END USER LICENSE AGREEMENT FOR AVENTRA ON AMAZON WEB SERVICES (“AWS”)
(Version dated 2016 October 31)
IMPORTANT: READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING, DEPLOYING, OR USING THE AVENTRA SOFTWARE IN YOUR AMAZON WEB SERVICES (“AWS”) ACCOUNT. AVENTRA GRANTS YOU ACCESS TO THE SOFTWARE ONLY IF YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY INSTALLING, DEPLOYING, OR USING THE SOFTWARE; YOU (1) AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (2) REPRESENT AND WARRANT THAT YOU POSSESS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOU AND ANY COMPANY FOR WHICH YOU ARE ACTING (FOR EXAMPLE, YOUR EMPLOYER). IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT; DO NOT INSTALL, DEPLOY, OR USE THE SOFTWARE.
This End User License Agreement (“Agreement” as defined below) is a binding agreement between you (as defined below) and Aventra (as defined below) for Aventra on Amazon Web Services (“Software” as defined below) and Support Services (as defined in Section 4). The terms “you”, “your”, and “yours” collectively and individually refer to you as an individual and to any company for which you are acting. “Software” refers to any Aventra branded software product that (a) you obtain from Aventra’s listings in the AWS Marketplace (“Marketplace Software”), or (b) you upload to, install, deploy, or use on your AWS account pursuant to permission granted by Aventra. For clarity, Software includes all documentation and other content, in whole or in part, related to your access and use of Software, including all content available from Aventra support site(s), that Aventra may elect in its sole discretion to provide you; and including any and all error corrections, bug fixes, updates, upgrades, or new versions or releases of the Software that Aventra may elect in its sole discretion to provide you during the Subscription Term (as defined below). For Software accessed in the United States, the term “Aventra” refers to Aventra, Inc. For Software accessed outside the United States, the term “Aventra” refers to Aventra, Inc.
“End User” refers to any individual or entity that accesses or uses the Software through your AWS account. “Order” refers to the AWS ordering documentation (including a registration webpage), pursuant to which you obtain limited access to the Software. “Subscription Term” refers to the time period during which you are authorized to access and use the Software in accordance with the terms of this Agreement as specified in an Order. “AWS Services” refers to the cloud computing platform hosting service provided by AWS to you pursuant to an agreement entered into by and between AWS and you. “AWS Terms and Policies” refers to all the terms, conditions, restrictions, and policies applicable to you resulting from the Order and from your subscription to, and use of, AWS Services, including the AWS customer agreement, acceptable use policy, site terms, content terms, and service terms.” You acknowledge you have had the opportunity to review the Agreement prior to acceptance of this Agreement. Your acceptance of this Agreement is evidenced by your access to and/or use of the Software.
1. ACCESS AND USE; RESTRICTIONS
1.1 Access and Use. Subject to your compliance with all the terms, conditions, and restrictions of this Agreement and all the terms, conditions, and restrictions of the AWS Terms and Policies, Aventra grants you non-exclusive, non-transferable, subscription-based access to, and use of, the Software worldwide (subject to applicable export laws) solely to run your applications and solely on the AWS Services as limited by the Order (including limitations of time and resources), and for providing End Users with the right to access your Applications (“Authorized Use”) that make use of the Software until terminated in accordance with Section 4. The Applications must not allow End Users to access or use the Software directly and must not offer functionality which is competitive with or would serve as a replacement or substitute for the functionality of the Software on a stand-alone basis. “Applications” means your computing systems including your devices, peripherals (including storage devices) and software that make use of the Software for your internal business operations. “End Users” mean the user that has access to, and use your Applications under terms at least as restrictive as the terms of this Agreement solely on your behalf.
