Dell Services Service Description: Keep Your Hard Drive at Point of Need Service Your Hard Drive at Point of Need Service Terms & Conditions Overview This agreement ( Agreement or Service Description ) is made between the customer ( you or Customer ) and the Dell entity identified on Customer s invoice. By purchasing the Keep Your Hard Drive at Point of Need Service, as defined herein, ( KYHD Service ) from Dell, Customer agrees to be bound by all terms and conditions set forth in this Agreement. Customer agrees that the KYHD Service is a one-time service (and charge) for the Supported Product (as defined herein) subject to this Agreement. Service Overview The KYHD Service allows Consumer and Small and Medium Business customers to keep their hard drive (standard and SATA HDDs) when receiving a replacement hard drive pursuant to a Qualified Repair. A Qualified Repair includes a repair and/or replacement of a defect(s) in workmanship occurring under the limited hardware warranty applicable to a Customer s Supported Product. Customer Supported Products include Dell PowerEdge, Dell PowerEdge SC, PowerConnect, Dell Equal Logic, Dell Compellent, select PowerVault and Dell EMC Enterprise Storage systems which are in a standard configuration, as well as OptiPlex, Precision, Latitude, Dimension, Vostro, XPS, Alienware, Adamo, Studio, and Inspiron computer systems. Dell will only provide Qualified Replacements for Customer Supported Products purchased directly from Dell and installed in a Dell system, excluding items purchased through Dell s Software and Peripherals group, either at the time of system purchase or as a customer kit and which is still under the limited hardware warranty. The Customer must pay Dell at the time of purchase a fee for the KYHD Service for each Customer Supported Product for which the customer wants to retain the replaced hard drive. The KYHD Service will not be available to the Customer until a product is deemed eligible for a Qualified Replacement. KYHD at Point of Need is a one-time charge and is purchased at the point of hard drive failure. It is not available for sale any time before the system experiences a hard drive failure. A separate KYHD at Point of Need contract must be purchased for each hard drive that the Customer desires to keep. Keep Your Hard Drive at Point of Need Contract does not include: Data destruction or data wipe. Asset recovery, disposal or recycling. Retention of hard drives that are subject to product recall due to health and safety risks. Replacement of faulty hard drives materially in excess of the standard failure rates for the system involved.
Non-standard hard drives requested as part of Dell Custom Factory Integration service. Support for failed/retained hard drives. (Support continues solely on the replacement hard drive pursuant to the applicable service agreement.) Any activities not expressly stated in this Service Description. Support Procedures Customer must contact Dell technical support in accordance with Customer s limited hardware warranty or applicable service agreement when there is a failure or suspected failure of a Customer Supported Product. Customers will receive support in accordance with their applicable limited hardware warranty or service agreement. If the technician determines that the hard drive requires a Qualified Repair, Dell will ship the replacement hard drive to the Customer pursuant to Customer s applicable limited hardware warranty or service agreement. Customer may either purchase the KYHD Service or return the failed product to Dell per the terms of the applicable limited hardware warranty or service contract. Customer Responsibilities Software/Data Backup. It is the Customer s responsibility to complete a backup of all existing data, software, and programs on Customer Supported Products prior to Dell performing KYHD Services. DELL WILL HAVE NO LIABILITY FOR LOSS OR RECOVERY OF DATA OR PROGRAMS OR LOSS OF USE OF SYSTEM(S) ARISING OUT OF THE KYHD SERVICES OR SUPPORT OR ANY ACT OR OMISSION, INCLUDING NEGLIGENCE, BY DELL OR A THIRD-PARTY SERVICE PROVIDER. Authority to Grant Access. Customer represents and warrants that it has obtained permission for both Customer and Dell to access and use the Supported Product, the data on it, and all hardware and software components included in it, for the purpose of providing the KYHD Services. If Customer does not already have that permission, it is Customer s responsibility to obtain it, at Customer s expense, before Customer asks Dell to perform KYHD Services. Cooperate with Phone Analyst and On-site Technician. Customer agrees to cooperate with and follow the instructions given by Dell phone analyst and any on-site technicians. Experience shows that most system problems and errors can be corrected over the phone as a result of close cooperation between the user and the analyst or technician. Report Hard Drive failures. Report each instance of hard drive failure to Dell limited hardware warranty support in accordance with the terms of such limited hardware warranty, or as applicable, Customer s service agreement. Onsite service. Inform the technician that the KYHD Service was purchased for the Customer Supported Product. Physical control. Retain physical control of hard drives from systems covered by KYHD Services. Dell is not responsible for data contained on hard drives which are returned to
Dell. Disposal. Disposal or destruction of the failed/retained hard drive and/or ensure that sensitive, classified, or proprietary data is destroyed or remains secure. Supported Releases. Customer must maintain software and Customer Supported Product(s) at Dell-specified minimum release levels or configurations as specified on PowerLink for Dell EMC Storage or as specified on www.support.dell.com for Supported Products. Customer must also ensure installation of remedial replacement parts, patches, software updates or subsequent releases as directed by Dell in order to keep the Support System(s) eligible for this KYHD Service. Third Party Warranties. These KYHD 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 works on the hardware or software. It is Customer s responsibility to ensure that Dell s performance of Services will not affect such warranties or, if it does, that the effect will be acceptable to Customer. DELL DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE DELL KYHD