FAQ

10 DELL BSAFE OEM LICENSE AGREEMENT
PAID BY CUSTOMER TO Licensor FOR THE SPECIFIC SERVICE (CALCULATED ON AN ANNUAL BASIS,
WHEN APPLICABLE) SOFTWARE FROM WHICH SUCH CLAIM ARISES, FOR DAMAGE OF ANY TYPE
NOT IDENTIFIED IN (i) ABOVE OR OTHERWISE EXCLUDED HEREUNDER.
B. No Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF
LICENSOR'S INTELLECTUAL PROPERTY RIGHTS, NEITHER CUSTOMER NOR Licensor (INCLUDING
LICENSOR'S SUPPLIERS) SHALL (a) HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL,
CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT
LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE
POSSIBILITY THEREOF; AND (b) BRING ANY CLAIM BASED ON SOFTWARE OR SERVICE PROVIDED
HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
C. Trade Practices Legislation: Licensor's liability under any statutory right or any condition or
warranty, including any implied by any State Fair Trading Act or the Trade Practices Act, 1974 (Cth) is, to the
maximum extent permitted by law, excluded. To the extent that such liability cannot be excluded, Licensor's
liability is limited at the option of Licensor to any one or more of the following: (i) the replacement thereof or
the supply of its equivalent; (ii) the repair thereof; (iii) the payment of the cost of replacement thereof or of
acquiring its equivalent; or (iv) the payment of the cost of having such repaired.
E. New Zealand. The terms in this subsection E apply only when Licensor means the Licensor sales
subsidiary located in New Zealand (currently EMC CORPORATION (NEW ZEALAND BRANCH) AKOS.
1188883):
1. Section 7 (LIMITATION OF LIABILITY). This section is deleted in its entirety and replaced with the
following:
7. LIMITATION OF LIABILITY.
A. Limitation on Direct Damages. LICENSOR'S AND ITS SUPPLIERS' TOTAL LIABILITY AND
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER,
ARISING OUT SOFTWARE OR SERVICE PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN
DIRECT DAMAGES CAUSED BY LICENSOR'S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED (i)
NZ$2,000,000, FOR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; AND (ii) THE PRICE
PAID BY CUSTOMER TO Licensor FOR THE SPECIFIC SERVICE (CALCULATED ON AN ANNUAL BASIS,
WHEN APPLICABLE) SOFTWARE FROM WHICH SUCH CLAIM ARISES, FOR DAMAGE OF ANY TYPE
NOT IDENTIFIED IN (i) ABOVE OR OTHERWISE EXCLUDED HEREUNDER.
B. No Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF
LICENSOR'S INTELLECTUAL PROPERTY RIGHTS, NEITHER CUSTOMER NOR Licensor (INCLUDING
LICENSOR'S SUPPLIERS) SHALL (a) HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL,
CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT
LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE
POSSIBILITY THEREOF; AND (b) BRING ANY CLAIM BASED ON SOFTWARE OR SERVICE PROVIDED
HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
C. Fair Trading Legislation. Licensor's liability under any statutory right or any condition or warranty,
including any implied by the Fair Trading Act 1986 or Consumer Guarantees Act 1993 ("FTA") or any similar
law is, to the maximum extent permitted by law, excluded. To the extent that such liability cannot be excluded,
Licensor's liability is limited at the option of Licensor to any one or more of the following: (i) the replacement
thereof or the supply of its equivalent; (ii) the repair thereof; (iii) the payment of the cost of replacement
thereof or of acquiring its equivalent; or (iv) the payment of the cost of having such repaired.