1.2 Restrictions. You may not access or use the Software, except via the AWS Services. You may not use the Software or AWS Services in a way intended to avoid incurring fees or exceeding the limitations agreed to in an Order. For example, may not access or use the Software on a trial basis for more than one trial period, except with written permission from an authorized Aventra representative. Except as required to access and use the Software on the AWS Services, you may not reproduce or make copies of the Software. You may not modify the Software or create derivative works based on the Software. You may not license, sublicense, sell, resell, loan, rent, lease, transfer, assign, or distribute the Software. You may not use the Software to provide services to third parties or time-share or otherwise commercially exploit or make the Software available to any third party. You may not disassemble, reverse engineer, or decompile the Software, except to the extent expressly permitted by applicable law without the possibility of contractual waiver. You may not access the Software with intent to build a competitive product or service, or copy or substantially copy any source code, ideas, features, functions, organization, structure, graphics, or user interface of the Software. You may not make any use of, disclosure of, or perform any acts with respect to, the Software other than as expressly permitted by the terms of this Agreement and the Order. You agree not to publish any results of benchmark tests run on the Software. Notwithstanding anything to the contrary, you do not have any license, right, or authority to subject the Software, in whole or in part or as part of a larger work, to any terms of any other license agreement, including Public Licenses (as defined below).
1.3 Open Source. The Software may include third-party software and such third-party software may be licensed under terms different from those contained in this Agreement. Portions of the Software are only available to End User under public licenses (including the GNU General Public License, the GNU Lesser General Public License, Eclipse Public License and other public licenses (each a “Public License”). End User’s rights and obligations with respect to such Software are set forth in the applicable Public License and this Agreement. Information about applicable Public Licenses may be found in the electronic media or content downloaded with the Software. To obtain a copy of the applicable licensing provisions for the open source software used by Aventra, please refer the following web site (as may be updated from time to time): https://opensource.org/. End User either must agree to the provision of each applicable Public License or not exercise such licensed rights. This Agreement is not intended to change or restrict the terms of any Public License. Aventra disclaims all liability and warranties with respect to software subject to a Public License.
1.4 Reservation of Rights. The Software, including all full and partial copies thereof, is and remains the exclusive property of Aventra and its licensors. Except for the access and use rights expressly set forth in this Agreement, no license or other rights in or to the Software or Aventra’s and its licensor’s intellectual property rights therein, are granted to you, and all such licenses and rights are expressly reserved. You will not alter or remove Aventra’s and its licensors’ copyright notices and all other proprietary legends from any authorized copies of the Software.
2.1 You will comply with the AWS Terms and Policies and are responsible for such compliance by you and your End Users. You are responsible for installation, configuration, and secure operation of, as well as secure connectivity to, the Software and AWS Services. You are responsible for population, maintenance, security, protection, loss prevention, and backup of your data and other content. You will ensure that your data and other content is free of all viruses and comparable elements which could harm the systems or software used on the AWS Services, including the Software. To the extent applicable, you will ensure that you collect, maintain and handle all data in compliance with all applicable data privacy and protection laws, rules and regulations. Notwithstanding any assistance or consulting that Aventra may provide you with respect to the AWS Services, Aventra is not responsible for any aspect of the AWS Services, including its availability, reliability, security and privacy policies adopted by AWS.
2.2 You are responsible for monitoring your access to, and use of, the Software on AWS Services, including payment of all fees and/or taxes related to such access and use. If you access the Software on a trial basis, you are still responsible to pay for the AWS Services during the trial period. If you access or use the Software after the trial period, you are responsible to pay for the Software thereafter. You agree that Aventra is permitted to request and receive information from AWS related to your use of the Software.
2.3 To the full extent permitted by applicable law, you shall defend, indemnify and hold harmless Aventra, its affiliates and its licensors, and each of their respective employees, officers, directors, and representatives (the “Aventra Parties”) from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim brought against any of the Aventra Parties concerning: (a) you or any End Users’ use of the Software; (b) breach of this Agreement or violation of applicable law by you or any End User; (c) any software, data or content in your AWS account or the combination of such software, data or content with other applications, content or processes (including combination with the Software), including any claim involving alleged infringement or misappropriation of third-party rights by such software, data or content or combination; or (d) breach of any obligation or duty you owe to a third party. Aventra will promptly notify you of any claim subject to this section, but failure to promptly notify you will only affect your obligations to the extent that such failure prejudices your ability to defend the claim. You may: (i) use counsel of your own choosing to defend against any claim; and (ii) settle the claim as you deem appropriate, provided that you obtain Aventra’s prior written consent before entering into any settlement. Aventra may also assume control of the defense and settlement of the claim at any time.
