1. PROVISION OF SERVICE AND SUPPORT
During the continuance of this Agreement, Dell will provide service and support as follows:
1.1 Dell Telephone Support
Dell shall provide at its sole option and for as long and for such hours as it may decide Telephone Support for the Customer.
"Telephone Support" means telephone and remote hardware fault diagnosis provided by Dell at its sole option and on such terms and conditions as it may, from time to time determine pursuant to clause 2.1.
1.2 Remedial Support
Upon receipt of notification from the Customer that the Products have failed or are malfunctioning, and in the event that the fault cannot be rectified using Dell Telephone Support, Dell undertakes to use all reasonable endeavours during the Standard Service Hours to make such corrections, repairs or adjustments to or replace such parts of the Products as may be necessary to restore the Products to their proper operating condition. The extent of such remedial support and whether this is achieved remotely or by an on-site visit by a Dell engineer will be determined by Dell in its discretion and/or depending upon any Service Offering purchased by the Customer (as evidenced on the Invoice) from amongst the Service Offerings or the specific Service Offering packaged with the Product.
Dell's "Standard Service Hours" means the hours between 9.00 a.m. and 5.00 p.m. each day excluding Saturdays, Sundays and public holidays. Additional service hours may be available at Dell's discretion in consideration of the payment of additional fees.
"Service Offering (s)" means the different service options offered by Dell for the Products or any part of them and for varying periods, as described in Dell's published literature, including Customer's Invoice and/or Dell's Service Description).
2. EXCEPTIONS TO SERVICE & SUPPORT
2.1 Dell shall provide 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 Agreement. 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 authorized representatives) are not included.
2.2 Unless expressly provided by mutual agreement of Dell and the Customer in writing and/or by the terms of a Service Description, Dell's service and support do not include support which is necessitated as a result of any cause other than a result of Dell's neglect or fault, including, without limitation:-
(a) failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions; or
(b) accident, transportation, neglect, misuse, abuse or default of or by the Customer its employees or agents or any third party, including but not limited to broken or cracked plastics; or
(c) any fault in any products or components which are not supplied by Dell, whether or not
(i) they form part of a Customer's configuration of the Products; or
(ii) they comprise the Customer's configuration and the Products form an integral part of them; or
(d) any fault in attachments or associated products or components (whether or not supplied by Dell) which do not form part of the Products covered by this Agreement and/or under the relevant Service Offering; or
(e) any fault in the Products caused by the failure of any products or components not supplied by Dell; or
(f) act of God, lightning, fire, flood, war, act of violence or any similar occurrence; or
(g) any attempt by any person other than Dell personnel or any person authorised by Dell (via the telephone or otherwise) or an authorised Dell sub-contractor, to adjust, repair or support the Products.
2.3 Unless expressly provided by mutual agreement of Dell and the Customer in writing and/or by the terms of a Service Description, Dell's service & support do not include:-
(a) support of non-Dell branded Products (even though they may have been supplied by Dell and form part of the Product) or Products which are not standard Dell assemblies or configurations as defined on Dell's published price list. The Customer agrees that where such of the Products are covered by a relevant manufacturer's warranty to utilise that warranty for the support of such Products and in any event not look to Dell for such support;
(b) Services at places other than the Customer's address specified on the Invoice except where Dell specifically agrees otherwise;
(c) the correction or avoidance of software defects or errors or the loading or re-loading of a Customer's application software or the Customer's data or any re-configuration of the Products beyond loading the operating system software (ie basic install of the OS and Drivers using the factory supplied CDs) as carried out before shipment;
(d) repair or renewal of diskettes, printing ribbons, typefaces or other consumable supplies;
(e) electrical or other environmental work external to the Products; and
(f) the support of any attachments or associated products which do not form part of the Products.
2.4 Collection of Products by Dell, or its appointed carrier and/or its authorised sub-contractor for the purposes of this Agreement shall not be construed as invalidating the exceptions stated above and shall not imply that Dell accepts the validity of any customer's claim.
3.1 Dell reserves the right to replace the whole of the Products or any part or parts thereof which may be found to be faulty or in need of investigation even where only a part of the Products are so faulty or in need of investigation.
3.2 Dell, in effecting such replacement, is under no obligation to use Products or any parts thereof which are identical in all respects to the faulty Products. Unless local laws determine otherwise, Dell reserves the right to supply used or reconditioned parts or Products which are equivalent to new in functionality and appearance. Dell shall ensure that any Products or parts thereof used in replacement shall have substantially the same fittings and at least an equivalent specification to the faulty Products or parts thereof. Dell reserves the right to supply Products or parts thereof manufactured by whomsoever it shall, from time to time, deem appropriate.
