SaaS Terms of Use Subscription Agreement

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF PLATFORM9’S SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR PLATFORM9’S SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

NOTWITHSTANDING ANYTHING ELSE STATED HEREIN, IF CUSTOMER AND PLATFORM9 HAVE EXECUTED A WRITTEN AGREEMENT FOR THE ACCESS TO OR USE OF THE SOFTWARE OR SERVICES (“SIGNED AGREEMENT”), THEN THE TERMS OF THE SIGNED AGREEMENT SHALL GOVERN AND CONTROL AND THIS AGREEMENT SHALL HAVE NO EFFECT.

This SAAS Terms of Use Subscription Agreement includes the following attachments which are incorporated herein by reference, (a) Service Level Agreement and (b) Order Form.

This SAAS Terms of Use Subscription Agreement is entered into as of the earlier of the date that Customer accepts the terms herein or first accesses or uses any Software or Services (the “Effective Date”).


1. DEFINITIONS.
For purposes of the Agreement, the following definitions apply:

A. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

B. “Agreement” means this SAAS Terms of Use Subscription Agreement, any applicable supplemental terms, Order Form, Service Level Agreement and any materials available on the Platform9 website that are specifically incorporated by reference.

C. “Annual Customers” means Customers who have a valid annual or multi-year contract for Services.

D. “Beta Services” means Platform9’s services that are not generally available to customers.

E. “Confirmation Notice” means a confirmation notice issued electronically by Platform9 to the Customer, confirming the Software or Services purchased and access details. Confirmation Notice includes order forms or other purchasing documentation entered into between Customer and Platform9 for the Software or Services.

F. “Core” means a central processing unit, regardless of whether contained either in a single computing component or a multi-core processor unit.  A multi-core processor shall be deemed to have as many cores as advertised by the manufacturer, such determination shall be made regardless of whether cores share caches or their inter-core communication methods.

G. “Customer” means an “Annual Customer” or “Monthly Customer” as the case may be.

H. “Customer Data” means any data provided by Customer to Platform9 under this Agreement.

I. “Documentation” means explanatory materials created by Platform9 in printed, electronic or online form that accompany the Services or Software.

J. “Malware” means applications, executable code, or malicious content that Platform9 deems to be harmful, including, but not limited to: code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

K. “Monthly Customer” means Customers who have a valid monthly contract for Services with no annual or multi-year commitment.

L. “Non-Platform9 Applications” means a web-based or offline software application that is provided by Customer or a third party and interoperates with a Service, including, for example, an application that is developed by or for Customer.

M. “Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between Customer and Platform9 or any of each party’s Affiliates, as applicable, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate of either party agrees to be bound by the terms of this Agreement as if it were an original party hereto.

N. “Platform9” means Platform9 Systems, Inc., a Delaware corporation, with offices located at 350 Altair Way, Sunnyvale CA 94086 USA.

O. “Service Level Agreement” or “SLA” means an addendum to this Agreement where the Customer and Platform9 define the scope, quality, and responsibilities of each party with respect to the Software and Services to be provided.

P. “Services” means “Software as a Service” or “SaaS”, which consists of activities including system administration, system management and system monitoring that Platform9 performs using Software installed on Platform9 systems along with any optional add-on services, to which Customer has rightful access through a valid Confirmation Notice.

Q. “Software” means programs, applications or object code obtained from Platform9 and installed in the Customer’s environment, including Documentation, updates and upgrades, for the purposes of facilitating the delivery or functionality of the Services, such as plug-ins, to which Customer has rightful access through a valid Confirmation Notice.

R. “Support” means the technical support and maintenance services for the Software described in the Service Level Agreement.

S. “Term” means the time period during which Customer has the right to receive the Services specified in an Order Form which has been accepted and acknowledged by Platform9 in writing, as is further described in Section 7.B.

T. “User” means an individual who is authorized by Customer to use a Service, for whom Customer has ordered the Service, and to whom Customer (or Platform9 at Customer’s request) has supplied a user identification and password. Users may include, for example, Customer’s employees, consultants, contractors and agents, and third parties with which Customer transacts business.

