AWS Elemental Appliances and Software Product Terms
Last Updated: October 23, 2020
The following Product Terms apply only to the specific Products or Services to which the Product Terms relate. In the event of a conflict between the terms of these Product Terms and the terms of the AWS Elemental Appliances and Software Terms of Service or other agreement with us governing your purchase use of AWS Elemental Products and Services (the “Agreement”), the terms and conditions of these Product Terms apply, but only to the extent of such conflict. Capitalized terms used herein but not defined herein shall have the meanings set forth in the Agreement.
1. Universal Product Terms (Applicable to all Products)
1.1 If you or someone else integrates or interacts a third-party product or service with an AWS Elemental Product, or the operating system is modified on any device running AWS Elemental Software without the prior written approval of AWS Elemental, AWS Elemental is not responsible for any performance or operating issues caused by such modifications to your operating system or third-party product or service, and AWS Elemental may withhold support and warranty service. Unless otherwise set forth in a Service Plan or Addendum, AWS Elemental does not provide any configuration, support, testing, or maintenance services related to third-party products or services.
1.2 Subject to availability, you may have the option to receive certain Services at a designated on-site location. In order to determine whether your purchased Services are eligible to be provided on-site and are available in your jurisdiction, please contact us at https://pages.awscloud.com/AWS-Elemental-Appliances-Software-ContactUs.html. We will have no obligation, and will have no liability for the failure or inability, to provide your purchased Services on-site or, if we do, provide them outside authorized jurisdictions. It is your obligation to ensure that on-site Services are available in your jurisdiction prior to purchasing such Services. We further reserve the right to cease providing Services on-site entirely and/or in jurisdictions where we have previously provided such Services, as determined in AWS Elemental’s sole and absolute discretion, without liability.
2. Support Services. You may Order support and maintenance services for AWS Elemental Appliances and Software (“Support Services”). AWS Elemental will provide Support Services as set forth in 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 (the “Service Plan”). Your Order will state how AWS Elemental will invoice you for your purchase of Support Services.
3. AWS Elemental Media Event Management
3.1 AWS Elemental Media Event Management Services are video operations readiness and event support Services that help you use AWS Elemental Products and AWS Media Services for video workflows, as described in the Documentation currently available at https://aws.amazon.com/media-services/resources/mem/.
3.2 We will provide Media Event Management Services as set forth on the relevant Order using skilled and experienced resources, in a professional and workmanlike manner, and in material accordance with the Media Event Management Documentation. If we fail to do so then, as your sole remedy, we will re-perform the relevant Media Event Management Service, provided that you must notify us of the failure within ten business days of the date of performance.
3.3 Your Order for Media Event Management Services will show the applicable charges. We will invoice you upon the conclusion of your Event (as set forth in the relevant Order) and you must pay all invoiced amounts in accordance with the Agreement. Payments for Media Event Management Services are not refundable. Charges for Media Event Management Services are in addition to any applicable fees for other Services or charges for Products. For the avoidance of doubt, your access to and use of AWS Services are governed by your AWS Agreement.
3.4 Media Event Management Services are provided remotely. You may have the option to receive certain of the Services on-site at your Event location, subject to availability in jurisdictions outside the United States. In order to determine whether on-site Services are available in your jurisdiction, please contact us at https://pages.awscloud.com/AWS-Elemental-Appliances-Software-ContactUs.html. It is your obligation to ensure that on-site Media Event Management Services are available at your desired location prior to purchase. We further reserve the right to cease providing on-site Media Event Management Services in jurisdictions where we have previously provided such Services, as determined in our sole discretion, without liability.
3.5 You are solely responsible for deploying, testing, maintaining and supporting any advice or recommendations we provide. You acknowledge that we do not provide security, risk, governance, legal or regulatory compliance advice. You are responsible for making your own assessment of your legal and regulatory requirements and whether your use of the Media Event Management Services meets those requirements. In addition, by providing advice or recommendations concerning the Media Event Management Services, we do not warrant or guarantee any particular performance, efficiency, quality, result, outcome or improvement will be achieved and we make no warranties beyond those provided under the Agreement, your AWS Agreement, or any other agreement. In particular, as part of performing the Media Event Management Services, we are not responsible or liable for any installation, configuration, administration, performance, operation, error, fault or defect resolution or other support and maintenance of any AWS Elemental Products, AWS Services or any third-party products (or any combination of any of the foregoing).
