Confidential – Customer Solutions Agreement
Cloud Solution Appendix
This Cloud Solution Appendix contains additional terms that supplement the Services Schedule to the CFA
entered into between [insert name of Customer] and [insert Dell entity] on [insert date] which apply to
the purchase of Cloud Solutions (as defined below) by Customer from Dell and which are incorporated
into the CFA.
1.
Definitions
1.1
The definitions set out in this Cloud Solutions Appendix shall apply to the CFA, Purchase
Agreements, Order Forms or Service Documents, as applicable:
“Activation Date”
“Cloud Solution”
“End User”
“Maintenance”
means either the date on which the activation instructions
are delivered to Customer for the relevant Cloud Solution
that is purchased or, in the event activation instructions are
not required, the effective date that Dell accepts Customer’s
order in writing or the date an online order is executed or
Customer accesses the Services.
means a combination of hardware, Services, Software and
networking elements made available by Dell under a Service
Document that comprises an information technology system.
Depending on the Cloud Solution purchased, the Cloud
Solution may consist of a dedicated system for Customer’s
use only, the right to use certain parts of a shared system
maintained for multiple customers, or a combination of some
dedicated elements and some shared elements.
means each individual whom the Customer has authorized to
access and use the Cloud Solution. End Users may include
you and your Affiliates’ employees and independent
contractors that agree to be bound by terms and conditions
no less restrictive than those contained in this Agreement
and are acting on behalf of you and not a third-party.
means any of the following (1) scheduled or unscheduled
repairs or (2) maintenance, or (3) remote patching or (4)
upgrading of the Software provided by Dell to enable receipt
of the Services.
“Order Form”
means any order form referencing the Services Documents
“System”
means
each
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supported
device
within
Customer’s
IT
Confidential – Customer Solutions Agreement
“Term”
environment.
for any Solution begins on the Activation Date and extends
for the period indicated in the Purchase Agreement or Order
Form.
“Units”
means, units, for example (but is not limited to), mailboxes,
recipients, minutes, etc.) as may be agreed between the
parties in the relevant Purchase Agreement.
2.
Provision of Cloud Solutions
2.1
Dell shall provide a Cloud Solution to Customer in the Territory in accordance with (i) this Cloud
Solution Appendix; (ii) the relevant Purchase Agreement; (iii) an Order Form; (iv) the Services
Documents; and (v) our Acceptable Use Policy (“AUP”), a copy of which is provided with this
Agreement either as an attachment or online at www.Dell.com/terms and which may be amended
from time to time.
This Appendix is effective upon Customer’s execution of a Purchase
Agreement or an Order Form, or Customer otherwise agreeing to be bound through Customer’s
acceptance pursuant to an online order process that references the above documents. Each Cloud
Solution shall be provided for the period stated in the Service Documents or as agreed in writing
between the parties.
2.2
With respect to certain Cloud Solutions, after Dell’s receipt and acceptance of an order, Dell will
send to Customer activation instructions. Customer shall provide Dell with contact details of
representatives within its organisation whom Dell can contact to enable Dell to provide, distribute
and deploy Cloud Solutions as required.
2.3
The number of Systems, Units and End Users for which Customer has purchased a Cloud Solution
shall be set out in the Order Form or Purchase Agreement. Dell shall be entitled to charge for
and invoice Customer for any usage of the relevant Cloud Solution which is in excess of the
agreed numbers of Systems, Units and/or End Users and/or exceeds the agreed subscription
period of the relevant Cloud Solution. The additional charges shall be calculated by multiplying
the excess usage by the Gross Price per System, Unit, or End User in the original Order Form or
Purchase Agreement.
2.4
Customer shall not transfer the receipt of a Cloud Solution to a third party. Transfers among End
Users (within the same Territory) and among Systems that do not require additional support from
Dell are permitted. A Cloud Solution does not include internal transfers, imports or migrations of a
Cloud Solution that requires additional support by Dell beyond the scope of an initial deployment
as described in the Service Documents. However, should the Customer require coverage for such
activities, it will be able to purchase support from Dell to facilitate these activities under a
separate Purchase Agreement.
