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arising from or incurred in connection with this Agreement, any Schedule, or
<br />the sele-don, manufacture, possession, ownership, use, condition, or return of
<br />any Products tuidudlng Claims for personal injury or death or damage to
<br />property, and to the extent Lessee is responsible, Clams related to the
<br />subsequent use or Disposition of the Products or any data In or alteration of
<br />the Products. This indemnity shall not extend to any loss caused solely by the
<br />gross negligence or willful misconduct of Lessor. Lessee shall be responsible
<br />for the defense and resolution of such Claim at its expense and shall pay any
<br />amount for resolution and all costs and damages awarded against or incurred
<br />by Lessor or any other person Indemnified hereunder, provided, however, that
<br />any person inderwified hereur& -r shall have the right to participate in the
<br />defense of such Claim with counsel of Its eholce and at its expense and to
<br />approve any such resolution. Lessee shag keep Lessor Informed at all times
<br />as to the status of the Claim,
<br />17. OWNERSHIP; LIENS AND ENCUMBRANCES; LABELS.
<br />As between Lessor and Lessee, title to the Products (other than the
<br />Licensed Materials) is and shall remain vilth Lessor. Products are
<br />considered personal property and Lessee shall, at Lessee's expense, keep
<br />the Products free and dear of liens and encumbrances of arty kind (except
<br />those arising through the acts of Lessor} and shall Immediately notify Lessor if
<br />Lessor's interest is subject to compromise. Lessee shall not remove, cover, or
<br />alter plates, labels, or other markings upon Products by Lessor, Seller or arty
<br />other supplier.
<br />18, NON - PERFORMANCE BY LESSEE.
<br />If Lessee shall fail to perform any of its ob€igallons hereunder or under any
<br />Schedule, Lessor shall have the right but not the Obligation to effect such
<br />performance and Lessee shall promptly reimburse Lessor for all out of pocket
<br />and other reasonable expenses Incurred in connection with such performance,
<br />with interest at the Overdue Rate.
<br />19. NOTICES.
<br />Ail notices shall be given In writing and, except for billings and
<br />communications in the ordinary course of business, shall be delivered by
<br />overnight confer servioe, delivered personally or sent by cerfified mail, return
<br />receipt requested, and shall be effective on the date of receipt unless mailed,
<br />In which case the effective dale will be four (4) Business Days after the date of
<br />malling. Notices to Lessor by Lessee shall be sent to: Dell Financial Services
<br />L.L.C., Legal Department, One Dell Way, Round Rode, TX 78882, or such
<br />other mailing address designated in writing by Lessor. Notice to Lessee shall
<br />be to the address on the first page of this Agreement or such other marling
<br />address designated in writing by Lessee.
<br />20. ASSIGNMENT.
<br />(a) LESSEE MAY ASSIGN THIS AGREEMENT OR ANY SCHEDULE, OR
<br />SUBLEASE ANY PRODUCT(S) WITH THE PRIOR WRITTEN CONSENT OF
<br />LESSOR (SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD).
<br />LESSOR, AT ITS SOLE DISCRETION, MAY ASSESS AN ADMINISTRATIVE
<br />FEE FOR ANY APPROVED ASSIGNMENT OR SUBLEASE. No assignment
<br />or sublease shall in any way discharge Lessee's obligations to Lessor under
<br />this Agreement or Schedule.
<br />(b) Lessor may at any time without notice to Lessee, but subject to the rights
<br />of Lessee, transfer, assign,Dr grant a security interest in any Product, this
<br />Agreement, any Schedule, or any rights and obligations hereunder or
<br />thereunder in whole or in part Lessee hereby consents to such ass€gnrnents,
<br />agrees to comply fully with the terms thereof, and agrees to execute and
<br />deliver promptly such acknowledgments, opinions of counsel and other
<br />Instruments reasonably requested to effect such assignment.
<br />(c) Subject to the foregoing, this Agreerent and each Schedule shall be
<br />binding upon and inure to the benefit of Lessor, Lessee and their successors
<br />and assigns.
<br />21. GOVERNING LAW; JUMDICTION AND VENUE; WAIVER OF JURY
<br />TRIAL.
<br />THIS AGREEMENT AND EACH SCHEDULE SHALL BE GOVERNED BY
<br />Texas LAW WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES
<br />AND, TO THE EXTENT APPLICABLE, THE ELECTRONIC SIGNATURES IN
<br />GLOBAL AND NATIONAL. COMMERCE ACT. LESSEE CONSENTS TO
<br />THE JURISDICTION OF ANY FEDERAL COURT LOCATED IN Harris
<br />COUNTY, Texas AND WAIVES ANY OBJECTION TO VENUE IN SUCH
<br />COURT, AND FURTHER WANES ANY RIGHT TO A TRIAL BY JURY.
<br />22. MISCELLANEOUS.
