AWS Elemental Appliances and Software Terms of Service
Last Updated: September 4, 2020
These AWS Elemental Appliances and Software Terms of Service (“Agreement”) contain the terms and conditions that govern your purchase and use of Products and Services (as defined below) and is an agreement between Elemental Technologies LLC (“AWS Elemental” and also referred to in this Agreement as “we,” “us,” or “our”) and you or the entity you represent (“you” or “your”), unless you have entered into a separate written agreement with us that applies to your purchase of Products or Services, in which case, the separate written agreement governs your purchase and use of such specific Products or Services. This Agreement takes effect when you click a “Continue” button or check box presented with these terms or, if earlier, when you place an Order (as defined below) for Products or Services from us (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 14 for definitions of certain capitalized terms used in this Agreement.
1. Purchasing Products and Services
This Agreement governs any purchases of Products and Services from us pursuant to Orders during the Term. You will comply with the terms of this Agreement and all laws, rules, regulations applicable to your use of the Products and Services. Product Terms apply to certain AWS Elemental Products and Services. We may require you to have an AWS Account to submit Orders, in which case we will deliver Sales Quotations solely to your AWS Account. For clarity, Products and Services are not "AWS Services" provided under your AWS Agreement. Our agreement to any one Order is independent from any other Order. Prices on your Sales Quotation are effective until the stated expiration date. You may not cancel any Order for Appliances unless you give us written notice of your cancellation at least 30 days before Delivery.
2. Delivery and Acceptance of Products.
2.1. Delivery Dates. Delivery dates on any Order or Order Acknowledgment are estimates only, and in no event will we be liable for any Losses resulting from any delay in Delivery.
2.2. Shipment Support. Unless you request otherwise in writing in connection with your Order as described in Section 2.3, you authorize us to select the carrier to ship your Products from the Shipping Origin and to provide us with all necessary information to enable the carrier to ship the Products to your designated destination. We will provide an estimate of shipping charges in an Order Acknowledgement or otherwise upon your written request. We will pay the shipping charges and include that amount on your invoice, which you agree to pay in accordance with Section 5 of this Agreement.
2.3. Customer Carriers. In connection with your Order, you may request in writing that we ship your Products from the Shipping Origin to your destination using a carrier of your choice, at your sole cost and expense. In this event, you agree:
(a) to provide us, in writing, with all information necessary to enable the shipment of your Products by your nominated carrier from the Shipping Origin to your destination;
(b) to provide any carrier engaged by you to ship your Products with our instructions concerning operating at our Shipping Origin. We will provide any such instructions prior to the Delivery date; and
(c) that in no event will you name or identify us on any shipping documents unless required to do so by applicable law.
2.4. International Shipments. You will be the importer of record for the shipment of each Product from the Shipping Origin to your destination. You will obtain any necessary licenses or other authorizations for the shipment of the Products from the Shipping Origin to your destination.
2.5. Title; Risk of Loss. Title to and risk of loss for sold Appliances transfers to you upon Delivery. We do not transfer title to Software; Software is only licensed to you and not sold. You are solely responsible for obtaining insurance for all shipments at your expense.
2.6. Acceptance. Upon Delivery, you will be deemed to have accepted the Delivered Products. You may reject or return Delivered Product only if you give us notice within 30 days of Delivery that the Product does not materially conform to the specifications set forth in the Order and applicable Documentation. If you reject Products for cause, we have the right to either (at our discretion) replace the Products or cancel the sale. In either case, you retain all rights and remedies described in any applicable limited Product warranties for any accepted Product.
2.7. Returns. For any digital or tangible property you return to us and unless agreed otherwise in writing, you will make delivery DDP (Incoterms 2020) to our designated place of business within the United States (which may be different from the Shipping Origin), and title (with respect to Appliances) and risk of loss will transfer from you to us upon our receipt of such property.
2.8. Trade and Product Compliance.
(a) In connection with this Agreement and as consistent with U.S. law, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations that apply to a U.S. company such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the U.S. Office of Foreign Assets Control.
(b) You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.
