Master Services Agreement.)
E nA;
THIS CUSTOMER MASTER SERVICES AGREEMENT ( "MSA') is entered into by you ( "Customer ") as evidenced by your use of the Services
(defined below). "Customer" shall include Customer's corporate subsidiaries, as well as corporate parents, affiliates, and other related entities
(collectively. - Affiliates) approved by Dell to receive Services under (his MSA_ For purposes of this MSA the term "Dell" shall mean Dell
Marketing L.P. or. when applicable. the Dell entity identified on Customers invoice. Dell and Customer agree to the following terms antl
conditions:
1. Services
All services provided by Dell under this MSA (the "Services ") will be described in one or more Service Agreements. "Service Agreements" are
order forms or service contracts (hat incorporate the terms of [his MSA, including "Service Descriptions" available at
www.Dell.com /ServiceContracls, 'Technical Specificalion Forms ", 'Statements of Work ", and any other such mutually agreed upon document.
The MSA and each Service Agreement will be interpreted as a single agreement, independent of each other Service Agreement, so that all of
the provisions are given as full effect as possible. In no even] will the description of Services under any Service Agreement be deemed by
implication or otherwise to exclude any Services described in this MSA or another Service Agreement.
In the even( of a conflict between (he terms of the MSA and a Service Agreement. the terms of These documents will be interpreted according to
the following order of precedence: (1) Service Agreements and (2) the MSA.
2. Terms of Purchase
2.1. Requests for Service; Quotes and Orders. All orders for Services must specify Dell's quotation (if any), and reference (he
Service(s) requested and invoice address. All orders are subject to acceptance by Dell. If Customer orders on -line, Dell may issue to Customer
user names and passwords (the "Purchase Codes "). By accepting and using (lie Purchase Codes. Customer acknowledges the validity of an
electronic order, which shall be deemed to be a writing for all purposes hereunder. and agrees to be responsible for full payment of any Services
ordered using Customer's Purchase Codes. Customer is responsible for keeping the Purchase Codes confidential and controlling their use.
2.2. Prices. The prices charged for Services purchased under this MSA will be Dell's "then - current" charges for such services in each
geographic region or as quoted by Dell. Dell reserves the right to revise pricing if prices for Services are based upon written assumptions and
those assumptions are determined inaccurate. If Customer and Dell are not able to reach agreement on the revised pricing, Customer or Dell
may terminate the applicable Service Agreement. All prices are exclusive or all applicable country, provincial, state and local sales, use, value
added. excise, privilege, franchise and similar taxes. If the Services are being performed on a time and materials basis, any estimates provided
by Dell are for planning purposes only. Any required deposits are non - refundable.
2.3. Additional Fees; Taxes. Customer shall be responsible for all applicable taxes and fees assessed or imposed upon the Services
provided or the amounts charged under this MSA, including any sales, use, excise, value- added, or comparable taxes, but excluding taxes
related to Dell's net assets or net income or for which Customer has provided a valid resale or exemption certificate. Should any payments to
Dell become subject to withholding lax, then Customer shall deduct these taxes from the amount owed to Dell and pay the taxes to the
appropriate tax authority in accordance with the laws thereof. Customer shall promptly provide Dell with receipts or other applicable evidence of
substantiating the payments as required under the laws of the applicable taxing authority. Dell shall not be liable for any withholding lax, penally,
or interest due as a result of Customers failure to withhold any applicable lax.
2.4. Invoicing and Payment. Customer's payment terms will be net Ihirly (30) days from the date of invoice, subject to continuing
credit approval by Dell. Customer Will pay Dell in US dollars or in the currency of the country in which the Dell affiliate that supplied the Services
is domiciled, as invoiced by Dell or an affiliate of Dell. Additional charges may apply if Customer requests services that are performed outside
contracted hours of are beyond the normal coverage for the particular service.
2.5. Nonpayment. For invoices not paid within thirty (30) days or the invoice dale, Dell reserves the right to charge Customer a late
penally charge of one and a half percent (1.5 %) per month applied against undisputed overdue amounts, or the maximum rate permitted by law,
whichever is less. In addition, Dell, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or
terminate the Services until such payment is received and may decide not to accept additional orders from Customer and /or seek collection of all
amounts due, including reasonable legal fees and costs of collections. Dell shall have no liability to Customer for any such suspension or
termination of Services, or non - acceptance of orders.
2.6. Purchases by Affiliates. Unless otherwise agreed in writing, any Affiliate who submits an order to Dell for Services shall agree to
abide by the terms of this MSA. Dell, in its sole discretion, may discontinue selling Services to any Affiliate or may require additional payment
and /or credit conditions for such Affiliate.
2.7. Purchases from a Third -Party Reseller. This Section 2.7 shall not apply to Customers who purchase Services directly from Dell.
If Customer purchases from a party other than Dell (each a'Reseller"), then Customer acknowledges that its payment for the Services is subject
to the agreement between the Customer and the Reseller (the "End -User Reseller Agreement'). Otherwise, Customer agrees that this MSA,
except for the "Terms of Purchase" provisions above, shall apply to such Customer's use of the Services notwithstanding anything to the
contrary in the End -User Reseller Agreement. Dell shall not be liable to Customer for any representations, warranties, indemnities or damages
beyond those set forth in this MSA. Customer acknowledges that to the extent Dell does not receive payment for the Services from the Reseller,
Dell shall have the fight to suspend or terminate the Services until such payment is received. Dell shall have no liability to Customer for such
suspension or termination of Services and Customer shall look solely and exclusively to the Reseller for any and all damages and liability
associated with such suspension or lermination of the Services.
3. Term & Renewal
This MSA has a one year term. beginning on the earlier of the dale on Customer's invoice with Dell; the date on which Service delivery begins or
the date on which your use of the Service begins ( "Effective Dale "). The MSA will automatically renew on the anniversary of the Effective Date
for subsequent one year terms ("Term") unless terminated in accordance with Section 4 below. Each Service Agreement will continue for the
ABU CMSA Rev. 4.2 Page 1 of 4
07/30/2009
term staled (herein, unless otherwise terminated pursuant to this MSA. In addition, Dell may, at its option. propose to renew the Service by
sending Customer an invoice or continuing to make the Service available to Customer. Customer may (where permitted by law) agree to such
renewal of the Service by paying such invoice by its due date or by continuing to use the Service. If Customer renews a Service Agreement by
continued use of the Service, Customer will be invoiced in a manner substantially similar to their initial term of Service.
4. Termination
Either party may terminate this MSA for convenience by providing at leas( Ihiny (30) days prior written notice to the Other. Termination of this
MSA for convenience will not terminate any outstanding Service Agreement that provides for a specific term over which the Services are to be
provided. In such case. this MSA, as incorporated into the Service Agreement, and the Service Agreement that provides for a specific Tenn will
remain in effect for the remainder of such term. Upon termination of this MSA, all rights and obligations of the parties under (his MSA 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.
Either party may terminate an individual Service Agreement if the other party commits a material breach of such agreement and the breach is
not cured within thirty (30) days of receipt of written notice from the injured party. Termination of one or more Service Agreements will not
terminate this MSA.
5. Third -Party Products & Warranties
"Third Party Products" means any third -party hardware, services or software. Some manufacturers' warranties or service contract terms and
conditions for Third Party Products may become void if Dell or anyone else, other than (he manufacturer or its authorized representative,
provides services for or works on the hardware or software (such as providing maintenance and repair services). DELL DOES NOT TAKE
RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE DELL SERVICES MAY HAVE ON THOSE
WARRANTIES. Except as agreed to in writing between Customer and Dell, Third Party Products shall be exclusively subject to terms and
conditions between the third party and Customer. Dell shall have no liability for Third Party Products and Customer shall look exclusively to the
third party provider for any damages or liability with respect to the provision of such Third Parry Products.
Except as otherwise specifically agreed to in a Service Agreement, Customer authorizes Dell (or otherwise obtains the rights for Dell) to copy,
install and modify, when necessary and as required by the Service Agreement, all Third Party Products, including software. to be used in the
Services or to be copied or stored for subsequent re- installation of a backup system or data. Customer warrants to Dell that it has obtained any
licenses, consents, regulatory certifications or approvals required to give Dell and its subcontractors or employees such rights or licenses to
access, copy, distribute, use and /or modify (including creating derivative works) or install any Third Party Products to be used in the Services,
without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products.
6. Proprietary Rights
6.1. Deliverables. Except as otherwise specifically agreed to in a Service Agreement, Dell will retain exclusive ownership in all
Deliverables created by Dell hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how,
documentation or techniques developed by Dell under this MSA Subject to payment in full for the applicable Services. Dell grants Customer a
non-exclusive, non - transferable, royally -free right to use the Deliverables solely in the counlry(ies) in which Customer does business and solely
for Customer's internal use. "Deliverables" means the tangible and intangible materials, including reports, studies, base cases, drawings,
findings. manuals, procedures and recommendations that are prepared by Dell or its subcontractors in the course of performing the Services.
6.2. Tools & Software. Dell will retain all intellectual property rights with respect to the processes, tools and software related to the
Services. Any use by Customer, including the execution, reverse engineering, decompilation, reproduction, modification, distribution,
transmission, republication, display, transfer or performance, except as specifically permitted by Dell during the term of Services is prohibiled
7. Software License Provided by Dell
Customer use of Software in connection with the Services is pursuant to the terms accompanying the Software. "Software' includes software
locally installed on Customer's systems and software remotely accessed by Customer through the Internet or other means (including, but not
limited to websites, Internet portals and "cloud - based" software services). In the absence of such terms. Customer use of Software is pursuant
to the Dell Services License Agreement & Acceptable Use Policy ( "AUP ") available at www.Dell.com /AUP. By accessing, downloading,
installing, activating or otherwise using such Software, Customer agrees to be bound by the looms of the AUP.
8. Customer Responsibilities
It is the Customer's responsibility to backup data on Customer's system(s). Customer acknowledges that Dell's performance and delivery of the
Services are contingent upon: (A) Customer providing safe and hazard -tree access to its personnel, facilities. equipment, hardware, software,
network and information for Services to be performed al Customers location, and (8) Customer's timely decision - making, notification of relevant
issues or information and granting of approvals or permissions. Customer will promptly obtain and provide to Dell any required licenses,
approvals or consents necessary for Dell's performance of the Services.
9. Confidentiality
In the performance of the Services, Customer and Dell may have access to or be exposed to information of the other party not generally known
to the public, including, but not limited to software, product plans, marketing and sales information, customer lists, "know- how," or trade secrets
which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential
(collectively, "Confidential Information "). Confidential Information may not be shared with third parties unless such disclosure is to personnel of
Dell or Customer, including employees, agents and subcontractors, on a "need -to- knov/' basis in connection with its performance of this MSA,
so long as such personnel have agreed to treat such Confidential Information under terms at least as restrictive as those herein. Each party
agrees to take the necessary precautions to maintain the confidentiality of Confidential Information by using at least the same degree of care as
such party employs with respect to its own Confidential Information of a like -kind nature, but in no case less than a commercially reasonable
standard of care to maintain confidentiality, and shall only make such information available to its employees on a "need -to -know" basis. The
foregoing shall not include information, which, (A) was known by one party prior to its receipt from the other or is or becomes public knowledge
without the fault of the recipient, (B) is received by the recipient from a source other than a party to this MSA, or (C) a party is required to
ABU CMSA Rev. 4.2 Page 2 of 4
07/30/2009
disclose in response to an order by a court or governmental agency. provided that advance notice of the disclosure is provided to other party.