SERVICES MAY HAVE ON THOSE WARRANTIES. On-Site Obligations. Where KYHD Services require on-site performance, Customer must provide free, safe and sufficient access to Customer s facilities and the Supported Product(s). Sufficient access includes ample working space, electricity, and a local telephone line. A monitor or display, a mouse (or pointing device), and keyboard must also be provided (at NO cost to Dell), if the system does not already include these items. NOTE: If Customer fails to comply with the responsibilities and terms outlined in this Service Description, then Dell is not obligated to provide the KYHD Service. Important Additional Information Assignment. Dell may assign this KYHD Service and/or Service Description to qualified third party service providers. Cancellation. Except as otherwise provided by applicable law, Customer may terminate this KYHD Service within the first ten (10) days of Customer s receipt of the replacement hard drive provided as part of a Qualified Repair. In the event Customer wants to cancel this agreement, Customer must contact Dell at 1-877-293-1196 to cancel the agreement and return the defective hard drive to Dell in accordance with the terms of the Customer s limited hardware warranty or service contract, as applicable. Failure to timely return the defective part to Dell in accordance with the written instructions provided may result in the suspension of the Customer s limited hardware warranty support or a charge to your credit card or invoice in the amount of the then-current standard Dell price for that part. A suspension of your limited hardware warranty for failure to properly return a part will not toll the term of your limited hardware warranty, as the limited hardware warranty will still expire in accordance with its original term. Dell may cancel the KYHD Service at any time for any of the following reasons:
Customer fails to pay the total price for the KYHD Service in accordance with the invoice terms; Customer refuses to cooperate with the assisting analyst or on-site technician; or Customer fails to abide by all of the terms and conditions set forth in this Service Description. If Dell cancels this KYHD Service, Dell will send Customer written notice of cancellation at the address indicated on Customer s invoice. The notice will include the reason for cancellation and the effective date of cancellation, which will be not less than ten (10) days from the date Dell sends notice of cancellation to Customer, unless state law requires other cancellation provisions that may not by varied by agreement. IF DELL CANCELS THIS KYHD SERVICE PURSUANT TO THIS PARAGRAPH, CUSTOMER SHALL NOT BE ENTITLED TO ANY REFUND OF FEES PAID OR DUE TO DELL. Claims of Confidentiality or Proprietary Rights. Customer agrees that any information or data disclosed or sent to Dell, over the telephone, electronically or otherwise, is not confidential or proprietary to Customer. Third-Party Service Agreements. Customer acknowledges that services for Supported Products may be available from retailers of Supported Products, and the Services in this Service Description may be similar or identical to services available from such retailers. Customer further acknowledges that, unless expressly provided otherwise, Dell s provision of Services under this Service Description is separate and distinct from services provided by a retailer of Supported Products. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, 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 this Service Description, its interpretation, or the breach, termination, or validity thereof, the relationships which result from this Service Description, Dell's advertising, or any related purchase SHALL, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. Binding 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) BETWEEN CUSTOMER AND DELL, its agents, employees, principals, successors, assigns, and affiliates (collectively for purposes of this paragraph, "Dell") arising from or relating to this Service Description, its interpretation, or the breach, termination, or validity thereof, the relationships which result from this Service Description (including, to the full extent permitted by applicable law, relationships with third parties that are not signatories to this Service Description), 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 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 Customer and Dell. 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. This transaction involves interstate commerce, and this provision 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 arbitration filing fees and fees required to obtain a hearing to the extent such fees exceed the amount of the filing fee for initiating a claim in the court of general jurisdiction in the state in which Customer resides. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory 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. Information may be obtained and claims may be filed with the NAF at P.O. Box 50191, Minneapolis, MN 55405. No Warranties. CUSTOMER ACKNOWLEDGES AND AGREES THAT GIVEN THE NATURE OF THE SERVICE, THESE SERVICES ARE PROVIDED AS IS AND DELL MAKES NO WARRANTIES REGARDING THE SERVICE OR THE RESULTS OF THE SERVICE. DELL IS NOT LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE TO ANY CAUSE BEYOND ITS CONTROL. Limitation of Liability. CUSTOMER S SOLE AND EXCLUSIVE REMEDY AND DELL S ENTIRE, COLLECTIVE LIABILITY IN CONTRACT, TORT, OR OTHERWISE, UNDER THIS SERVICE DESCRIPTION IS A PRO-RATED REFUND OF THE AMOUNTS PAID TO DELL FOR THE SERVICE THAT IS THE BASIS OF THE CLAIM. Miscellaneous. If any provision of this Service Description is void or unenforceable, the parties agree to delete it and agree that the remaining provisions will continue to be in effect. Terms and Conditions. Dell is pleased to provide these Services in accordance with this Service Description and the terms and conditions of Dell s standard invoice terms and conditions of sale (see http://www.dell.com/policy/legal/termsofsale.htm). Transfer of Service. Customer may not transfer this KYHD Service. Dell PowerEdge, Dell PowerEdge SC, PowerConnect, Dell Compellent,Dell Equal Logic, select PowerVault and Dell EMC Enterprise Storage, OptiPlex, Precision, Latitude, Dimension, Vostro, XPS, Alienware, Adamo, Studio, and Inspiron are trademarks of Dell Inc.