AWS Resale Terms

This Amazon Web Services Resale Agreement (“Agreement”) is made between Bash9 Technologies LLC (and any of its Affiliates) (“Bash9”) and the Client obtaining the AWS Services through Bash9  (“Client”) and sets out the terms and conditions for the purchase and sale of AWS Services through Bash9. Bash9  and Client are individually referred to as a “Party” and collectively as the “Parties”. In consideration of the mutual promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.

a. “AWS” means Amazon Web Services, Inc., the manufacturer, distributor, licensor, and/or provider of the AWS Services resold to Client by Bash9.

b. “AWS Site” means http://aws.amazon.com and any successor or related site designated by AWS, and may include the AWS Management Console and/or the application programming interface.

c. “AWS Services” means the products and services that Bash9  is authorized to resell from AWS, including, but not limited to, hardware, software, updates, bug fixes, professional services, maintenance, support, and warranty services, and renewal orders of the foregoing.

d. “End Customer Account Model” means the account model under which Bash9  offers the AWS Services to the Client via the Client’s AWS Accounts.

e. “Solution Provider Account Model” means the account model under which the Client links its AWS accounts with a Bash9  AWS Payer Account.

2. Reseller Only.

Client acknowledges and agrees that: (i) the AWS Services purchased by Client are resold by Bash9  for Client’s use only (unless otherwise stated in the AWS Service Terms, as defined in Schedule A); and (ii) The AWS Services are licensed by AWS, and Bash9  is not an agent or representative of AWS and is not the creator, manufacturer, distributor or licensor of the AWS Services. In purchasing the AWS Services, the Client is relying on AWS’s specifications only and is not on any statements, documents, or specifications that may be provided by Bash9.

3. AWS Account Models.

The client may select the End Customer Account Model, the terms applicable to which are outlined in Schedule A, or the Solution Provider Account Model, the terms applicable to which are outlined in Schedule B. If the Client requests any AWS Services, whether by sending a written order or email to Bash9  or by provisioning such AWS Services directly within the AWS and/or Bash9  online portal(s) (each, an “Order”), this Agreement and the terms of the applicable Schedule shall govern.

 

4. Fees and Payment.

a. The fees for the AWS Services are calculated by Bash9  based on the Client’s measured usage of the AWS Services and the price rate publicly posted by AWS at aws.amazon.com. Price rates are subject to change by AWS without notice. Notwithstanding the quantity of AWS Services that may be indicated in an Order, such quantity is an estimate only, and the Client’s invoice will be based on the actual consumption of the AWS Services. Usage reports generated by AWS upon which invoices are based shall be deemed final.

b. Provided Client has approved credit terms with Bash9, Client shall pay the invoice for the AWS Services within thirty (15) days of the invoice date. These payment terms shall apply notwithstanding any separate agreement between the Parties containing different payment terms. Payments shall be made in the currency that is billed by Bash9.

c. During the Term, Bash9  may request that Client set up a credit card as a secondary payment source on the Client’s AWS account.

d. Any disputed fees must be brought to Bash9 ’s attention within ten (10) business days of the invoice date, otherwise, fees are deemed accepted. The client is responsible for any applicable sales, use, or other taxes, or federal, provincial, state, or local fees or assessments associated with its purchase of AWS Services. Bash9  may charge interest at 5% per month on all late payments.

e. Client’s right to Order additional AWS Services shall be subject to credit limits established by Bash9. From time to time as Bash9  may deem necessary, the Client agrees to cooperate with Bash9  and provide such information as reasonably required for Bash9  to perform a credit check. If Bash9  is not satisfied with the results of such credit check, Bash9  may, without penalty, terminate the Agreement upon notice to the Client.

f. Entities which are controlled by or under common ownership (“Affiliates”) with Client may enter into Orders provided that Client and such Affiliate shall be jointly and severally liable for all obligations of Affiliate in relation to such Order.

5. Provisioning AWS Services.

The client acknowledges and agrees that the Client is responsible for charges incurred for AWS Services provisioned to their AWS account and that the Client is responsible for managing access rights to its AWS account. Bash9  is not responsible for Client errors in provisioning or de-provisioning AWS Services.

6. Support.

While support is not mandatory, obtaining AWS or Bash9  support for the AWS Services is recommended. AWS Support is described at https://aws.amazon.com/premiumsupport/compare-plans/ as may be updated by AWS from time to time. Bash9  support options for AWS Services are described at https://www.bash9.io/memberships.