The obligations with respect to Confidential Information shall continue for three (3) years from the dale of disclosure.
10. Support Services
When Services consist of repair of Dell - branded systems, such Services shall be those repair services that are necessary because of any
existing defect or a defect occurs in materials or workmanship in the system or in any system component covered by this MSA. Preventive
maintenance is not included. Repairs necessitated by software problems, or as a result of alteration, adjustment. or repair by anyone other than
Dell (or its representatives) are not included. Unless otherwise expressly provided in a Service Agreement. Services do not include repair of any
system or system component which has been damaged as a result of: (A) accident. misuse, or abuse of the system or component (such as, but
not limited lo. use of incorrect line voltages, use of incorrect fuses, use of incompatible devices or accessories, improper or insufficient
ventilation, or failure to follow operating instructions) by anyone other than Dell (or its representatives), (B) an act of God such as, but not limited
to, lightning. flooding, tornado, earthquakes, and hurricanes; or (C) the moving of the system from one geographic location or entity to another.
11. LIMITED WARRANTY & LIMITATION OF LIABILITY; HIGH -RISK DISCLAIMER
11.1. Limited Warranty. DELL WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER.
EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE. DELL (INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND
AGENTS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE "DELL PARTY(IES) ")
MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE SERVICES OR DELIVERABLES, INCLUDING BUT NOT
LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE. SUITABILITY OR
NON - INFRINGEMENT; ANY WARRANTY RELATING TO THIRD -PARTY PRODUCTS OR THIRD -PARTY SERVICES: ANY WARRANTY WITH
RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES; OR ANY WARRANTY
CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION THE DELL
PARTIES MAY MAKE.
11.2. Limitation of Liability. NEITHER THE DELL PARTIES NOR CUSTOMER WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
PUNITIVE. SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY
DELL. WHETHER DIRECT OR INDIRECT, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING, (A) LOSS OF REVENUE.
INCOME, PROFIT, OR SAVINGS, (8) LOST OR CORRUPTED DATA OR SOFTWARE. LOSS OF USE OF SYST "EM(S) OR NETWORK, OR
THE RECOVERY OF SUCH, (C) LOSS OF BUSINESS OPPORTUNITY. (D) BUSINESS INTERRUPTION OR DOWNTIME, OR (E)
SERVICES. DELL PRODUCTS OR THIRD -PARTY PRODUCTS NOT BEING AVAILABLE FOR USE BY CUSTOMER. THE DELL PARTIES'
AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ALL CLAIMS OF LIABILITY ARISING OUT OF, OR IN
CONNECTION WITH ANY SERVICE PROVIDED PURSUANT TO THIS MSA SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER
FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE (12) MONTH PERIOD.
EACH PARTY ACKNOWLEDGES THAT THESE LIMITATIONS APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR THE REMEDIES FAIL OF THEIR ESSENTTAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, THE FEE FOR
THE SERVICES PROVIDED HEREUNDER WOULD BE HIGHER.
11.3. .High -Risk Application Disclaimer. The Services are not fault - tolerant and are not designed or intended for use in hazardous
environments requiring fail -safe performance, including without limitation, in the operation of nuclear facilities, aimmft navigation or
communication systems, air traffic control, weapons systems, life - support machines. or any other application in which the failure of the Services
could lead directly to death, personal injury, or severe physical or property damage (collectively, "High -Risk Activities "). Dell expressly
disclaims any express or implied warranty of fitness for High -Risk Activities.
12. Indemnification
Dell shall defend, indemnify and hold harmless Customer from any third -party claim or action that the Services or any Deliverables (excluding
Third -Party Products) prepared or produced by Dell and delivered pursuant to this Agreement infringe or misappropriate that third party's patent,
copyright, trade secret. or other intellectual property rights enforceable in the country(ies) in which the Services or Deliverables are sold to
Customer by Dell ( "Indemnified Claims'). In addition, if Dell receives notice of a claim that, in Dell's reasonable opinion, is likely to result in an
adverse ruling, then Dell shall at its option, (A) obtain a right for Customer to continue using such Service or Deliverable; (B) modify such
Service or Deliverable to make it non - infringing; (C) replace such Service or Deliverable with a non - infringing equivalent; or (D) refund any pre-
paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated refund for the allegedly
Infringing Deliverable. Notwithstanding the foregoing, Dell shall have no obligation under this Section for any claim resulting or arising from (A)
Customer's modifications of the Services or Deliverables that were not performed by or on behalf of Dell; (B) the combination, operation or use
of the Service or Deliverable in connection with a third -party product or service (the combination of which causes the infringement); or (C) Dell's
compliance with Customers written specifications or directions, including the incorporation of any software or other materials or process
provided by or requested by Customer.
Customer shall defend. indemnify and hold Dell harmless from, any third -party claim or action arising out of (A) the failure of Customer to obtain
the appropriate license, intellectual property rights, or any other permissions, regulatory certifications or approvals associated with Customer-
provided technology, software or other components related to the Service; as well as software directed or requested by Customer to be installed
or integrated as part of Services, or (B) any inaccurate representations regarding the existence of an export license or any allegation made
against Dell due to Customers violation or alleged violation of applicable export laws, regulations, and orders.
Each party agrees to indemnify and hold harmless the other party from any third -party claim or action for personal bodily injuries, including
death, resulting from the indemnifying party's gross negligence or willful misconduct resulting from the Services (excluding Third -Party Products)
provided hereunder. This section slates each party's exclusive remedies for any third -party claim or action, and nothing in this MSA or
elsewhere will obligate either party to provide any greater indemnity to the other.
ABU CMSA Rev. 4.2 Page 3 of 4
07/30/2009
�IWW
13. Export; Regulatory Requirements
13.1. Export. Customer and Dell acknowledges (hat the Services sold under this MSA, which may include technology and software, are
subject to the customs and export control laws and regulations of the United Slates (- U.S'), may be rendered and /or performed in countries
outside the U.S. and may also be subject to the customs and export laws and regulations of the country in which the Services are rendered
and /or received. Customer and Dell agrees to abide by those laws and regulations. Customer further represents that any sollware provided by
Customer and used as part of the Services contains no encryption or, to the extent that if contains encryption, such software is approved for
export without a license. If Customer cannot make the preceding representation. Customer agrees to provide Dell with all of the information
needed for Dell to obtain export licenses from (he U.S- Government and to provide Dell with such additional assistance as may be necessary to
obtain such licenses. Notwithstanding the foregoing. Customer is solely responsible for obtaining any specific licenses relating to the export of
software if a license is needed. Dell may also require export certifications from Customer for Customer- provided software. Dell's acceptance of
any order for Services is contingent upon the issuance of any applicable export license required by the U.S. Government; Dell is not liable for
delays or failure to deliver Services or a product resulting from Customer's failure to obtain such license or to provide such certification.
13.2. Regulatory Requirements. Dell is not responsible for determining if Third Party Products to be used in performance of the
Services satisfy the local regulatory requirements of the country to which the products are to be shipped, nor shall Dell be obligated to perform
any Services where the resulting products or software do not satisfy the local regulatory requirements.
14. Important Additional Terms
14.1. Independent Contractor Relationship; MSA Assignment; Subcontracting. The parties are independent contractors. Neither
party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in
this MSA. Dell has the right to assign, subcontract or delegate in whole or in part this MSA, or any rights, duties, obligations or liabilities under
this MSA, by operation of law or otherwise, provided that Dell shall remain responsible for the performance of Services under this MSA.
Otherwise, neither party may assign this MSA without the permission of the other.
14.2. Entire Agreement; Severability; Section Headings. This MSA and Service Agreements is the entire agreement between Dell
and Customer with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements. No
amendment to or modification of this MSA, in whole or in part, will be valid or binding unless it is in writing and executed by authorized
representatives of both parties. If any provision of (his MSA is void or unenforceable, the remainder of [his MSA will remain in full force and
effect. Section headings are for reference only and shall not affect the meaning or interpretation of this MSA.
14.3. Force Majeure. Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment
obligations) under this MSA during any period in which such performance is delayed by circumstances beyond its reasonable control including,
but not limited lo, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a "Force Majeure "). In such event,
however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party's time for
performance will be excused for the duration of the Force Majeure, but if the Force Majeure events lasts longer than thirty (30) days, the other
party may immediately terminate the applicable Service Agreement by giving written notice to the delayed party.
14.4. Notices. Notice to Dell under (his MSA must be in writing and sent by postage prepaid first -class mail or receipled courier service
to the address below or to such other address (incl. facsimile or electronic) as specified in writing and will be effective upon receipt.
Dell Marketing L.P., Attn: Contracts Manager
One Dell Way, Round Rock, Texas 78682
14.5. Governing Law, Forum and Language. THE PARTIES AGREE THAT THE MSA, ANY SALES THERE UNDER, OR ANY
CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE. WHETHER PREEXISTING, PRESENT OR
FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL arising from or
relating to the MSA, its interpretation, or the breach, termination or validity thereof, the relationships which result from (his agreement or any
related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW.
The parties agree that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the MSA shall be
brought exclusively in the courts located in Travis County, Texas. Customer and Dell agree to submit to the personal jurisdiction of the courts
located within Travis County, Texas, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and
to venue in such courts.
This MSA will be interpreted and construed in accordance with the English language.
14.6. Dispute Resolution. Customer and the Dell Parties will attempt to resolve any claim, or dispute or controversy (whether in
contract, tort or otherwise) arising out of or relating to this MSA, Dell's advertising, or any related purchase (a "Dispute ") through face -lo -face
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. Notwithstanding the foregoing, either party will
have 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 limitations period, or preserve a superior position with
respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the
parties are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, the parties shall be free to pursue all
remedies available at law or equity.
14.7. Limitation Period. Neither party may institute any action in any form arising out of this MSA more than two (2) years after the
cause of action has arisen, or in the case of nonpayment, more than two (2) years from the dale of last payment.
14.6. Updates. Dell reserves the right to update its MSA at any time, effective upon posting an updated version at www.Dell.WnVCMSA
however, Customers rights and obligations shall be as provided in the version of the MSA executed by Customer or available to Customer at
the time of Customer's purchase of Services or, when applicable. Customers renewal of Services.
14.9. Counterparts. If a signature block is appended hereto, this MSA may be executed in counterparts, each of which shall be deemed
an original, but all such counterparts shall together constitute one and the same instrument.
ABU CMSA Rev. 4.2 Page 4 of 4
07/30/2009
EXHIBIT "B"
to
Northrop Grumman/Dell Maintenance Sub - Agreement
(See attached the listed equipment to be maintained along with service tag number and model
number.)