4. AWS Elemental Link
4.1 “AWS Elemental Link” means the AWS Elemental Products of same or similar name described in Documentation available on the AWS Elemental Site.
4.2 AWS Elemental Link is not available for shipment into certain jurisdictions. If available in your jurisdiction, AWS Elemental Link is Delivered EXW (Incoterms 2020). You will be the importer of record and you will obtain any necessary licenses or other authorizations for the shipment of the AWS Elemental Link from the Shipping Origin to your destination. We do not guarantee that the certifications we maintain for AWS Elemental Links satisfy all applicable laws in any particular jurisdiction.
4.3 Use of AWS Elemental Link requires access to AWS Services. You will be required to register for and use an AWS Account, and your use of the AWS Services in connection with AWS Elemental Link will be governed by the AWS Agreement. AWS Services may be unavailable or vary depending on your jurisdiction and you are solely responsible to confirm availability in your jurisdiction prior to your purchase of AWS Elemental Link.
4.4 From time to time, we may apply upgrades, patches, bug fixes or other maintenance to the Software (“Maintenance”). We agree to use reasonable efforts to provide you with prior notice of any scheduled Maintenance (except for emergency Maintenance) and you agree to use reasonable efforts to comply with any Maintenance requirements that we notify you about.
4.5 AWS Elemental Link Appliances purchased directly from AWS Elemental are covered by the limited hardware warranty currently located at https://aws.amazon.com/legal/elemental-appliances-software-warranty-link/ (and any successor or related locations designated by us), as it may be updated by us from time to time. Any Service Plan you purchase for AWS Elemental Products does not include coverage for AWS Elemental Link.
4.7 AWS Elemental Links may be available for purchase from certain authorized third parties (“Authorized Distributor”). To ensure that an AWS Elemental Link you purchase from an Authorized Distributor arrives configured for your AWS Account, the Authorized Distributor provides us with the DeviceID for the Appliance, your AWS Account ID, and the relevant AWS region for the AWS Services you will use in connection with the Appliance. We use this information to remotely reconfigure the Appliance from the Authorized Distributor's AWS Account to your AWS Account.
5. Beta Products
5.1 This Section 5.1 describes the additional terms and conditions under which you may access and use certain products made available to you by AWS Elemental that are identified on an Order as not yet generally available, including any products labeled or identified as “beta”, “preview”, “pre-release”, or “experimental” (the “Beta Products”).
5.2 Your right to use the Beta Products begins upon your receipt at the Destination (defined below) and continues for 60 days unless otherwise agreed between the parties in writing (the “Beta Period”). Subject to your compliance with the Agreement, there is no charge to you for use of the Beta Products during the Beta Period. You must also comply with all terms applicable to any Beta Product as posted in the Product Terms, in the AWS Elemental Appliances and Software Terms of Service, and otherwise made available to you as part of an Order.
5.3. We hereby grant to you a personal, limited, non-transferable, non-assignable, non-exclusive, revocable right and license to use the Beta Products for the duration of the Beta Period and solely for your internal testing, trial or evaluation purposes, and not for any production or commercial purpose(s). You will not, and will not permit any other party to: (i) sell, rent, license, lend, or otherwise transfer the Beta Products to any third party; (ii) reverse engineer, decompile, or disassemble the Beta Products; (iii) remove any proprietary notices or labels from the Beta Products; (iv) analyze, use or otherwise access the Beta Products to build a similar or competitive product or service or to copy its features or functionality; (v) analyze or use the Beta Product for any benchmarking study or other competitive purposes; or (vi) download or add any third-party software application onto an Beta Product.
5.4 We will deliver Beta Products EXW (Incoterms 2020) by making them available for carriage at our point of shipment within the United States (the “Shipping Origin”). You agree that Beta Products may not be available for shipment upon Order and that we will have no liability for any delay in shipment of a Beta Product. You authorize us to select the carrier to transport the Beta Product from the Shipping Origin to you at the location(s) specified by you in your Order, at our expense ("Destination"). As applicable, (i) you agree to provide us with all necessary information to permit the carrier to transport the shipment to the Destination, (ii) if the Destination is outside of the United States of America, we will arrange for delivery of Beta Appliances to your Destination under ATA Carnet or other VAT-exempt temporary import scheme available in your jurisdiction (“Carnet Entry”), (iii) you will be the importer of record for the shipment of the Beta Products at the Destination and are responsible for payment of any required VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax or other import-related fees, and (iv) you will obtain any necessary licenses or other authorizations for the shipment of the Beta Products from the Shipping Origin to the Destination. You acknowledge and agree that Carnet Entry prohibits the use of the Beta Products for any purpose other than testing, evaluation or trial and that you will be solely responsible for (and defend, indemnify and hold us and our Affiliates harmless against) any violation of the terms and conditions of a Carnet Entry under the applicable law of your jurisdiction.