2. RIGHT OF USE AND RESTRICTIONS.

A. Right to Access and Use Services.  Subject to the terms of this Agreement, Platform9 grants Customer a royalty-free, nonexclusive, nontransferable, limited right to use the Services described in the Confirmation Notice, for up to the number of Users or Cores identified on the Confirmation Notice, solely for Customer’s internal business use during the Term. Unless otherwise specified by Platform9, no Software will be delivered to the Customer as part of the Services.

B. Right to Install and use Software.  Subject to the terms of this Agreement, Platform9 grants Customer a royalty-free, nonexclusive, nontransferable, worldwide limited term license to install the Software on equipment owned or operated by or on behalf of Customer, as needed to use the Services or functionality described in the relevant Confirmation Notice. A reasonable number of copies of the Software may be made as required for disaster recovery purposes. The Software must be de-installed and destroyed at the end of the Term. If Customer enters into a contract in which a third party manages Customer’s information technology resources (“Oursourcer”), Customer may transfer all its rights to use the Software to such Outsourcer, provided that (a) the Outsourcer only uses the Services for Customer’s internal operations under Customer’s direction and control; (b) the Outsourcer agrees to comply with this Agreement, and (c) Customer provides Platform9 with written notice that a Outsourcer will be using the Software on Customer’s behalf.

C. Support, Updates and Upgrades. Customer must be current in the payment of Support services fees for the Software, or have an active subscription to the Services, as applicable, to receive Support, updates or upgrades.

D. Restrictions.  Customer may not access the Software or Services if Customer is a direct competitor of Platform9, or for monitoring the availability, security, performance, functionality of the Software or Services, or for any other benchmarking or competitive purposes without Platform9’s express written permission. Customer will not: (i) market, license, sublicense, sell, resell, rent, lease, loan, transfer, assign, publish, display, distribute, or otherwise commercially exploit or make the Software or Services available to any third party, in whole or in part; (ii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Software or Services, or any of its components (except as set forth in Section 2.B above); (iii) use the Software or Services to conduct fraudulent activities, or impersonate or misrepresent an affiliation with a person or entity; (iv) attempt to gain unauthorized access to the Software or Services, engage in any denial of service attacks, or otherwise cause immediate, material or ongoing harm to Platform9, its provision of the Software or Services, or others; (v) use the Software or Services to store or transmit Malware; (vi) use the Software or Services for any purpose that violates applicable law or regulation, infringes on the rights of any person or entity, or violates this Agreement; or (vii) use the Software or Services for third-party training, commercial time-sharing, or service bureau use (each of (i) to (vii), a “Prohibited Use”). All rights not expressly granted to Customer are reserved by Platform9 and its licensors.

E. Right to Use Customer Data.  Customer hereby grants Platform9 a limited, non-exclusive, royalty-free, license to access, use, reproduce, transmit, store, and archive the Customer Data solely as necessary for Platform9 to (i) provide and improve the Software, Services and Support to Customer during the Term; and (ii) for the aggregation purposes set forth in Section 11 below.

3. BETA RELEASES.  Access or use of Software or Services identified as not generally available for commercial use, such as “Beta” or “Pre-Release” (“Beta Release”), is restricted to Customer’s internal evaluation of the Beta Release.  A Beta Release is not for production use, is not considered “Software” or “Services” under this Agreement, is not entitled to Support, and may be subject to additional terms.  Platform9 reserves the right to materially change or discontinue any Beta Release at any time and without notice to Customer, and Customer’s access to the Beta Release may be interrupted during maintenance periods. Platform9 is not obligated to release any production version of the Beta Release.  Customer agrees to report and discuss Customer findings about the Beta Release with Platform9 personnel so that Platform9 personnel will have an opportunity to rectify any open issues that are identified.  CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE BETA RELEASES ARE PROVIDED “AS IS” AND MAY CONTAIN BUGS, ERRORS AND DEFECTS AND ARE NOT EXPECTED TO FUNCTION WITHOUT INTERRUPTION. PLATFORM9 WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH ANY BETA RELEASE.  ANY DATA CUSTOMER ENTERS THROUGH THE USE OF THE BETA RELEASE MAY WILL BE LOST UNLESS CUSTOMER EXPORTS SUCH DATA BEFORE THE END OF THE BETA PERIOD.