2.5
Unless either party declines renewal of the relevant Cloud Solution in writing 30 days before the
expiry of the subscription period of the relevant Cloud Solution, Dell may, at its option, propose to
renew the Cloud Solution and any Software licence by sending Customer an invoice or, subject to
prior notification, continuing to perform Cloud Solution or make the Software for Cloud Solution
available to Customer. Customer is deemed to have agreed to such renewal of the Cloud Solution
and related Software licence by paying such invoice by its due date or by continuing to receive
Cloud Solution and the related Software and the terms of the original Purchase Agreement or
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Confidential – Customer Solutions Agreement
Order Form shall continue to apply to such renewed Cloud Solution and Software licence and such
renewal shall be subject to any increase in Prices for such Cloud Solution that is notified by Dell.
2.6
In addition to any other suspension rights Dell may suspend all or part of the Cloud Solution or
Customer’s access to or use of data stored by Dell as part of the Cloud Solution or refuse to
provide additional Services or Cloud Solutions to Customer (i) if Customer is delinquent on its
payment obligations for fifteen (15) days or more; (ii) upon receipt of a summons or lawenforcement request; or (iii) when Dell have a commercially reasonable belief that Customer has
materially breached an Order Form or Purchase Agreement or that Customer’s use of the Cloud
Solution poses an imminent security risk or may subject Dell to liability. Subject to law, Dell will
use commercially reasonable efforts to give Customer at least twelve (12) hours notice of a
suspension unless Dell determine in our commercially reasonable judgment that a suspension on
shorter or contemporaneous notice is necessary to protect Dell or Dell’s customers.
2.7
Dell may delete Customer data stored as part of the Cloud Solution (a) sixty (60) days following
any termination by Dell for cause, or (b) if Customer fails to renew an applicable Cloud Solution
within sixty (60) days of expiration of the applicable Cloud Solution.
2.8
It may be necessary for Dell to perform scheduled or unscheduled repairs or maintenance, or
remotely patch or upgrade the Software, which may temporarily degrade the quality of the Cloud
Solution or result in a partial or complete outage of the Cloud Solution. Although Dell cannot
guarantee that Customer will receive advance notice of repairs or maintenance, Dell will
endeavour to provide at least seven (7) days notice of scheduled updates and patches.
2.9
In addition to any other termination rights Dell may terminate the Purchase Agreement or Order
Form or the affected Cloud Solutions on written notice if (i) there is a change in Dell’s relationship
with a third-party Software or technology provider has had a material adverse effect on our ability
to provide the Cloud Solution or (ii) the Customer breaches the terms of the AUP.
3.
Use of Software
3.1
To the extent Dell branded Software is provided as a part of the Cloud Solution, unless expressly
stated otherwise such Software is provided subject to Dell’s enterprise licence agreement
(hardcopy available upon request) which is incorporated by reference in its entirety into this
appendix and the parties agree to be bound by such terms.
3.2
To the extent that Third Party products that are Software are supplied by Dell such Software is
subject to separate software licence agreements accompanying the software media and any
product guides, operating manuals or other documentation. Customer shall only be entitled to
the benefit of any warranty or guarantee as is given by such third party manufacturer or supplier
to Dell to the extent that they are assignable by Dell to Customer provided this is at no additional
cost to Dell.
3.3
Customer grants Dell, or any agent designated by Dell, the right to perform an audit of its receipt
of a Cloud Solution and/or its use of the Software provided for the relevant Cloud Solution during
normal business hours. Customer agrees to cooperate with Dell in such audit and to provide
reasonable access to all records related to the receipt of the relevant Cloud Solution and/or use of
the Software. The audit will be limited to verification of Customer’s compliance with the terms of
usage relating to such Cloud Solution and/or Software under the CFA.