City of Newport Beach Police Dept. - Exhibit "B"
Service Tag #: 7J6GN81
Product Description: Power Edge 2850
Service Contract Type: 4 HR. 7x24 Service; Gold; IT ProSupport Ni Ession Cricial
Parts # Part Description
C8511 Processor, 80546K, 3.6G, 2M, XNI 800, NO
T7971 Assembly, Printed Wiring Assy Planar, Server Chassis, FOX PE2850, V3
Y0982 Printed Wiring Assy, Backplane Server, Dell Computer Corporation, PE2850
OR215 Cord, Power, 15A, 125V, 10, 5- 15IC13
JD195 Power Supply, 70OW, Redundant Delta Products
DC181 Kit, Documentation On Compact Disk, Document Object Model V4.5, World Wide
X1563 Dual In -line Memory Module, 2G 400M, 128X72, 8, 240, 2RX4
C8511 Processor, 80546K, 3.6G, 2M, XNI 800, NO
Assembly, Compact Disk Read Write/Digital Video Disk DriveCombo, 650M, Toshiba
K8957 Samsung Storage Technology, Black
M4989 Assembly, Cable, Flexible Compact Disk Drive, PE2800/50
Printed Wiring Assy, Riser Server, Server Chassis, Dell Computer Corporation, PE2850,
U8373 V3
J4950 Assembly, Cable, Flexible, FloppyDrive, PE2800 /50
Assembly, Floppy Drive, 3.5 inchForm Factor, Controller /no Cable, Teac, Black, Lead
T7421 Free
T8677 Assembly, Cable, Scsi, Backplane Riser, Channel A
4D554 Dual In -line Memory Module 256, 400M, 32X72, 8, 240, Raid On Mother Board
H 1 S 13 Printed Wiring Assy Input /output, RAID -KEY, Server Dell, Trio
Y4707 Hard Drive, 146GB, S, U320, 15K 8OP, Seagate
PC935 Overpack Kit, Windows Server 2003 Enterprise Edition, SP English
J 1679 Card, Network, Ethernet, Intel PROl000MT
C5542 Assembly, Bezel, Plastic, PE2850
X1955 Assembly, Heatsink, Processor PE2850, 2800
06/30/2012
Effective Term
Date Date
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
Quantity
1
1
I
2
1
1
2
1
1
1
1
I
1
2
1
1
1
H7206 Assembly, Carrier, Hard Drive Scsi (small Computer Systems Interface), Universal, 1IN 07/01/2010 06/30/2012 2
X1955 Assembly, Heatsink, Processor PE2850, 2800 07/01/2010 06/30/2012 1
CD519
Assembly, Chassis, Server, Server Chassis, PE2850, V2
07/01/2010
06/30/2012
G3399
Battery, Primary, 3.7V, 6MM Lithium, Raid On Mother Board
07/01/2010
06/30/2012
10162
Kit, Compact Diskette, Compact Disk Read Write, Roxio, V5.3.4, Server
07/01/2010
06/30/2012
H7511
Assembly, Carrier, Blank, Hard Drive, Universal, IIN, 2
07/01/2010
06/30/2012
H2401
Assembly, Fan, 60X6OX38MM, 12V PE2850
07/01/2010
06/30/2012
H2846
Kit, Rail, Rack, Versarail, PE2850
07/01/2010
06/30/2012
Dell I EMC CX300 DAS Disk Processor Enclosure Array with10xl46GB 10K Drives
07/01/2010
06/30/2012
PV 114T, 2U LT02 Tape Rack Enclosure, 1 Drive
07/01/2010
06/30/2012
PV 114T, 2U LT02 Tape Rack Enclosure, 2 Drives
07/01/2010
06/30/2012
Smart -UPS 1500VA 120V Basic System
07/01/2010
1
1
4
1
1
1
1
City of Newport Beach Police Dept. - Exhibit "B"
Service Tag #: 9J6GN81
Product Description: Power Edge 2850
Service Contract Type: 4 HR. 7x24 Service; Gold; IT ProSupport ]Mission Cricial
Parts # Part Description
C8511 Processor, 80546K, 3.6G, 2M, XNI 800, NO
T7971 Assembly, Printed Wiring Assy Planar, Server Chassis, FOX PE2850, V3
Y0982 Printed Wiring Assy, Backplane Server, Dell Computer Corporation, PE2850
OR215 Cord, Power, 15A, 125V, 10, 5- 15/C13
3D195 Power Supply, 700W, Redundant Delta Products
X1563 Dual In -line Memory Module, 2G 400M, 128X72, 8, 240, 2RX4
C8511 Processor, 80546K, 3.6G, 2M, XNI 800, NO
Assembly, Compact Disk Read Write/Digital Video Disk DriveCombo, 650M, Toshiba
K8957 Samsung Storage Technology, Black
M4989 Assembly, Cable, Flexible Compact Disk Drive, PE2800/50
Printed Wiring Assy, Riser Server, Server Chassis, Dell Computer Corporation,
U8373 PE2850, V3
J4950 Assembly, Cable, Flexible, FloppyDrive, PE2800/50
Assembly, Floppy Drive, 3.5 inchForm Factor, Controller /no Cable, Teac, Black, Lead
T7421 Free
T8677 Assembly, Cable, Scsi, Backplane Riser, Channel A
4D554 Dual In -line Memory Module 256, 400M, 32X72, 8, 240, Raid On Mother Board
H1813 Printed Wiring Assy Input/output, RAID -KEY, Server Dell, Trio
Y4707 Hard Drive, 146GB, S, U320, 15K 80P, Seagate
PC935 Overpack Kit, Windows Server 2003 Enterprise Edition, SP English
J1679 Card, Network, ETHERNET, Intel PROl000MT
C5542 Assembly, Bezel, Plastic, PE2850
X1955 Assembly, Heatsink, Processor PE2850, 2800
Effective
Date
07/01/2010
07/01/2010
07/01/2010
07/01/2010
07/01/2010
07/01/2010
07/01/2010
Term
Date
06/30/2012
06/30/2012
06/30/2012
06/30/2012
06/30/2012
06/30/2012
06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
H7206 Assembly, Carrier, Hard Drive Scsi (small Computer Systems Interface), Universal, 11N 07/01/2010 06/30/2012
X1955 Assembly, Heatsink, Processor PE2 8 5 0, 2 800 07/01/2010 06/30/2012
CD519 Assembly, Chassis, Server, Server Chassis, PE2850, V2 07/01/2010 06/30/2012
Quantity
2
1
1
1
2
1
2
1
G3399 Battery, Primary, 3.7V, 6MM Lithium, Raid On Mother Board
H7511 Assembly, Carrier, Blank, Hard Drive, Universal, IIN, 2
H2401 Assembly, Fan, 60X60X38MM, 12V PE2850
H2846 Kit, Rail, Rack, Versarail, PE2850
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
City of Newport Beach Police Dept. - Exhibit "B"
Service Tag #: D7PWGG1
Product Description: Power Edge 1950
Service Contract Type: 4 HR. 7x24 Service; IT ProSupport Mission Critical, Keep Your Hard Drive
Effective
Term
Parts #
Part Description
Date
Date
QuantitV
NNO40
Processor, 80556, Xeon Woodcrest5148LV, LGA771, GO
07/01/2010
06/30/2012
1
J243G
Printed Wiring Assy, Planar Server, Dell Computer Corporation, PE1950, MID -LIFE KICKER...
07/01/2010
06/30/2012
1
08215
Cord, Power, 15A, 125V3 10, 5- 15/C13
07/01/2010
06/30/2012
1
GG460
Kit, Strain Relief, Cable, Power
07/01/2010
06/30/2012
1
NT1040
Processor, 80556, Xeon Woodcrest5148LV, LGA771, GO
07/01/2010
06/30/2012
1
G052C
Dual In -Line Memory Module, IG 667M, 128X72, 8, 240, 1RX8
07/01/2010
06/30/2012
4
J7846
Printed Wiring Assy, Riser Server, Dell Computer Corporation, PE1950, PERIPHERAL COMPONENT IN' 07/01/2010
06/30/2012
1
JH879
Assembly, Printed Wiring Assy Riser, Center, Multi Sheet Inserter, PEX950
07/01/2010
06/30/2012
1 .
F93 7D
Flash Storage Device, UniversalSerial Bus, 1GB, Vmware EmbeddedHypervisor Basic, BLANK ....
FACTO 07/01/2010
06/30/2012
1
0R215
Cord, Power, 15A,125V,10,5- 15/C13
07/01/2010
06/30/2012
1
TX846
Assembly, Cable, Controller SAS, POWEREDGE EXPANDABLE RAID CONTROLLER NUMBER... 07/01/2010
06/30/2012
1
R707G
Kit, Media, Digital Video Disk Drive, Document Object Model V5.4
07/01/2010
06/30/2012
1
K639G
Kit, Compact Disk Drive Software, VEM3.5I, UPI) 1
07/01/2010
06/30/2012
1
WY335
Assembly, Card, PERC614NT Serial Attached, Scsi, Sled
07/01/2010
06/30/2012
1
U7820
Printed Wiring Assy, Backplane Server, Server Chassis DELL1950, 2.5SASX4
07/01/2010
06/30/2012
1
0R215
Cord, Power, 15A, 125V, 10, 5-15/CI3
07/01/2010
06/30/2012
1
4D175
Cord, Power, 125V, 10 Feet, 2T01, SIT...
07/01/2010
06/30/2012
1
P424D
POWER SUPPLY..., 670W, PMBUS, DELTA PRODUCTS...
07/01/2010
06/30/2012
2
RY466
Assembly, Cdrw /dvd, 12.7MM Hitachi Lg Data Storage, Black
07/01/2010
06/30/2012
1
XT764
Hard Drive, 73G, Serial AttachedSCSI, 3, 15K, 2.5, SGT2, Maverick
07/01/2010
06/30/2012
3
FG027
Card, Backplane, Key, TOE, 2PORT Enterprise Systems Group
07/01/2010
06/30/2012
1
JC867
Assembly, Heatsink, Central Processing Unit, PE1950
07/01/2010
06/30/2012
1
UN441
KIT..., Rack Rail, Rapid/Versa RaillU, Slide, P1950, V4
07/01/2010
06/30/2012
1
U8735
Battery, Primary, 7WH, IOMM Lithium Ion, PERC51
07/01/2010
06/30/2012
l
J120C
Assembly, Filler, Blank, Hard Drive, 2.5
07/01/2010
06/30/2012
2
YM087
ASSEMBLY..., CHASSIS..., 2.5HD, IU, PE1950, 111
07/01/2010
06/30/2012
1
FCO23
Assembly, Bezel, IU, PE1950
07/01/2010
06/30/2012
1
F830C Assembly, Carrier, Hard Drive Direct Current, 2.5 07/01/2010 06/30/2012
City of Newport Beach Police Dept. - Exhibit "B"
Service Tag #: JHXRT71
System Type: EMC CX300
Service Contract Type: 4 HR. 7x24 Service; Gold
Parts # Part Description
Dell I EMC CX300 DAS Disk Processor Enclosure Array with10xl46GB lOK Drives
Rail, Electro Mechanical Compatible, Standby Power Supply, Electro Mechanical
U4031 Assembly Compatible
Base (Assembly or group), Disk Processor Enclosure, CX300, 146GB, Electro
R4777 Assembly Mechanical Compatible
License Key, Navi -Bndl, CX300, Work Group Connection, Electro Mechanical
P4968 Software Compatible
P4995 Kit Compact Diskette, Navi -Bndl, CX3, 5, 7, Work Group Connection\
X5432 Kit Software, Navi -Agt, CX3, Electro Mechanical Compatible
PV I 14 2U LTO2 Tape Rack Enclosure, I Drive (Not covered by Dell HW Maintenance)
PV 114T 2U LTO2 Tape Rack Enclosure, 1 Drive (Not covered by Dell HW Maintenance)
Smart-UPS 1500VA 120V Basic System (Not covered by Dell HW Maintenance)
Effective
Term
Date
Date
07/01/2010
06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
07/01/2010 06/30/2012
Quantity
1
1
2
EXHIBIT "C"
to
Northrop Grumman/Dell Maintenance Sub- Agreement
(See attached Dell US Standard Terms and Conditions.)