(c) Upon our request, you or your authorized agent will provide us with documentation related to the shipment of the Products under this Agreement, including documentation related to the export or import of the Products.
(d) We maintain product safety and electromagnetic compatibility certifications for Appliances required in the United States, Canada, and the European Union; certifications are maintained for additional jurisdictions depending on the particular Appliance. Some Appliances are not available for shipment by us into certain jurisdictions. We will provide documentation evidencing regulatory certifications for Appliances upon your written request. We do not guarantee that the certifications we maintain satisfy all laws applicable to the Products in any particular jurisdiction, and you are responsible for identifying and complying with any additional legal and regulatory requirements, approvals, qualifications, or certifications that may be required to import or use the Products in your jurisdiction.
3. Privacy and Security.
3.2. Data Privacy. We will not access or use Your Services Content except as necessary to maintain or provide Services to you at your request, or as necessary to comply with the law or a binding order of a governmental body. By transferring Your Services Content and any logs or other similar usage metrics to us for purposes of receiving our Services, you consent to our access to and use of Your Services Content for that purpose. With respect to Your Services Content, AWS Elemental will not disclose Your Services Content for any purpose without the written permission of Customer, except as necessary to effectuate this Agreement or as necessary to comply with the law or a binding order of a governmental body (such as a subpoena or court order).
4. Your Responsibilities.
4.1. Your Accounts. We will use your AWS Account and Account Information to deliver Sales Quotations, complete Orders, perform invoicing, and provide Products and Services under this Agreement. You are responsible for all Orders that are submitted in connection with your AWS Account, regardless of whether the Orders are authorized by you or undertaken by you, your employees or a third party (including your contractors or agents), and we and our Affiliates are not responsible for unauthorized access to your AWS Account. Except as otherwise set forth in your AWS Agreement, you are responsible for all activities that occur under your AWS Account.
4.2. Your Content. You will ensure that Your Content and your use of the Products will not violate any of the Policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and your use of Your Content.
4.3. Security and Backup of Your Products Content. You are responsible for properly configuring and using the Products and otherwise taking appropriate action to secure, protect and backup Your Products Content in a manner that will provide appropriate security and protection (including by following any security best practices and policies we make available to you), which might include use of physical and logical security, firewalls, encryption, and other network security tools to protect Products and Your Products Content from unauthorized access and routinely archiving Your Products Content.
5. Fees and Payment
5.1. Fees for Products and Services. Prices for Products and Services are exclusive of applicable taxes, duties and levies (e.g., Indirect Taxes) and shipping or freight charges. We will invoice you as follows for the prices set forth on the relevant Sales Quotation: (a) for Products, on the Delivery date; and (b) for Services, as set forth in the relevant Product Term. Invoicing for Products and Services may be performed by Amazon Web Services, Inc. or another Affiliate on our behalf for administrative convenience, but all invoices will clearly show the charges for the Products or Services provided by AWS Elemental (plus any applicable Indirect Taxes or shipping or freight charges). You will pay the fees and charges set forth on your invoice, using one of the payment methods we support (which may be specified on your invoice), on or before the 30th day following the invoice date. Notwithstanding the foregoing, we may require your payment prior to Delivery by indicating as such on a Sales Quotation or as part of the Order process. All amounts payable by you under these terms will be paid to us without setoff or counterclaim, and without any deduction or withholding. You may not apply any discount, pre-payment or other credit made available to you for application toward the cost of services or products offered by our Affiliates under your AWS Account to your invoices for AWS Elemental Products or Services. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
5.2. Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you for Products and Services are exclusive of Indirect Taxes. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from you. We will not collect, and you will not pay, any Indirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
6. Temporary Suspension.
6.1. We may suspend (in full or in part) your right to Order Products and Services and your right to receive Services immediately upon notice to you if we determine that:
(a) your use of the Products or our performance of Services poses a security risk, could be fraudulent, or could subject us, our Affiliates, or any third party to liability;
(b) you are in breach of this Agreement;
(c) you are in breach of your payment obligations under Section 5; or
(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
6.2. In addition, we may suspend your ability to place Orders if your AWS Account is suspended or terminated for any reason.