2.4 You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the AWS Services or any account you create with Aventra (for example, any account necessary to receive Support Services described below). You must promptly notify the AWS support services team about any possible misuse of your AWS accounts or authentication credentials or any security incident related to your AWS account. In addition, you must promptly notify the Aventra Support Services in the event of any possible misuse of your Aventra accounts or the Software.
2.5 Fees. You will pay to AWS the fees plus any applicable Taxes (as described in Section 3.2) for access to the Software in accordance with the Order and AWS Terms and Policies. Invoicing and collection of the fees and any applicable Taxes by AWS is done on behalf of Aventra. Except as set forth in Section 4, the fees you pay for access to the Software are nonrefundable. In no event, will Aventra provide, or be liable for, any refund of the fees you pay for access to the AWS Services. Refunds, if any, regarding the fees you pay for access to AWS Services are solely at AWS’s discretion. You will provide, and authorize AWS to provide, to Aventra any and all the information required to process an Order, including all information required for calculation of the applicable Taxes such as correct name, location and identification number for tax purposes.
2.6 Taxes. Except to the extent expressly stated on Aventra’s listing page, the fees and other charges described on Aventra’s listing page and in the Order do not include federal, state or local sales, VAT, GST, use, property, excise, service, or similar taxes (“Taxes”) now or hereafter levied. You will be invoiced for, and pay, all Taxes as required by applicable law. You will cooperate with Aventra and AWS by providing all information required for the calculation and invoicing of all applicable taxes. You will provide a valid tax-exemption certificate for any tax from which you claim exemption.
3. TERM AND TERMINATION
3.1 Term. This Agreement and your access to the Software will become effective as of the date of the applicable Order and shall continue in effect thereafter for the Subscription Term set forth in the applicable Order, unless terminated earlier under this Section 4. The Subscription Term will automatically renew upon expiration unless either you or Aventra informs the other in writing prior to the expiration of the then-current term. Upon Your rights to access and use the Software will cease immediately upon expiration of the Subscription Term (unless renewed or extended) or earlier termination of this Agreement≈.
3.2 Suspension and Termination by Aventra. Aventra may suspend or terminate your right to use the Software (in whole or in part) at any time upon written notice if we determine that (a) your or an End User’s use of the Software (i) poses a security risk to the Software, the AWS Services, or any third party, (ii) may adversely impact the Software, the AWS Services, or any third party, (iii) may subject Aventra, our affiliates, our licensors, or any third party to liability, or (iv) may be fraudulent; (b) you are, or any User is, in breach of this Agreement; or (c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. You will cease use of the Software identified in such notice(s) during any period of suspension, or upon termination of this Agreement or other termination of your right to use such Software. Where termination by Aventra is solely for its own convenience and to the extent feasible, Aventra will provide you with thirty (30) days prior written notice and will refund the unused fees pre-paid by you for access to the Software for the affected time period and Software. For any other termination or suspension by Aventra, Aventra will not provide, or be liable for, any refund. In no event will Aventra provide, or be liable for, any refund of fees paid by you for access to the AWS Services, regardless of the reasons for termination.
3.3 Suspension and Termination by AWS. You acknowledge that the AWS Terms and Policies include rights in AWS to suspend and terminate your AWS account, which will suspend or terminate your access to, and use of, the Software. In such event, Aventra will not provide, or be liable for, any refund, including fees pre-paid by you for access to the Software.
3.4 Termination by You. You may terminate this Agreement or your use of the Software at any time without notice. Only if you terminate this Agreement for a material breach by Aventra (after giving Aventra at least thirty (30) days prior written notice and an opportunity to cure such breach during such notice period), will you be entitled to receive a refund from Aventra of the applicable unused fees pre-paid by you for access to the Software (but not fees paid for access to the AWS Services). You accept such refund as your sole and exclusive remedy for any breach by Aventra or its affiliates of this Agreement.
