EMC Resale Terms and Conditions

EMC PRODUCT RESALE SUPPLEMENTAL TERMS AND CONDITIONS


PLEASE READ THESE TERMS VERY CAREFULLY.

YOU (“CUSTOMER”) UNDERSTAND AND AGREE THAT THE PURCHASE AND ACCEPTANCE OF ANY EMC PRODUCT RESOLD BY AN ATOS ENTITY [E.G., ATOS IT SOLUTIONS AND SERVICES, INC. IN THE UNITED STATES, ATOS INC. IN CANADA, OR ONE OF THEIR AFFILIATES IN THE REST OF THE WORLD] (EACH “ATOS”) IS SUBJECT TO THESE EMC PRODUCT RESALE SUPPLEMENTAL TERMS AND CONDITIONS (“EMC SUPPLEMENT”).  THIS EMC SUPPLEMENT SHALL AMEND, PREVAIL OVER AND SUPERSEDE ANY CONFLICTING TERMS IN THE UNDERLYING AGREEMENT PURSUANT TO WHICH THE EMC PRODUCT IS ORDERED AND RESOLD TO YOU (“AGREEMENT”).

FOR THE AVOIDANCE OF DOUBT, YOU UNDERSTAND AND AGREE THAT BY ACCEPTING DELIVERY OF ANY EMC PRODUCT OR REMITTING PAYMENT FOR ANY SUCH EMC PRODUCT, YOU ARE AGREEING TO AMEND THE TERMS OF THE AGREEMENT TO INCORPORATE THE EMC SUPPLEMENT.  THE EMC SUPPLEMENT MAY NOT BE ADDED TO, MODIFIED, SUPERCEDED OR OTHERWISE ALTERED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED EXECUTIVE OF ATOS.

1.  As used in the EMC Supplement, any references to “Equipment”, “Product”, “Software” shall mean any EMC Product ordered by Customer as described in a Statement of Work, Work Order, Purchase Order or other ordering document by and between Customer and Atos which references this EMC Supplement.

2.  Customer’s specific use rights and restrictions, warranty periods, warranty upgrades and maintenance (support) terms are subject to the applicable terms and conditions identified for the Product as posted on the applicable EMC website, currently located at http://www.emc.com/products/warranty_maintenance/index.jsp (“Product Notice”).

3.  Microcode or operating system Software may be used on the Equipment on which it is shipped, from the date of shipment of such Equipment.  Other Software may be used on the Equipment on which it is shipped or on the Equipment, network, device or CPU for which it was licensed (including as an appliance), in accordance with the applicable number of licensing units and other license terms set forth in the Product Notice, from the date of shipment of such Equipment and/or Software. No title to, or ownership of, the Software is transferred to Customer. Customer has no right to copy, modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, reverse compile or otherwise reduce to human readable form the Software.

4.  Customer shall not provide, not disclose and/or not otherwise make available Software in any form to any person other than Customer's agents employees, independent contractors or consultants, who shall use the Software solely for Customer's internal business purposes in a manner consistent with the license.

5.  Software is licensed only, and no title to, or ownership of, the Software is transferred to Customer; (ii) Customer may not remove EMC’s or its licensors’ copyright and other proprietary notices on and in any copies of the Software; (iii) Customer shall not cause or permit any other to create derivative works from, reverse assemble, reverse engineer, reverse compile or otherwise reduce the Software to human readable form; (iv) all subsequent updates, revisions and changes to Software provided to Customer shall be governed by the manufacturer’s terms and conditions and the Agreement.

6.  The Products and the technology included therein are subject to various export and import laws, including without limitation governmental restrictions on exports from the U.S.; as well as restrictions on exports and imports from other countries; disclosures of technology to non-U.S. persons; exports from abroad of derivative products thereof; and the importation and/or use of such Products and technology included therein outside of the United States (collectively, "Export/Import Laws").  Customer shall, at its sole expense, comply with all Export/Import Laws. Customer represents that it is not a Restricted Person, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, North Korea, Sudan, Syria, or any other countries that may become subject to U.S. export controls or with which U.S. persons are generally prohibited from engaging in financial transactions; or (2) on any restricted person or entity list maintained by any U.S. governmental agency. Diversion of Products or technology contrary to US law is expressly prohibited. Certain products or technology from EMC may include encryption, and in connection with products or technology supplied to Customer hereunder, Customer shall comply with all applicable laws and regulations and shall be responsible for any necessary licenses.

7.  Any third party products licensed or sold by EMC and identified as “EMC Select Products” are subject to the terms of the third party manufacturer’s contract provided with the EMC Select Products. The EMC Select Products are identified at http://www.emc.com/partnersalliances/programs/select.jsp. If no such contract is provided, the EMC Select Products are provided "AS IS." EMC Select Products are not supported by EMC or Atos.  Customer must contact such third party directly for support services. EMC and Atos shall not be liable for any damages, whether direct or indirect, arising out of or related to EMC Select Products. The foregoing shall not serve to limit EMC’s or Atos’ liability for its own actions, which shall remain subject to their own respective agreements with Customer.

8.  Customer shall upon EMC’s request, promptly provide EMC with a written statement certifying the extent of Customer’s usage of Software identified by EMC and/or allow EMC or its designee to conduct a reasonable audit of the applicable Customer facilities and records to determine whether or not Customer’s usage of such Software is in conformance with its paid for license usage.

9.  Annual maintenance and support for the Software shall be provided by EMC solely in accordance with the then-current terms of the Product Notice.
    
10.  Customer shall hold the Software in confidence and protect the confidentiality of trade secrets therein with at least the same degree of care with which the Customer protects its own similar confidential information.

 

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