AWS Elemental Appliances and Software Product Terms
Last Update: March 2, 2023
The Product Terms below govern your purchase and/or use of Products and Services from AWS Elemental or third parties. Capitalized terms used in these Product Terms but not defined below are defined in the Agreement.
1. Universal Terms (Applicable to all Products & Services)
1.1. You are only permitted to resell Products and Services if you have a separate written agreement with AWS Elemental expressly authorizing you to resell Products and Services.
1.2. AWS Elemental does not provide configuration, support, testing, or maintenance services relating to third-party products or services. AWS Elemental is not responsible for any performance or operating issue caused if a Product is integrated or interacts with a third-party product or service, or the operating system is modified (without our prior written approval) on any appliance running Software, and we may withhold support and warranty service.
1.3. AWS Elemental does not provide legal or compliance advice, and you are responsible for making your own assessment of whether your use of Products and Services meets applicable legal and regulatory requirements.
1.4. The Products and Test 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.
1.5. From time to time, we may apply upgrades, patches, bug fixes, or other maintenance to select Products (“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.
1.6. As part of providing you with Services, 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 may also request that AWS Elemental remotely access your Products and systems to assist in troubleshooting. We will only do so with your consent and on your instruction. We may use information about how you use and interact with the Products and Services to improve, maintain, and support those Products and Services.
1.7. AWS Elemental or its Affiliates may provide you with code samples, test software, proofs of concept, or similar technology in connection with the Products and Services or on the AWS Elemental Site (“Test Software”). Test Software is not a “Product” for the purposes of the Agreement. Test Software is licensed under this Section 1.7 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 Products and Services. Except as provided in this Section 1.7, 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 this Section 1.7 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.
1.8. AWS Elemental complies with extended producer responsibility (EPR) regulations in various countries. More information, including take-back instructions and country-specific registration numbers, is available here.
2. AWS Elemental Link
2.1. AWS Elemental Link is available for purchase from certain authorized resellers (“Authorized Distributor”). To ensure that the AWS Elemental Link that you purchase from an Authorized Distributor arrives configured to 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.
2.2. Your use of AWS Elemental Link requires you to access AWS Services and have an AWS Account, and your use of AWS Services in connection with AWS Elemental Link will be governed by the terms of your AWS Agreement. Your use of AWS Services, in connection with the AWS Elemental Link, may be configured to an available AWS region and you are solely responsible to confirm availability of AWS Services in your nominated AWS region prior to your purchase of AWS Elemental Link.
2.3. AWS Elemental Link may come with a Limited Hardware Warranty, as may be updated by us from time to time. Any Service Plan you purchase for Products does not include coverage for AWS Elemental Link.
3. AWS Elemental Media Event Management (MEM)
3.1. MEM Services are described at https://aws.amazon.com/media-services/resources/mem/ and in your engagement summary, and do not include installation, configuration, administration, performance, operation, error, fault, or defect resolution or other support and maintenance of AWS Elemental Products, AWS Services, or third-party products.
3.2. You are also solely responsible for carrying out any advice or recommendations we provide as part of MEM Services.
3.3. Payments for MEM Services are not refundable, and your sole remedy is for AWS to re-perform the relevant MEM Services, provided that you must notify us of any failure within 10 business days of the original date of performance. We will invoice you in the manner set forth on your engagement summary.
4. Support Services and Professional Services
4.1. When you order Support Services, AWS Elemental will provide them in accordance with the Service Plan. Your Order will state how AWS Elemental will invoice you for your purchase of Support Services.
4.2. When you order Professional Services, AWS Elemental will provide them in a professional manner, and will use skilled and experienced resources (including, in some circumstances, third party contractors). You will be invoiced the charges for Professional Services upon completion. For any Order that includes ‘PS-FF’, AWS Elemental will provide standard Professional Services, the scope of which is set out on the Sales Quotation. For any Order that includes ‘PS-FF-NS', you must enter into a separate written statement of work which will describe the Professional Services we will provide, applicable charges, and any additional terms.
