AMAZON WEB SERVICES (AWS) SPECIFIC ADDITIONAL TERMS
The following terms and conditions apply to the Cloud Solutions Reseller Agreement (“Agreement”) (available at https://firstdistribution.com/legal/cloud-solutions-reseller-agreement/), to which this Annexure “B” is attached. Any terms and definitions outlined in the Agreement apply mutatis mutandis to this Annexure “B”, provided that in the event of any conflict the terms of this Annexure “B” shall prevail.
Where applicable, this Annexure “B” supersedes and replaces any previous AWS specific Additional Terms and/or Agreement Annexure “B” agreed to by the Reseller.
1. DEFINITIONS
1.1. “AWS” means Amazon Web Services, and when referred to with regard to any agreement or terms herein, means the AWS Contracting Party (as defined in the agreements referred to in the AWS documents set out in 1.3 to 1.9 below) as applicable to the relevant agreement or terms.
1.2. “Distribution Seller” when used in reference to any AWS agreement or terms, means the Reseller (AWS refers to the Reseller as a Distribution Seller, where the Reseller is reselling authorised AWS Online Products to end-customers via the Distributor).
1.3. “AWS Distribution Seller Agreement” means the AWS Distribution Seller Agreement between AWS and Reseller that authorizes the Reseller to resell authorized AWS Online Products to Customers.
1.4. “Distribution Seller Program Terms” means the Distribution Seller Program Terms that govern the Reseller’s participation in the AWS Distribution Program as a Distribution Seller, (which are available at https://partnercentral.awspartner.com/partnercentral2/s/resources?Id=0690L000004lvPLQAY – AWS Partner Central Login required).
1.5. “AWS Service Terms” means the AWS Universal Service Terms (applicable to all AWS Online Products) that govern the Reseller’s and/or their Customer’s use of AWS Online Products (which are available at https://aws.amazon.com/service-terms/).
1.6. “AWS Customer Agreement” means the AWS Customer Agreement between AWS and the Reseller/Customer (or other entity that creates an AWS Account), containing the terms and conditions that govern access to and use of AWS Online Products in an AWS Account. This Agreement takes effect when the Reseller/ Customer clicks an “Accept” button or check box presented with these terms when the Reseller/Customer creates an AWS Account for the first time (https://aws.amazon.com/agreement/).
1.7. “AWS Acceptable Use Policy” means the policy that governs the use of the Online Products offered by Amazon Web Service (which is available at https://aws.amazon.com/aup/).
1.8. “AWS Partner Network Terms and Conditions” means the terms and conditions between AWS and the Reseller that govern the Reseller’s participation in the AWS Partner Network Program. These Terms take effect when the Reseller click an “Accept” button or check box presented with these Terms when the Reseller joins the APN (AWS Partner Network) (https://aws.amazon.com/partners/terms-and-conditions/).
1.9. “AWS Promotional Credit Terms & Conditions” means the agreement between AWS and the Reseller and/or Customer that governs the Reseller’s and/or Customer’s use of any AWS promotional credit (https://aws.amazon.com/awscredits/).
1.10. “Authorized AWS services” means discount eligible AWS Online Products: AWS Products that are authorized Online Products by AWS as eligible for Discount in the AWS Distribution Program (https://s3-us-west 2.amazonaws.com/solution-provider-programlegal documents/Solution+Provider+Program+List+of+Services.pdf – AWS Partner Central Login required)
Reference to any AWS document and/or terms and conditions as set out above shall be to such document as amended and/or updated by AWS from time to time.
Any and all terms contained in any links included in this Annexure are expressly incorporated herein by reference.
2. ADHERENCE TO AWS AGREEMENTS AND POLICIES
2.1. The Reseller shall comply with all applicable AWS agreements, policies, and guidelines relating to its use and resale of AWS Online Products, as may be amended and/or updated by AWS from time to time, including but not limited to the Distribution Seller Program Terms, the AWS Service Terms, the AWS Customer Agreement, the AWS Acceptable Use Policy, the AWS Partner Network Terms and Conditions, and the AWS Promotional Credit Terms & Conditions.