5.5 You agree that you (i) will be solely responsible for the installation and use of the Beta Products, (ii) will be responsible for any loss or damage to the Beta Products from the time the Beta Products are delivered to you until the time the Beta Products are returned to us in accordance with Section 5.5, (iii) may not relocate any Beta Products to, or use any Beta Products at, any location other than the Destination(s), and (iv) will promptly provide us with written notice of any loss or damage to any Beta Products. We do not transfer title to Beta Products; Beta Products are only licensed to you, not sold, pursuant to these terms and conditions. AWS Elemental has no obligation to provide support or maintenance for Beta Products and Service Plans do not apply to your use of Beta Products.
5.6 You may provide AWS Elemental with information relating to your access, use, testing, or evaluation of Beta Products, including observations or information regarding the performance, features, and functionality of Beta Products (“Test Observations”). AWS Elemental will own and may use and evaluate all Test Observations for its own purposes. You will not use any Test Observations except for your internal evaluation purposes of any Beta Product. Test Observations, Suggestions concerning a Beta Product, and any other information about or involving (including the existence of) any Beta Product are considered AWS Elemental Confidential Information.
5.7 Unless expressly authorized by us in writing (e.g., by issuing a Sales Quotation to convert your Beta Product to a Product for purchase): (a) you understand and agree that you will not be allowed to retain possession of any Beta Products that are provided to you beyond the Beta Period, and (b) if you wish to purchase any Products, you must return the Beta Products to us in accordance with Section 5.7, and we will sell you Product(s) as a separate transaction under the Agreement (provided such Beta Product has become generally available for purchase).
5.8 You agree that we may suspend or terminate your right and license to use the Beta Products immediately upon notice to you (email to suffice) at any time at our sole discretion. Upon any such notice of suspension or termination by us, you agree that you will promptly return the Beta Product to us in accordance with the return and destruction procedures set forth in this Section 5.8. You agree to return the Beta Products and any accompanying Documentation to us within thirty (30) days following the expiration or termination of the Beta Period. Any Beta Product must be returned to us in the same condition as when delivered to you (reasonable wear and tear excepted), in the original AWS Elemental packaging. You will contact us at email@example.com_ (mailto:firstname.lastname@example.org) to arrange for the return of any Beta Product and follow the “Return Materials Authorization” instructions and procedures we provide. 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 risk of loss will transfer from you to us upon our receipt of same. You agree that you are solely responsible to ensure that all Your Content is completely erased from any Beta Products prior to returning the Beta Products to us. If the Beta Products are not promptly returned to us after reasonable notice, or are returned other than in the condition delivered to you (less reasonable wear and tear), you agree to pay to us, in accordance with the applicable provisions of the Agreement, (i) the list price of the Beta Products or the difference between such price and the diminished value upon return (as applicable), and (ii) any applicable Indirect Taxes associated with the payment of such fees.
5.9 WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT OR THE PRODUCT TERMS, BETA PRODUCTS ARE NOT BE READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, OR DEFECTS. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR THESE PRODUCT TERMS, AWS ELEMENTAL IS PROVIDING THE BETA PRODUCTS TO YOU “AS IS.” AWS ELEMENTAL AND ITS AFFILIATES AND LICENSORS MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE BETA PRODUCTS, INCLUDING ANY WARRANTY THAT THE BETA PRODUCTS WILL BECOME GENERALLY AVAILABLE, BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, AND EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. THE FOREGOING DISCLAIMERS AND LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. The Beta Products are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as any application in which the failure of the Products could lead directly to death, personal injury, or physical or property damage (collectively, “High-Risk Activities”). We expressly disclaim any express or implied warranty of fitness for High-Risk Activities.
5.10 IN NO EVENT WILL WE, OUR AFFILIATES OR OUR LICENSORS BE LIABLE FOR ANY LOSS OF YOUR CONTENT OR OTHER DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO ANY BETA PRODUCT(S), HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, AND OUR, OUR AFFILIATES, AND OUR LICENSORS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING FROM OR IN RELATION TO ANY BETA PRODUCT(S) SHALL NOT EXCEED $1,000.00 USD
6. AWS Storage Gateway Appliances
6.1 “AWS Site” means http://aws.amazon.com (and any successor or related site designated by us), as may be updated by us from time to time.