4.3. If AWS Elemental fails to provide Professional Services in a professional manner, you must provide written notice of such non-conformance (email sufficient). As your sole remedy, AWS Elemental will at its option and within ten (10) business days of work being performed, refund the charges for non-conforming Professional Services or re-perform them.
4.4. You may have the option to receive select Services on-site at your designated location, subject to availability and confirmation by AWS Elemental. You are responsible for ensuring that on-site Services are available at your desired location prior to purchase, which you can check via contacting AWS Elemental.
4.5. For AWS Elemental to perform the relevant Professional Services, you must:
(a) Complete the physical installation of AWS Elemental Appliance, virtual or third-party hosts, including racking, cabling, power, and cooling;
(b) Provide encoding source, input, and output information;
(c) Verify connectivity to source and destinations endpoints for all AWS Elemental workflows;
(d) Assign and document all necessary network addressing;
(e) Verify connectivity to applicable external or third-party systems; and
(f) Provide point(s)-of-contact and a suitable working environment for AWS Elemental personnel to any required facilities or systems.
5. Panorama & Storage Gateway
5.1. AWS Storage Gateway and AWS Panorama are separate AWS Services. Your access to and use of AWS Storage Gateway, AWS Panorama, and Panorama Appliance are governed by the terms of your AWS Agreement and the AWS Panorama Device Terms.
5.2. Your purchase of the Storage Gateway Appliance and Panorama Appliance are governed by the AWS Elemental Appliances and Software Terms of Service as modified by this Section 5.
5.3. AWS Storage Gateway, the Storage Gateway Appliance, AWS Panorama, and the Panorama Appliance are not subject to the EULA, nor eligible for Services, the Limited Hardware Warranty or any discounts or marketing benefits offered by AWS Elemental. The Storage Gateway Appliance and Panorama Appliance may come with hardware support and a hardware warranty as set forth in the description of Storage Gateway Appliances on the AWS Site and the AWS Panorama Device Terms. AWS provides support through AWS Support as described on the AWS Site.
5.4. Applicable Documentation for Storage Gateway and Panorama Appliances is available on the AWS Site and in the AWS Panorama Device Terms.
6. Beta Products and Evaluations
6.1. You must comply with all terms related to any Beta or Evaluation Product (collectively “Test Products”) made available to you by AWS Elemental. Your right to use the Test Products begins upon your receipt of the Products at the Destination (defined in Section 6.6) and continues for 60 days unless otherwise agreed between the parties in writing (the “Test Period”). Subject to your compliance with the Agreement, there is no charge to you for use of the Test Products during the Test Period. Unless expressly authorized by us in writing, you must return the Test Products to us at the end of the Test Period and we will sell you Products for production or commercial use as a separate transaction under the Agreement. Test 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 Test Products and Service Plans do not apply to your use of Test Products.
6.2. We grant you a personal, limited, non-transferable, non-assignable, non-exclusive, revocable right and license to use the Test Products for the duration of the Test Period and solely for your internal testing, trial, or evaluation purposes, and not for any production or commercial purposes. The rights and restrictions set out in 8.3 of the Agreement apply to your use of Test Products. You will not, and will not permit, any other party to: (i) sell, rent, license, lend, or otherwise transfer the Test Products to any third party; ((ii) analyze, use or otherwise access the Test Products to build a similar or competitive product or service or to copy its features or functionality; (iii) analyze or use the Test Product for any benchmarking study or other competitive purposes; or (iv) download or add any third-party software application onto a Test Product.
6.3. You (i) will be solely responsible for the installation and use of the Test Products; (ii) will be responsible for any loss or damage to the Test Products from the time the Test Products are delivered to you until the time the Test Products are returned to us; (iii) may not relocate any Test Products to, or use any Test 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 Test Products. We do not transfer title to Test Products.
6.4. Your use of Software on the Test Products is subject to the EULA, and any related Documentation or instructions supplied by us. Test Products are not subject to the Limited Hardware Warranty or the Link Hardware Warranty.