2.2. The Reseller is responsible for ensuring that its Customers are aware of and comply with all agreements, policies, and guidelines applicable to their use of AWS Online Products.
2.3. The Reseller shall implement and maintain appropriate governance mechanisms to monitor and enforce its Customers’ compliance.
2.4. In the event of any non-compliance by any Customer, the Reseller shall take immediate corrective action, including notifying the Distributor and AWS as necessary.
2.5. Failure to adhere to any of the obligations set out in the abovementioned AWS agreements, policies and guidelines by the Reseller or its Customers may result in suspension or termination of access to AWS Online Products and/or other potential legal liability to the Distributor and/or AWS.
3. RESELL DISCOUNTS
3.1. The Reseller acknowledges that resell discounts will only apply to AWS Online Products that have been explicitly authorized by AWS as discountable Online Products.
3.2. AWS has the right to change the list of authorized discountable Online Products at any time and without notice.
3.3. All resell discounts that the Distributor agrees to pass on to the Reseller shall be specified and governed in a separate discount summary document that will detail the applicable discounts and the terms and conditions under which they are granted, and any other related conditions and/or stipulations.
3.4. All discounts are subject to change by AWS at any time without notice to the Distributor or the Reseller.
3.5. The Reseller acknowledges and agrees that all discounts applicable to the resell of authorized AWS Online Products, as agreed between the Distributor and the Reseller, are strictly confidential.
3.5.1. The Reseller shall not disclose, share, or communicate any details regarding these discounts to any third party in any format, whether written, oral, electronic, or otherwise.
3.5.2. Any breach of this confidentiality obligation may result in the immediate cessation or termination of any discounts or the Agreement.
4. COMPULSORY MONTHLY REPORTING
4.1. The Reseller acknowledges that the Distributor must provide to AWS monthly reports that will include for each Program Account, (a) the AWS account ID; (b) the company name and other information of the relevant Customer (including email domain, city, state/region, country, and zip/postal code); (c) whether the Customer is a private commercial entity or a public sector Customer; and (d) the name of the relevant Distribution Seller (Reseller) reselling authorized AWS Online Products.
4.2. To ensure compliance the Reseller will provide the relevant reporting information to the Distributor on a monthly basis, and in any event within 2 working days of a request for such information by the Distributor. The Reseller will ensure that the record for each Program Account includes full and accurate information in all fields provided related to its Customer(s), and that the record does not contain any test or sample inputs.
5. SECURING AWS ACCOUNTS
5.1. In terms of the AWS Customer Agreement, the Reseller and/or its Customer are and remain responsible for all activities that occur under the Reseller or Customer AWS account(s) regardless of whether the activities are authorized not, or undertaken by the Reseller and/or its Customer(s), employees or any other third party whatsoever (including but not limited to the Reseller’s or Customer’s contractors, agents or end users). Neither AWS nor First Distribution, nor any of their affiliates, are responsible for any unauthorized access to the Reseller or Customer’s AWS account(s).
5.2. The Reseller or its Customer(s) remains solely responsible for securing and keeping secured the AWS Account(s) they own.
5.3. The Reseller will ensure that Multi-Factor Authentication (MFA) is enabled on the AWS Account(s) owned by the Reseller and/or its Customer(s), all times.
5.4. The Reseller acknowledges, and will obtain consent from its Customer(s), that for the Distributor to Enable Root API calls and AWS Simple Notification Service (‘SNS”) on all Program Management Accounts to ensure all Root Account activity is monitored and for Root Account activity notifications to be sent to the Distributor’s security personnel.
5.5. In addition to MFA, the Reseller shall deploy and ensure that its Customer(s) deploy the following AWS security services, as a minimum, on the AWS Accounts owned by the Reseller or its Customer(s):
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- AWS CloudTrail Logs https://docs.aws.amazon.com/awscloudtrail/latest/userguide/cloudtrail-user-guide.html
- AWS Trusted Advisor: https://aws.amazon.com/premiumsupport/technology/trusted advisor/
- AWS CloudWatch: https://aws.amazon.com/cloudwatch/
- AWS Budgets: https://docs.aws.amazon.com/cost-management/latest/userguide/budgets-managing-costs.html
6. LIABILITY FOR UNAUTHORIZED ACCESS AND CHARGES
6.1. The Reseller is and remains liable for all fees and charges incurred on any AWS Account owned by the Reseller or its Customer(s), regardless of whether such fees and/or charges have accrued due to authorized or unauthorized access to such AWS Account(s) and/or Online Products.