3.3 The products or parts supplied to replace the Products shall become the property of the owner of the Products. The Products or any part or parts thereof removed shall become the property of Dell.
3.4 The warranty term for a spare part used in repairing Products ("Replacement Part") is 90 days from its installation in the Product or the remainder of the warranty term for the Product into which it is installed, whichever is longer. For the avoidance of doubt, the warranty term of a Product is not extended after its repair or replacement. Customer will pay Dell for a Replacement Part when the part replaced is not returned by Customer to Dell within 10 days after the date the Replacement Part was delivered to Customer by Dell. Prices of the part replaced will be at Dell's then current standard price in the Territory.
3.5 The provisions of this Agreement shall apply to all replacements of any part or parts of the Products made by Dell during the continuance of this Agreement.
4. CUSTOMER'S OBLIGATIONS
4.1 During the continuance of this Agreement, the Customer shall:-
(a) Provide Dell with full, safe and prompt access to the Products to enable Dell to carry out its obligations under this Agreement.
(b) Provide adequate working space around the Products for the use of Dell's personnel and make available all reasonable facilities as may be requested from time to time by Dell for the storage and safe keeping of any test equipment and spare parts.
(c) Use all reasonable endeavours to provide a suitable vehicle parking facility for use by Dell's personnel which is not used for any other testing, diagnostic and remedial purposes at the Customer's expense.
(d) Use all reasonable endeavours to provide a suitable vehicle parking facility for use by Dell's personnel which is free from any legal restrictions and which is immediately close to the Location.
(e) Ensure, in the interest of health and safety, that Dell's personnel are met promptly by a member of the Customer's staff and while on the Customer's premises for the purposes of this Agreement, are at all times accompanied by a member of the Customer's staff familiar with the Customer's premises and safety procedures.
(f) Make available to Dell, free of charge, all facilities and services reasonably required by Dell to enable Dell properly to provide the Services under this Agreement.
(g) Provide such telecommunication facilities as are reasonably required.
4.1.2 Use and Care
(a) Make sure that proper environmental conditions (in particular those (if any) defined in the relevant Product user manuals) are maintained for the Products and shall further maintain in good condition the place where the Products are situated, the cables and fittings to the Products and associated with the Products, and the electricity supply thereto.
(b) Save for discrete additions generally recognised as being compatible with the Products, not make any modifications to the Products without Dell's prior consent.
(c) Ensure that the Products are used in a proper manner, in accordance with the Product user manuals and by competent trained employees only or by persons under their supervision.
(d) Ensure that the external surfaces of the Products are, where appropriate, kept clean and in good condition and shall carry out any minor maintenance requirements recommended by Dell (or recommended in the relevant Product user manual) from time to time.
(e) Save as aforesaid, and except when operating under:
(i) a Dell Agreement or in accordance with a Service Offering which provides otherwise; or
(ii) under instructions from the Dell Telephone Support; not attempt to adjust, repair, support or maintain the Products and shall not request, permit or authorise anyone other than Dell or the manufacturer of the Products (where such Products are under a warranty from a manufacturer other than Dell) to carry out any adjustments, repairs, support or maintenance of the Products.
(f) Use on or with the Products only such accessory, attachment, component or additional equipment or products as Dell recommends, or are recommended in accordance with the Product user manuals, or are commonly and properly used on or with the Products.
(g) Not use in conjunction with the Products any accessory, attachment, component or additional equipment or products other than those which have been supplied or approved by Dell for use in the manner proposed, or which are specifically approved as compatible by the relevant Product user manuals.
4.1.3 Notification and Information
(a) Promptly notify Dell if the Products need service or are not operating correctly. Failure by the Customer to notify Dell within 2 weeks of the Customer first becoming aware of such failure or incorrect working shall free Dell from all obligations to investigate or correct such failure or incorrect working.
(b) Make available to Dell, free of charge, such information as may be necessary to enable Dell properly to conduct telephone diagnosis as part of the Dell Telephone Support service, and in addition, such programs, operating manuals and information to enable Dell properly to perform its obligations under this Agreement and shall use its best endeavours to provide staff familiar with the Customer's programs and operations, which staff shall co-operate fully with Dell personnel operating Dell's Telephone Support or present on-site, as the case may be, in the diagnosis of any malfunction of the Products.