4. EVALUATION. If Customer has signed up for an evaluation of the Software or Services (“Evaluation”), then the provisions of this Section shall apply and shall supersede any other conflicting term of this Agreement. Customer’s use of the Evaluation is limited to thirty (30) days unless otherwise agreed to in writing by Platform9. Customer acknowledges that the Evaluation may contain errors or other problems that could cause system or other failures and data loss. Consequently, Platform9 disclaims any warranty or liability obligations to Customer of any kind. Customer is not eligible for any Support for Evaluation Software or Services. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE EVALUATION IS PROVIDED “AS IS” AND MAY CONTAIN BUGS, ERRORS AND DEFECTS AND IS NOT EXPECTED TO FUNCTION WITHOUT INTERRUPTION. PLATFORM9 WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH ANY EVALUATION.  ANY DATA CUSTOMER ENTERS THROUGH THE USE OF THE EVALUATION MAY WILL BE LOST UNLESS CUSTOMER EXPORTS SUCH DATA BEFORE THE END OF THE EVALUATION PERIOD.

5. CUSTOMER OBLIGATIONS.

A. Customer is responsible for all activity occurring under Customer’s Software, Services and Support accounts. Customer will provide Platform9 with all information and assistance required to supply the Software or Services or enable Customer’s use of the same. Customer will immediately notify Platform9 upon Customer becoming aware of any: (i) unauthorized account use or other suspected security breach in the Software or Service; (ii) unauthorized use, copying or distribution of Software, accompanying Documentation or Customer Data; and (iii) unusual performance of the Software or Service observed by Customer.

B. Customer must obtain all necessary rights and permissions from Users. Customer represents and warrants that: (i) Customer has the legal rights and applicable consents to provide Customer Data to Platform9, (ii) Customer complies with all applicable laws for collecting, processing and transferring Customer Data to Platform9, (iii) Customer retains adequate back-ups of Customer Data, and (iv) Customer is solely responsible for Customer Data, the servers and such network on which such data is stored and transmitted. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. The Services rely on Customer Data as supplied by Customer, as well as the servers and network used by Customer, and Platform9 is not liable for the content of Customer Data or Customer’s servers and other equipment and personal property. Platform9 does not assume any duty or obligation to correct or modify Customer Data, servers, equipment, or personal property.

C. Customer will provide Platform9 contact information for Customer’s system administrator, who is authorized to provide the information required to configure and manage the Services (“System Administrator”). Platform9 will provide Customer with a confidential access code to the administration tool, which may only be accessed by the System Administrator.

D. Customer agrees to provide current and complete account Users’ information as necessary for Platform9 to manage Customer’s account. Customer agrees to accept Platform9 emails relevant to Customer’s receipt of the Services at the e-mail address specified by its System Administrator.

E. Customer agrees that Platform9 may rely on all information provided to Platform9 by the Customer from the designated e-mail addresses. Platform9 may provide all notices, statements, and other communications arising under this Agreement (other than legal notices) to Customer through either e-mail, posting on the Services or other electronic transmission.

6. PLATFORM9 OBLIGATIONS.  Platform9 is responsible for providing the Software, Services and Support in substantial conformance with this Agreement, the Order Forms, and the applicable Service Level Agreement.

7. TERM AND TERMINATION.

A. Term of Agreement. Unless earlier terminated pursuant to Sections 7, 13.C or 18.B, this Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated.

