AWS Reseller Agreement

VeUP - AWS Resale Agreement

Introduction
VeUP is an authorised AWS reseller. VeUP Limited (and any of its Affiliates) is an authorised reseller of Amazon Web Services (“AWS”) products and services (“AWS Services”). This Agreement sets out the general terms and conditions on which we will provide AWS reseller services to you (“Reseller Services”) and on which you agree to purchase AWS Services through us.
Order Form. The specific terms relating to the Reseller Services we provide to you are set out in a signed order form between you and VeUP and any extension and/or variation of the order form we have agreed to (each an “Order Form”). Capitalised terms in this Agreement will have the same meaning as defined in the Order Form, unless separately defined in this Agreement.
This Agreement will apply to the Order Form. This Agreement sets out the general terms and conditions that apply to the Order Form. The Order Form will form part of this Agreement and will not form a separate contract between us.
Duration
Start date and duration. Subject to the remaining provisions of this clause 2, this Agreement will begin on the start date specified in the Order Form and will continue until terminated by either party giving at least 30 days’ written notice to the other (unless the Order Form specifies a different notice period).
Minimum Term. If the Order Form specifies a minimum term (“Minimum Term”), neither of us can terminate this Agreement before the end of the Minimum Term, unless clause 2.3 applies.
Termination rights. Either party may terminate this Agreement if any of the termination events specified in clause 11 (Termination) occur.
Purchasing AWS Services
Requesting AWS services. You may request us to purchase AWS Services on your behalf or to make changes to the AWS Services you have subscribed to at any time during the contract term through your AWS account.
AWS account ID(s). In order to provide the Reseller Services, we will need to know either the account ID of your AWS management account, if you have an existing AWS Organization, or your standalone AWS account ID(s) if you do not have an AWS Organization. You are responsible for providing the correct account ID(s) to us either in the Order Form or as soon as possible after you sign the Order Form. You acknowledge that we will not be able to provide the Reseller Services if you do not provide us with the correct account ID(s).
AWS Services are provided by AWS. The AWS Services are provided by AWS and we are not responsible for the performance of the AWS Services. VeUP is not an agent or representative of AWS and is not the creator, manufacturer, distributor or licensor of the AWS Services.
AWS information. In providing the Reseller Services, we may provide you with statements, documents specifications and/or other information relating to the AWS Services. You acknowledge that such information is based on information AWS makes available to us and we are not responsible for the information. In purchasing the AWS Services, Client is relying on AWS’s specifications only and not on any statements, documents, specifications and/or other information that we may provide.
Our responsibilities
Providing the Reseller Services. We will use reasonable endeavours to provide the Reseller Services to you in accordance with the Order Form in all material respects. We will provide the Reseller Services using reasonable care and skill, in a professional and workmanlike manner, following industry standards, and in strict compliance with all applicable laws and regulations.
Time for performance. We will use reasonable endeavours to meet any performance dates and/or milestones specified in the Order Form, but any such dates are estimates only and time will not be of the essence of this Agreement or the Order Form.
Your responsibilities
Cooperation. It is your responsibility to cooperate with us in all matters relating to the Reseller Services and provide us with such information and materials we may reasonably require in order to provide the Reseller Services and ensure that they are complete and accurate. Including, but not limited to, the VeUPBillingAdminRole IAM Role with associated VeUPBillingAdmin IAM Policy which allows us the required access to provide the Reseller Services.
Your AWS account activity. You are responsible for your AWS account activity, including all charges incurred for AWS Services provisioned to your AWS account. You are responsible for managing access rights to your AWS account and for keeping the accounts and passwords secure. We are not responsible for errors in provisioning or de-provisioning AWS Services on your AWS account.
Compliance with AWS terms & conditions and policies. This Agreement relates to the Reseller Services only. Separate terms and conditions will apply to the AWS Services you purchase from AWS (“AWS End User Agreement”) and you agree to comply with the AWS End User Agreement in all respects. It is your responsibility to familiarise yourself with the relevant AWS End User Agreement applicable to the specific AWS Services you have selected. VeUP is not responsible for any costs or losses you may incur arising directly or indirectly from our failure or delay to comply with the AWS End User Agreement.
