AWS Elemental Appliances and Software Product Terms

Last Updated: October 8, 2021

The following Product Terms apply to AWS Elemental Products and Services that you purchase or use from AWS Elemental or third parties. 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 governing your purchase and/or 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.

1.3 You may only resell AWS Elemental Products and Services if you have joined our reseller program, which you can inquire about at https://pages.awscloud.com/AWS-Elemental-Appliances-Software-ContactUs.html. The reseller program is governed by a different contract to the AWS Elemental Appliances and Software Terms of Service. Products that you purchase for resale are also subject to the relevant Product Terms on this page.  

1.4 We or any of our Affiliates may provide you code samples, test software, proofs of concept or similar technology in connection with the AWS Elemental Products and Services or on the AWS Elemental Site (including any of the foregoing that are provided by our personnel) (“Test Software”).  Test Software is not a “Product” for the purposes of the Agreement.

Test Software is licensed under Section 1.4 of the Product Terms and is not licensed under the EULA.  We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to copy and use Test Software solely in connection with your permitted use of the AWS Elemental Products and Services. Except as provided in this Section 1.4, you obtain no rights from us, our affiliates or our licensors to Test Software, including any related intellectual property rights. Some Test Software may be provided to you under a separate license, such as an open source license. In the event of a conflict between Section 1.4 of the Product Terms and any separate license, the separate license will prevail. In the event of a conflict between Section 1.4 of the Product Terms and any separate license, the separate license will prevail. Upon termination of your Agreement with us, we may instruct you to return or destroy Test Software in your possession. Test Software is provided as-is and is not supported by AWS Elemental or its Affiliates.

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 ("MEM") 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/. We provide MEM Services in material accordance with the MEM Services Documentation (including the MEM Engagement Summary).

3.2 Your Order for MEM 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 MEM Services are not refundable. Charges for MEM 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.

3.3 MEM 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 MEM are available at your desired location prior to purchase. We further reserve the right to cease providing on-site MEM Services in jurisdictions where we have previously provided such Services, as determined in our sole discretion, without liability.

3.4 In order to provide you MEM, we may request that you implement specific AWS Elemental Software updates and/or provide us with prompt and reasonable access to your AWS Elemental Products.  You are solely responsible for carrying out any 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 MEM Services meets those requirements. 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 Advanced Video Support Services
 
4.1. AWS Elemental Advanced Video Support Services (“AVSS”) must be ordered at least ninety (90) days before the date of the first event (as described in the AVSS engagement summary). We will invoice you annually in advance for your purchase of AVSS.  Payments for AVSS are not refundable. Charges for AVSS 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.

4.2 In order to provide AVSS, we may request that you implement specific AWS Elemental Software updates and/or provide us with prompt and reasonable access to your AWS Elemental Products.

4.3 This Section 4.3 incorporates by reference Sections 1.2, 1.4 - 1.8, and 1.11 of the AWS Elemental Service Plan, which will apply to your use of AVSS.

4.4   AWS Elemental reserves the right to charge you for support services performed outside the scope of the AVSS engagement summary as Professional Services.

5. AWS Elemental Link

5.1 “AWS Elemental Link” means the AWS Elemental Products of same or similar name described in Documentation available on the AWS Elemental Site.

5.2 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.

5.3 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. If you purchase an AWS Elemental Link from an authorized retailer, instructions on how to configure your AWS Elemental Link with your AWS Account are set out in the Quick Start Guide included in the box.  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.

5.4 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.

5.5 AWS Elemental Link Appliances may come with a limited hardware warranty, as set out 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.

5.6 An AWS Elemental Link may provide us or our Affiliates with performance information and log data concerning your use of the Appliance and its interaction with the AWS Services. These logs may be associated with your AWS Account ID, and we and our Affiliates may use these metrics to improve, maintain and provide products, support and other services. This information will be handled and processed in accordance with the Privacy Policy and the AWS Agreement, and it may be stored on servers outside the country in which you live.

5.7 AWS Elemental Links may be available for purchase from certain authorized resellers (“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.  

6. Beta Products

6.1 This Section 6.1 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”).

6.2 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.

6.3. 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.

6.4 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 be responsible for complying with all applicable import, re-import, export, and re-export control laws, including any applicable license requirements or other authorizations required for shipment 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.

6.5 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 6.5, (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.

6.6 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.

6.7 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 6.7, and we will sell you Product(s) as a separate transaction under the Agreement (provided such Beta Product has become generally available for purchase).

6.8 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 6.8. 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 elemental-logistics@amazon.com 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.

6.9 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.

6.10 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

7. AWS Storage Gateway Appliances

7.1 “AWS Site” means http://aws.amazon.com (and any successor or related site), as may be updated from time to time.