B. Term of Purchased Subscriptions. The Term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription Term. The per-unit pricing (including per-core pricing as applicable) during any automatic renewal Term will be the same as that during the immediately prior Term unless Platform9 has given Customer written notice of a pricing increase at least 30 days before the end of that prior Term, in which case the pricing increase will be effective upon renewal and thereafter.

C. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) Customer makes an unauthorized assignment of this Agreement. Upon termination of this Agreement, Customer agrees that Platform9 has no obligation to retain Customer Data, which may be irretrievably deleted. Customer is solely responsible for backing up Customer Data in its account.  After the Support or Services subscription period expires, Customer has no further rights to receive any updates or upgrades.

D. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 7.C (Termination), Platform9 will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Platform9 in accordance with Section 7.C, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to Platform9 for the period prior to the effective date of termination.

E. Effect of Termination / Data Deletion. On the termination of this Agreement for any reason: (A) all rights granted to Customer under this Agreement, including its ability to access any data stored in the Software or Services, will immediately terminate; and (B) Customer must promptly discontinue all use of the Software or Services and delete or destroy any Platform9 Confidential Information. Upon termination of the Agreement, Platform9 will have no obligation to maintain or provide Customer Data, and shall have the option to thereafter delete or destroy all copies of Customer Data in Platform9’s systems or otherwise in its possession or control, unless legally prohibited. Termination of the Agreement will not entitle Customer to any refunds, credits, or exchanges, except as expressly provided above.

8. FEES AND PAYMENT FOR PURCHASED SERVICES.

A. Fees. Customer will pay all fees specified in Order Forms. Except as otherwise expressly provided herein or in an Order Form, (i) fees are based on Services or Software purchased regardless of actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

B. Invoicing and Payment. Customer will provide Platform9 with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Platform9. If Customer provides credit card information to Platform9, Customer authorizes Platform9 to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 7.B (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Platform9 will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Platform9 and notifying Platform9 of any changes to such information.

C. Overdue Charges. If any invoiced amount is not received by Platform9 by the due date, then without limiting any rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Platform9 may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 8.B (Invoicing and Payment).

D. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized Platform9 to charge to Customer’s credit card), Platform9 may, without limiting any other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services to Customer until such amounts are paid in full. Platform9 will give Customer at least 10 days’ prior notice that the account is overdue before suspending Services.

E. Payment Disputes. Platform9 will not exercise its rights under Section 8.C (Overdue Charges) or 8.D (Suspension of Service and Acceleration) above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

F. Taxes. Platform9’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Platform9 has the legal obligation to pay or collect Taxes for which Customer are responsible under this Section 8.F, Platform9 will invoice Customer and Customer will pay that amount unless Customer provides Platform9 with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Platform9 is solely responsible for taxes assessable against Platform9 based on Platform9’s net income, property and employees.

9. SUSPENSION OF SERVICE. Platform9 may suspend the Services: (a) if Platform9 deems it necessary to prevent or terminate any Prohibited Use, after advance notice to Customer and a period of five (5) days to cure the Prohibited Use, unless the Prohibited Use is causing immediate injury or is incapable of cure, in which case no advance notice shall be required. Suspension of Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including Customer’s obligation to pay fees.

Platform9 may temporarily suspend the Services for maintenance purposes, with 24 hours notice except in extraordinary circumstances. Platform9 will use commercially reasonable efforts to minimize any such disruption of Services. Upon suspension for any reason, Platform9 will provide Customer with written notice specifying the reason for the suspension. Customer will not be entitled to any Service Credits under the Service Level Agreement that Customer might have otherwise accrued during the suspension period.

10. CONFIDENTIALITY.  “Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers.  Without limiting the foregoing, all Software, Services and related Documentation will be deemed the “Confidential Information” of Platform9.  Each party agrees (i) to hold the other party’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, except as described below and (iii) not to use any Confidential Information except for the purposes of this Agreement.  The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the disclosing party’s Confidential Information hereunder.  The receiving party also may disclose the disclosing party’s Confidential Information if required by law (including a court order or subpoena), provided the receiving party, where lawfully permitted, promptly notifies the disclosing party in time to review and challenge the potential disclosure.  The restrictions set forth in this Section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; or (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information.  The parties agree that a breach of this Section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party.  In the event of any termination or expiration of this Agreement, the receiving party will either return or, at the disclosing party’s request, destroy the Confidential Information of the disclosing party; provided however, that Platform9 may retain copies of Customer’s Confidential Information for routine backup and archival purposes.  The parties agree to maintain the confidentiality as described herein for three (3) years after the termination of this Agreement.