Failure to fulfil your responsibilities. If our ability to perform the Reseller Services is affected by your failure to fulfil any obligation in this clause 5, we will have the right to suspend performance of the Reseller Services until you remedy the default.
Suspension of AWS account. As an authorised reseller, we are required in some cases to suspend your AWS account under our agreement with AWS (including without limitation if you have not complied with the AWS End User Agreement). We may also suspend your AWS Account if any of the termination events specified in clause 11 (Termination) occur. We will not be responsible for any costs or losses you may incur arising directly or indirectly from our failure or delay to perform the Reseller Services or from your account having been suspended.
AWS suspension of your account. AWS may suspend your right to access or use any portion or all of the AWS Services immediately upon notice to us. If we receive such notice from AWS, we will notify you as soon as reasonably practical giving, where possible, reasons for the suspension.
Indemnity
Indemnification. You agree to indemnify us from and against any losses and liabilities relating to any action AWS may take against us concerning: (a) your use of the AWS Services (including any activities under your AWS account including use by your employees and personnel or other authorised or unauthorised users); (b) your breach of the AWS End User Agreement or violation of any applicable law; or (c) any dispute between you and us, including without limitation any billing dispute which may result in us failing to pay the AWS Fees to AWS when they are due.
Fees and payment
You are responsible for paying the fees for AWS Services. Fees for AWS Services (“AWS Fees”) will be calculated based on your measured usage of the AWS Services and the price rate publicly posted by AWS at aws.amazon.com. Invoices will be based on usage reports generated by AWS and the measured usage stated in such reports is deemed final and binding. You agree to pay all AWS Fees to VeUP when they’re due.
You are responsible for paying any additional fees incurred from third-parties due to chosen payment options, e.g. Bank Transfer charges.
How we charge for Reseller Services. Our fees for the Reseller Services (“VeUP Fees”) are calculated based on the AWS Fees.
In the event that you fail to comply with your obligation under 5.1 (Your responsibilities), and we are unable to access information on your AWS Fees, we shall use the previous month’s VeUP Fees + 10% to determine the VeUP Fees. Where no previous month’s VeUP Fees exist, we shall charge $5000 monthly for the duration of the agreement or until the access is reinstated.
Invoicing and payment terms. We will invoice you for the Fees at the intervals specified in the relevant Order Form. If no other interval is specified, we will invoice you monthly. You agree to pay each invoice within 30 days of receipt unless otherwise agreed in the Order Form.
Estimates are not binding. We may provide you an estimate as to what the AWS Fees may be in any given period, but please note any estimates are non-binding and the AWS Fees invoiced to you will be based on actual consumption as calculated by reference to usage reports generated by AWS.
AWS Fee changes. AWS Fees are subject to change by AWS without notice and we have no control over and are not responsible for any change in the AWS Fees.
Interest on late payments. Without prejudice to any other right or remedy that we may have, if you fail to pay any sum due under this Agreement on the due date:
You will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 1.5% per month (or the highest rate permitted by law, if less) on all late payments; and
VeUP may suspend part or all of the Reseller Services until payment has been made in full.
VAT on payments. All sums payable by you under this Agreement are exclusive of VAT or other sales tax which will be payable (where applicable) in addition to such sums on delivery of a valid tax invoice.
Invoice currency. All fees are invoiced in the currency specified in your order form and must be settled in that currency. Where the Invoice Currency is not USD, we will apply the Exchange Rate as follows: the mid-market rate from xe.com from the 1^st of the month in which we invoice, +4%. If any change to the Invoice currency is required, this must be agreed in writing between the Client and VeUP.
Personal data
We will use any personal information you provide to us to:
provide the Reseller Services;
process your payment for VeUP Fees (if applicable) and AWS Fees; and
inform you about similar products or services that we provide, but you may unsubscribe from our email list at any time by contacting us.
We will process your personal information in accordance with our privacy policy available at https://veup.com/privacy the terms of which are incorporated into this Agreement.
Confidentiality
Each party agrees that they will not at any time during the Contract Term, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning one another's business, affairs, customers, clients or suppliers, except as permitted by clause 9.2.