U.S. Terms and Conditions of Sale - Direct (Applies to all direct purchases -by internet, phone, or Dell Direct
Store)
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT
YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO
YOU. THIS DOCUMENT CONTAINS A BINDING ARBITRATION CLAUSE.
NOTE: These U-S. Terms and Conditions of Sale apply to direct purchases made from Dell by phone, the Internet, or
the Dell Direct store.
These terms and conditions ( "Agreement ") apply to your purchase of products and/or services and support
( "Product ") sold in the United States by Dell, including its affiliates or subsidiaries. By placing your order for Product,
you accept and are bound to the terms and conditions of this Agreement. If you do not wish to be subject to these
terms and conditions, you must promptly cancel your order before it goes into production. If you return your purchase
within 21 days, we'll refund your purchase price minus shipping, handling, and up to a 15% restocking fee. You may
also be responsible for the cost of the return shipping back to Dell. See: www.dell.com /return policy THIS
AGREEMENT SHALL APPLY UNLESS (1) YOU HAVE ASEPARATE PURCHASE AGREEMENT WITH DELL, IN
WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) OTHER DELL TERMS AND CONDITIONS
APPLY TO THE TRANSACTION.
1. Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any
other document(s) unless otherwise agreed to in a written agreement signed by both you and Dell. If you do
not receive an invoice or acknowledgement in the mail, via e-mail, or with your Product, information about
your purchase may be obtained at https: // support.dell.com /delicare /Invoice.aspx or by contacting your sales
representative.
2. Payment Terms; Orders; Quotes; Interest. Terms of payment are within Dell's sole discretion, and unless .
otherwise agreed to by Dell, payment must be received by Dell prior to Dell's acceptance of an order.
Payment for the products will be made by credit card, wire transfer, or some other prearranged payment
method unless credit terms have been agreed to by Dell. Invoices are due and payable within the time
period noted on your invoice, measured from the date of the invoice. Dell may invoice parts of an order
separately. Your order is subject to cancellation by Dell, in Dell's sole discretion. Unless you and Dell have
agreed to a different discount, Dell's standard pricing policy for Dell- branded systems, which include both
hardware and services in one discounted price, allocates the discount off list price applicable to the service
portion of the system to be equal to the overall calculated percentage discount off list price on the entire
system. Dell is not responsible for pricing, typographical, or other errors in any offer by Dell and reserves the
right to cancel any orders arising from such errors. Invoices must be paid within 30 days of the invoice date.
For all but consumer purchases, 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. Every 30 days thereafter, you will continue to be charged an additional late penalty charge.
3. Shipping Charges; Taxes; Title; Risk of Loss. Shipping and handling are additional unless otherwise
expressly indicated at the time of sale. Title to products passes from Dell to Customer upon shipment to
Customer. Loss or damage that occurs during shipping by a carrier selected by Dell is Dell's responsibility.
Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. You must
notify Dell within 21 days of the date of your invoice or acknowledgement if you believe any part of your
purchase is missing, wrong or damaged. Unless you provide Dell with a valid and correct tax exemption
certificate applicable to your purchase of Product and the Product ship -to location, you are responsible for
sales and other taxes associated with the order. Shipping and delivery dates are estimates only.
4. Warranties. THE LIMITED WARRANTIES APPLICABLE TO DELL - BRANDED HARDWARE PRODUCT
CAN BE FOUND AT www.dell.com /warranty OR IN THE DOCUMENTATION DELL PROVIDES WITH
DELL - BRANDED PRODUCT. DELL MAKES NO WARRANTIES FOR SERVICE, SOFTWARE, OR NON -
DELL BRANDED PRODUCT, SERVICE, MAINTENANCE OR SUPPORT. SUCH PRODUCT, SOFTWARE,
SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY DELL "AS IS" AND ANY THIRD -PARTY
WARRANTIES, SERVICES, MAINTENANCE AND SUPPORT ARE PROVIDED BY THE ORIGINAL
MANUFACTURER OR SUPPLIER, NOT BY DELL. DELL MAKES NO EXPRESS WARRANTIES EXCEPT
THOSE STATED IN DELL'S APPLICABLE DELL - BRANDED WARRANTY OR SERVICE DESCRIPTION IN
EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT. DELL - BRANDED
WARRANTIES AND SERVICES ARE EFFECTIVE ON PAYMENT IN FULL, AND DELL IS NOT
OBLIGATED TO HONOR ANY WARRANTY OR PROVIDE SERVICE UNTIL DELL RECEIVES PAYMENT
IN FULL. DELL MAY REQUEST CANCELLATION OF THIRD - PARTY- BRANDED SOFTWARE LICENSES,
SERVICES, MAINTENANCE OR SUPPORT IF DELL DOES NOT RECEIVE PAYMENT. IF YOU
PURCHASE THIRD - PARTY - BRANDED PRODUCT, SERVICES, MAINTENANCE, OR SUPPORT,
ADDITIONAL THIRD -PARTY TERMS AND CONDITIONS MAY APPLY.
5. Software. All software is provided subject to a license agreement and you agree that you will be bound by
such license agreement in addition to these terms. Title to software remains with the applicable licensor(s).
6. Return Policies; Exchanges. Dell's return policy can be found at www.dell.com /returnpolicy and you agree
to those terms. You must contact us directly before you attempt to return Product to obtain a Return Material
Authorization Number for you to include with your return. You must return Product to us in their original or
equivalent packaging. You are responsible for risk of loss, shipping and handling fees for returning or
exchanging Product. Additional fees, including up to a 15% restocking fee, may apply. If you fail to follow the
return or exchange instructions and policies provided by Dell, Dell is not responsible for Product that is lost,
damaged, modified or otherwise processed for disposal or resale. At Dell's discretion, credit for partial
returns may be less than invoice or individual component prices due to bundled or promotional pricing.
7. Changed or Discontinued Product. Dell's policy is one of ongoing update and revision. Dell may revise
and discontinue Product at any time without notice to you and this may affect information saved in your
online "cart." Dell will ship Product that has the functionality and performance of the Product ordered, but
changes between what is shipped and what is described in a specification sheet or catalog are possible.
Parts used in repairing or servicing Product may be new, equivalent -to -new, or reconditioned.
8. Service and Support.
A. Consumer Customers. Service offerings may vary. In addition to these terms and conditions, Dell
and /or your third -party service provider may provide such service and support to you in accordance
with term and conditions of Dell Service Descriptions located at www.dell.com /servicecontracts or
as otherwise delivered to you. Dell and /or your third -party service provider may in their discretion
revise their general and optional service and support programs and the terms and conditions that
govern them without prior notice to you.Your purchase of services is pursuant to this Agreement
and the terms and conditions of Dell Service Descriptions, if applicable, published online at the time
of your purchase. Dell has no obligation to provide service or support until Dell has received full
payment for the Product or service /support contract you purchased. Dell is not obligated to provide
third -party branded service or support, or service or support for any products or services that you
purchased through a third -party and not Dell, It is your responsibility to backup all existing
data, software, and programs before receiving services or support (including telephone
support). Dell and /or your third -party service provider will have no liability for loss or
recovery of data, programs or loss of use of system(s) arising out of the services or support
or any act or omission, including negligence, by Dell or your- third -party service provider.
Dell and /or your third -party service provider is not permitted by law to copy pirated or copyrighted
materials or to copy or handle illegal data. Prior to Dell and /or your third -party service provider
providing service or support, you represent that your system(s) does not contain illegal files or data.
You also represent that you own the copyright or have a license to make copies to all files on your
system and do not have any data that would cause Dell or your third -party service provider to be
liable for copyright infringement if such data was copied by Dell and /or your third -party service
provider. Parts used in repairing or servicing Product(s) may be new, equivalent -to -new or
reconditioned.
B. Commercial Customers, including Small, Medium and Large Business and the Public Sector
Customers. Services and /or support offerings are provided to you pursuant to Dell's Customer
Master Services Agreement ( "CMSA "), which is available for review at
www.dell.com /servicecontracts and incorporated herein in its entirety by reference.
9. Limitation of Liability. DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH
HEREIN, 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 AND SUPPORT. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, DELL WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT,
OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY
CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE
OF PRODUCT, DELL IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE
THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT. NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY
EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
10. Not For Resale or Export. You agree to comply with all applicable laws and regulations of the various
states and of the United States. You agree and represent that you are buying only for your own internal use
only, and not for resale or export. Dell has separate terms and conditions governing resale of Product by
third parties and transactions outside the United States. Terms and conditions for resale are located at:
www.dell.com/terms/#reseller.
11. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THEREUNDER, OR
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE,
WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER
PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL arising
from or relating to this agreement, its interpretation, or the breach, termination or validity thereof, the
relationships which result from this agreement, Dell's advertising, or any related purchase SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF TEXAS. WITHOUT REGARD TO CONFLICTS OF LAW.
12. Dispute Resolution and Binding Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER
IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND
INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND
EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL, its agents, employees, principals, successors,
assigns, affiliates (collectively for purposes of this paragraph, "Dell ") arising from or relating to this
Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result
from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties
who are not signatories to this Agreement), Dell's advertising, or any related purchase SHALL BE
RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE
AMERICAN ARBITRATION ASSOCIATION (AAA) or JAMS. Arbitration proceedings shall be governed by
this provision and the applicable procedures of the selected arbitration administrator, including any
applicable procedures for consumer - related disputes, in effect at the time the claim is filed. Consumer
claimants (individuals whose transaction is intended for personal family or household use) may elect to
pursue their claims in small- claims court rather than arbitration.The arbitration or small - claims court
proceeding will be limited solely to the dispute or controversy between customer and Dell.ln any
dispute,NEiTHER CUSTOMER NOR DELL SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS
BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR
CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual (non - class) nature
of this dispute provision goes to the essence of the parties' dispute resolution agreement, and if found
unenforceable, the entire arbitration and dispute resolution provision shall not be enforced.The arbitrator
shall be empowered to grant whatever relief would be available in court under law or in equity. This
transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1 -16 (FAA). Any award of the
arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court
of competent jurisdiction. Dell will be responsible for paying any individual consumer's arbitration fees. If any
customer prevails on any claim that affords the prevailing party attorneys' fees, or if there is a written
agreement providing for fees, the Arbitrator may award reasonable fees to the prevailing party, under the
standards for fee shifting provided by Iaw.YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR
RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS
ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO SUCH A CLAIM. OTHER RIGHTS THAT
YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY ALSO BE
UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. For information on AAA or JAMS, contact the
following: American Arbitration Association, 335 Madison Avenue, 10th Floor, New York, NY 10017,
www.adr.org; JAMS, 45 Broadway, New York, NY 10005, (800) 352 -5267, www.jamsadr.com.