7. Dashboard.

As part of the AWS Services, Bash9  will provide the Client with access to its billing data through a third-party dashboard (the “Dashboard”). The client acknowledges that the Client’s usage and billing data is shared and stored with the third-party vendor of the Dashboard. The client continues to own all of its billing data, including the Client’s information within the Dashboard. The Dashboard is provided for informational and internal business purposes only.

 

8. Term and Termination.

a. The term of the AWS Services shall commence on the date the AWS account(s) are either initiated by or transferred under Bash9 ’s payer account (the “Effective Date”) and continue in full force and effect until termination. The AWS Services are provided on a month-to-month basis. Invoices may be prorated

based on when the AWS Services are on-boarded and off-boarded.

b. Either Party may give notice of termination at any time, such termination to be effective either: (i) the last day of the current calendar month if the written notice of termination was received by the other Party a minimum of thirty-five (35) days before the end of such calendar month; or (ii) the last day of the following calendar month if written notice of termination was received by the other Party with less than fifteen (15) days left in the current calendar month.

c. Termination/Suspension of AWS Services. Bash9  may by written notice terminate or suspend Client’s right to access all or some of the AWS Services provided hereunder as of the date specified in such notice upon:

i. Client’s failure to pay Bash9  any amount required to be paid under this Agreement for more than fifteen (15) days;

ii. Client’s violation of any obligations under this Agreement that remains uncured for a period of fifteen (15) days from receipt of the notice; or

iii. in the event Bash9  is no longer a Reseller of the AWS Services or is required by AWS to terminate certain AWS Services.

d. Rights and Obligations upon termination or suspension. To the extent Client’s access to the AWS Services is terminated or suspended, Client acknowledges and agrees that:

i. it shall remain responsible for all fees and charges incurred through the date of suspension or termination, including fees and charges for in-process tasks completed after the date of suspension or termination; and

ii. it shall remain responsible for any applicable fees and charges for any AWS Services to which it continues to have access.

9. CONFIDENTIALITY AND PRIVACY.

a. To the extent that confidential and proprietary information of a Party (“Confidential Information”) is exchanged and received in connection with the AWS Services, the receiving party agrees to maintain the confidential nature of the Confidential Information of the disclosing Party in its possession by taking reasonable steps to protect such Confidential Information from unauthorized use, access and disclosure; such steps shall be at least equal to those taken by the receiving Party to protect its own Confidential Information. Confidential Information does not include: (i) information that was publicly available at the time of disclosure or that becomes publicly available other than by a breach of this provision by the receiving Party; (ii) information previously known by or developed by or for the receiving Party without use of or access to the Confidential Information of the disclosing Party; or (iii) information that the receiving Party rightfully obtains without restrictions on use and disclosure. The receiving Party may disclose the Confidential Information of the disclosing Party to its or its Affiliates’ employees and AWS provided that such party has a need to know and is required to maintain the confidentiality of such information on terms no less stringent than those contained in this Section.

b. “Personal Information" means the information provided by Client to Bash9  or to which access is provided to Bash9  by or at the direction of Client that: (i) identifies or can be used to identify an individual (including names, signatures, addresses, telephone numbers, e-mail addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including employee identification numbers, government-issued identification numbers, financial account numbers, or other personal identifiers). Personal Information shall be deemed Confidential Information hereunder. For the avoidance of doubt, the Client’s business contact information shall not by itself be deemed to be Personal Information. To the extent Client provides Bash9  with Personal Information, Client consents to allow AWS to collect, process, and use such Personal Information for purposes of the business relationship between the parties, or marketing and providing the AWS Services to Client. To the extent Client uses AWS Services that include one or more third-party solutions, AWS may disclose to the applicable third party solution provider information associated with Client’s use of the third-party solution. Client warrants it has right to provide such information under applicable laws and each party agrees that it shall comply with its respective obligations under applicable data protection legislation.

10. Indemnification from Client.

The client will defend, indemnify, and hold harmless Bash9, its Affiliates and licensors, and each of their respective officers, and directors from and against any losses arising out of or relating to any third party claim concerning: (a) breach by Client of any of its obligations under this Agreement; (b) violation by Client of any applicable law, rule or regulation.