7. Term; Termination.
7.1. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 7. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 7.2.
(a) Termination for Convenience. You may terminate this Agreement for any reason by providing us notice. We may terminate this Agreement for any reason by providing you at least 30 days’ advance notice.
(b) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party.
(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause if we have the right to suspend under Section 6, (B) if our relationship with a third-party partner who provides hardware, software or other technology we use to provide the Products or Services expires, terminates or requires us to change the way we provide the hardware or software or other technology as part of the Products or Services, or (C) in order to comply with the law or requests of governmental entities.
7.3. Effect of Termination.
(a) Generally. Upon the Termination Date:
(i) except as provided in Section 7.3(b), all your rights under this Agreement and your Orders immediately terminate;
(ii) you remain responsible for all fees and charges you have incurred through the Termination Date;
(iii) you will immediately return or, if instructed by us, destroy all Confidential Information in your possession; and
(iv) Sections 2, 3, 4, 5, 7, 8, 9, 10.2, 11, 12, 13 and 14 will continue to apply in accordance with their terms.
(b) Post-Termination. Unless we terminate this Agreement pursuant to Section 7.2(b):
(i) we will Deliver any Products you Ordered prior to the Termination Date if the Delivery date is thirty (30) days or fewer before the Termination Date;
(ii) you will continue to receive any Services you Ordered prior to the Termination Date for the applicable Services term; and
(iii) you will be entitled to continue to use the Products for the applicable license term set forth in your Order (which may be perpetual).
8. Proprietary Rights; Changes; Suggestions.
8.1. Your Content. You (or your licensors) own all right, title, and interest in and to your Content. Except as provided in this Agreement, we obtain no rights under this Agreement to your Content.
8.2. Software License. You agree that your use of Software is governed by and subject to the AWS Elemental end-user license agreement (“EULA”) located at https://www.aws.amazon.com/legal/elemental-appliances-software-eula (and any successor or related locations designated by us), as it may be updated by us from time to time.
8.3. Rights; Restrictions. All right, title and interest in and to the intellectual property rights in the Products and Services, including processes, tools, technology, Confidential Information and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, and any derivative works thereof, belong solely and exclusively to AWS Elemental, our Affiliates and our licensors or suppliers, and you have no rights whatsoever in any of the foregoing other than the rights expressly set forth in this Agreement. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in any of the intellectual property rights in or to any Products or Services, in whole or in part. You agree that you will not attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Products, (b) reverse engineer, disassemble, or decompile the Products or apply any other process or procedure to derive the source code of any software included in the Products (except to the extent applicable law doesn’t allow this restriction), (c) remove or alter any identification marks, proprietary notices or labels from the Products, or (d) resell or sublicense the Products or Services. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors). You will not imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.
8.4. Changes; Discontinued Products or Services. We may revise or discontinue Products and Services at any time as set forth in any “End of Life”, “End of Sale,” “End of Support” or similar announcements we provide on the AWS Elemental Site, including after you place an Order, but prior to Delivery. Replacement versions will materially meet or exceed all published specifications for the Products and Services.
8.5. Suggestions. If you provide any Suggestions to us or our Affiliates, we and our Affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.
9.1. General. You will defend, indemnify and hold harmless us, our Affiliates, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) breach of this Agreement or violation of applicable law by you or Your Content; or (b) or services provided by a carrier you select. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (b) above at our then-current hourly rates.
9.2. Intellectual Property.
(a) Subject to the limitations in this Section 9, AWS Elemental will defend you and your employees, officers, and directors against any third-party claim alleging that the Products infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(b) Subject to the limitations in this Section 9, you will defend AWS Elemental, its Affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(c) Neither party will have obligations or liability under this Section 9.2 arising from infringement by combinations of the Products or Services or Your Content, as applicable, with any other product, service, software, data, content or method. In addition, AWS Elemental will have no obligations or liability arising from your or any third parties’ use of the Products after AWS Elemental has notified you to discontinue such use. The remedies provided in this Section 9.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Products or Services or by Your Content.