3.4
Customer agrees that the operation and availability of the systems used for accessing and
interacting with a Cloud Solution and related Software (including telephone, computer networks
and the internet) or to transmit information can be unpredictable and may from time to time
interfere with or prevent access to, use or operation of a Cloud Solution and/or the Software.
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Confidential – Customer Solutions Agreement
Dell shall not be liable for any such interference with or prevention of Customer’s access to, use
or lack of operation of a Cloud Solution and/or the Software.
3.5
Customer shall take all measures in accordance with good IT industry practice to prevent
unauthorised use or disclosure of the Cloud Solution. For the purposes of this clause, “good IT
industry practice” means (a) using standards, practices, methods and procedures, and (b)
exercising that degree of skill and care, diligence, prudence and foresight, which would in each
case reasonably and ordinarily be expected from a skilled and experienced person in the IT
industry in the same or similar circumstances.
Customer must use reasonable security
precautions in connection with Customer’s use of the Cloud Solution and comply with the AUP and
laws and regulations applicable to Customer’s use of the Cloud Solution. Customer must
cooperate with our reasonable investigation of Service outages, security issues, and any
suspected breach.
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4.
Customer Obligations
4.1
Customer represents and warrants that Customer has obtained all rights, permissions and
consents necessary to use and transfer any Customer data or End User data within and outside of
the country in which Customer is located in connection with our performance of the Service or
Customer’s use of the Software (including providing adequate disclosures and obtaining legally
sufficient consents from the Customer’s employees, agents, contractors and End Users).
4.2
Customer is responsible for the use of the Cloud Solutions by any End User and any person who
gains access to Customer’s or any End User’s data or the Cloud Solution as a result of Customer’s
failure to use reasonable security precautions, even if the use was not authorized by Customer.
4.3
The Customer shall not use the Services outside the Territory.
4.4
Customer will ensure that End Users comply with Customer’s obligations herein and that the
terms of Customer’s agreement with each End User are consistent with this Agreement and are
legally enforceable. If Customer becomes aware of any violation of Customer’s obligations under
this Agreement by an End User, Customer will immediately terminate such End User’s access to
the Cloud Solution.
4.5
Customer is responsible for the data and software Customer uses or stores using Dell’s Cloud
Solution Cloud, including its maintenance, operation and compatibility in and with the Cloud
Solution, and any third-party claims regarding the same. Customer understands and agrees that
Dell have no control over the content of the data processed by us and that Dell perform the
Services on Customer’s behalf. Customer is responsible for properly configuring and using the
Cloud Solution and taking Customer’s own steps to maintain appropriate security, protection and
back-up of Customer’s data and software including the use of appropriate encryption, back-up
and archiving. Customer remains responsible for properly handling and processing notices
claiming that Customer’s data or software violates a person’s rights.
4.6
Customer is responsible for keeping activation instructions confidential and controlling Customer’s
own and Customer’s representatives’ use of them and Customer shall be responsible for payment
of all Software and/or Services accessed using the activation instructions. If for any reason
Customer does not accept delivery of any of the Cloud Solutions or do not activate a Cloud
Solution when it is ready to be provided, or Dell is unable to deliver a Cloud Solution on time
because Customer has not provided appropriate instructions, documents, licences, authorisations
or have not activated the Cloud Solution, then the relevant Cloud Solution will be deemed to have
been delivered and completed, and Dell may invoice Customer for such Cloud Solution.
4.7
In our performance of the Cloud Solution, Dell may obtain information (which does not include
personal data) to Customer’s use of the Cloud Solution. Customer agrees that Dell may use such
information in an aggregated, anonymised form to assist in improving and optimizing various
aspects of the Cloud Solution or in support of generic marketing activities related to the Cloud
Solution.
