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 DISPUTE RESOLUTION CLAUSE.
These terms and conditions ("Agreement") apply to your purchase of computer systems and/or related products and/or services and support sold in Canada ("Product"). By accepting delivery of the Product, you accept and are bound to the terms and conditions of this Agreement. If you do not wish to be bound by this Agreement, you must notify Dell and return your purchase pursuant to Dell's Total Satisfaction Return Policy. (See: www.dell.ca)
THIS AGREEMENT SHALL APPLY UNLESS (I) YOU HAVE A SEPARATE 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 My Order Status on www.dell.ca 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 Product will be made by credit card, wire transfer, or some other prearranged payment method unless credit terms have been agreed to by Dell. If credit terms have been agreed to by Dell, invoices are due and payable within thirty (30) days after the date of the invoice. Product warranties, service and support are not available to customers who have not paid for the Product in full or who are currently in default of their payment terms. Dell may invoice parts of an order separately. Your order is subject to cancellation by Dell, at Dell's sole discretion. Dell is not responsible for pricing, typographical, or other errors, in any offer by Dell and reserves the right to cancel any orders resulting from such errors. Orders are not binding upon Dell until accepted by Dell. Any quotations given by Dell will be valid for the period stated on the quotation.
3. Shipping Charges; Taxes; Title; Risk of Loss. Shipping and handling are additional unless otherwise expressly indicated at the time of sale. Estimated shipping dates can be found at My Order Status on www.dell.ca. Shipping dates are estimates only. Dell is not responsible for delays resulting from circumstances or causes beyond Dell's reasonable control. Dell's standard method of shipment is by Purolator ground shipment. 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 you are responsible for goods and services tax, sales and all other taxes and fees associated with the order, however designated, including but not limited to applicable environmental surcharges, except taxes on Dell's net income. If applicable, a separate charge for taxes will be shown on the Invoice. Title to products passes from Dell to customer on shipment from Dell's facility. Title to software will remain with the applicable licensor(s). Loss or damage that occurs during shipping is Dell's 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.
4. Warranties. THE LIMITED WARRANTIES APPLICABLE TO DELL-BRANDED HARDWARE PRODUCT CAN BE FOUND AT WWW.DELL.CA 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, SERVICE, MAINTENANCE OR SUPPORT IS PROVIDED BY DELL "AS IS" AND 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. IF YOU PURCHASE THIRD-PARTY-BRANDED PRODUCT, SERVICES, MAINTENANCE, OR SUPPORT ADDITIONAL THIRD-PARTY TERMS AND CONDITIONS MAY APPLY.
DELL DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DELL'S RESPONSIBILITY FOR WARRANTY CLAIMS IS LIMITED TO REPAIR AND REPLACEMENT AS SET FORTH IN DELL'S APPLICABLE WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE. DELL RESERVES THE RIGHT TO MODIFY ITS WARRANTY AT ANY TIME, IN ITS SOLE DISCRETION.
SOME PROVINCES DO NOT PERMIT THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS IN CONSUMER TRANSACTIONS. THEREFORE THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU.
5. Software. All software is provided subject to a license agreement and you agree that you will be bound by such license agreement.
6. Return Policies; Exchanges Dell's return policy can be found at http://www.dell.com/terms.Before you attempt to return Product, you must contact us directly at 1-800-847-4096 to obtain a Credit Return Authorization Number for you to include with your return. You must return Product to us in its original or equivalent packaging. You are responsible for risk of loss, shipping and handling fees for returning or exchanging Product. Additional fees may apply. If you fail to follow the return or exchange instructions and policies provided by Dell, Dell is not responsible whatsoever 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 have 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. Dell will provide service and technical support to customers in Canada, in accordance with the then-current terms and conditions of service and support available online at www.dell.ca or by calling Dell Customer Care at 1-800-847-4096. Service offerings may vary from Product to Product. In addition to these terms and conditions, Dell and/or your third-party service provider may provide such service and support to you in Canada in accordance with the terms and conditions located at www.dell.ca/servicecontracts or as otherwise delivered to you. Dell and/or your third-party service provider may at their discretion, revise their general and optional service and support programs and the terms and conditions that govern them without prior notice to you. 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 are 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.
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. 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. EXCEPT AS EXPRESSLY PROVIDED HEREIN, DELL WILL NOT BE LIABLE FOR ANY INCIDENTAL, 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.
THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM).
NEITHER YOU NOR DELL MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THIS AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN, OR IN THE CASE OF NONPAYMENT, MORE THAN EIGHTEEN (18) MONTHS FROM THE DATE OF LAST PAYMENT.
SOME PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF (i) INCIDENTAL OR CONSEQUENTIAL DAMAGES OR (ii) IMPLIED WARRANTIES OR CONDITIONS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY.
10. Applicable Law; Not For Resale or Export. You agree to comply with all applicable laws and regulations of the various provinces and of Canada. 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 resales. You acknowledge that the Product is subject to, and you agree to comply with the export control laws and regulations of Canada and the United States.
11. Governing Law. THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE DEEMED TO HAVE BEEN MADE IN THE PROVINCE OF ONTARIO AND SHALL BE CONSTRUED AND INTERPRETED ACCORDING TO THE LAWS OF THE PROVINCE OF ONTARIO AND THE APPLICABLE LAWS OF CANADA. THE PARTIES HEREBY AGREE TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE PROVINCE OF ONTARIO. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT, TO THE EXTENT THAT CONSUMER PROTECTION LEGISLATION REQUIRES CERTAIN PROVISIONS TO APPLY TO YOU, SUCH PROVISIONS WILL APPLY TO THIS AGREEMENT.
12. Dispute Resolution.
A. Acknowledgments. You acknowledge that Dell possesses valuable confidential and proprietary information, including trade-marks and business practices that would be damaging to Dell if revealed in open court. The parties further acknowledge and agree that it is preferable to resolve all disputes between them confidentially, individually, and in an expeditious and inexpensive manner. The parties accordingly acknowledge and agree that private dispute resolution is preferable to court actions.
B. Good Faith Negotiation. Before commencing any arbitration in the manner set out in Subsection 12(c) below, the parties shall first attempt to resolve any dispute or differences between them by way of good faith negotiation. The good faith negotiation shall commence by each party communicating their position regarding the complaint, claim, dispute, or controversy to the other party, and how the parties should resolve the dispute. The parties shall then make good faith efforts to negotiate a resolution of the claim, dispute, or controversy. Neither party shall commence any arbitral proceedings unless and until the good faith negotiation fails.
C. Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS CAPABLE IN LAW OF BEING SUBMITTED TO BINDING ARBITRATION) AGAINST DELL, its agents, employees, officers, directors, successors, assigns or 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 between the parties, whether pre-existing, present or future, (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 NATIONAL ARBITRATION FORUM ("NAF") under its Code of Procedure and any specific procedures for the resolution of small claims and/or consumer disputes then in effect (available via the Internet at http://www.arb-forum.com , or via telephone at 1-800-474-2371). The arbitration will be limited solely to the dispute or controversy between you and Dell. 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. Information may be obtained and claims may be filed with the NAF at P.O. Box 50191, Minneapolis, MN 55405, or by e-mail at file@arb-forum.com, or by online filing at http://www.arb-forum.com .
D. Injunctive Relief and Provisional Relief in Aid of Arbitration. Notwithstanding the provisions in this Section 12 or anywhere else in this Agreement, Dell shall have the right to seek and obtain any provisional or interim relief from any court of competent jurisdiction to protect its trade-mark or property rights or to preserve the status quo pending good faith negotiation and/or arbitration.