6.2. The Reseller acknowledges and will ensure that its Customer(s) is aware and agrees that where the AWS security services specified in paragraph 5 above (including but not limited to multi-factor authentication, encryption, and access control policies) have not been enabled on any compromised AWS account(s), AWS and the Distributor will not consider or pass any refunds or billing adjustments for any fees and charges accrued due to unauthorized access to an AWS Account(s) or Online Products.
6.3. The Reseller and its Customer fully indemnify and hold the Distributor harmless from any and all liability, including but not limited to, the payment of fees or the granting of any credit for fees and charges incurred in an AWS Account as a result of unauthorized access, use of Online Products or applications, accidental expenditure, or any other malicious activity.
6.4. This indemnification applies irrespective of whether the AWS Account is owned by the Distributor in the case of Program Management Accounts or the Reseller, or the Customer in the case of Program Accounts.
6.5. The Reseller acknowledges its responsibility to secure its and its Customer’s AWS Accounts, and accepts all associated risks, thereby absolving the Distributor from any financial responsibility arising from any unauthorized or malicious activities involving such AWS Accounts.
7. PAYMENT AND SUSPENSION OF AWS SERVICES
7.1. The Distributor shall provide the Reseller with a valid tax invoice, on a monthly basis, based on the consumption reports provided to the Distributor by AWS setting out the Reseller’s Customer’s access and/or use of AWS Online Products in the immediately preceding month. The Reseller shall make full payment of such invoices within the payment terms agreed to between the Distributor and Reseller, free of any deduction. The Reseller acknowledges that it is liable for payment for all consumption invoiced for by the Distributor based on AWS consumption reports. In the event of a dispute regarding billing, the Reseller shall make payment of any and all disputed amount/s pending the outcome of any such dispute.
7.2. If payment for the use of AWS Online Products by the Reseller or its Customer(s) is not received by the due date, the Distributor will notify the Reseller via email and the notification will inform the Reseller of the overdue payment and the potential risk of service disruption if the payment is not made promptly.
7.3. If a payment remains outstanding, the Distributor will issue a formal notice of suspension to the Reseller and log a request with AWS to suspend the AWS account(s).
7.4. Once the AWS Account(s) is suspended access to the relevant AWS Online Products will be restricted and all running instances and other AWS resources in the AWS Account(s) will be stopped and technical support and other AWS support Online Products will be unavailable.
7.5. If payment for all overdue AWS invoices is not received by the Distributor within 14 (fourteen) calendar days after the AWS Account(s) has been suspended, the AWS Account(s) will be terminated (closed).
8. AWS ACCOUNT CLOSURE
8.1. Once AWS Account(s) has been closed all data and resources associated with the account(s) will be permanently deleted by AWS and the Reseller or its Customer(s) will no longer have access to any AWS Online Products or data in the relevant AWS Account(s).
8.2. Once an AWS Account(s) has been closed all data stored in AWS Online Products (such as S3, RDS, and DynamoDB) will be permanently deleted by AWS and cannot be recovered once the account is closed. Any backups or snapshots stored in AWS will also be deleted.
8.3. Closed AWS Accounts cannot be reopened and any data that was deleted cannot be restored.
8.4. The Reseller agrees to indemnify, defend, and hold harmless the Distributor, its affiliates, and their respective officers, directors, employees, agents, and representatives from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to any legal claims, actions, or proceedings that may be brought against the Distributor by any third party, including but not limited to the Reseller and/or its Customer(s) in connection with any suspension and/or subsequent closure of the Reseller or its Customer(s) AWS Account(s) due to the Reseller’s failure to remit payment to the Distributor for fees and charges incurred in the Reseller or its Customer(s) AWS Account(s). This indemnification obligation shall include, but not be limited to, claims related to breach of contract, loss of data, business interruption, or any other damages alleged by a Customer as a result of account suspension or closure.