6.5. You may provide AWS Elemental with information relating to your access, use, testing, or evaluation of Test Products, including Suggestions or observations or information regarding the performance, features, and functionality of Test 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 Test Product. Test Observations and any other information about or involving (including the existence of) any Beta Product are considered AWS Elemental Confidential Information.
6.6. AWS Elemental will deliver Test Products under EXW (Incoterms 2020), by making the Products available at the Shipping Origin. Test Products may not be available for shipment upon Order, and AWS Elemental is not liable for any delay in shipment of a Test Product. You authorize us to select the carrier to transport the Test Product from the Shipping Origin to the location(s) specified by you in your Order (“Destination”). You agree to:
(a) Provide us with all necessary information to permit the carrier to transport the Test Products to the Destination;
(b) If the Destination is outside the United States of America, we will arrange for delivery of Test Products to your Destination under ATA Carnet or other VAT-exempt temporary import scheme available in your jurisdiction (“Carnet Entry”);
(c) Be the importer of record for the shipment of the Test 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
(d) 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 Test 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.
6.7. If you are permitted to resell Products in accordance with Section 1.1, you may use the Evaluation Products for demonstration, testing, trial or evaluation purposes for your prospective customers (“End Customer”), subject to: (A) entering into an agreement with each of your prospective End Customers governing their use of and access to the Evaluation Products (an “End Customer Agreement”) that (a) 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 Test Period, (b) requires the End Customer to maintain the Evaluation Product at the physical location to which it is delivered to End Customer, (c) is consistent with the terms of this Agreement, and (d) requires that the End Customer accessing the Evaluation Product 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 agree to the End Customer Agreement in a manner that is legally enforceable. You will not re-export or trans-ship any Evaluation Product using the ATA Carnet under which the Evaluation Product was imported into the jurisdiction of the reseller’s Destination.
6.8. We may suspend or terminate your right and license to use the Test Products immediately upon notice to you (email to suffice) at any time in our sole discretion. Upon any such notice, you will return the Test Products and any accompanying Documentation to us within thirty (30) days following the expiration or termination of the Test Period. Any Test 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 to arrange for the return of any Test Product and follow the “Return Materials Authorization” instructions and procedures we provide. Section 2.7 of the Agreement applies to any digital or tangible property you return to us under this Section 6.8. You are solely responsible to ensure that all Your Content is completely erased from any Test Products prior to returning to us. If the Test 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 (i) the list price of the Test 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. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR THESE PRODUCT TERMS, AWS ELEMENTAL IS PROVIDING THE TEST PRODUCTS TO YOU “AS IS.” AWS ELEMENTAL AND ITS AFFILIATES AND LICENSORS MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE TEST PRODUCTS, WILL 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;
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 TEST PRODUCTS, 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 TEST PRODUCTS SHALL NOT EXCEED $1,000.00 USD.
7.1. “AWS Elemental Link” means the Products of same or similar name described in Documentation on the AWS Elemental Site.
7.2. “AWS Panorama” means the AWS Panorama service described on the AWS Site.
7.3. “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.
7.4. “AWS Site” means http://aws.amazon.com (and any successor or related site), as may be updated from time to time.
7.5. “AWS Storage Gateway” means the AWS Storage Gateway service described on the AWS Site.
7.6. “Beta Products” means certain Products that AWS Elemental makes available to you that are not generally available, including any Products labelled or identified as “beta”, “preview”, “pre-release”, or “experimental”,
7.7. “Evaluation Products” mean Appliances and Software that AWS Elemental loans you solely for your internal evaluation or another temporary use approved by us in writing.
7.8. “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.
7.9. “Professional Services” are installation, configuration, and related services for the Products, and are Services” for the purposes of the Agreement. An Order for Professional Services is listed on a Sales Quotation as either ‘PS-FF’ or ‘PS-FF-NS’.
7.10. “Storage Gateway Appliance” means an Appliance that you purchase from us that is pre-installed with AWS Storage Gateway.