(REV 110109)
Retail Purchaser End User Agreement (Applies to all purchases from retail sellers)
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT
YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU.
THIS DOCUMENT CONTAINS A BINDING ARBITRATION CLAUSE.
This Retail Purchaser End User Agreement ( "Agreement ") governs your retail purchase and use of products and /or
services and support ( "Product ") sold in the United States by Dell, including its affiliates or subsidiaries. BY
PURCHASING AND USING THE PRODUCT, YOU ( "CUSTOMER ") AGREE TO BE BOUND BY THE TERMS OF
THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT USE THE PRODUCT, AND RETURN THE PRODUCT TO
YOUR PLACE OF PURCHASE (subject to its return policy).
1. Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any
other dOCUment(S) unless otherwise agreed to in a written agreement signed by both you and Dell.
2. Warranties. THE LIMITED WARRANTIES APPLICABLE TO DELL - BRANDED HARDWARE PRODUCT
CAN BE FOUND AT www.dell.com /warranty OR IN THE DOCUMENTATION FOUND WITH YOUR DELL-
BRANDED PRODUCT. DELL MAKES NO WARRANTIES FOR SERVICE, SOFTWARE, OR NON -DELL
BRANDED PRODUCT, SERVICE, MAINTENANCE OR SUPPORT. SUCH PRODUCT, SOFTWARE;
SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY DELL "AS IS" AND ANY THIRD -PARTY
WARRANTIES, SERVICES, MAINTENANCE AND SUPPORT ARE PROVIDED BY THE ORIGINAL
MANUFACTURER OR SUPPLIER, NOT BY DELL. DELL MAKES NO EXPRESS WARRANTIES EXCEPT
THOSE STATED IN DELL'S APPLICABLE DELL - BRANDED WARRANTY OR SERVICE DESCRIPTION IN
EFFECT ON THE DATE OF THE PURCHASE OF YOUR PRODUCT. DELL - BRANDED WARRANTIES
AND SERVICES ARE EFFECTIVE WHEN YOU HAVE TRANSFERRED THE OWNERSHIP OF THE
PRODUCT INTO YOUR NAME, ALTHOUGH THE WARRANTY PERIOD COMMENCES ON THE DATE
OF THE PURCHASE. YOU MAY FIND THE INSTRUCTIONS FOR HOW TO TRANSFER OWNERSHIP
INTO YOUR NAME IN THE DOCUMENTATION FOUND WITH YOUR COMPUTER OR BY VISITING
http: / /www.dell.com /register. LIKE YOUR USE OF THE PRODUCT, TRANSFERRING OWNERSHIP OF
THE PRODUCT INTO YOUR NAME EXPRESSES YOUR INTENT TO BE BOUND BY THE TERMS OF
THIS AGREEMENT. IF YOU PURCHASE THIRD - PARTY - BRANDED PRODUCT, SERVICES,
MAINTENANCE, OR SUPPORT ADDITIONAL THIRD -PARTY TERMS AND CONDITIONS MAY APPLY.
3. Software. All software is provided subject to a license agreement and you agree that you will be bound by
such license agreement in addition to these terms. Title to software remains with the applicable licensor(s).
4. Return Policies; Exchanges. Returns and exchanges are governed by the policies of the retailer where
you purchased the Product.
5. Service and Support.
A. Consumer Customers. Service offerings may vary. In addition to terms and conditions, Dell
and /or your third -party service provider may provide such service and support to you in accordance
with the terms and conditions of Dell Service Descriptions located at
www.dell.com /servicecontracts or as otherwise delivered to you. Dell and /or your third -party service
provider may in their discretion revise their general and optional service and support programs and
the terms and conditions that govern them without prior notice to you. Your purchase of services is
pursuant to this Agreement and the terms and conditions of the Dell Service Descriptions, if
applicable, published online at the time of your purchase. Dell has no obligation to provide service
or support until Dell has received full payment for the service /support contract you purchased. Dell
is not obligated to provide third -party branded service or support, or service or support for any
products or services that you purchased through a third -party and not Dell. It is your
responsibility to backup all existing data, software, and programs before receiving services
or support (including telephone support). Dell and/or your third -party service provider will
have no liability for loss or recovery of data, programs or loss of use of system(s) arising
out of the services or support or any act or omission, including negligence, by Dell or your
third -party service provider. Dell and/or your third -party service provider is not permitted by law
to copy pirated or copyrighted materials or to copy or handle illegal data. Prior to Dell and /or your
third -party service provider providing service or support, you represent that your system(s) does not
contain illegal files or data. You also represent that you own the copyright or have a license to
make copies to all files on your system and do not have any data that would cause Dell to be liable
for copyright infringement if those files were copied by Dell and /or your third -party service provider.
Parts used in repairing or servicing Product may be new, equivalent -to -new, or reconditioned.
B. Commercial Customers, including Small, Medium and Large Business and Public Sector
Customers. Services and /or support offerings are provided to you pursuant to Dell's Customer
Master Agreement ( "CMSA "), which is available for review at www.dell.com /servicecontracts and
incorporated herein in its entirety by reference.
6. Limitation of Liability. DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH
HEREIN, 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 AND SUPPORT. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, DELL WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT,
OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY
CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE
OF PRODUCT, DELL IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE
THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT. NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY
EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
7. Not For Resale or Export. You agree to comply with all applicable laws and regulations of the various
states and of the United States. You agree and represent that you are buying for your own internal use only,
and not for resale or export. Dell has separate terms and conditions governing resale of Product by third
parties and transactions outside the United States. Terms and conditions for resale are located at:
www.dell.com/terms/#reseller.
8. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, THE PURCHASE AND USE OF THE
PRODUCT, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR
OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY,
CONSUMER PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND
DELL arising from or relating to this Agreement, its interpretation, or the breach, termination or validity
thereof, the relationships which result from this Agreement, Customer's purchase or use of the Product,
Dell's advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
TEXAS, WITHOUT REGARD TO CONFLICTS OF LAW.
9. Dispute Resolution and Binding Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER
IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND
INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND
EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL, ITS AGENTS, EMPLOYEES, PRINCIPALS,
SUCCESSORS, ASSIGNS, AFFILIATES (COLLECTIVELY FOR PURPOSES OF THIS PARAGRAPH,
"DELL ") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity
thereof, the relationships which result from this Agreement (including, to the full extent permitted by
applicable law, relationships with third parties who are not signatories to this Agreement), Customers
purchase or use of the Product, Dell's advertising, or any related purchase SHALL BE RESOLVED
EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN
ARBITRATION ASSOC IATI0N(AAA) or JAMS. Arbitration proceedings shall be governed by this provision
and the applicable procedures of the selected arbitration administrator, including any applicable procedures
for consumer - related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose
transaction is intended for personal family or household use) may elect to pursue their claims in small - claims
court rather than arbitration... The arbitration or small - claims court proceeding will be limited solely to the
dispute or controversy between Customer and Dell.ln any dispute. NEITHER CUSTOMER NOR DELL
SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR
ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY
GENERAL CAPACITY. The individual (non - class) nature of this dispute provision goes to the essence of the
parties'dispute resolution agreement, and if found unenforceable, the entire arbitration and dispute resolution
provision shall not be enforced.The arbitrator shall be empowered to grant whatever relief would be
available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9
U.S.C. sec. 1 -16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and
may be entered as a judgment In any court of competent jurisdiction. Dell will be responsible for paying any
individual consumers' arbitration fees. If any Customer prevails on any claim that affords the prevailing party
attorneys' fees, or if there is a written agreement providing for fees, the Arbitrator may award reasonable
fees to the prevailing party, under the standards for fee shifting provided by law. YOU ACKNOWLEDGE
THAT YOU ARE GIVING UP YOUR RIGHTS TO LITIGATE CLAIMS IN A. COURT OR BEFORE A JURY
OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO
SUCH A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS
ACCESS TO DISCOVERY, MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. For
information on AAA or JAMS, contact the following: American Arbitration Association, 335 Madison Avenue,
10th Floor, New York, NY 10017, www.adr.org; JAMS, 45 Broadway, New York, NY 10005, (800) 352 -5267,
www.jamsadr.com.
(REV 110109)
Terms and Conditions of Sale for Persons or Entities Purchasing to Resell (applies to all purchases of
Products that buyer intends to resell to others)
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION ABOUT
YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU.
These terms and conditions (this "Agreement" ) apply to your purchase and resale of certain products ( "Products ")
and Dell services ("Services ") from Dell or a Dell distributor in the United States or Canada (collectively, Products
and Services shall be referred to as "Dell Products and Services" ). This Agreement does not apply to you if you
are buying Dell Products and Services for your own end use. Not all Dell Products and Services are available for
purchase under this Agreement. "Dell" means the direct or indirect affiliate or subsidiary of Dell Inc. named on your
invoice, order confirmation, or other sales documents. "You" or "you" shall include your subsidiaries and affiliates
that are majority owned or controlled by you, and are approved by Dell to resell Dell Products and Services under this
Agreement (collectively, "Affiliates"). These terms and conditions are subject to change at any time in Dell's sole
discretion without prior written notice. If you do not wish to be bound by this Agreement, you must promptly notify
Dell. Products must remain in the boxes in which they were shipped and you must notify us immediately to arrange a
Product return, for which YOU WILL BE RESPONSIBLE FOR SHIPPING & HANDLING CHARGES. ADDITIONAL
RETURN OR RESTOCKING FEES MAY APPLY. THIS AGREEMENT SHALL APPLY UNLESS YOU HAVE A
SEPARATE WRITTEN AGREEMENT WITH DELL THAT EXPRESSLY APPLIES TO YOUR PURCHASE AND
RESALE OF DELL PRODUCTS AND SERVICES.
By purchasing Dell Products and Services for resale, you agree to be bound by and accept the terms and conditions
of this Agreement.
TERMS AND CONDITIONS
1. Appointment. Subject to your compliance with this Agreement, you may resell Dell Products and Services
to certain third parties ( "End- users" ) as authorized by Dell in writing, in Dell's sole discretion, only after you
have added value to the Products through the addition of hardware, software, or services. Approval by Dell
shall not be deemed from the sale of Product to you. You may not resell to Consumer, Education,
Healthcare, Federal, State, Provincial or Local or other Public- sector customers, or to distributors or third -
party sales agents, and you may not remarket or resell through retail storefronts or auction -type web sites.
You may not resell to customers outside the United States or Canada, whichever is the country covered by
the Dell entity from which you purchased Dell Products and Services. This Agreement is not exclusive. Dell
may appoint other dealers, distributors, resellers, licensees or sales agents (including those who may
compete with you) to sell Dell Products and Services. Dell may market Dell Products and Services to any
third -party directly or indirectly without any obligation or liability to you. This Agreement does not guarantee
that you will make any sales of Dell Products and Services. You determine or set your resale pricing. Dell
reserves the right to restrict or prohibit your participation in certain promotions, and to add, modify, or
discontinue pricing, Products, Services, or parts. Dell may require you to meet additional obligations not
outlined herein, which will be disclosed to you prior to your purchase of Dell Products and Services for
resale. You will provide Dell such information and reports pertinent to your relationship with Dell as may
reasonably be requested by Dell.
