This Lightstream AWS Customer Agreement, together with any attachments, schedules, services supplements, or service orders (collectively referred to herein as this "Agreement") contains the terms and conditions that govern access to and use any AWS Services (as defined below) provided through Lightstream Managed Services, LLC on behalf of itself and its affiliates and successors, and is an agreement between Lightstream Managed Services, LLC, with its principal offices at 208 North 2100 West, 2nd Floor, Salt Lake City, UT 84116 ("Lightstream"), and the customer whose name is specified in the "Company Name" field of the online Lightstream AWS Customer Agreement website ("Customer" or "you"). This Agreement takes effect when you click the "Submit Agreement" button or check box presented with these terms or, if earlier, when you use any of the AWS Services and/or MP Products as defined below (the "Effective Date"). You represent to Lightstream that you are lawfully able to enter into contracts (e.g., you are not a minor). You also represent to Lightstream that you are entering into this Agreement on behalf of the entity specified in the "Company Name" field of the online Lightstream AWS Customer Agreement website ("Customer"), and you represent to Lightstream that you have legal authority to bind Customer.
This Agreement, and specifically the AWS Customer Agreement Standard Terms and Conditions listed below (the "AWS Terms and Conditions"), which are incorporated herein by this reference, sets forth additional terms applicable to any contract for Services into which Customer enters with Lightstream. The AWS Terms and Conditions may be modified by Lightstream as provided herein
AWS Terms and Conditions
These Standard Terms and Conditions (these "AWS Terms and Conditions") are an integral part of the Lightstream AWS Customer Agreement (the "Agreement," the term "Agreement" includes these AWS Terms and Conditions) by and between Lightstream and Customer (each a "Party, and collectively the "Parties"), as those Parties are defined in the Agreement and shall be deemed accepted by, and binding upon, Customer in accordance with the terms of the Agreement.
1. Services. Lightstream is an authorized reseller of the services offered by Amazon Web Services, Inc. ("AWS"), such services, as available from time to time by AWS, are referred to herein as the "AWS Services" or "Services." All AWS Services that are linked to a Lightstream CBA (as defined in Section 3 below) are subject to the AWS Terms and Conditions in this Agreement. As requested by Customer Lightstream may assist with provisioning of new AWS Services, subject to the terms and conditions of this Agreement. Lightstream is also an authorized reseller of AWS Marketplace Products ("MP Products") which are provided by one or more third-party AWS Marketplace Sellers (each an "MP Seller" and collectively "MP Sellers"). MP Products purchased by Customer under this Agreement are subject to the AWS Terms and Conditions in this Agreement as well as to any licensing agreement, including without limitation, an EULA or AUP or other licensing agreement of the MP Seller. Except as expressly noted herein, any Customer obligations or authorizations with reference to AWS Services in this agreement shall also apply third-party MP Products. In addition to provisioning and reselling the AWS Services to Customer, Lightstream may provide Customer supplemental technical support, as well as web-based billing analytics software called Lightstream Connect (the provisioning and reselling of AWS Services, the customer and technical support provided by Lightstream with respect to the AWS Services, and any web-based software provided by Lightstream, including Lightstream Connect, are referred to herein as the "Lightstream Services;" the AWS Services and the Lightstream Services are collectively referred to herein as the "Services"), as set forth below, with respect to the AWS Services for the purposes of facilitating Customer’s transition to, and ongoing use of, the AWS Services. Additionally, Lightstream Connect is governed by the End User License Agreement for Lightstream Connect, which is incorporated herein by this reference, and a current copy of which is available at https://www.Ltstream.com/connect_eula.
2. Provisioning of Services.. All AWS Services subject to this Agreement must be approved by Lightstream in advance, unless such AWS Services require a commitment of only one month or less. Approval of all AWS Services provided under this agreement will be contingent upon Lightstream satisfactorily completing a review of the Customer for purposes of evaluating the extension of credit. Customer hereby authorizes Lightstream to gather information to assess payment and credit history of Customer and agrees to assist Lightstream with this review by providing information that is reasonably requested and agrees to assist Lightstream with periodic updates to such review during the Term of this Agreement. Any AWS Services provisioned by Customer directly through AWS that are NOT linked to and tracked by Lightstream within the CBA are not the responsibility of Lightstream and are not subject to this Agreement.