11. PRIVACY. Platform9 reserves the right to use and store aggregated and anonymized Customer traffic to maintain or improve the Services. Some such information may be shared with third parties as a part of a larger set of statistics (for example, statistics that indicate amount of traffic, success rates, and size of Platform9’s customers). Customer agrees that such data is not Confidential Information.  The Software, Services or Support may employ applications and tools to collect personally identifiable, sensitive or other information about Platform9’s customers and users of the Software and Services, their computers, files stored on their computers, or their computers’ interactions with other computers (including, information regarding network, licenses used, hardware type, model, hard disk size, CPU type, number of cores, disk type, RAM size, operating system, versions, BIOS data, scanners, database size, system telemetry, device ID, IP address, location, content, components, processes, updates, upgrades, usage patterns and services information, information about third party products installed, extracts of logs created by Platform9 or its agents, ) (collectively, “Usage Data”). Platform9 may use cookies to store user session information, access codes and application settings to ease site navigation processes for the purposes of providing the Services or Software hereunder.

The collection of this Usage Data may be necessary to provide Customers with the relevant Support or Service as ordered, improve overall security for Customers and users of the Services. Customer may be required to uninstall the Software or disable Support or its Service to stop further Usage Data collection that supports these functions.

By entering into this Agreement, or using the Support, Software or Services, Customer agrees to the Platform9 Privacy Policy on the Platform9 web site (platform9.com/privacy-policy), and to the collection, processing, copying, backup, storage, transfer and use of Usage Data by Platform9 and its service providers, in, from and to the United States, Europe, or other countries or jurisdictions, potentially outside of the Customer or User’s own, as part of the Support, Software or Service delivery. Customer is solely responsible for securing any privacy-related rights and permissions from its Users as may be required by local law. Platform9 will treat personally identifiable information in accordance with the Platform9 privacy policy on the Platform9 web site.

12. INTELLECTUAL PROPERTY. The Software and Services, including without limitation any associated Documentation, specifications, hardware, websites, passwords, components and tools (“Platform9 Property”), are the sole and exclusive property of Platform9 or its licensors, who retain sole ownership of all right, title and interest in Platform9 Property, as well as any enhancements, improvements, modifications and derivative works thereof. These ownership rights include copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights (“Intellectual Property Rights”). Customer agrees, on behalf of itself and its Users, that it will take no action inconsistent with Platform9’s Intellectual Property Rights. Customer agrees that Platform9 has the unrestricted right to use and exploit feedback or recommendations provided by Customer in Platform9’s sole discretion, without notice to, payment to or consent from Customer and that such feedback is not subject to the Confidential Information provisions of this Agreement. Customer agrees not to disclose such feedback to any third party without the express written consent of Platform9.

Customer retains all right, title and interest in and to Customer Data.

13. LIMITED WARRANTY, REMEDIES AND DISCLAIMER.

A. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

B. Limited Warranty.  Platform9 warrants that (a) the Software and Services will substantially conform with their Documentation; and (b) the Services will be provided in a manner consistent with generally accepted industry standards.  Platform9 shall only provide the foregoing warranty where the Customer is using the latest version of the Software and has an active subscription to the Services. There shall be no other warranty.

The Services may contain features designed to interoperate with Non-Platform9 applications and software. To use such features, Customer may be required to obtain access to Non-Platform9 applications from their providers, and may be required to grant Platform9 access to Customer’s account(s) on the Non-Platform9 applications. If the provider of a Non-Platform9 application ceases to make the Non-Platform9 application available for interoperation with the corresponding Service features on reasonable terms, Platform9 may cease providing those Service features without entitling Customer to any refund, credit, or other compensation.