3.5 Your Termination Duties. Upon termination, you will (a) remove the affected Marketplace Software from your AWS account and (b) irretrievably destroy all copies in your possession or control of the Software, including all documentation and other content related to the Software provided by Aventra. Upon request, you will certify in writing that the foregoing has occurred. Termination does not relieve you from your obligation to pay fees and Taxes that remain unpaid.
3.6 Effect of Termination. Termination of this Agreement also terminates any agreement under which you obtained Supplemental Software, if such agreement was entered for the sole purpose of facilitating your use of Marketplace Software. Except as set forth in the preceding sentence, termination of this Agreement does not terminate any other agreements you have with Aventra and, to the extent you have continuing licenses to software, documentation or other content under such agreements, the obligations in Section 4.5 do not apply to such content.
3.7 Survival. All provisions which by their nature are intended to survive termination shall survive termination of this Agreement.
4.1 Aventra will make reasonable efforts to provide you with the support services expressly listed on the applicable Order and described in the support services description at www.aventra.io/support (the “Support Services”), as modified from time to time, subject to the conditions stated in such support service description. You acknowledge that in order for Aventra to provide the Support Services, you may be required to license and install certain third party software and provide certain third party hardware that are not provided or licensed by Aventra (“Third Party Products”). Aventra may provide you with links and instructions for obtaining Third Party Products, but it is your responsibility to properly license and install any required Third Party Products from the relevant third party providers. Aventra will have no liability with respect to any Third Party Products. Except for the Support Services, this Agreement does not require Aventra to provide you with any installation, training, maintenance services (including any error corrections, bug fixes, or new releases of the Software), technical assistance, consulting services, or other services of any kind (collectively and individually, “Other Services”). Other Services, if any, are provided to you at Aventra’s sole discretion. The Support Services and Other Services are collectively and individually referred to as “Services”.
4.2 At its sole discretion, Aventra may provide periodic updates to the Software. If available, such updates may include bug fixes, new features and/or enhancements. You are solely responsible for deploying such updates at your own risk and liability. Aventra’s obligation to provide Support Services may depend upon your installation of any such updates that Aventra provides to you.
5. CONFIDENTIALITY AND PUBLICITY
5.1 “Confidential Information” means all nonpublic information disclosed by Aventra, its affiliates and licensors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to ideas, features, functions, organization, structure, graphics, or user interfaces of the Software; (b) documentation and other content available from non-public Aventra support site(s); and (c) benchmark and other test results. Confidential Information does not include any information that you can document: (1) is or becomes publicly available without breach of this Agreement; (2) was known to you at the time of your receipt from us; (3) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (4) is independently developed by you without reference to the Confidential Information.
5.2 You may use Confidential Information only in connection with your use of the Software as permitted under this Agreement. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature.
5.3 You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Software or Services.
6. FEEDBACK. Notwithstanding anything to the contrary: (a) Aventra will have no obligation of any kind with respect to any Software-related comments, suggestions, design changes or improvements that you elect to provide to Aventra in either verbal or written form (collectively, “Software Feedback”), and (b) Aventra and its affiliates and licensors are hereby free to use any ideas, concepts, know-how or techniques, in whole or in part, contained in Software Feedback: (i) for any purpose whatsoever, including developing, manufacturing, and/or marketing products and/or services incorporating Software Feedback in whole or in part, and (ii) without any restrictions or limitations, including requiring the payment of any license fees, royalties, or other consideration.
7. DISCLAIMER OF WARRANTY. THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED “AS IS.” AVENTRA AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SOFTWARE AND SUPPORT SERVICES, INCLUDING ANY WARRANTY THAT THE SOFTWARE AND SUPPORT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT IN YOUR AWS ACCOUNT, INCLUDING YOUR CONTENT AND DATA, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, AVENTRA AND OUR AFFILIATES AND LICENSORS 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.