7.2 “AWS Storage Gateway” means the AWS Storage Gateway service described on the AWS Site.

7.3 “Storage Gateway Appliance” means an Appliance that you purchase from us that is pre-installed with AWS Storage Gateway.

7.4 AWS Storage Gateway is an AWS Service. Your access to and use of AWS Storage Gateway is governed by your AWS Agreement. Subject to Section 1.3, 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 or any discounts or marketing benefits offered by AWS Elemental.

7.5 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.

7.6 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 Elemental does not provide any separate warranty for Storage Gateway Appliances.  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.

7.7 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.

8. AWS Panorama Appliances

8.1 “AWS Site” means https://aws.amazon.com (and any successor or related site), as may be updated from time to time.

8.2 “AWS Panorama” means the AWS Panorama service described on the AWS Site.

8.3 “Panorama Appliance” means an appliance that you purchase from us that allows you to deploy computer vision applications and connects to the AWS Panorama service.

8.4 “AWS Panorama Device Terms” means https://aws.amazon.com/panorama/terms/ (and any successor or related site), as may be updated from time to time.

8.5 AWS Panorama is an AWS Service. Your access to and use of AWS Panorama and the Panorama Appliance are governed by your AWS Agreement and the AWS Panorama Device Terms. Subject to Section 1.3, your purchase of a Panorama Appliance via AWS Elemental is governed by the AWS Elemental Appliance and Software Terms of Service, AWS Panorama and the Panorama Appliance are not subject to the EULA, the Service Plans or any discounts or marketing benefits offered by AWS Elemental.

8.6 We may revise or discontinue Panorama Appliances at any time in a notice or other announcement on the AWS Site or as otherwise set forth in the Agreement.

8.7 Panorama Appliances may come with hardware support and a hardware warranty as set forth in the AWS Panorama Device Terms. AWS Elemental does not provide any separate warranty for Panorama Appliances. AWS may provide support for AWS Panorama or the Panorama Appliance through AWS Support, to the extent described on the AWS Site.

8.8 The Documentation for Panorama Appliances may include Product Specification Sheets, Data Sheets and User Guides that we provide to you via the AWS Site.

8.9 Security of the Panorama Appliance is detailed in the AWS Panorama Device Terms. If you have questions about information received by the Panorama Appliance, your use of personal information, or the security of the Panorama Appliance please see the AWS Panorama Device Terms. 

9. Professional Services

9.1 “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.

9.2 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.

9.3 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.

9.4 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 required facilities or systems.

9.5 AWS Elemental will provide Professional Services in a professional manner, and will use skilled and experienced resources (including, in some circumstances, third party contractors). 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.

9.6 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.

10. Evaluation Products

10.1 This Section 10 describes the additional terms and conditions under which we may loan you certain products (the “Evaluation Products”, which includes “Evaluation Appliances” and “Evaluation Software”) solely for your internal evaluation or another temporary use approved by us in writing (“Purpose”). You must comply with all terms applicable to Evaluation Products as posted in these Product Terms and otherwise made available to you as part of an Order.

10.2 Your right to use the Evaluation Products begins upon receipt at the Destination (defined below) and continues for a period of 60 days, unless otherwise agreed between the parties in writing (the “Evaluation Period”). Subject to your compliance with the Agreement, there is no charge to you for use of the Evaluation Products during the Evaluation Period. 

10.3 We hereby grant to you a personal, limited, non-transferable, non-assignable, non-exclusive, revocable right and license to use the Evaluation Products for the duration of the Evaluation Period and solely for the Purpose.  Your use of Evaluation Software is also subject to the EULA, and any related Documentation or instructions supplied by us. You will not, and will not permit any other party to: (i) sell, rent, license, lend, or otherwise transfer the Evaluation Products to any third party; (ii) reverse engineer, decompile, or disassemble the Evaluation Products; (iii) remove any proprietary notices or labels from the Evaluation  Products; (iv) analyze, use or otherwise access the Evaluation Products to build a similar or competitive product or service or to copy its features or functionality; or (v) download or add any third-party software application onto an Evaluation Appliance. We or our licensors own and retain all right, title, and interest in and to the Evaluation Products, and all related technology and intellectual property rights in the Evaluation Products.  Except as described in this Section 10, you obtain no rights to the Evaluation Products, including any related intellectual property rights.