8.5. The AWS Reseller remains fully liable to pay all outstanding fees and charges due to the Distributor notwithstanding the suspension and/or subsequent closure of the Reseller or its Customer(s) AWS Account(s) due to non-payment.
8.6. The Reseller’s obligation to pay all outstanding amounts to the Distributor shall survive the suspension and closure of the AWS Account(s) and shall remain in effect until all such amounts are paid in full.
8.7. The suspension or closure of the Reseller or its Customer(s) AWS Account(s) does not waive or diminish the Reseller’s payment obligations to the Distributor under any agreement or arrangement between the Reseller and the Distributor.
9. BILLING
9.1. AWS billing happens monthly in arears and the Distributor shall issue invoices to the Reseller between the 16th and 17th day of each calendar month and in the event that the 16th or 17th day falls on a Saturday, Sunday, or public holiday in the Republic of South Africa (“Public Holiday”), the Distributor shall issue the invoices on the first business day following the 17th day of the calendar month.
9.2. The Distributor shall issue AWS Usage Summaries to the Reseller between the 18th and 19th day of each Calendar month and in the event that the 18th or 19th day falls on a Saturday or Sunday, or Public Holiday, the Distributor shall issue the summaries on the first business day following the 19th day of the Calendar month.
9.3. The Distributor shall offer AWS Billing Support to the Reseller and not directly to the Reseller’s Customer(s). AWS billing support will be available to the Reseller Monday to Friday, excluding Public Holidays, between the hours of 09h00 and 17h00 Standard South African Time.
9.4. The Reseller shall log Billing Support queries via email using the AWS Billing Support Email Address provided by the Distributor: billingsupport@firstdistribution.com
9.5. The Reseller shall be responsible for invoicing and offering AWS billing support services to their Customer(s).
9.6. The Distributor shall not be responsible for any billing process, system, automation, or platform that the Reseller uses or deploys to bill, invoice, or report costs, usage, or any other related AWS information to their Customer(s).
9.7. The Reseller shall hold the Distributor harmless in all aspects where any changes to AWS programs, discounts, processes, or policies could affect any billing process, system, automation, or platform that the Reseller uses or deploys.
9.8. The Reseller acknowledges and agrees that it is solely responsible for managing and maintaining its own billing systems and ensuring their compatibility with AWS programs, services and policies.
9.9. The Reseller will only be authorized by the Distributor to resell authorized AWS Online Products if the Reseller has been granted sufficient trading credit.
9.10. It is the Reseller’s responsibility to ensure that their trading credit threshold is adequate to cover their monthly AWS fees and charges incurred with the Distributor.
9.11. The Reseller agrees to monitor their trading credit limit regularly and to promptly submit their most recent audited financial statements to Distributor or its credit provider, to together with any request for an increase in their trading credit limit when necessary to ensure that the Reseller maintains the financial capacity to meet all incurred fees and charges, thereby enabling continued authorization to resell AWS Online Products.
9.12. In the event that a Reseller’s trading credit is withdrawn by the Distributor’s credit provider, the Reseller’s trading account will immediately convert to a pre-payment account and the Reseller must pay all AWS fees and charges up-front upon presentation of the invoice by the Distributor.
9.13. The Reseller will have a period of 30 days to resolve any credit issues with the Distributor’s credit provider and if the credit is not reinstated within this 30-day period, the Reseller will no longer be authorized to resell AWS Online Products through the Distributor.
9.14. Consequent to any revocation of authorization to resell AWS Online Products, all AWS Accounts must be de-linked from the Distributor’s Program Management Accounts and in the case of Dedicated Program Management Accounts, these accounts must be transferred back to the Reseller or its Customer(s).