(d) For any claim covered by Section 9.2(a), AWS Elemental will, at its election, either: (i) procure the rights to use that portion of the Products alleged to be infringing; (ii) replace the alleged infringing portion of the Products with a non-infringing alternative; (iii) modify the alleged infringing portion of the Products to make it non-infringing; or (iv) if none of (i), (ii), or (iii) are commercially reasonable, (a) accept the return of any infringing Product and/or terminate any license to use the infringing Product and (b) grant you a pro-rata credit in the amount of the remaining value of the purchase price of the infringing Product, calculated based on straight-line depreciation over three (3) years from Delivery of such Product.
9.3. Process. The obligations under this Section 9 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.
10. Limited Warranties.
10.1. Appliances are covered by the limited hardware warranty currently located at https://aws.amazon.com/legal/elemental-appliances-software-warranty (and any successor or related locations designated by us), as it may be updated by us from time to time, unless an applicable Product Term contains a separate limited hardware warranty. Software is warranted as set forth in the EULA. Support Services will be performed as set forth in the Service Plan. For the avoidance of doubt, the limited warranties for Appliances and Software do not include all Support Services described in the Service Plan.
10.2. EXCEPT AS PROVIDED BY THIS SECTION 10, WE PROVIDE THE PRODUCTS AND SERVICES “AS IS” AND EXCEPT TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS AND SERVICES (OR ANY AWS SERVICES PROVIDED UNDER YOUR AWS AGREEMENT), AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (A) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AGAINST LATENT OR HIDDEN DEFECTS, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (B) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) THAT THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, AND (D) THAT ANY OF YOUR CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
11. Limitations of Liability.
WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF USE, PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO ORDER PRODUCTS OR USE THE PRODUCTS OR SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR RIGHT TO ORDER OR RECEIVE THE SERVICES OR (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE PRODUCTS OR SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 9.2, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 11 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12. Modifications to the Agreement.
We may modify this Agreement at any time by posting a revised version on the AWS Elemental Site or by otherwise notifying you in accordance with Section 13.9. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to purchase or use Products and Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the AWS Elemental Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.
13.1. Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.1 will be void. We may assign this Agreement without your consent (a) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (b) to any Affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for AWS Elemental as a party to this Agreement and AWS Elemental is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
13.2. Entire Agreement. This Agreement incorporates by reference each Order, the EULA, the Product Terms, and the Policies, and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by you in connection with any Order, including in any purchase order, receipt, acceptance, confirmation, special instruction or custom request, as correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. Your ability to accept our Sales Quotations is expressly conditioned on your acceptance with the terms of this Agreement, and your acceptance will be effective only if it contains no additional terms. In the event of a conflict between the terms and conditions of this Agreement and the terms and conditions of any Order, Policy, or the EULA, the terms and conditions govern in the following order of precedence from first to last: Agreement, EULA, Policies and Order. If there is a conflict between the terms of this Agreement and the Product Terms, the terms contained in the Product Terms will control.
13.3. Force Majeure. We and our Affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.4. Governing Law. The laws of the State of Washington, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
13.5. Disputes. Any dispute or claim relating in any way to your purchase or use of the Products or Services sold or distributed by AWS Elemental will be resolved by binding arbitration as provided in this Section 13.5, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, 300 Deschutes Way SW, Suite 304, Tumwater, WA 98501. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. We will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or at a mutually agreed location. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration we and you waive any right to a jury trial. Notwithstanding the foregoing we and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
13.6. Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective Affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
13.7. Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
13.8. Confidentiality and Publicity. You may use Confidential Information only in connection with your use of the Products and Services as permitted under this Agreement. You will not disclose Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your purchase and use of the Products and Services.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the AWS Elemental Site; or (ii) sending a message to the email address then associated with, or provided by, you. Notices we provide by posting on the AWS Elemental Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with, or provided by, you when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact us by personal delivery, overnight courier or registered or certified mail to the mailing address listed on the Sales Quotation. We may update the address for notices to us by posting a notice on the AWS Elemental Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
13.10. No Third-Party Beneficiaries. Except as set forth in Sections 3.1, 7, 8, 9, 11, and 13.3 this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
13.11. U.S. Government Rights. The Products are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Products. If you are using the Products on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Products. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
13.12. No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
13.13. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to the effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
“Account Information” means information about you that you provide to us or our Affiliates in connection with your Orders for Products and Services. For example, Account Information includes information about your AWS Account, names, usernames, phone numbers, email addresses, addresses and billing information you provide to us or our Affiliates.
“Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with that party.
“Appliances” means any computer hardware, equipment or device that we provide to you under this Agreement.
“AWS” means “AWS Contracting Party” as defined in your AWS Agreement.
“AWS Account” means the account you have with an AWS Contracting Party that you use to complete an Order via the online Ordering process we make available to you.
“AWS Agreement” means the agreement relating to your AWS Account (e.g., the AWS Customer Agreement available at https://aws.amazon.com/agreement or other written agreement governing your use of the AWS Services (as “Services” is defined in such agreement).
“AWS Elemental Site” means https://www.elemental.com/ and https://aws.amazon.com/elemental-appliances-software/, and any successor or related sites designated by us, as may be updated by us from time to time.
“AWS Services” means each of the services made available by AWS pursuant to the AWS Agreement.
“Confidential Information” means all nonpublic information disclosed by us, our Affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to our or our Affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our Affiliates. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Confidential Information.
“Content” means software (including machine images), data, text, audio, video or images.
“Delivery” means: (a) our delivery of Appliances EXW (Incoterms 2020) by making them available for carriage at our point of shipment within the United States (the “Shipping Origin”), and “Deliver” and “Delivered” will be construed accordingly; and (b) with respect to Software, either when we Deliver an Appliance on which Software is pre-installed or when we inform you that Software is available for electronic download.
“Documentation” means the Product Specification Sheets, Data Sheets and User Guides that we provide to you concerning the Products via the AWS Elemental Site.
“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, GST, excise taxes, sales and transactions taxes, and gross receipts tax.
“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
“Order Acknowledgment” means our written confirmation of an Order, which may include an estimated Delivery date and shipping charges.
“Order” means your order to purchase Products and Services that you submit through an online process we make available to you through your AWS Account, or other order process we make available to you at our sole discretion.
“Product Terms” means the rights and restrictions for the Products and Services you purchased and located at http://aws.amazon.com/legal/elemental-appliances-software-product-terms (and any successor or related locations designated by us), as may be updated by us from time to time.
“Products” means Appliances and Software, including the Products described in the Product Terms.
“Sales Quotation” means an offer to sell specific Products and Services at certain prices that we issue to you (which may be via email or via your AWS Account), which you may accept according to the terms and conditions of this Agreement.
“Service Plan” means the AWS Elemental Service Plan available at https://aws.amazon.com/legal/elemental-appliances-software-service-plan (and any successor or related locations designated by us), as may be updated by us from time to time).
“Services” means each of the services made available or provided by us, including the services described in the Product Terms.
“Support Services” means the support and maintenance services for AWS Elemental Appliances and Software that you purchased pursuant to a Service Plan.
“Software” means all software (including all generally available software applications, microcode, firmware, operating system software, SDKs, libraries, utilities, tools, or other computer or program code (including all software feature enhancements, updates and upgrades) that we license to you under this Agreement.
“Suggestions” means all suggested improvements to the Products or Services that you provide to us or our Affiliates.
“Term” means the term of this Agreement described in Section 7.1.
“Termination Date” means the effective date of termination provided in accordance with Section 7, in a notice from one party to the other.
“Your Content” means Content that you (i) process, store or deliver using the Products (“Your Products Content”) or which you transfer, disclose, or make available to us for purposes of receiving Services (“Your Services Content”). For example, Your Products Content includes Content that you transcode using an AWS Elemental Product; Your Services Content is Content which you grant us access for purpose of providing Services. Your Content does not include Account Information.