3. Authorization. Customer acknowledges that in order for Lightstream to provide the Lightstream Services, Customer's AWS Services must be linked to Lightstream's AWS consolidated billing account ("CBA"). Accordingly, Lightstream will be required to act on Customer's behalf to accomplish the foregoing. Customer authorizes Lightstream to take all acts necessary to provision or transfer requested AWS Services and accounts, including, without limitation, accessing existing Customer accounts with AWS, data setup, data migration, and AWS Services setup. This authorization will continue for the term of this Agreement and for the term of any transition period after the termination of this Agreement..
4.Account Management. Because AWS requires Lightstream Services to be provided through the use of a CBA, it is necessary for Lightstream to maintain certain reasonable controls over Customer's AWS account. These controls ensure that all AWS Services subject to this Agreement are approved and provisioned by Lightstream. Customer hereby authorizes such controls as follows.
a.Account Access. For all existing or new AWS accounts for which Customer is requesting Lightstream Services under this Agreement, these accounts must be linked to or set up under Lightstream's CBA. Customer will provide Lightstream with IAM access to these accounts, including an account login ID and password. Prior to making any changes to this IAM account login ID or password provided to Lightstream, Customer shall notify Lightstream via email of changes to be made. Such changes include the renaming of an account login ID, the changing of account password, or modifications to access rights of the login ID. For purposes of this Agreement, "IAM" shall have the meaning as defined by AWS on their website for the organization of multiple users and systems.
b.Outside Accounts. Customer may maintain or create AWS accounts outside of Lightstream's CBA. These accounts are not subject to this Agreement, Lightstream will not provide Lightstream Services to these accounts, and these accounts will be the sole and exclusive responsibility of Customer.
5.Lightstream Customer and Technical Support. The Lightstream Services provided to Customer pursuant to this Agreement are the following services: (a) consolidated billing and billing management and analysis of Customer's AWS Services; and (b) creation and maintenance of detailed billing and usage reports for all AWS Services used by Customer. Lightstream Services may additionally include: (x) technical support for the design and delivery of Customer's AWS infrastructure environment; and (y) supplemental support for the creation and maintenance of AWS IAM user/group configurations for access to Customer's AWS Service accounts.
6.Service Limitations. Customer acknowledges that AWS Services are provided exclusively by AWS and that third-party MP Products are provided exclusively by one or more MP Sellers. Lightstream does not, and cannot, provide AWS Services and MP Products other than as a reseller thereof. Accordingly, all AWS Services are the sole and exclusive responsibility of AWS and all MP Products are the sole and exclusive responsibility of MP Seller(s). Lightstream has no control over AWS or MP Sellers, the availability of AWS Services or MP Products (AWS or MP Sellers may change, discontinue, or deprecate any of the AWS Services or MP Products respectively or change or remove features or functionality of the AWS Services or MP Products from time to time), the security of AWS accounts or AWS Services or MP Products, or the maintenance of AWS Services or MP Products. AWS and/or MP Sellers may, in their sole discretion refrain from providing AWS Services or MP Products respectively to any state, country or region. Further, AWS and/or MP Seller may, in their sole discretion, limit the scope or availability of Lightstream Services provided with respect to AWS Services or MP Products respectively. Lightstream is not authorized to resell AWS Services or MP Products to any U.S. federal, state or local government entity, or equivalent government entity outside of the U.S., including wholly-owned government corporations, without AWS or MP Seller authorization respectively; accordingly, Customer represents they are not any such type of government or entity.