11. DISCLAIMER AND LIMITATION OF LIABILITY.

a. Bash9 PROVIDES NO INDEMNITIES, WARRANTIES, OR REPRESENTATIONS IN CONNECTION WITH THE AWS SERVICES WHETHER EXPRESS OR IMPLIED, IN FACT, OR IN LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. SUCH WARRANTIES, IF ANY, ARE PROVIDED BY AWS DIRECTLY. Bash9 SHALL NOT BE LIABLE FOR DELAYS OR FAILURE OF AWS TO PROVIDE AWS SERVICES.

b. EXCEPT FOR CLIENT’S PAYMENT OBLIGATIONS AND INDEMNIFICATION OBLIGATIONS, EACH PARTY’S TOTAL AND AGGREGATE LIABILITY FOR ANY LOSS, DAMAGE, COST, OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH THE AWS SERVICES OR THIS AGREEMENT IS HEREBY LIMITED TO A MAXIMUM OF THE DOLLAR AMOUNT PAID BY CLIENT IN THE THREE (3) MONTHS BEFORE THE LIABILITY AROSE.

c. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES, DAMAGES OR EXPENSES OF ANY KIND, OR FOR BUSINESS INTERRUPTION OR DOWNTIME, LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEMS OR NETWORKS, OR THE RECOVERY OF SUCH, THE AVAILABILITY OF THE AWS SERVICES, LOST REVENUE, LOST PROFITS, LOST SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF IT HAD BEEN ADVISED OF THEIR POSSIBLE EXISTENCE OR EVEN IF REASONABLY FORESEEABLE.

12. Miscellaneous.

a. Choice of Law. For Clients in the United States of America, this Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of laws rules. The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the State of  Delaware and the federal courts located therein. In either case, the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. For Clients in Canada, this Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of laws rules. The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario and the federal courts located therein.

b. Bash9  is an independent contractor. Nothing contained in this Agreement creates a partnership, joint venture, employer/employee, principal-and-agent, or any similar relationship between the Parties. If any provision is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof, and all other remaining provisions or parts thereof shall continue in full force and effect. Any provision of this Agreement that imposes an obligation after termination or expiration of the Agreement shall survive the termination or expiration of this Agreement. No waiver of or failure to exercise any option, right, or privilege hereunder shall be construed as a waiver of any other option, right, or privilege. Neither Party may assign this Agreement or any rights or obligations under this Agreement to a third party without the express wrote consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided however that Bash9  may, without the consent of Client, assign this Agreement to any person or entity directly or indirectly controlling, controlled by, or under common control with Bash9 . This Agreement (and applicable Schedule) contain the complete agreement between the Parties relating to the subject matter hereof and supersede all prior negotiations, representations, and understandings.

SCHEDULE A – END-CUSTOMER ACCOUNT-MODEL TERMS

In addition to the terms and conditions outlined in the Agreement, the following terms shall apply for Clients who have selected the End Customer Account Model. In the event of a conflict between the Agreement and this Schedule, the terms of this Schedule shall apply, except for terms related to fees, payment, pricing, and tax terms for use of the Services, which are superseded by the Agreement.

1. Use of AWS Services. Client acknowledges that its rights to and use of the AWS Services is subject to the AWS Customer Agreement between Client and AWS for Client’s access to and use of AWS Services, a current version of which is located at https://aws.amazon.com/agreement/ (the “AWS Customer Agreement”) and the terms and conditions applicable to the specific AWS Services selected by Client (the “AWS Service Terms”). The client hereby agrees to abide by the AWS Customer Agreement and the applicable AWS Service Terms.

2. Program Guide. The client shall review the AWS Program Guide for End Customers, a current version of which is located at https://s3-us-west 2.amazonaws.com/solution-provider-program-legal-documents/AWS+Solution+Provider+Program+-+Program+Guide+for+End+Customers.pdf.

3. AWS Interaction with Client. The client acknowledges that AWS has the right to (i) directly communicate and interact with the Client without Bash9’s participation, and (ii) terminate the Client’s ability to access and use the AWS Services following the terms of the AWS Customer Agreement. Nothing in this Agreement will prevent AWS or Client from exercising their rights and performing their obligations under the AWS Customer Agreement.

SCHEDULE B – SOLUTION PROVIDER ACCOUNT-MODEL TERMS

In addition to the terms and conditions outlined in the Agreement, the following terms shall apply for Clients who have selected the Solution Provider Account Model. In the event of a conflict between the Agreement and this Schedule, the terms of this Schedule shall apply.

1. Definitions.

a. “AWS Content” means Content AWS or its Affiliates make available in connection with the AWS Services or on the AWS Site to allow access to and use of the AWS Services.

b. “Content” means software (including machine images), data, text, audio, video, or images.

c. “Client Content” means Content that Client or any End User transfers to us for processing, storage, or hosting by the Services in connection with Client’s AWS account and any computational results that Client or any End User derive from the foregoing through their use of the AWS Services. For example, Client Content includes Content that Client or any End User stores in Amazon Simple Storage Service. Client Content does not include Account Information.

d. “End User” means any individual or entity that directly or indirectly through Client: (a) accesses or uses Client Content; or (b) otherwise accesses or uses the AWS Services under Client’s AWS Account.

