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7 DELL BSAFE OEM LICENSE AGREEMENT
D. Warranty Exclusions. Except as expressly stated in the applicable warranty set forth in this
Agreement, Licensor (including its suppliers) provides Software "AS IS" and makes no other express or
implied warranties, written or oral, and ALL OTHER WARRANTIES AND CONDITIONS (SAVE FOR THE
WARRANTIES AND CONDITIONS IMPLIED BY SECTION 12 OF THE SALE OF GOODS ACT 1979) ARE
SPECIFICALLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF
DEALING OR PERFORMANCE, OR USAGE OF TRADE.
2. Section 7 (LIMITATION OF LIABILITY). This Section is deleted in its entirety and replaced with:
6. LIMITATION OF LIABILITY AND PRESERVATION OF DATA.
A. The entire aggregate liability of Licensor (including its suppliers) under or in connection with the
supply of the Software, whether in tort (including negligence), for breach of contract, misrepresentation or
otherwise, is limited in respect of each event or a series of events: (i) to the amounts actually paid by
Customer for the Software which give rise to such liability during the twelve (12) month period immediately
preceding the date of the cause of action giving rise to such claim; or (ii) Great British Pounds Sterling one
million (£1,000,000), whichever is the greater amount. In no event shall Licensor (including its suppliers) or
Customer be liable to the other or any other person or entity for loss of profits, loss of revenue, loss of use or
any indirect, special, incidental, consequential or exemplary damages arising out of or in connection with this
Agreement, the license of the Software, and the use, performance, receipt or disposition of such Software,
even if such party has been advised of the possibility of such damages or losses. Nothing in this Agreement
shall operate to exclude or restrict Licensor's liability for: (a) death or personal injury resulting from
negligence; (b) breach of obligations arising from section 12 of the Sale of Goods Act 1979; or (c) fraud.
B. CUSTOMER OBLIGATIONS IN RESPECT OF PRESERVATION OF DATA. During the Term of the
Agreement, the Customer shall:
1) from a point in time prior to the point of failure, (i) make full and/or incremental backups of data
which allow recovery in an application consistent form, and (ii) store such back-ups at an off-site location
sufficiently distant to avoid being impacted by the event(s) (e.g. including but not limited to flood, fire, power
loss, denial of access or air crash) and affect the availability of data at the impacted site;
2) have adequate processes and procedures in place to restore data back to a point in time and
prior to point of failure, and in the event of real or perceived data loss, provide the skills/backup and outage
windows to restore the data in question;
3) use anti-virus software, regularly install updates across all data which is accessible across the
network, and protect all storage arrays against power surges and unplanned power outages with
Uninterruptible Power Supplies; and
4) ensure that all operating system, firmware, system utility (e.g. but not limited to, volume
management, cluster management and backup) and patch levels are kept to Licensor recommended versions
and that any proposed changes thereto shall be communicated to Licensor in a timely fashion.
3. Section 12 (MISCELLANEOUS). Add the following as new subsection J:
J. Each of the parties acknowledges and agrees that in entering into this Agreement, it does not rely on,
and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether
negligently or innocently made) of any person (whether party to this Agreement or not) other than as
expressly set out in this Agreement as a warranty. The only remedy available to Customer for a breach of the