10.4 We will deliver Evaluation Appliances EXW (Incoterms 2020) by making them available for carriage at our point of shipment within the United States (the “Shipping Origin”). Evaluation Products may not be available for shipment upon Order and we will have no liability for any delay in shipment of an Evaluation Appliance.  You authorize us to select the carrier to transport the Evaluation Appliances from the Shipping Origin to you at the location(s) specified by you in your Order, at our expense ("Destination").  As applicable, (i) you will 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 Evaluation 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 Evaluation 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 be responsible for complying with all applicable import, re-import, export, and re-export control laws, including any applicable license requirements or other authorizations required for shipment from the Shipping Origin to the Destination.  You acknowledge and agree that Carnet Entry prohibits the use of the Evaluation 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.

10.5 You (i) will be solely responsible for the installation and use of the Evaluation Products, (ii) will be responsible for any loss or damage to the Evaluation Products from the time the Evaluation Products are delivered to you until the time the Evaluation Products are returned to us in accordance with Section 10.7, (iii) may not relocate any Evaluation Products to, or use any Evaluation 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 Evaluation Products.  We do not transfer title to Evaluation Products; Evaluation Products are only licensed to you, not sold.  You will, at your expense, keep Evaluation Products free and clear of liens and encumbrances of any kind and shall immediately notify us if our interest in the Evaluation Products is subject to compromise.  You shall not remove, cover, or alter plates, labels, or other markings placed upon the Evaluation Products.

10.6 Unless expressly authorized by us in writing (e.g., by issuing a Sales Quotation to convert your Evaluation Product to a Product for purchase): (a) you understand and agree that you will not be allowed to retain possession of any Evaluation Products that are provided to you beyond the Evaluation Period, and (b) if you wish to purchase any Products, you must return the Evaluation Products to us in accordance with Section 10.7, and we will sell you new Product(s) as a separate transaction under the Agreement.

10.7 You agree to return the Evaluation Appliances to us and/or permanently delete  any Evaluation Software (including all backup copies, and accompanying Documentation) provided to you within thirty (30) days following the expiration of the Evaluation Period.  Upon our request, you will certify to us in writing your discontinued use and deletion of all Evaluation Software and related Documentation.  Any Evaluation Appliances 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 agree to contact us at elemental-logistics@amazon.com to arrange for the return of any Evaluation Appliance and follow the “Return Materials Authorization” instructions and procedures we provide.  For any digital or tangible property you return to us 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 are solely responsible to ensure that all Your Content is completely erased from any Evaluation Products prior to returning the Evaluation Products to us. If the Evaluation 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 Evaluation 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. 

10.8 We may terminate your right and license to use the Evaluation Products immediately upon notice to you (email to suffice) at any time at our sole discretion. Upon termination, you will immediately cease your use of and return the Evaluation Products in compliance with Section 10.7. 

10.9 This Section 10.9 applies if you are authorized in writing by AWS Elemental to resell Products and Services. Notwithstanding any limitation in Sections 10.3 of this Agreement, you may use the Evaluation Products for demonstration, testing, trial or evaluation purposes for your prospective customers (“End Customer”), subject to the following additional terms: you shall enter into an agreement with each of  your prospective End Customers governing the End Customers’ use of and access to the Evaluation Products (an “End Customer Agreement”) that (a) specifically limits the End Customer’s use of the Evaluation Product to internal, non-commercial evaluation and testing purposes for a period no longer than the Evaluation Period unless otherwise agreed in writing by AWS Elemental, (b) requires the End Customer to maintain the Evaluation Product at the physical location to which it is delivered to such End Customer, (c) is wholly consistent with the terms and conditions of this Agreement, and (d) requires that the End Customer accessing the Evaluation Software accepts and agrees to be bound by the EULA by including a clause  substantially in the form of the following: “By entering into this Agreement, you acknowledge that your use of the Evaluation Products is subject to the AWS Elemental EULA, a separate agreement between you and Elemental Technologies LLC.” You will ensure that End Customers expressly agree to the End Customer Agreement in a manner that is legally enforceable under, and in compliance with, the laws applicable to such End Customers.  You will not re-export or trans-ship any Evaluation Appliance using the ATA Carnet under which the Evaluation Appliance was imported into the jurisdiction of SI’s Destination. 

10.10 WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT OR THE PRODUCT TERMS, THE EVALUATION PRODUCTS ARE PROVIDED “AS IS,” AND WE MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE EVALUATION PRODUCTS 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 Evaluation 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.

10.11 You will release, indemnify, defend and hold harmless us, our Affiliates and licensors, and each of their respective officers, directors, employees, and agents against any claim, loss,  damage, settlement, cost, expense or other liability (including, without limitation, attorneys' fees) arising from or related to your or your End Customer’s use of the Evaluation Products.

10.12 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 EVALUATION 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 EVALUATION PRODUCT(S) SHALL NOT EXCEED $1000.00 USD.