7. Incorporation of Third-Party Agreements. AWS maintains several agreements with respect to the provisioning and/or use of AWS Services (collectively the "AWS Agreements") which are available for review on AWS’s website at http://aws.amazon.com/legal. The AWS Agreements are between Customer and AWS. However, to the extent the AWS Agreements relate to the provisioning and/or use of AWS Services under this Agreement they are incorporated herein by this reference, including any future updates or additions thereto. To the extent one or more MP Product is used under this Agreement, all applicable agreements for MP Products ("MP Seller Agreements") so used are incorporated herein by this reference. Further, Customer’s compliance with the AWS Agreements and applicable MP Seller Agreements is a material condition of this Agreement and the Lightstream Services. Specifically, without limiting the generality of the foregoing, by entering into this Agreement Customer acknowledges that their use of the AWS Services and MP Products is subject to the AWS Customer License Terms and MP Seller Agreements respectively, which are separate agreements between Customer and AWS. A current version of the AWS Customer License Terms is located at: https://s3.amazonaws.com/Reseller-Program-Legal-Documents/AWS+Reseller+Customer+License+Terms.pdf.
a. Disclosures to Amazon Web Services. Lightstream is under contract to provide certain periodic disclosures to AWS regarding its customers. These disclosures include the nature and existence of this Agreement with Customer, the name and contact information (including contact name, telephone number, email address, city, state/region, county, and zip/postal code) of Customer, and the AWS account ID associated with Customer (collectively the "AWS Disclosures"). AWS will use the AWS Disclosures to enforce the AWS Customer License Terms and in connection with misuse or suspected misuse of the AWS Services by Customer, account monitoring, and any account transitions. Customer irrevocably authorizes and grants Lightstream the right to make the AWS Disclosures to AWS at such time or times as may be requested or desired by AWS or Lightstream, in their sole and absolute discretion.
b. Disclosures to AWS Marketplace Sellers. MP Products are not provided by AWS, but are sold through the AWS environment and are provided by one or more MP Seller or MP Sellers. If Customer purchases MP Products pursuant to this Agreement, Customer understands that Lightstream and/or AWS may disclose to the MP Seller the following information: (1) Customer's name, city, state/region, country, and zip/postal code, and (2) fees associated with Customer's use of MP Seller's products. By executing these terms and by purchasing MP Products, Customer expressly authorizes Lightstream and/or AWS to disclose the information herein described to any applicable MP Seller(s) as described in this paragraph.
9.Fees and Payment.
a.Fees. The fees for the Services are those fees as published by AWS on the AWS public website at http://aws.amazon.com, or for MP Products, as published on the AWS Marketplace website, such fees being incorporated herein by this reference. AWS and/or MP Sellers, each in their sole discretion, may change their respective fees to Lightstream at any time. Any increase in AWS or MP Seller fees will cause an immediate proportional increase in the fees under this Agreement (e.g. if AWS increases its fees by 5% on a particular AWS Service, the fees hereunder for such service will increase by 5%), effective as of the date of the AWS or MP Seller fee increase. Lightstream may increase the fees under this Agreement, in its sole discretion, upon thirty (30) days written notice to Customer. For the term of this Agreement, Customer is required to subscribe to a minimum of the "Business" tier of Premium support as described at: https://aws.amazon.com/premiumsupport.
b.Taxes. All fees and charges payable by Customer are exclusive of applicable foreign, U.S., state, local sales, or use, value added taxes or other transaction taxes (collectively "Taxes"). Lightstream may charge and Customer will pay all applicable Taxes that Lightstream is legally obligated to charge, including any back Taxes that Lightstream may have failed to charge to Customer. Customer may provide Lightstream with an exemption certificate acceptable to the relevant taxing authorities, in which case Lightstream will not collect the Taxes covered by such certificate. Customer will provide any information reasonably requested by Lightstream to determine whether Lightstream is obligated to collect Taxes from Customer. If any deduction or withholding is required by law, Customer will notify Lightstream and will pay any additional amounts necessary to ensure that the net amount that Lightstream receives, after any deduction and withholding, equals the amount Lightstream would have received if no deduction or withholding had been required. Additionally, if requested Customer will provide Lightstream with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
c.Billing. Lightstream calculates and bills fees and charges at least monthly. Lightstream may bill Customer more frequently for fees and charges accrued if it suspects Customer's account is fraudulent or at risk of nonpayment.