6.2 “AWS Storage Gateway” means the AWS Storage Gateway service described on the AWS Site.
6.3 “Storage Gateway Appliance” means an Appliance that you purchase from us that is pre-installed with AWS Storage Gateway.
6.4 AWS Storage Gateway is an AWS Service. Your access to and use of AWS Storage Gateway is governed by your AWS Agreement. Your purchase and use of the Storage Gateway Appliance is governed by the AWS Elemental Appliances and Software Terms of Service and not any other separate written agreement. AWS Storage Gateway is neither Software nor a Service under the Agreement, and therefore is not subject to the EULA. AWS Storage Gateway and the Storage Gateway Appliance are not subject to Service Plans.
6.5 We may revise or discontinue Storage Gateway Appliances at any time in a notice or other announcement on the AWS Site or as otherwise set forth in the Agreement.
6.6 Section 10.1 of the AWS Elemental Appliances and Software Terms of Service does not apply to your purchase and use of Storage Gateway Appliances. Storage Gateway Appliances may come with hardware support and a hardware warranty as set forth in the description of Storage Gateway Appliances on the AWS Site. AWS provides support through AWS Support as described on the AWS Site. Details on how to sign up for AWS Support can be found on the AWS Support website at https://aws.amazon.com/premiumsupport/ (and any successor or related site designated by us), as may be updated by us from time to time.
6.7 The Documentation for Storage Gateway Appliances may include Product Specification Sheets, Data Sheets and User Guides that we provide to you via the AWS Site.
7. Professional Services
7.1 “Professional Services” are installation, configuration, and related services for the Products, and are “Services” for purposes of the Agreement. An Order for Professional Services is listed on a Sales Quotation as either ‘PS-FF’ or ‘PS-FF-NS. AWS Elemental will invoice you the charges for Professional Services upon completion. You consent to receiving invoices via email.
7.2 For any Order that includes ‘PS-FF-NS, you must enter into a separate written statement of work (“SOW”) which will describe the scope of Professional Services to be provided, applicable charges, and any applicable additional terms and conditions. AWS Elemental or any of its Affiliates may enter into SOWs with you. Each SOW will be made a part of either the Agreement or your AWS Agreement, as indicated in the applicable SOW.
7.3 For any Order for “PS-FF”, AWS Elemental will provide the following Professional Services:
- Complete appliance and operating system start-up, including IP address and host name configurations.
- Complete AWS Elemental Software provisioning, including version and license verification.
- Test all graphical user interfaces (GUIs) and connectivity to upstream and downstream devices.
- Configure encoding jobs, channel line-ups, streaming profiles and redundancy.
- Test end-to-end workflow with external 3rd party systems (if available), provided, however, you are solely responsible for any performance or integration issues to AWS Elemental Products caused by 3rd party systems.
- Generally available AWS Elemental Software will be implemented. Any requirement for functionality not included within the latest generally available Software is out of scope.
7.4 AWS Elemental is not required to deliver any Professional Services unless you provide the following customer deliverables:
- Complete the physical installation of AWS Elemental Appliance, virtual or third-party hosts, including racking, cabling, power and cooling.
- Provide encoding source, input, and output information.
- Verify connectivity to source and destinations endpoints for all AWS Elemental workflows.
- Assign and document of all necessary network addressing.
- Verify connectivity to applicable external or 3rd party systems (provided, however, you are solely responsible for any performance or integration issues to AWS Elemental Products caused by 3rd party systems).
- Provide point(s)-of-contact and suitable working environment for AWS Elemental personnel to any facilities or systems required while on premise.
7.5 AWS Elemental will provide Professional Services in a professional manner, and will use skilled and experienced resources. If AWS Elemental fails to do so, then as your sole remedy, AWS Elemental will at its option and upon receipt of written notice from you (email sufficient) detailing such non-conformance within ten (10) business days of work being performed, refund the charges for non-conforming Professional Service(s) or re-perform them until they are so performed.
7.6 AWS Elemental does not provide legal or compliance advice. You are responsible for making your own assessment of whether your use of the Services meets applicable legal and regulatory requirements. You represent and warrant that you have all rights necessary to authorize AWS Elemental to provide the Professional Services.
7.7 AWS Elemental will invoice you the charges for Professional Services upon completion. You consent to receiving invoices via email.