We each may disclose the other's confidential information:
to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 9; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
The parties may only use each other's confidential information for the purpose of fulfilling their respective obligations under this Agreement.
Limitation of liability
Background to the limits and exclusions. The scope of the Reseller Services is limited to the consultancy and other services set out in the Order Form. AWS is responsible for providing the AWS Services to the Client and VeUP is not responsible and has no control over the provision of AWS Services. The limits and exclusions in this clause 10 reflect VeUP’s role as the provider of consultancy and other Reseller Services. The Client is responsible for making its own arrangements for the insurance of any excess liability including any liability arising out of or in connection with the AWS Services.
No limitation of the Client’s payment obligations. Nothing in this clause 10 will limit the Client's payment obligations under this Agreement including under the indemnity in clause 6.
Liabilities which cannot legally be limited. Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; and
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
Financial cap on our liability. Subject to clause 10.3 (liabilities which cannot legally be limited), our total liability to you will be limited to the total VeUP Fees you have paid in the six (6) months immediately before the liability arose.
Some types of losses are excluded. Subject to clause 10.3 (Liabilities which cannot legally be limited), this clause 10.5 specifies the types of losses that are excluded:
loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information;
loss of or damage to goodwill; and
indirect or consequential loss.
Notification of claims. Unless you notify us that you intend to make a claim in respect of an event within the notice period, we will have no liability for that event. The notice period for an event will start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and will expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
Special terms in Order Form. Nothing in this Agreement limits or affects the exclusions and limitations agreed and specified in any Order Form.
Scope of this clause. References to liability in this clause 10 (Limitation of liability) include every kind of liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Limitation clause after termination. This clause 10 (Limitation of liability) will continue to apply after termination of this Agreement or Order Form.
Termination
Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of this Agreement (including the Client’s obligation to pay the Fees) and fails to remedy that breach within a period of 14 days after being notified in writing to do so;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
the other party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party;
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party;
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1.3 to clause 11.1.5 (inclusive);
the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
VeUP may terminate this Agreement with immediate effect by giving written notice to you if AWS terminates its reseller Agreement with us or if AWS ceases to provide the AWS Services.
On termination or expiry of this Agreement the Client will immediately pay to VeUP all outstanding invoices and interest (where applicable) and, in respect of any Reseller Services and/or AWS Services supplied but for which no invoice has been submitted, VeUP may submit an invoice, which will be payable immediately on receipt.
Events outside our control
Neither party will be liable or responsible for any failure or delay in the performance of their obligations that is caused by any act or event beyond their reasonable control (“Force Majeure Event”). If a Force Majeure Event takes place that affects the performance of the parties’ obligations:
the affected party will contact the other party as soon as reasonably possible to notify you; and
our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Force Majeure Event. We will arrange a new date for performance of the Services with you after the Force Majeure Event is over.
Either party may terminate this Agreement affected by a Force Majeure Event if it has continued for more than 30 days.
General
References to VeUP include its affiliates. References to “VeUP”, “we”, “our” and “ours” in this Agreement include any of our group companies and affiliated entities. That means that, even if you sign an Order Form with a particular VeUP entity, you may be invoiced by another VeUP entity and you are responsible for paying such invoices in accordance with the agreed payment terms.
Assignment and transfer.
We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you in writing if this happens.
You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
Variation. Any variation of this Agreement or an Order Form only has effect if it is in writing and signed by you and us or our respective authorised representatives.
Notices.
When we refer to "in writing" in these Terms, this includes email.
Any notice or other communication given under or in connection with this Agreement must be in writing and be delivered personally, sent by pre-paid first-class post or other next working day delivery service, or email.
A notice or other communication is deemed to have been received:
if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
if sent by email, at 9.00 am the next working day after transmission.
The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
Waiver. If we do not insist that you perform any of your obligations under this Agreement or an Order Form, or we do not enforce our rights against you, or we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of this Agreement.
Third party rights. Our Agreement is between you and us. No other person (other than VeUP’s group companies and affiliated entities) has any rights to enforce any of its terms.
Governing law and jurisdiction. This Agreement and each Order Form is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with it to the exclusive jurisdiction of the English courts.