d. Payment. Billing statements and invoices are due on or before the due date printed on such statement or invoice. Customer will pay each invoice in full by the due date. Lightstream shall invoice Customer, and Customer shall remit payment to Lightstream in US dollars. If Customer has provided Lightstream with ACH information, for the term of this Agreement Customer irrevocably authorizes Lightstream use such information to process ACH payments for any outstanding invoices as they become due and owing. Any payments made after their due date are considered late ("Late Payments").. Customer agrees to pay a Late Payment charge equal to the lesser of: (a) one and one-half percent (1.5%) per month, compounded monthly, or (b) the maximum amount allowed by law, as applied against the past due amounts. Customer must give Lightstream written notice of a dispute with respect to Lightstream charges or application of taxes within thirty (30) days of the date of the invoice, or such invoice shall be deemed to be correct and binding on Customer. Customer shall not place any condition or restrictive legend, such as "Paid in Full," on any check or instrument used to make a payment, and if any such condition or restrictive legend shall have no effect. The Parties agree that the negotiation of any such check or instrument so inscribed shall not constitute an accord and satisfaction or novation, and Customer waives its right to assert any such defense. Customer shall be liable for the payment of all fees and expenses, including attorney's fees, reasonably incurred by Lightstream in collecting, or attempting to collect, any charges owed under this Agreement.
e. Deposit. Lightstream may require a deposit as security for the Services provided under this Agreement. A deposit may be required upon the execution of this Agreement or at some time during the term of this Agreement in the event Lightstream has reason to believe that a deposit is necessary to secure full and prompt payment for fees and charges that become due hereunder. In the event a deposit is so required, Lightstream may use such deposit to cover all fees and charges incurred and unpaid by Customer. Upon the termination of this Agreement any unused deposit will be refunded to Customer. Deposits will not accrue interest and will not be maintained in a separate or trust account.
10. Term and Termination.
a. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by Customer or Lightstream in accordance with Section 10.b.
i. Termination Upon Notice. Either party may terminate this agreement for any reason, or for no reason, upon ninety (90) days' notice to the other party.
ii. Termination for Cause. Either party may terminate this Agreement for cause upon thirty (30) days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the thirty (30) day notice period. Lightstream may terminate this Agreement immediately upon written notice if: (A) AWS terminates its relationship with Lightstream or otherwise terminates Lightstream's authority to carry out its obligations under this Agreement; (B) Customer's actions expose or threaten to expose Lightstream to any liability, obligation, or violation of law; (C) Customer breaches any of the AWS Agreements or MP Seller Agreements; (D) Lightstream or AWS determines use of the Services by Customer, or AWS's provision of the AWS Services has become impractical or unfeasible for any legal or regulatory reason; (E) Customer fails to make a payment in full to Lightstream when due; or (F) Customer has ceased to operate in the ordinary course of business, made an assignment for the benefit of creditors, or similar disposition of Customer's assets, or has become the subject of any bankruptcy or dissolution proceeding.
iii. Effect of Termination. Upon termination of this Agreement Customer remains liable and responsible for all fees and charges incurred by Customer through the date Customer's AWS and/or MP Seller accounts are no longer associated with Lightstream's CBA. Lightstream will reasonably cooperate in the transition of Customer's AWS accounts away from Lightstream's CBA. Once Customer's AWS accounts are separated Lightstream will have no further obligations to Customer. After termination Customer will be solely responsible to AWS for all AWS Services and to MP Sellers for all MP Products used by Customer and any term and reserved instance commitments thereto.
11.Indemnification. Customer will defend, indemnity, and hold harmless Lightstream and its affiliates, including their respective agents, employees, officers, directors, and representatives, from and against any liabilities, damages, losses, costs, attorney fees arising out of or relating to any third party claim, including a claim from AWS as a result of any action or inaction of Customer in violation of, or arising out of, this Agreement (including any breach of any representation or warranty contained herein), the AWS Agreements, or Customer's use or misuse of the AWS Services.
12.Security and Data Privacy. Security and Data Privacy is between Customer and AWS or MP Seller. Lightstream makes no representations or warranties, nor can it, regarding Customer's data security and privacy as these are in the sole control of Customer and AWS or MP Seller. AWS provides that Customer may specify the AWS region in which Customer's data is stored and accessed. Any such requests will be facilitated by Lightstream.