4.8
Customer acknowledges that the Cloud Solutions are not intended to replace and do not replace
the need for Customer to maintain regular data back-ups or redundant data archives. Customer is
responsible for maintaining back-up copies of Customer’s data that may be accessed, stored or
processed by us in the course of our provision of Cloud Solutions. Customer understands and
agrees that Dell are not responsible for any loss or corruption of Customer’s data or software.
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Confidential – Customer Solutions Agreement
Dell will have no liability for loss or recovery of data or programs or loss of use of system(s)
arising out of the Cloud Solutions.
4.9
In connection with certain Cloud Solutions, Dell may provide Customer with hardware, software,
equipment or other property (“Equipment”). The Equipment is our sole property and Dell may
immediately take possession of the Equipment following the relevant termination or expiration.
Customer will (a) keep the Equipment free and clear of any lien and not pledge as security or
otherwise encumber the Equipment; (b) use the Equipment only to access the Cloud Solution and
comply with our reasonable Equipment use instructions; (c) not remove, relocate or move the
Equipment from the specific location where it was first installed without our prior written
approval; (d) provide adequate, secure and proper space at Customer’s facility to install
Equipment, it being agreed that Dell are not obligated to install Equipment in poorly ventilated,
air conditioned or inadequately maintained room(s); (e) be responsible for risk of loss and
damage to the Equipment equal to the present value of the Equipment’s fair market value; (f) not
remove, cover or alter plates, labels or other markings on the Equipment; and (g) provide a
secure link such as a static IP address for the Equipment.
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5.
Order of Precedence.
If there is a conflict between the terms of any of the documents that comprise this appendix, the
documents will govern in the following order: (1) the operative provisions in the CFA; (2) the
Schedules to the CFA; (3) the Appendices; (4) the Service Documents and (5) the Order Form.
ANNEX 1
SUPPLEMENTAL CONDITIONS FOR ALL CALL OFF ORDERS AGREED UNDER G-CLOUD
SERVICES FRAMEWORK AGREEMENT REFERENCE No RM1557iii (“Framework Agreement”)
A. For the purposes of clause CO-11.5.3 of the Call-Off Terms set out at Schedule 2 of the
Framework Agreement, it is agreed that the Customer shall at all times, acting in accordance
with Good Industry Practice, ensure that it maintains regular back-up copies of all of its
Customer Data (which shall include Personal Data, Customer Personal Data and Authority
Personal Data) which is included in the relevant Call Off Order. Failure of the Customer to do
so shall relieve the Supplier of all and any obligations arising out of or in connection with
clause CO-11.5.3.
B. For the purposes of clause FW-24.4.1 and sub-clause FW-24.4.1.1 of the Framework
Agreement, and clause CO-3.6.2 and sub-clause CO-3.6.2.1 of the Call Off Terms set out at
Schedule 2 of the Framework Agreement, it is agreed that, for the purposes of the following
language:
“..not cause or permit to be processed, stored, accessed or otherwise transferred outside the
UK any Personal Data supplied to it by the Customer without the prior written consent of the
Customer and, where the Customer consents to such processing, storing, accessing or
transfer outside the European Economic Area, to comply with:
[a]
the obligations of a Data Controller under the Eighth Data Protection
Principle set out in Schedule 1 of the Data Protection Act 1998 by providing an
adequate level of protection to any Personal Data that is so processed, stored,
accessed or transferred; and
(b)
any reasonable instructions notified to it by the Customer.”
the phrase “to comply with ….a) the obligations of a Data Controller…” shall at all times be
interpreted and construed to mean those instructions provided by the Customer (acting as
Data Controller) to the Supplier (acting as Data Processor), and it is agreed that the
provisions of clause 20 of the CFA set out the agreed position between the Parties.
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Signatures
Signed for and on behalf of [###Insert:##] by
its authorised representative:
Signed for and on behalf of [###Insert:###]
by its authorised representative:


Name:
Name:
Title:
Title:
Date:
/
/2013
Date:
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/
/2013