Database and Software Keep full security copies of any of the Products comprising Software and of the Customer's programs, databases and computer records in accordance with best computing practice and in any case before requesting Services from Dell. The Customer acknowledges that they are responsible for re-loading their own application software after any such Services have been provided. It is the Customer's responsibility to backup data on the system. DELL WILL NOT BE RESPONSIBLE FOR LOSS OF OR DAMAGE TO DATA OR LOSS OF USE OF ANY OF THE COMPUTER OR NETWORK SYSTEMS.
4.2 The Customer must grant the service technician full access to the system and (at no cost to Dell) have working space, electricity and a local telephone line. If these requirements are lacking, Dell is not obligated to provide service. In addition, Dell is not obligated to provide service if the Customer fails to provide an environment that is conducive to computer repair, including for example, if the Customer insists on service to be provided at varying locations, if the Customer fails to properly restrain a pet, if the Customer threatens Dell technician either verbally or physically, or if the Customer location or the general area where the system is located is dangerous, infested with insects, rodents, pests, biohazards, human or animal excrement and/or chemicals as reasonably determined to be unsafe by Dell technician.
4.3 To receive service and support, the Customer is responsible for complying with the following:
(a) Prepare for the Call. The Customer can help the technician serve better if the Customer has the following information and materials ready when the call is made: the Customer System's Invoice and serial numbers; service tag number; model number; the current version of the operating system being used; and the brand names and models of any peripheral devices (such as a modem, printer or scanner) being used.
(b) Explain the Problem to the Technician. The Customer should describe the problem the Customer is having with the System. Let the technician know what the error message is and when it occurs; what was being done when the error occurred; and what steps have already been taken to solve the problem.
(c) Cooperate with the technician. Listen carefully to the technician and follow the technician's directions.
(d) If the technician is unable to resolve the problem over the phone, the technician will recommend to the Customer the next course of action to be taken.
UNTIL THE CUSTOMER HAS COMPLIED WITH THE ABOVE PROCEDURES, DELL CANNOT PROVIDE THE CUSTOMER WITH SERVICE AND SUPPORT.
5.1 DELL WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, DELL MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING BUT NO LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY PRODUCTS, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES, ANY EXPRESS OR IMPLIED WARRANTIES CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR WARRANTIES CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION DELL MAY MAKE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES OR OF ANY SYSTEM THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION DELL MAY PROVIDE. NOTHING IN THIS AGREEMENT OR ANY OTHER WRITTEN DOCUMENTATION OR ANY ORAL COMMUNICATIONS WITH CUSTOMER MAY LATER ALTER THE TERMS AND CONDITIONS OF THIS PARAGRAPH.
5.2 Dell shall not be liable for any loss or damage sustained or incurred by the Customer or any third party (including without limitation any loss of use of the Products or loss of or spoiling of any of the Customer's programs or data) resulting from any lines down of or fault in the Products, unless such lines down or fault is caused by the negligence or wilful misconduct of Dell, its employees, agents or sub-contractors, or to the extent that such loss or damage arises from any negligent delay by Dell in providing the particular Services purchased by the Customer and then only to the extent not excluded by this Agreement.
5.3 The Customer shall indemnify Dell and keep Dell fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or willful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of this Agreement.
5.4 Except in respect of injury to or death of any person, for which no limit applies, Dell's total liability to the Customer under this Agreement in respect of each event or series of connected events is limited to the amount paid by the Customer for the relevant Services(which gives rise to the claim) purchased by the Customer as evidenced on the Invoice.
5.5 Any service response times stated by Dell in the Service Offerings are approximate only and shall not form part of the Contract. Dell will use all reasonable endeavours to meet the stated response times, however Dell shall not be liable for any direct or indirect loss or damage arising from it's failure to meet such response times, howsoever occasioned.
5.6 Notwithstanding anything else contained in this Agreement, Dell shall not be liable to the Customer for loss of business, profits or contracts or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever.
5.7 Some Services may require Dell to access hardware or software that is not manufactured by Dell. Some manufacturers' warranties may become void if Dell or anyone else, other than the manufacturer or its authorized representative, works on the hardware or software. DELL DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE DELL SERVICES MAY HAVE ON THOSE WARRANTIES.
Except as otherwise expressly provided for in this Agreement, no forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of its rights operate as a waiver of any subsequent breach, and no right, power or remedy herein conferred upon or reserved for either party, is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
Nothing in this Agreement shall affect the statutory right of a Customer dealing with Dell as a consumer as defined in any consumer protection legislation intended to protect consumers in similar transactions.
Dell has the right to subcontract the Services provided under this Agreement to any of its authorized service providers.
If any provision of this Agreement (including terms contained in a relevant Service Offering) is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the provisions in question shall not be affected thereby.
October 2008 Revised Edition
(AP.Service and Support.v1.October 08)