13.Proprietary Rights. Customer owns all right, title, and interest in and to its content. Lightstream will obtain no rights under this Agreement from Customer to its content, including any related intellectual property rights. Customer consents to Lightstream's use of its content to the extent necessary to provide the Services hereunder. Lightstream may disclose Customer's content only to the extent necessary to provide the Services or to comply with any request of a governmental or regulatory body.
14.Customer Responsibilities. Customer is solely responsible for properly configuring and using the AWS Services and MP Products and taking its own steps to maintain appropriate security, protection, and backup of its materials and data, including using encryption technology to protect its materials and data from unauthorized access and routinely archiving its materials and data. Customer is solely responsible for the development, content, operation, maintenance, and use of its content.
15.Customer Representations and Warranties. Customer represents and warrants to Lightstream and AWS that it, or its licensors own all right, title, and interest in and to the materials and data to be stored and provided to AWS through the AWS Services. Customer further represents and warrants that none of its materials or data, or any of its users' use of its materials or data, will violate AWS's Acceptable Use Policy.
16.Service Suspensions. AWS has the right to suspend Customer's AWS Services if they determine: (a) Customer or any of its users are in breach of the AWS Agreements; or (b) Customer or any of its users (i) pose a security risk to the AWS Services or to any other AWS Customers, (ii) may harm AWS systems or the systems, materials, or data of another AWS customer, or (iii) may subject AWS to any third party liability.
17.Compliance with Laws. Customer will adhere to all laws, rules, and regulations applicable to its use of the AWS Services, including all terms and conditions in the AWS Agreements.
18.Contact with Amazon Web Services. Only Lightstream may contact AWS for AWS support. Lightstream will handle all Customer support issues and Customer agrees not to contact AWS directly during the term of this Agreement. Notwithstanding anything to the contrary herein, Lightstream shall not at any time prohibit Customer from requesting support directly from AWS during the term of this Agreement, and Customer may request support directly from AWS so long as AWS permits such.
19.Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, LIGHTSTREAM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SERVICES. LIGHTSTREAM SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES; INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. AWS SERVICES AND MP PRODUCTS ARE PROVIDED BY AWS AND MP SELLER(S), RESPECTIVELY, "AS IS." AWS, ITS AFFILIATES AND ITS LICENSORS AND MP SELLER(S) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE AWS SERVICES, INCLUDING ANY WARRANTY THAT THE AWS SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, AWS, ITS AFFILIATES AND ITS LICENSORS AND MP SELLER(S) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
20.Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL THEORY OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, INDEMNITY, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, LIGHTSTREAM SHALL NOT BE LIABLE FOR ANY CLAIMS MADE AGAINST, OR LIABILITIES INCURRED BY, CUSTOMER AS A RESULT OF CUSTOMER'S ACTIONS IN VIOLATION OF THE AWS AGREEMENTS. THE TOTAL LIABILITY OF LIGHTSTREAM TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, FOR ANY AND ALL CAUSES OF ACTIONS AND CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, SHALL BE LIMITED TO THE LESSER OF: (A) DIRECT DAMAGES PROVEN BY CUSTOMER; OR (B) TWO MILLION DOLLARS ($2,000,000.00); OR (C) THE AMOUNT PAID BY CUSTOMER TO LIGHTSTREAM UNDER THIS AGREEMENT FOR THE ONE (1) MONTH PERIOD PRIOR TO ACCRUAL OF THE MOST RECENT CAUSE OF ACTION, LESS THE AMOUNT LIGHTSTREAM PAID TO AWS FOR THE AWS SERVICES PROVIDED TO CUSTOMER FOR SUCH PERIOD.
21.Independent Contractors. The parties are independent contractors and neither party is an agent of the other party, or able to bind the other party except as may be provided herein. Customer acknowledges that Lightstream is not an agent of AWS or MP Seller and does not have the authority to bind AWS or MP Seller.
22.No Representations or Warranties Regarding AWS Services or MP Products. Lightstream does not, and cannot, make any representations, warranties, or guarantees to Customer with respect to the specifications, features, or capabilities of any AWS Service or MP Product. AWS Services are provided by AWS and MP Seller respectively "as is."