10. TERRITORY
10.1. The Reseller is only authorised to resell authorised AWS Online Products to Customers within the Distributor’s territory (as may change from time-to-time):
Algeria | Djibouti | Madagascar | São Tomé and Príncipe |
Angola | Egypt | Malawi | Senegal |
Benin | Ethiopia | Mauritania | Seychelles |
Botswana | Gabon | Mauritius | Sierra Leone |
Burkina Faso | Ghana | Morocco | South Africa |
Cape Verde | Guinea | Mozambique | Tanzania |
Cameroon | Kenya | Niger | Tunisia |
Comoros | Lesotho | Nigeria | Uganda |
Ivory Coast | Liberia | Rwanda | Zambia |
10.2. The Distributor holds the right to review and evaluate resell opportunities of Resellers who are domiciled outside the borders of South Africa, in light of considerations related to Value Added Tax (VAT) and Withholding Tax.
10.3. In such instances, the Distributor shall have the sole discretion to grant or deny resell authorization on a case-by-case basis.
10.4. The decision to authorize resell shall be contingent upon the Distributor’s assessment of the tax implications and compliance requirements associated with cross-border transactions and where this right is established to ensure that all resell activities align with South African tax regulations and that the Distributor can manage any potential tax liabilities effectively.
11. SUPPORT
11.1. As per the conditions set out in the Distribution Seller Program Terms, the Reseller shall only resell one AWS Support Type in connection with a given Program Management Account, and the Distributor shall designate to AWS the AWS Support Type being provided in connection with each Program Management Account.
11.2. The Distributor will create a separate Program Management Account for the Reseller’s Customer(s) receiving AWS Resold Support at the Enterprise On-Ramp level or Enterprise level.
11.3. The Reseller acknowledges that by purchasing AWS resold Support from the Distributor, the support will be provided directly by AWS to the Reseller’s Customer(s) under AWS’s terms and conditions.
11.4. Furthermore, the Reseller understands and agrees that the Distributor does not have the authority or ability to report or escalate any AWS support-related queries or concerns on behalf of the Reseller or its Customer(s).
11.5. All such Customer queries or concerns must be directed by the Reseller’s Customer(s) to AWS according to AWS’ support processes and procedures.
11.6. The Reseller acknowledges that AWS Basic and Developer Support Plans are non-discountable.
12. CLOUD MANAGEMENT PLATFORM & TOOLING
12.1. The Distributor may, at its sole discretion, make a management platform, consisting of a suite of tools and services designed to assist in the facilitation of the deployment, monitoring, and management of cloud-based resources and applications (“Cloud Management Platform”), available to the Reseller.
12.2. The Distributor reserves the right to charge the Reseller for the use of this Cloud Management Offering.
12.3. Furthermore, the Distributor retains the right to modify or change the Cloud Management Platform Offering available to Resellers at any time.
12.4. The Reseller agrees to comply with any such changes and to bear any associated costs as determined by the Distributor.
12.5. The Distributor shall not be responsible for the setup, configuration, training, or ongoing support of the Cloud Management Platform.
12.6. The Reseller acknowledges and agrees that any setup, configuration, training, and support required for the effective use of the Platform will be the sole responsibility of the Reseller.
13. PUBLIC SECTOR
13.1. As per the terms in the AWS Distribution Seller Agreement, resale of Online Products to Public Sector Customers by the Reseller is governed by a Public Sector Authorization document that the Reseller must obtain from AWS. In addition to meeting standard AWS Partner Network criteria for Distribution Sellers, Public Sector Distribution Sellers must meet the Public Sector Authorization Criteria.
13.2. The Reseller acknowledges that some features of the Distribution Program (such as the default resale model and the ability to sell through multiple tiers) differ when the Reseller resells Online Products to Public Sector Customers, for example, Resellers are not authorized to resell to Public Sector Customers under the Customer Account Model, unless separately authorized by AWS (at its sole discretion).
13.3. Joining the AWS Public Sector Distribution Program is subject to the Reseller meeting all the AWS requirements and following the AWS process to join the Program.
14. CONDUCT
14.1. The Reseller acknowledges and agrees to be bound by the terms of the AWS Distribution Seller Agreement as it pertains to the Reseller’s general business conduct and obligations related to Customer Service, Customer Acquisition, Customer Retention, Customer Support, New Business Registration, Advertising and all additional requirements and guidelines that apply to the resale of authorized AWS Online Products as may be updated by AWS from time to time.