2. Trademarks; Copyrights.. You may use the "Dell" name and the names of Dell's Products and Services
(collectively, "Names" ) solely for the purpose of accurately identifying the Dell Products and Services you
market or sell under this Agreement. You may not use the Names for any other purpose, and may not use
any other Dell trademarks, service marks, or copyrighted works. You agree to change or correct, at your
own expense, any materials or activity that Dell decides is inaccurate, objectionable or misleading, or a
misuse of the Names, trademarks, service marks, logos, or copyrighted works. You are prohibited from
using Dell's logos, referring to yourself as an authorized reseller of Dell, or creating the impression that Dell
is affiliated with you other than as permitted expressly by the terms of the PartnerDirect program. You may
not claim or imply that you and Dell are legal partners or that Dell has sponsored, authorized, approved, or
endorsed your business or any offer or marketing, advertising, or promotion thereof in any manner. You may
not register or use any domain name or business name containing or confusingly similar to any name or
mark of Dell's. You will clearly and prominently identify yourself in all your offers and advertising, marketing,
and promotional materials.
3. Intellectual Property Ownership. All right, title and interest in the intellectual property rights in Dell
Products and Services, including technology and trade secrets embodied therein and any custom
developments created or provided in connection with or related to this Agreement, and any derivative works
thereof, shall belong solely and exclusively to Dell or its licensors, and you shall have no rights whatsoever
in any of the foregoing other than the rights set forth in this Agreement. Nothing in this Agreement or
otherwise will be deemed to grant to you an ownership interest in the intellectual property rights in Dell
Products and Services, in whole or in part.
4. WARRANTIES. DELL MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN (i) DELL'S
APPLICABLE LIMITED WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE,
PACKING SLIP, OR ACKNOWLEDGEMENT FOUND AT WWW.DELL.COM/WARRANTY OR THE
DOCUMENTATION PROVIDED WITH THE PRODUCT(S) OR SERVICES OR (ii) WITH RESPECT TO
THE SERVICES IN AN APPLICABLE SERVICE CONTRACT OR SERVICES DESCRIPTION FOUND AT
WWW.DELL.COM /SERVICECONTRACTS OR A SEPARATELY SIGNED STATEMENT OF WORK. DELL
DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF NON INFRINGEMENT,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES
BY DELL FOR NON -DELL BRANDED PRODUCTS, SERVICES, OR SOFTWARE PRODUCTS. ALL SUCH
PRODUCTS AND SERVICES ARE PROVIDED BY DELL "AS IS." NO REVISION IN LIMITED
WARRANTIES WILL AFFECT PRODUCTS OR SERVICES ALREADY ORDERED BY YOU.
5. REMEDIES & RESPONSIBILITIES. DELL RESERVES THE RIGHT TO MODIFY OR DISCONTINUE
SERVICE, MAINTENANCE, OR SUPPORT IT OFFERS IN WHOLE OR IN PART PROVIDED SUCH
MODIFICATION OR DISCONTINUANCE SHALL NOT VOID ANY WARRANTY, SERVICE,
MAINTENANCE, OR SUPPORT IN EXISTENCE AND PAID FOR PRIOR TO SUCH MODIFICATION OR
DISCONTINUANCE. DELL MAY CANCEL SOFTWARE LICENSES, SERVICES, MAINTENANCE, OR
SUPPORT IF DELL DOES NOT RECEIVE PAYMENT. IF YOU PURCHASE THIRD - PARTY- BRANDED
PRODUCTS, SERVICES, MAINTENANCE, OR SUPPORT, ADDITIONAL THIRD -PARTY TERMS AND
CONDITIONS MAY APPLY. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL
REPRESENTATIONS AND OMISSIONS YOU MAKE OR FAIL TO MAKE TO YOUR CUSTOMERS OR TO
THE PUBLIC. YOU WILL INFORM YOUR CUSTOMERS OF DELL'S RIGHTS AND YOUR OBLIGATIONS
UNDER THIS AGREEMENT.
6. This Agreement may NOT be altered, supplemented, or amended by you via the use of any other
document(s) unless otherwise agreed to in a separate written agreement signed by Dell. Any use of pre-
printed forms, such as purchase orders, are for convenience only, and any terms set forth therein shall not
apply to the purchase of Dell Products and Services in accordance with this Agreement.
7. Limitation of Liability. DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN
THIS AGREEMENT. DELL WILL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL,
INDIRECT, OR PUNITIVE DAMAGES, OR FOR ANY LIABILITY FOR PRODUCTS OR SERVICES NOT
BEING AVAILABLE FOR USE, LOST OR CORRUPTED DATA OR SOFTWARE, LOST PROFITS OR
SAVINGS, LOSS OF BUSINESS, OR THE PROVISION OF SERVICES OR SUPPORT NOT OTHERWISE
PAID FOR OR SUBJECT TO ANY WARRANTY ASSOCIATED WITH SUCH PRODUCT OR SERVICE
WHETHER DIRECT OR INDIRECT, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT OR ON OUR WEB SITE TO THE CONTRARY, DELL IS NOT RESPONSIBLE FOR
INFORMATION OR DATA YOU PROVIDE TO US UNLESS YOU HAVE A SEPARATE WRITTEN
AGREEMENT TO THE CONTRARY. YOU AGREE THAT FOR ANY LIABILITY ARISING FROM OR
RELATED TO THE PURCHASE OF ANY PRODUCTS OR SERVICES, DELL IS NOT LIABLE OR
RESPONSIBLE FOR ANY AMOUNT OF DAMAGES: IN THE CASE OF PRODUCTS ABOVE THE
AGGREGATE DOLLAR AMOUNT YOU PAID TO DELL FOR SUCH PRODUCTS THAT CAUSED THE
LIABILITY OR IN THE CASE OF SERVICES THE AGGREGATE DOLLAR AMOUNT YOU PAID TO DELL
FOR SUCH SERVICES THAT CAUSED THE LIABILITY IN THE PREVIOUS 12 MONTHS PRIOR TO
SUCH CLAIM FOR LIABILITY. THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN
IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
8. Limitation Period. Neither party may institute any action in any form arising out of this Agreement more
than two (2) years after the cause of action has arisen, or in the case of nonpayment, more than two (2)
years from the date of last payment.
9. Your Indemnity to Dell. To the fullest extent permitted by law, you will indemnify, defend, and hold
harmless Dell, including Dell's officers, directors, agents, employees, subsidiaries, affiliates, parents,
successors and assigns, from any claim, demand, cause of action, debt, or liability (including reasonable
attomeys' or legal fees, expenses, and court costs) that relates to: (a) your modification of or addition to Dell
Products and Services; (b) your breach of this Agreement, including your failure to secure assent by your
End -Users to be bound by the CMSA (as defined below) or such other End -User terns provided by Dell to
you in connection with this Agreement; (c) your omission, misrepresentation, or negligence; (d) warranties
you provide to End -Users outside the terms of this Agreement with respect to Dell Products and Services;
and (d) damage to a third party by Dell Products and Services sold by you to the extent such claim is based
on (1) your modification of or addition to Dell Products and Services, misuse or abuse of Dell Products and
Services, or breach of any provision in this Agreement; (ii) your failure to abide by all applicable laws, rules,
regulations, and orders that affect Dell Products and Services; (iii) your omission, misrepresentation, or
negligence; or (iv) intentional harm to any person or property caused by you. Indemnified claims, debts, and
liabilities include the amount of any discount in price or concession that is made available by Dell to you.
10. Marketing. Reseller shall make no representations or warranties concerning Dell Products and Services
except as Dell may itself approve in writing.
11. Dispute Resolution - Arbitration. The parties will attempt to resolve any claim, dispute, or controversy
(whether in contract, tort or otherwise, whether preexisting, present or future, and including statutory,
consumer protection, common law, intentional tort and equitable claims) between you and Dell, its agents,
employees, principals, successors, assigns, or affiliates (collectively for purposes of this paragraph, "Dell ")
arising from or relating to the parties' written agreements, their interpretation, or the breach, termination or
validity thereof, the relationships which result from the written agreements, the partner direct program, the
reseller program, Dell's advertising, or any related purchase (each a "Dispute ") through face -to -face
negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually
agreeable mediator, rather than through litigation. If the parties are unable to resolve the Dispute through
negotiation or mediation within a reasonable time after written notice from one party to the other that a
Dispute exists, the Dispute will be settled by binding individual arbitration in accordance with the then current
CPR Rules for Non - Administered Arbitration . The Arbitration will be conducted before a single arbitrator
mutually agreed to by the parties. If such arbitrator cannot be agreed upon Dell will appoint one (1) arbitrator
and you will appoint one (1) arbitrator. The two (2) appointed arbitrators will then select a third arbitrator,
who shall be the presiding arbitrator. NEITHER YOU NOR DELL SHALL BE ENTITLED TO JOIN OR
CONSOLIDATE CLAIMS BY OR AGAINST OTHER RESELLERS OR PARTNERS, OR ARBITRATE ANY
CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL
CAPACITY. The individual (non - class) nature of this dispute provision goes to the essence of the parties'
arbitration agreement, and if found unenforceable, the entire arbitration provision shall not be enforced. The
arbitration hearing shall take place in Austin, Texas, and will be governed by the United States Federal
Arbitration Act to the exclusion of any inconsistent state laws. The arbitrators shall base their award on the
terms of any written Agreement(s), and will follow the law and judicial precedents that a United States
District Judge sitting in the Western District of Texas would apply to the Dispute. (For Canadian entities: the
arbitration hearing shall take place in Toronto, Ontario, and will be governed by the Arbitration Act of Ontario
and the applicable laws of Ontario and Canada.) The arbitrator shall render its award in writing and will
include the findings of fact and conclusion of law upon which their award is based. Judgment upon the
arbitration award may be entered by any court of competent jurisdiction. Notwithstanding the foregoing,
either party will have 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 or prevent irreparable harm,
although the merits of the underlying Dispute will be resolved in accordance with this paragraph.
12. Independent Contractors. No provision of this Agreement will or shall be deemed to create a legal
partnership, joint venture, or other combination between Dell and you. 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 or will claim to be a legal representative, franchisee, agent, or employee
of the other party. 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.
13. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THEREUNDER, OR
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE,
WHETHER PREEXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW,
AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL arising from or relating to this Agreement,
its interpretation, or the breach, termination, or validity thereof, the relationships which result from this
Agreement, Dell's advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF TEXAS (OR FOR CANADIAN ENTITIES, THE PROVINCE OF ONTARIO), WITHOUT REGARD
TO CONFLICTS -OF -LAWS RULES.
14. Export. You acknowledge that the purchased Dell Products and Services licensed or sold under this
agreement may include technology and software that are subject to the customs and export control laws and
regulations of the United States ("U.S.") or Canada and may also be subject to the customs and export laws
and regulations of the country in which Dell Products and Services are manufactured and/or in the case of
both Dell Products and Services are received. For any authorized resale under this Agreement, you
acknowledge that it is your sole responsibility to comply with those laws and regulations and you agree to
fully abide by those taws and regulations. Further, under those laws, Dell Products and Services shipped
pursuant to this Agreement may not be sold, leased or otherwise transferred to restricted End -Users
(including those on the U.S. Department of Commerce, Bureau of Industry and Security "Entity List" and
other lists of denied parties) or to restricted countries (currently Cuba, Iran, North Korea, Sudan, and Syria).