23. Amazon Web Services Notices. Lightstream will promptly forward to Customer any notice it receives from AWS regarding the AWS Services that may affect Customer, including notices of a service interruption, a service suspension, termination of Lightstream's CBA, including notices pursuant to the Digital Millennium Copyright Act. The forwarding of such notices will be done as a courtesy to Customer and Lightstream will not incur any liability for failing to forward any such notice, or for delaying the forwarding of any such notice.
24.Force Majeure. If Lightstream's performance under this Agreement is prevented, restricted or interfered with by causes beyond its reasonable control including, but not limited to, acts of God, fire, explosion, vandalism, terrorism, storm or other similar occurrence, any law, order, regulation, direction, action or request of the U.S. or foreign government, or state or local governments, or of any department, agency, commission, court, bureau, corporation or other instrumentality of anyone or more such governments, or of any civil or military authority, or by national emergency, insurrection, riot, war, strike, lockout or work stoppage or other labor difficulties, or AWS or supplier failure, shortage, breach or delay, then Lightstream shall be excused from such performance on a day-to-day basis to the extent of such restriction or interference. Lightstream will use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease.
25.No Other Third Party Beneficiaries. AWS and MP Sellers are third party beneficiaries of this Agreement, Otherwise, this Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
26.Notice. All notices hereunder shall be in writing and either transmitted via overnight courier, electronic mail, facsimile, hand delivery or certified or registered mail, postage prepaid and return receipt requested to the parties at the following address in the case of Lightstream and at the addresses set forth above for Customer. Notices will be deemed to have been given when received. Either party may change its address by providing notice of such address change to the other party in the manner set forth in this section.
27.Assignment. Neither party may assign or transfer this Agreement without the express written consent of the other party. Notwithstanding the foregoing, Lightstream may assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement without the consent of Customer to an Affiliate or in connection with a merger, acquisition, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will be binging upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
28.No Waivers. Any delay in enforcing any provision of this Agreement will not be deemed to be a waiver of such provision or a waiver of rights to enforce such provision in the future.
29.Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of this Agreement will remain in full force and effect.
30.Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Utah without regard to its choice of law principles. Any action that is or may be commenced by any party pertaining to this Agreement and the subject matter of any part of this Agreement, shall be commenced in a federal or state court located in Salt Lake County, Utah. The parties hereby consent to the exclusive jurisdiction of such courts.
31.Headings. Headings used in these Terms and Conditions are for purpose of reference only and have no meaning.
32.Construction. Each party acknowledges that it has received and has had an adequate opportunity to read and study this Agreement, to consider it, to consult with attorneys if so desired. This Agreement shall be construed without regard to any presumption requiring construction against the party causing the drafting hereof.
33.Entire Agreement. This Agreement (and any attachments and other documents incorporated herein by reference) constitute the entire agreement between the parties and supersedes all other representations, understandings, or agreements that are not expressed herein, whether oral or written.
34.Changes. This Agreement may only be amended upon the written consent of the parties. The AWS Agreements and MP Seller Agreements may be modified from time to time as provided in such agreements
35.Use of Service Marks, Trademarks, and Publicity. Neither Lightstream nor Customer shall: (a) use any service mark or trademark of the other party; or (b) refer to the other party in connection with any advertising, promotion, press release or publication unless, in each instance, it obtains the other party's prior written approval. Nothing herein shall be construed so as to grant a license of or transfer of any right, title, or interest in or to the other party's service marks or trademarks.
36.Confidential Information. During the term of this Agreement and continuing for a period of three (3) years from the termination or expiration of this Agreement, each party shall protect as confidential, and shall not disclose to any third party, any Confidential Information received from the disclosing party or otherwise discovered by the receiving party during the term of this Agreement, including, but not limited to, the pricing and terms of any Services and any information relating to the disclosing party's technology, business affairs, and marketing or sales plans (collectively the "Confidential Information"). The parties shall use Confidential Information only for the purpose of this Agreement. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (a) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (b) is or becomes publicly known through no wrongful act or omission of the receiving party; (c) is received, without restriction, from a third party free to disclose it without obligation to the disclosing party; (d) is developed, independently, by the receiving party without reference to the Confidential Information, or (e) is required to be disclosed by law, regulation, or court or governmental order.