8. LIMITATIONS OF LIABILITY. AVENTRA AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AVENTRA AND ITS AFFILIATES AND LICENSORS WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SOFTWARE OR SUPPORT SERVICES, INCLUDING AS A RESULT OF ANY (1) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF, OR ACCESS TO, YOUR AWS SERVICES, THE SOFTWARE, OR THE SUPPORT SERVICES, (2) DISCONTINUATION OF, OR MODIFICATION TO, ANY OR ALL OF YOUR AWS SERVICES, THE SOFTWARE, OR THE SUPPORT SERVICES, OR, (3) ANY DOWNTIME OF ALL OR A PORTION OF YOUR AWS SERVICES, THE SOFTWARE, OR THE SUPPORT SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES. SOFTWARE FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF, OR ACCESS TO, THE AWS SERVICES, THE SOFTWARE, OR THE SUPPORT SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, AVENTRA’S AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY DURING THE 12 MONTHS PRECEDING THE CLAIM FOR THE SOFTWARE OR SUPPORT SERVICES THAT GAVE RISE TO THE CLAIM. THIS DISCLAIMER OF LIABILITY SHALL APPLY TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW REGARDLESS OF THE FORM OF ACTION THAT MAY BE BROUGHT AGAINST AVENTRA OR ITS AFFILIATES OR LICENSORS, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STRICT LIABILITY, STATUTE, LAW, EQUITY OR OTHERWISE.
9. GENERAL PROVISIONS
9.1 Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without Aventra’s prior written consent. Any assignment or transfer in violation of this Section 10.1 will be void. In its sole discretion and without notice to you, Aventra may assign this Agreement, including to any Aventra Affiliate. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
9.2 Interpretation. 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 the intent of the parties to the maximum extent permissible. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect. The headings within this Agreement are for convenience only and will not affect the interpretation of this Agreement. “Include”, “includes”, and “including” shall be interpreted as introducing a list of examples which do not limit the generality of any preceding words or any words in the list of examples. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
9.3 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
9.4 Regulatory Matters. In connection with this Agreement, you agree to comply with all applicable United States and foreign laws and regulations, including without limitation export and re-export control laws and regulations, including without limitation the U.S. International Traffic in Arms Regulation (“ITAR”) and Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce. You covenant that you shall not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any information, products, software, or technology (including information or products derived from or based on such technology) received from Aventra under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. If you intend to disclose to Aventra technical data or information that are controlled by the ITAR, the EAR, or that you otherwise would be prohibited from disclosing to persons who are not citizens or permanent residents of the United States, you shall: (a) provide written notice to Aventra of such intended disclosure; and (b) mark any documents containing such information with an obvious restrictive legend to such effect; and (c) not disclose such information by use of any electronic mail system.
9.5 Governing Law; Disputes. This Agreement is governed by laws of the State of Texas, without regard to its conflict of laws principles, will govern the interpretation and enforcement of this Agreement and Orders under it; provided, however, (i) the Federal Arbitration Act will govern all issues of arbitrability, (ii) if you are a U.S. Government entity, this Agreement is governed by the laws of the United States, and (iii) if you are a state or local government entity in the United States, this Agreement is governed by the laws of that state. In the event of a claim, controversy, or dispute arising out of or related to this Agreement, an Order, the Software, or Support Services, each party agrees to give the other prompt notice of such, and both agree to meet and confer promptly to engage in good faith discussions to try to resolve the matter. Any such controversy, claim or dispute which is not resolved through the procedure set forth above within thirty (30) days will be resolved by binding arbitration to be held in Dallas, Texas before a single mutually-agreeable arbitrator who is an attorney with experience in cloud computing under the then-current Commercial Arbitration Rules of the American Arbitration Association. The duty and right to arbitrate will extend to any employee, officer, director, shareholder, agent, affiliate, supplier, or contractor of a party to the extent such right or duty arises through this Agreement, an Order, the Software, or Support Services. There shall be no right or authority for any claims to be arbitrated as a class member in any purported class or representative proceeding. The decision and award of the arbitrator will be final and binding, and the award rendered may be entered in any court having jurisdiction thereof. The arbitrator is directed to hear and decide potentially-dispositive motions in advance of the hearing-on-the-merits by applying the applicable law to uncontested facts and documents. Except to the extent, if any, elected in writing by the claiming party, the obligation to arbitrate hereunder will not apply to claims for misuse or infringement of a party’s intellectual property; and, a claiming party may seek an injunction in court to prevent misuse or infringement of its intellectual property pending the appointment of an arbitrator. The arbitrator will enforce the terms of this Agreement and the Order(s) at issue and will have no authority to award any damages in excess of the limitations and exclusions set forth in this Agreement or in an applicable Order. Neither party may bring a claim more than 2 years after the underlying cause of action first accrues or the party bringing the claim, using reasonable care, first discovers or should have discovered the underlying facts giving rise to the claim, whichever is later.