In addition, the shipped Deli Products and Services may not be sold, leased or otherwise transferred to, or
utilized by an End -User engaged in activities related to weapons of mass destruction, including without
limitation, activities related to the design, development, production or use of nuclear weapons, materials, or
facilities, missiles or the support of missile projects, and chemical or biological weapons. 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 such applicable laws and regulations. If purchased Dell Products
and Services are resold in violation of the foregoing restrictions, Dell shall not be obligated to provide any
warranty service or technical support.
15. Regulatory Compliance. Dell has not tested the Products for use in specialized or high -risk applications or
hazardous environments, including but not limited to any life- sustaining, chemical, or mission - critical use.
DELL WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE
PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING BUT NOT LIMITED TO THE OPERATION OF
NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC
CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT, OR WEAPONS SYSTEMS. You are responsible for
ensuring continued regulatory compliance, including but not limited to compliance to electrostatic discharge
and radiated emissions standards, for any modifications or additions made to the Products after the
Products are shipped from Dell. You are also responsible for obtaining any regulatory compliance marks that
may be required to ship into locations other than United States and Canada.
16. Headings. The section headings used herein are for convenience of reference only and do not form a part
of these terms and conditions, and no construction or inference shall be derived there from. 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.
17. Language. The parties confirm that it is their wish that this Agreement, as well as other documents relating
to this Agreement, including all notices, have been and will be drawn up in the English language only. Les
parties aux presentes confirment leur volonte que cette convention, de meme que tous les documents, y
compris tout avis, qui s'y rattachent, soient rediges en langue anglaise.
18. Audit. You will maintain accurate and legible records for a period of five years and will grant to Dell, or its
designee, reasonable access to and copies of, any information reasonably requested by Dell with respect to
your performance under this Agreement.
19. Termination. Dell may terminate this Agreement for any reason upon written notice to you at the address
provided to Dell in accordance with the terms of this Agreement. This Agreement may be terminated by
written notice of termination by either party if the other party breaches any of its obligations under this
Agreement and the breach is not substantially cured within 30 days of receipt of notice of such breach (or, if
an effort to cure is being diligently pursued, within such time as is reasonably necessary to complete the
cure).
20. Purchases by Affiliates. Unless otherwise agreed in writing, any Affiliate who submits an order to Dell
shall have thereby agreed to abide by the terms of this Agreement. Dell, in its sole discretion, may
discontinue selling Dell Products and Services to any Affiliate or may require additional payment and /or
credit conditions for such Affiliate. In consideration of Dell's agreement to extend credit to your Affiliates at
the same or similar level as the credit extended to you, you hereby unconditionally guarantee complete and
timely payment of any and all amounts due to Dell from any Affiliate.
21. Assignment; Subcontracting. You may not assign this Agreement without the prior written consent of
Dell. Dell has the right to subcontract the Services provided under this Agreement.
22. Force Majeure. Dell shall not be liable to you for any failure to perform any of its obligations under this
Agreement during any period in which such performance is delayed by circumstances beyond its reasonable
control including, but not limited to, fire, flood, war, embargo, strike, dot or the intervention of any
governmental authority (a "Force Majeure").
23. Notices. To give notice under this Agreement, your notice must be in writing and sent by postage prepaid
first -class mail, receipted courier service, facsimile telecommunication or electronic mail to the address
below. Notice to you may be sent to you by postage prepaid first -class mail, receipted courier service,
facsimile telecommunication or electronic mail to the address and contact information provided by you to
Dell in connection with this Agreement.
Dell Marketing L.P.
Attn: Mgr Contracts
One Dell Way
Round Rock, TX 78682
24. Quotes; Orders; Payment Terms; Interest. Payment terms for Dell Products and Services are within
Dell's sole discretion and shall be set forth at the time of purchase of such Dell Products and Services. You
agree not to violate the terms of any offer or concession made available by Dell. Dell may invoice or ship
parts of an order separately. Dell reserves the right to cancel an order or transaction, in whole or in part. If
you breach the provisions of this Agreement or the terms of any offer, 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). You agree to pay interest on all past -due sums at the highest rate allowed by law. 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. Unless you and Dell have agreed
to a different discount, Dell's standard pricing policy for Products, which include both hardware and support
services in one discounted price, allocates the discount off list price applicable to the service portion of the
system to be equal to the overall calculated percentage discount off list price on the entire system.
25. Shipping Charges; Risk of Loss; Taxes. Shipping dates provided by Dell are estimates only. Shipping
and handling are additional and will be shown on the invoice(s) or other documentation. Loss or damage to
Products that occurs during shipping by a carder selected by Dell is Dell's responsibility. Loss or damage
that occurs during shipping by a carrier selected by you is your responsibility. Unless you provide Dell with a
valid and correct tax - exemption certificate at the time of purchase, you will be responsible for any and all
taxes and fees associated with the order of Dell Products and Services, however designated, except for
Dell's franchise taxes and taxes on Dell's net income.
26. Title; Insurance. Title to Products (except software) passes from bell to you on shipment from Dell's facility
or third -party manufacturer's facility. Title to software will remain with the applicable licensor(s). You will
maintain comprehensive general liability, including products liability, insurance in an amount appropriate for
your business, but in no event less than $1,000,000.00 (US) with an insurance company having a Best
rating of A. Upon request, you will name Dell as an additional insured and provide to Dell a certificate of
such insurance (including any new or amended certificates of insurance).
27. Software; End -User License Agreement.
A. Products. All software distributed with Products is provided subject to the End -User license
agreement that is provided with the Product. You agree that you and your End -Users will be bound
by such license agreement.
B. Services. All software services, online services, hosted solutions, cloud computing services and
software - enabled services are provided pursuant to the license agreement and Acceptable Use
Policy set forth at www.delf.com /AUP.
28. No Returns. All sales are final. Neither you nor your customers may return Products to Dell. If you refuse
delivery of Products that you ordered, you will be responsible for shipping . and handling charges and
additional return or restocking fees may apply.
29. Order Support; Other. If you do not receive an invoice or acknowledgement in the mail or with your Dell
Products and Services, information about your purchase may be obtained at
wvvw. support .dell.com /Del]Care /Index.aspx (or in Canada at www.dell.ca /support) or contacting your
sales representative. You are obligated to ensure that you transfer the asset/service identification number
(e.g. the Service Tag or Asset Number) to your End -User that is associated with Dell Products and Services
you have purchased for resell in accordance with this Agreement. The process to complete such transfer is
located at www.support.dell.com, which process may change from time to time. It is your responsibility to
ensure compliance with the latest version of the posted process. You acknowledge that your failure to
properly transfer the asset/service identification number will result in the End -Users inability to receive
services from Dell.
30. Dell Products and Services Updates, Dell's policy is one of ongoing Dell Products and Services update
and revision. Dell may revise and discontinue Dell Products and Services at any time without notice to you.
Dell will ship Products and offer Services that have the functionality and performance of Dell Products and
Services ordered, but changes between what is provided to you and what is described in a specification
sheet or catalog are possible.
31.. Support Services Parts. The parts and assemblies used in building Products, service parts and spare
parts are selected from new, equivalent -to -new, or reconditioned parts and assemblies.
32. Your Resale of Dell Services.
A. Dell Terms .& Conditions Applicable to End - Users. You will only resell Services, including
support services sold with Products, to End -Users who agree to be bound to Dell's Customer
Master Services Agreement set forth at www.dell.com /servicecontracts ( "CMSA "), including terms
and conditions incorporated by reference therein. You will incorporate in an enforceable manner
the CMSA into your own agreement with End -Users ( "End -User Reseller Agreement "), or where
required by Dell, enable the CMSA to be presented directly to End -Users prior to their use of
Services. Where Dell requires the CMSA to be presented directly to End - Users, the specific
implementation and presentation of such terms will be mutually agreed, but at a minimum shall
include i) direct links to the CMSA in an enforceable manner; ii) consentlaccept provisions; and iii)
continued accessibility by End -Users to the CMSA. You will immediately notify Dell if you become
aware of any End - User's violation of the CMSA and any actions you have taken or will take in
connection with the violation. At Dell's request, you will promptly discontinue further sales and
suspend or terminate End - User's access to the Services in response to a violation of the CMSA.
You acknowledge and agree that Dell is a third party beneficiary of the agreement used to engage
the End User with respect to the Services and that you shall require the End User to acknowledge
and agree as to such in the End -User Reseller Agreement. For avoidance of doubt, to ensure
compliance with this Section, you shall provide the following provision in your End -User Reseller
Agreement (or such other agreement you have with the End User as it relates to the Services):
"Services being provided to you pursuant to this agreement that are provided by Dell Marketing,
L.P. or one of its worldwide affiliates ("Dell"), are being provided to you in accordance with the
terms and conditions of Dell's Customer Master Services Agreement and any and all applicable
Service Descriptions set forth at www.dell.com /servicecontracts. You hereby acknowledge and
agree to be bound by the terms set forth therein and that Dell is a third party beneficiary to this
agreement."
To ensure compliance with the terms of this Agreement, Dell reserves the right to audit your
agreements with the End Users. Such audit shall take place during normal business hours upon
seven days prior written notice.
B. Internal Use by Reseller. If you use or otherwise are the recipient of Services, including support
services sold with Products, in any manner in connection with your resale of Services, such as
serving as a managed service provider or participating in the delivery or deployment of Services to
your customers, such use shall be governed by the CMSA.
C. Updates. Dell reserves the right to update the CMSA at any time and from time -to -time, effective
upon posting of an updated version to the Dell website available at www.dell.com /servicecontracts.
You are responsible for regularly reviewing the CMSA. You should closely monitor the revision date
on the CMSA and any change of its posted date shall be deemed notice to you that the CMSA has
been changed or amended. Continued resale or use of Services after any such changes shall
constitute your consent to such changes.
D. Dell Enforcement. Dell reserves the right, in its sole discretion, to suspend or terminate any End -
User in response to a violation or suspected violation of the CMSA or terms and conditions
incorporated by reference therein.
E. Dell Access to End -User Usage Data. "End -User Usage Data" means data or information
collected or received by Dell relating to an End - User's use of the Service, including preferences,
images, files and documents. Dell reserves the right to access, preserve, or disclose End -User
Usage Data if required to do so by law or in a good faith belief that such access, preservation or
disclosure is reasonably necessary to: (1) comply with legal process; (ii) enforce Dell's CMSA; (iii)
respond to claims that any End -User Usage Data violates the rights of third parties; (iv) respond to
your or your End Users' requests for technical support; or (v) protect the rights, property or personal
safety of Dell, its users and the public.
(Rev 110109)
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB - AGREEMENT
SUB - AGREEMENT effective July 1, 2010, between Northrop Grumman Systems
Corporation, a Delaware corporation, acting through Northrop Grumman Information Systems
Sector, Civil Systems Division, with an office at 15010 Conference Center Drive, Chantilly, VA
20151 -3801 ( "Northrop Grumman ") and the City of Newport Beach, ( "Customer ").
1. SOFTWARE SYSTEM
For the purpose of this Sub - Agreement, the "Software System" shall mean the Northrop
Grumman Computer Software System (Software System) identified in Exhibit A of this
Sub - Agreement.