37. Intellectual Property .Customer acknowledges that Lightstream may be disclosing confidential and/or proprietary intellectual property in the course of performance of services under this Agreement, including but not limited to, use of internal and third-party systems; sales and/or operation strategies, models, and/or processes; compilations of generally available (non-confidential) source material in a manner that is proprietary and confidential in furtherance of sales or operations proposals, strategies, or activities; etc. ("Intellectual Property"). Lightstream shall own all Intellectual Property created as part of providing any Services or contained in any deliverable. Customer agrees that it shall not reverse-engineer, copy, disassemble, modify, decompile, or make any other attempt to ascertain the composition or the properties and characteristics of any Lightstream process, software, or other Intellectual Property which are or may be provided or developed prior to or pursuant to this Agreement. In the event any such actions nevertheless occur, and without limiting in any way any remedy available to Lightstream at law or in equity, all data and results and/or any inventions, discoveries, or works arising therefrom shall be solely owned by Lightstream, and Customer shall, at its expense, assign any such inventions or discoveries to Lightstream and transfer to Lightstream all copies or instances of such material.
38.Non-Solicitation; Non-Interference. Customer promises, covenants and agrees that during the Term of this Agreement and for a period of one (1) year following the Agreement Term, Customer shall not directly or indirectly (a) recruit, solicit or encourage, on Customer's own behalf or on behalf of any other person or entity, any person who is employed by Lightstream or was employed by Lightstream within six (6) months of the termination of Employee's employment with Lightstream ("Restricted Employee") to become an employee or independent contractor of, or perform other work for, Customer, or any affiliated company, or any other person or entity; (b) employ or hire, offer to employ or hire, or facilitate or assist in the employing or hiring of, any Restricted Employee, to work for customer, or any affiliated company, or any other person or entity; (c) ask, invite, induce or encourage any Restricted Employee to terminate his or her employment relationship with Lightstream or seek employment with another person or entity; or (d) otherwise interfere with or disrupt the employment or business relationship between Lightstream and any of its employees. Customer agrees that the Restricted Period set forth herein shall be extended for a period equal to the duration of any breach of this covenant by Customer.
Amazon AWS Standard Support Services
This Schedule identifies Services to be provided under the Lightstream AWS Customer Agreement between Lightstream and Customer. In the event of any conflict between this Schedule and the AWS Customer Agreement Standard Terms and Conditions, this Schedule shall govern.
AWS Service Availability and Management:
Lightstream shall make available to Customer all Services that Amazon Web Services ("AWS") provides to its direct customers. A current inventory of all Services available from AWS through Lightstream is published at http://aws.amazon.com/products. Lightstream shall design, maintain, and provide to Customer secure AWS Identity and Access Management ("IAM") console access to support Customer's access and provisioning needs. All Customer Services shall be tied to one or more sub-account(s) ("Customer Account(s)") that shall be subordinated to the Lightstream AWS master account ("Master Billing Account"), as more specifically set forth in the AWS Customer Agreement Standard Terms and Conditions.
Lightstream shall provide and make available to Customer customized detailed billing reporting of Customer Accounts with hourly, daily, monthly, and/or annual interval detail, as appropriate. This reporting shall be accessible by Customer on a secure web portal.
Lightstream shall provide tier-1 support and technical services for Services under Customer Accounts; however, Customer may also request support directly from AWS at any time during the term of this Agreement so long as AWS permits such. Customer will be required to subscribe to AWS Business Class support services as detailed at https://aws.amazon.com/premiumsupport/pricing/.
Lightstream shall bill Customer directly for all Services provisioned through the Master Billing Account during the term of this Agreement. Lightstream shall bill Customer in accordance with AWS standard rates as published at http://aws.amazon.com and amended in the sole discretion of AWS from time to time.
Additional Optional Services:
Lightstream may additionally provide monthly utilization and optimization consulting services to Customer in an effort to optimize the utilization of Customer's AWS environment. Such services shall be identified in a separate schedule with associated charges.
Lightstream may additionally provide "consulting services" to Customer for the architectural design of new AWS infrastructure that will be linked to the Lightstream Master Billing Account. Such services shall be identified in a separate schedule with associated charges.