<br />(a) The headings used in this Agreement are for convenience only and
<br />shall have no legal effect. This Agreement shall be Interpreted without any
<br />strict construction In favor of or against ether party.
<br />(b) The provisions of Sections 6, 8, 11, 12(b), 12(c), 12(d), 16, 21 and 22
<br />shall continue in full force and effect even after the terrnination or expiration of
<br />this Agreement or any Schedule.
<br />(e) Failure of Lessor at any time to require Lessee's performance of any
<br />obligation shah not affect the right to require performance of that obligation.
<br />No term, condition or provision of this Agreement or any Schedule shall be
<br />waived or deemed to have been waived by Lessor unless it Is in writing and
<br />signed by a duly authorized representative of Lessor. A valid waiver is limited
<br />to the specific situation for which it was given.
<br />(d) Lessee shall furnish such financial statements of Lessee (prepared In
<br />accordance with generally accepted accounting princtples) and other
<br />information as Lessor may from time to time reasonably request.
<br />(a) If any provision(s) of this Agreement is deemed invalid or unenforceable
<br />to any extent (other than provisions going to the essence of this Agreement)
<br />the sane shalt not in any respect affect the validity, legality or enforceabii€ty (to
<br />the fullest extent permitted by law) of the remainder of this Agreement and the
<br />parties shall use their best efforts to replace such illegal, Invalid or
<br />unenforceable provision with an enforceable provision approximating, to the
<br />extern possible, the original Intent of the parties.
<br />(t) Unless otherwise provided, all obligations hereunder shah be performed
<br />or observed at the respective party's expense.
<br />(g) Lessee shall take any action reasonably requested by Lessor for the
<br />purpose of fully effectuating the intent and purposes of this Agreement or any
<br />Schedule. if any Lease is determined to be other than a true lease, Lessee
<br />hereby grants to Lessor a first priority security Interest in the Products and all
<br />proceeds thereof. Lessee admawledges that by signing this Agreement,
<br />Lessee has authorized Lessor to file any financing statements or related filings
<br />as Lessor may reasonably deem necessary or appropriate. Lessor may file a
<br />copy of this Agreement or any Sd)edule in lieu of a financing statement
<br />(h) This Agreement and any Schedule may be signed in any number of
<br />counterparts each of which when so executed or otherwise authenticated and
<br />delivered shall be an original but all counterparts shall together constitute one
<br />and the same Instrument. To the extent each Schedule would constitute
<br />chattel paper as that term is defined in the UCC, no security Interest may be
<br />created through the transfer or control or possession, as applicable, of a
<br />counterpart of a Schedule other than the original In Lessor's possession
<br />marked by Lessor as either `original' or "Counterpart Number V.
<br />(I) This Agreement and the Schedules hereto between Lessor and Lessee
<br />set forth all of the understandings and agreements between the parties and
<br />supersede and merge all prior written or oral communications,
<br />understandings, or agreements between the parties relating to the subject
<br />matter contained herein. Except as perrnitted herein, this Agreement and any
<br />Schedule may be amended only by a writing dirty signed or otherwise
<br />authenticated by Lessor and Lessee.
<br />(1) If Lessee delivers this signed Master Lease, or any Schedule,
<br />amendment or other document related to the Master Lease (each a
<br />"Document") to Lessor by facsimile transmission, and Lessor does not
<br />receive all of the pages of that Document, Lessee agrees that, except for
<br />any pages which require a signature, Lessor may supply the missing pages
<br />to the Document from Lessor's database which conforms to the version
<br />number at the bottom of the page. if Lessee delivers a signed Document to
<br />Lessor as an e-mail attachment, facsimile transmission or by U.S. mail,
<br />Lessee acknowledges that Lessor is relying on Lessee's representation that
<br />the Document has not been altered. Lessee further agrees that,
<br />notwithstanding any rule of evidence to the contrary, in any hearing, trial or
<br />proceeding of any kind with respect to a Document, Lessor may produce a
<br />tangible copy of the Document transmitted by Lessee to Lessor by facsimile
<br />or as an e-mail attachment and such signed copy shalt be deemed to be the
<br />original of the Document. To the extent Of any) that the Document
<br />constitutes chattel paper under the Uniform Commercial Code, the
<br />authoritative copy of the Document shall be the copy designated by Lessor
<br />or its assignee, from time to time, as the copy available for access and
<br />review by Lessee, Lessor of its assignee, All other copies are deemed
<br />Identified as copies of the authoritative copy. in the event of Inadvertent
<br />destruction of the authoritative copy, or corruption of the authoritative copy
<br />for any reason or as the result of any cause, the authoritative copy may be
<br />restored from a backup or archive copy, and the restored copy shall become
<br />the authoritative copy. At Lessor's option, this electronic record may be
<br />converted into paper form. At such time, such paper copy will be designated
<br />DFS Pubft MLA.0825200MoU Page 4 of 4
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