The standard Compliance Verification clause – as applied by Dell in its historic Software Transaction Agreement – states the following:
Customer agrees to maintain and use systems and procedures to accurately track, document and report its installations, acquisitions and usage of the software. Such systems and procedures shall be sufficient to determine if Customers’ deployment of the software or, if applicable, use of the SaaS software is within the quantities, Product Terms and maintenance releases to which it is entitled. Dell or its designated auditing agent shall have the right to audit Customers’ deployment of the Software or, if applicable, use of the SaaS Software for compliance with the terms and conditions of this Agreement and the applicable Order(s). Any such audits shall be scheduled at least thirty (30) days in advance and shall be conducted during normal business hours at Customers’ facilities. Customer shall provide its full cooperation and assistance with such audit and provide access to the applicable records and computers. Customer will agree to run pre-approved scripts (tested to ensure non-interference to Customer operations) or self-auditing processes as an initial first proof of compliancy request and provide the results to Dell (or a mutually approved independent auditor). Without limiting the generality of the foregoing, as part of the audit, Dell may request, and Customer agrees to provide, a written report, signed by an authorized representative, listing Customers’ then current deployment of On-Premise Software and/or the number of individuals that have accessed and used SaaS software. If Customers’ deployment of the software or, if applicable, use of the SaaS software is found to be greater than its purchased entitlement to such software, Customer will be invoiced for the
over-deployed quantities at Dell’s then current list price plus the applicable maintenance services and applicable over-deployment fees. All such amounts shall be payable in accordance with the agreement. Additionally, if the unpaid fees exceed five percent (5%) of the fees paid for the applicable software, then Customer shall also pay Dell’s reasonable costs of conducting the audit. The requirements of this section shall survive for two (2) years following the termination of the last license governed by this agreement.