2. SOFTWARE SUPPORT SERVICES
a. With respect to the Software System, Northrop Grumman agrees to perform, or
cause to be performed, the following maintenance services:
1. Northrop Grumman will retain a complete copy of the Software System
source code.
2. If during the term of this Agreement, (a.) the Customer discovers defects
in the Software System such that same will not perform in accordance with
Northrop Grumman's design; (b.) the Customer notifies Northrop
Grumman of such defects; and, (c.) such defects are reproducible, then
Northrop Grumman shall provide, or cause to be provided, timely
corrections of such defects.
3. If problems arise concerning the Software System, Northrop Grumman
will provide telephone assistance as required within the schedule stated in
Exhibit B.
4. If Serious problems arise from the Northrop Grumman application (see 3.
Severity Level) and the Customer cannot correct them by following system
management procedures previously supplied by Northrop Grumman,
Northrop Grumman will provide assistance to restore the Software System
operations 24 hours a day, 365 days a year without additional charge to the
Customer.
Document Prepared 11/29/10 SMK 0410 Page 1
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB - AGREEMENT
b. Microsoft Windows Patches
Application of Microsoft Windows Software Patches to the Public Safety Servers that are
currently using Northrop Grumman's applications software (i.e. CADLIVE Server, MIS
(CADTRAIN) RMS (RMS Live, RMS Test) Server is not included in the annual SW
Maintenance pricing. Northrop Grumman will apply a specific critical patch (if needed)
in order to fix a reported Northrop Grumman SW problem. Northrop Grumman does not
apply the periodic Microsoft Windows patch updates as part of the yearly Software
Maintenance. This type of SW patch update service task could be added as a standalone
quote or completed under a On- Demand or T &M Service agreement.
C. HCL Software GUI Patches
Application of HCL GUI Software Patches to the Public Safety CAD Clients that are
currently using Northrop Grumman's applications software (i.e. CADLIVE, MIS
(CADTRAIN) is not included in the annual SW Maintenance pricing. Northrop
Grumman will apply a specific HCL SW critical patch (if needed) in order to fix a
reported Northrop Grumman SW problem. Northrop Grumman does not apply the
periodic HCL Software patch updates as part of the Software Maintenance. This type of
HCL SW update service task could be added as a standalone quote or completed under a
On- Demand or T &M Service agreement.
d. Oracle Database and Software Patches
Application of Oracle Database and Software Patches to the Public Safety Servers that are
currently using Northrop Grumman's applications software (i.e. CADLIVE Server, MIS
(CADTRAIN) RMS (RMS Live, RMS Test) Server is not included in the annual SW
Maintenance pricing. Northrop Grumman will apply a specific critical patch (if needed)
in order to fix a reported Northrop Grumman SW problem. Northrop Grumman does not
apply the periodic Oracle patch updates as part of the Software Maintenance. This type of
Oracle SW patch update service task could be added as a standalone quote or completed
under a On- Demand or T &M Service agreement.
e. Oracle Database Software Maintenance and DBA Administration Services:
The database is the single most critical element of the Public Safety systems. Northrop
Grumman Oracle and DBA services provide remote access support and system tuning.
Regular monitoring and tuning is vital to minimizing downtime and data loss.
Document Prepared 11/29/10 SMK_0410 Page 2
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB - AGREEMENT
Included in the Oracle DBA Services is monthly monitoring of the database space, the
Alert Log, backup procedures, table spaces and ensuring maximum efficiency in space
utilization and minimal space fragmentation.
1. Monitor Database Space - if the database is running low on space, the DBA
will create additional space within the existing configuration to prevent Oracle
database errors. These errors prevent transfers from going across and prevent
users from entering additional data.
2. Monitor Alert Log - The DBA will check the log file that records problems
with the database. The problems reported in the alert log will be addressed.
3. Ensure Maximum Efficiency in Space Utilization - The DBA will de- fragment
the free space in the database, as needed.
4. Ensure Minimal Fragmentation in the Space Used - The DBA will monitor the
growth of the database and make proper adjustments to segments. This will result
in optimal performance and an efficient use of space.
5. Monitor Table Spaces - The DBA will ensure that all table spaces are in proper
status and that none of them are left in, the very dangerous, backup status. This
would require database recovery in case of a system crash or even a normal
shutdown.
6. Database recovery - The DBA will recover the Oracle Database should it
become necessary due to a system crash or abnonnal shutdown.
7. The DBA will monitor and modify the Oracle listener configuration if
necessary.
8. Oracle Software Error Reporting, the DBA will open up a ticket with Oracle
and track the errors in order to determine SW fixes for any Oracle related software
errors covered under the Oracle SW maintenance agreement.
3. SEVERITY LEVEL
Problems that prevent the actual execution of a critical function of the Software System
specified in Exhibit A shall be defined as "Serious ". Serious system problems include:
Document Prepared 11/29/10 SMK 0410 Page 3
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB- AGREEMENT
a complete system outage;
b. the failure of a major portion of the database engine or message switching system;
C. in CAD systems, the loss of a major portion of complaint receiving or dispatch
terminals;
d. in CAD systems, the inability to dispatch an area or areas;
C. in CAD systems, the loss of unit suggestion;
f. in CAD systems, the loss of the geographical validation applications;
g. in records systems, the failure of the MUX process;
h. in records systems, the failure of the INCIDENT or INTAKE modules;
i. loss of communications with the mobile data controller, other than such loss due
to malfunction occurring outside of the Northrop Grumman system;
j. system response times doubling and continuing beyond fifteen (15) minutes; other
than such doubling due to malfunction occurring outside of the Northrop
Grumman system.
4. RESPONSIBILITIES OF CUSTOMER
The obligations of Northrop Grumman under this Agreement are conditioned upon:
a. Customer assigning a Coordinator to ensure that Customer's assignments in
connection with this Agreement are met, to coordinate appropriate schedules in
connection with Northrop Grumman's services hereunder, and to serve to provide
other coordination activities which are necessary for Northrop Grumman to perform
its services hereunder.
b. Customer assigning at least two technically capable individuals, as required by
Northrop Grumman to assist Northrop Grumman in performing its services
hereunder.
c. Customer establishing an on -site VPN access to enable Northrop Grumman to
remotely access the Software System.
d. Customer shall be responsible for controlling security and access to the computer
systems. The Customer shall provide the appropriate usernames and authorization
codes to Northrop Grumman whenever maintenance work is to be done.
e. Customer shall not perform any modifications or enhancements to the Software
System or allow any person or entity not specifically authorized by Northrop
Grumman to perform any modifications or enhancements to the Software System.
Document Prepared 11/29/10 SMK_0410 Page 4
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB- AGREEMENT
f As applicable and necessary, during the term of the Master Maintenance Agreement,
and any subsequent extensions of the term, Customer shall keep a verified copy of the
Software System back -up, at no cost to Northrop Grumman, for use in assisting the
Customer during disaster recovery efforts if requested. Northrop Grumman
recommends that system and tape backups are routinely kept offsite.
g. It is the Customer's sole responsibility for insuring System Management Procedures
are performed for continuous operation of the CAD and RMS /MIS systems. This
includes, but is not limited to, performing full monthly system and daily database file
backups, routine configuration changes, installation of operating system and
application patches, system and database backups, system and database performance
tuning, network problem diagnosis, and system monitoring and preventive
maintenance. Detailed System Management duties and responsibilities are outlined in
the System Management Guide.
h. Northrop Grumman and Customer shall coordinate hardware repairs with the
appropriate third -party hardware maintenance provider.
5. TERM
The term during which Northrop Grumman shall be obligated to perform under Section 2
shall commence July 1, 2010, and, unless terminated pursuant to terms provided in the
Northrop Grumman Master Maintenance Agreement, shall continue for a period of two
(2) years. Northrop Grumman and Customer may, by mutual agreement in writing, renew
the term or any renewal thereof, for an additional period of one year.
6. LICENSE
With respect to each correction to the Software System furnished to Customer under this
Agreement, Customer is granted a perpetual non - exclusive, non - assignable, non-
transferable license to use such correction solely as appropriate as part of the Software
System as defined in the "License" Article of the Agreement for the System(s).
Document Prepared 11/29/10 SMK_0410 Page 5
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTRROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB - AGREEMENT
- EXHIBIT A -
SOFTWARE SYSTEM
The software system to be maintained under this Agreement including any unique technical
conditions is as follows:
The Altaris Customer's Computer Aided Dispatch as defined in the original Functional
Specification Document as submitted to and accepted by the Customer including any
additional contractual work performed by Northrop Grumman.
2. The Altaris Management Information System as defined in the Functional Specification
Document as submitted to and accepted by the Customer including any additional
contractual work performed by Northrop Grumman.
The Altaris Records Management System as defined in the original Functional Specifica-
tion Document as submitted to and accepted by the Customer including any additional
contractual work performed by Northrop Grumman.
4. The GDI Tools as defined in the original Functional Specification Document as submitted
to and accepted by the Customer including any additional contractual work performed by
Northrop Grumman
Document Prepared 11/29/10 SMK_0410 Page 6
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTHROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB - AGREEMENT
- EXHIBIT B -
SERVICES TO BE PROVIDED
Basic software service shall be provided five (5) days per week from 5:30 a.m. through 5:30 p.m. Pacific
Time excluding NORTHROP GRUMMAN holidays.
Calls made outside the above Basic service times will be billable as follows:
Year l - $1,140 per call for the first four hours of consultation and $285/hour for an additional consultation
Year 2 - $1,200 per call for the first four hours of consultation and $300/hour for an additional consultation
However, if Serious problems arise (see 3. Severity Leven and the Customer cannot correct them by
following the system management procedures previously supplied by Northrop Grumman, calls
made outside of the Basic service times will not be billable. The determination of whether an after -
hours call is billable will be made solely by Northrop Grumman.
2. ON DEMAND MAINTENANCE SERVICES - ODMS
ODMS is defined as forty (40) contiguous hours of remote Northrop Grumman Programmer services for
the " Northrop Grumman installed system" (System). Services to be performed by the Northrop Grumman
Programmer are at the discretion of the Customer. It is advisable to transmit to Northrop Grumman, prior
to the Northrop Grumman Programmer service, a list of work descriptions desired by the Customer. The
ODMS to be performed by the Northrop Grumman Programmer will be on a "best effort" basis. If the work
is not complete or task finished by the Northrop Grumman Programmer at the end . of forty (40) hours, the
Customer has the option to contract for additional ODMS or have Northrop Grumman complete the work
Document Prepared 11/29/10 SMK_0410 Page 7
Exhibit 3 to Northrop Grumman Systems Corporation
Master Maintenance Agreement
NORTI3ROP GRUMMAN SYSTEMS CORPORATION
SOFTWARE MAINTENANCE SUB- AGREEMENT
on a "time and materials' (T &M) basis. The additional ODMS or T &M work will have to be mutually
agreed to and scheduled. ODMS work completed by Northrop Grumman will then be transferred and
maintained under the Master Maintenance Agreement.
The annual ODMS rates for forty (40) hour blocks is as follows:
Year I - $10,000
Year 2 - $10,500
Customer has the option to have the Northrop Grumman Programmer on site. Travel is not included in the
rates as defined as above. Travel shall be billed at cost plus 10 %.
Document Prepared 11/29/10 SMK_0410 Page 8