Dell SMA 200 Administration Manual page 511

The parties have relied on the limitations and exclusions set forth in this Agreement in
determining whether to enter into it.
d Use by U.S. Government. The Software is a "commercial item" under FAR 12.201. Consistent
with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction,
release, performance, display, disclosure or distribution of the Software or Documentation by the
U.S. government is prohibited except as expressly permitted by the terms of this Agreement. In
addition, when Customer is a U.S. government entity, the language in Subsection (ii) of the
Infringement Indemnity Section of this Agreement and the Injunctive Relief Section of this
Agreement shall not be applicable.
e Notices. All notices provided hereunder shall be in writing and addressed to the legal department
of the respective party or to such other address as may be specified in an Order or in writing by
either of the parties to the other in accordance with this Section. Except as may be expressly
permitted herein, notices may be delivered personally, sent through a nationally recognized
courier or overnight delivery service, or mailed by first class mail, postage prepaid. All notices,
requests, demands or communications shall be deemed effective upon personal delivery or, if
sent by mail, four (4) days following deposit in the mail in accordance with this paragraph.
f Disclosure of Customer Status. Dell may include Customer in its listing of customers and, upon
written consent by Customer, announce Customer's selection of Dell in its marketing
communications.
g Waiver. Performance of any obligation required by a party hereunder may be waived only by a
written waiver signed by an authorized representative of the other party, which waiver shall be
effective only with respect to the specific obligation described therein. Any waiver or failure to
enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other
provision or of such provision on any other occasion.
h Injunctive Relief. Each party acknowledges and agrees that in the event of a material breach of
this Agreement, including but not limited to a breach of the Software License, Restrictions or
Confidential Information Sections of this Agreement, the non-breaching party shall be entitled to
seek immediate injunctive relief, without limiting its other rights and remedies.
i Force Majeure. Each party will be excused from performance for any period during which, and to
the extent that, it is prevented from performing any obligation or service as a result of causes
beyond its reasonable control, and without its fault or negligence, including without limitation,
acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and
power failures. For added certainty, this Section shall not operate to change, delete, or modify
any of the parties' obligations under this Agreement (for example, payment), but rather only to
excuse a delay in the performance of such obligations.
j Equal Opportunity. Dell Software Inc. is a federal contractor and Affirmative Action employer
(M/F/D/V) as required by the Equal Opportunity clause C.F.R. § 60-741.5(a).
k Headings. Headings in this Agreement are for convenience only and do not affect the meaning or
interpretation of this Agreement. This Agreement will not be construed either in favor of or
against one party or the other, but rather in accordance with its fair meaning. When the term
"including" is used in this Agreement it will be construed in each case to mean "including, but
not limited to."
l Legal Fees. If any legal action is brought to enforce any rights or obligations under this
Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, court
costs and other collection expenses, in addition to any other relief it may be awarded.
m Entire Agreement. This Agreement is intended by the parties as a final expression of their
agreement with respect to the subject matter thereof and may not be contradicted by evidence
of any prior or contemporaneous agreement unless such agreement is signed by both parties. In
the absence of such an agreement, this Agreement and the applicable Order shall constitute the
complete and exclusive statement of the terms and conditions and no extrinsic evidence
whatsoever may be introduced in any judicial or arbitral proceeding that many involve the
Agreement. Each party acknowledges that in entering into the Agreement it has not relied on,
and shall have no right or remedy in respect of, any statement, representation, assurance or
warranty (whether made negligently or innocently) other than as expressly set out in the
Agreement. In those jurisdictions where an original (non-faxed, non-electronic, or non-scanned)
copy of an agreement or an original (non-electronic) signature on agreements such as this
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