2. Access rights.

a. Account Linking. The client will support Bash9  in linking the Client’s pre-existing AWS account to Bash9 ’s AWS Payer Account (the “Payer Account”) by performing operations in the AWS Management Console that confirm the AWS account is linked to the Payer Account for billing management purposes. b. Root Account Access. When a Client’s AWS account is created, it begins with a single sign-in identity that has complete access to all AWS services and resources in the account (the “Root Account”). Client’s Root Account credentials are required by Bash9  for initial onboarding to the Bash9  service, for offboarding from the service, and for Bash9  to request permission from AWS to conduct penetration testing (if required by Client). The client agrees that, per AWS best practices, Bash9  will have exclusive root-level access to the Client’s Root Account for the foregoing purposes. If these Terms apply to the Client’s pre-existing AWS account, then Client agrees to transfer its Root Account credentials to Bash9  for onboarding to Bash9  services. Bash9  associates a complex password with the Root Account credentials and stores the credentials in a password vault, which maintains an activity log to track access to the credentials. Bash9  turns on multi-factor authentication and associates a hardware token with the Root Account credentials. The hardware token is stored in a safe, access to which requires managerial approval. Any day-to-day activity by Bash9  is conducted with ReadOnly credentials created in the AWS Identity and Access Management (IAM) service.

c. Additional Access. The client agrees to cooperate with Bash9  in creating credentials that provide Bash9  read-only access to the Client’s AWS account, through roles defined in the AWS Identity and Access Management service, for Bash9  to access metadata such as usage data in order to calculate Client’s monthly invoice for AWS Services. Bash9  will not access Client data stored in Amazon EC2 or Amazon RDS instances, nor will it access Client data in AWS data storage and data warehouse services except as required to read AWS CloudTrail and AWS Config logs. Additional credentials may be required if the Client purchases other services such as Bash9  Keystone Managed Services.

d. Client Access to AWS Management Console. The client acknowledges that some parts of the functionality of the AWS Management Console may be restricted. For example, the Client may not have access to the Bash9 -facing billing dashboard and its associated features, or the ability to make reserved instance purchases.

e. Required AWS Service Activations. The client agrees that, following AWS best practices, the AWS CloudTrail and AWS Config will be active in the Client’s AWS Account. The client agrees that it shall maintain logs for AWS CloudTrail and AWS Config in its AWS account for a minimum period of one (1) year (on a rolling twelve-month basis). Bash9  will purge logs that are more than one (1) year old unless otherwise instructed by the Client.

3. Client Responsibilities.

a. Accounts. Except to the extent caused by Bash9 ’s breach of the Agreement, (a) Client is responsible for all activities that occur under Client’s AWS Account, regardless of whether the activities are authorized by Client or undertaken by Client, Client’s employees, or a third party (including Client’s contractors, Agents or End Users), and (b) Bash9  is not responsible for unauthorized access to Client’s AWS Account.

b. Client Content. The client will ensure that Client Content and Client’s and End Users’ use of Client Content or the AWS Services will not violate applicable law. The client is solely responsible for the development, content, operation, maintenance, and use of Client Content.

c. Client’s Security and Backup. The client is responsible for properly configuring and using the AWS Services and otherwise taking appropriate action to secure, protect, and backup the Client’s accounts and Client Content in a manner that will provide appropriate security and protection. This may include the use of encryption to protect Client Content from unauthorized access and routinely archiving Client Content.

d. Log-In Credentials and Account Keys. AWS log-in credentials and private account keys generated by the AWS Services are for Client’s internal use only and Client will not sell, transfer or sublicense them to any other entity or person, except that Client may disclose Client’s private key to Client’s agents and subcontractors performing work on Client’s behalf.

e. End Users. The client is responsible for its End Users’ use of Client Content and AWS Services. The client will ensure that all End Users comply with the Client’s obligations under this Agreement. If Client becomes aware of any violation of Client’s obligations under this Agreement caused by an End User, Client will immediately suspend access to Client Content and the AWS Services by such End User.

f. Export Sales. The client agrees that it will comply with all applicable import, re-import, export, and re-export control laws and regulations.

4. Restricted Regions.

The client acknowledges that these Terms do not confer rights to access AWS Regions or AWS Services that AWS does not permit Client to access. For example, these Terms do not confer rights to access the AWS Gov Cloud region if the Client is not authorized by AWS to access the AWS Gov Cloud region.