9.6 U.S. Government End Users. If you are an agency, department, or other entity of the U.S. Government (“U.S. Government End User”), the Software and any accompanying documentation provided under this Agreement is a commercial item as that term is defined at 48 C.F.R. 2.101 and consists of commercial computer software and commercial computer software documentation developed exclusively at private expense as defined at FAR 12.212 and DFAR 227.7202. Any use, modification, reproduction, release, performance, display or disclosure of the Software and/or the accompanying documentation by the U.S. Government End User shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. To the extent that any provision of this Agreement is unenforceable under U.S. federal law, such provision shall not apply against the U.S. Government End User. Recourse against the U.S. Government End User for any alleged breach of this Agreement must be made under the terms of the Federal Tort Claims Act or as a dispute under the Contract Disputes Act, as applicable. Venue and jurisdiction of any disputes with a U.S. Government End User are determined by the applicable federal statute.
9.7 Notices. Aventra may provide any notice to you under this Agreement by: (a) posting a notice on a Aventra website associated with Aventra on AWS; (b) sending a message to a current email address then associated with the Support Services Aventra provides to you under this Agreement, (c) sending a message to the email address then associated with your AWS account, or (d) sending written notice to your corporate headquarters to the attention of “General Counsel”. You hereby authorize AWS to provide Aventra with the email address then associated with your AWS account. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with you when Aventra sends the email, whether or not you actually receive the email. Notice to you will be effective as of the date Aventra posts the notice on one of the foregoing websites or sends the email to one of the foregoing email addresses. Notices to Aventra must be sent to 6860 Dallas Parkway, Suite 200, Plano, Texas 75024, Attn: General Counsel/Notices by overnight courier and are effective one business day after they are sent. All notices to be made or given pursuant to this Agreement must be in the English language.
9.8 Force Majeure. Any delay or nonperformance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
9.9 Independent Contractors. Aventra and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
9.10 Entire Agreement. This End User License Agreement; Order-specific terms (i.e., the description and quantities of Software, Support Services and other resources included in the Order(s)); any terms, conditions, restrictions, and policies regarding the Software or Support Services published by Aventra and referenced herein; and the AWS Terms and Policies as applied to you (collectively, the “Complete Agreement”) constitute the entire understanding between the parties regarding the subject matter of the Complete Agreement. The Complete Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between the parties, whether written or verbal, regarding the Software and Support Services. The Complete Agreement governs the Software and Support Services exclusively, except for the licensing provisions in separate written agreements, if any. Aventra will not be bound by, and specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of the Complete Agreement (whether or not it would materially alter the Complete Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. In the event of a conflict among the governing documents with respect to the subject matter of the Complete Agreement, the documents shall control in the following order: Order-specific terms; the End User License Agreement you accepted on the date of the Order; the most recently published terms, conditions, restrictions, and policies regarding the Software or Services; and the AWS Terms and Policies as applied to you. The most recent notice provided by Aventra in accordance with Section 9.7 (whether by email or posting) stating that it replaces (or amends) one of the governing documents, supersedes (or takes precedence over any conflicting terms in) the governing document as previously amended.
9.11 Modifications. The Complete Agreement may be modified by Aventra or AWS upon notice to you. Such notices will be in accordance with Section 9.7 for changes by Aventra and in accordance with the applicable AWS agreement for changes by AWS. For changes by Aventra, the modifications will become effective as stated in the notice; however, we will provide you with at least thirty (30) days prior notice for any material change to the terms of this Agreement. You accept the Complete Agreement as modified by continued use of the Software after the modification becomes effective.