C. Limitation of Remedy.  The sole and exclusive remedy for any claim for breach of warranty under this Agreement is for Platform9 to modify the Services to conform with the documentation. If Platform9 is unable to do so, Platform9 may, in its own discretion: (1) allow Monthly Customers to terminate the Agreement; or (2) for Annual Customers, provide Service Credits that extend the term of the Customer’s Service Agreement by thirty (30) days upon renewal of the annual Agreement.

D. DISCLAIMER.  WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 13, ANY USE BY CUSTOMER AND USERS OF THE SOFTWARE AND SERVICES IS AT CUSTOMER’S OWN RISK. THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. PLATFORM9 AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, NON-INFRINGEMENT, TITLE, AND OWNERSHIP. PLATFORM9 AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES OR SOFTWARE: (1) ARE ERROR-FREE; (2) WILL PERFORM UNINTERRUPTED; OR (3) WILL MEET CUSTOMER’S REQUIREMENTS.  EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTIES, INCLUDING WITHOUT LIMITATION HOSTING PROVIDERS.

E. The Services and Software may include programs or code that are licensed under an Open Source Software (“OSS”) license model. OSS programs and code are subject to the terms, conditions and obligations of the applicable OSS license, and are SPECIFICALLY EXCLUDED FROM ALL WARRANTY, INDEMNFICATION AND SUPPORT OBLIGATIONS DESCRIBED ELSEWHERE IN THIS AGREEMENT.

14. THIRD PARTIES. THE SOFTWARE AND SERVICES MAY CONTAIN INDEPENDENT THIRD PARTY PRODUCTS AND RELY UPON THEM TO PERFORM CERTAIN FUNCTIONALITY. PLATFORM9 MAKES NO WARRANTY AS TO THE ACCURACY OF ANY SUCH THIRD PARTY INFORMATION.

15. INTERNET DELAYS. SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PLATFORM9 IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS.

16. SECURITY. No data transmission over the Internet can be guaranteed to be secure. Platform9 is not responsible for any interception or interruption of any communications through the Internet or networks or systems outside Platform9’s control. Customer is responsible for maintaining the security of its networks, servers, applications, and access codes.

17. LIMITATIONS OF LIABILITY. EXCEPT FOR INDEMNIFICATION PROVIDED UNDER SECTION 18 BELOW, TO THE EXTENT PERMITTED BY APPLICABLE LAW, PLATFORM9’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED: (1) FOR MONTHLY CUSTOMERS, TO THE FEES PAID UNDER THIS AGREEMENT FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY; AND (2) FOR ANNUAL CUSTOMERS, TO THE FEES PAID UNDER THIS AGREEMENT FOR THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION IS THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT. IN NO EVENT WILL PLATFORM9 OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING DAMAGES ARISING FROM LOSS, DISCLOSURE OR DELAYED USE OF DATA; LOST PROFITS, SAVINGS OR REVENUE; DAMAGE TO EQUIPMENT; LOSS OF OR DAMAGE TO RECORDS OR DATA; RE-PROCUREMENT COSTS; AND THIRD PARTY CLAIMS AGAINST CUSTOMER) HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF PLATFORM9 HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT WILL LIMIT PLATFORM9’S LIABILITY FOR DEATH AND BODILY INJURY.

18. INDEMNIFICATION.

A. Indemnification By Customer.  Customer agrees to indemnify, defend, and hold Platform9 harmless from all claims, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any: (i) Customer or User’s engagement in a Prohibited Use; (ii) Customer Data passing to or from Customer through the Software, Services or Platform9’s network; (iii) taxes arising from the Software and Services whether now in effect or imposed in the future (excluding taxes based on Platform9’s net income, property and employees); (iv) failure by Customer to obtain all necessary consents related to Customer Data; (v) claims by third parties arising from Customer’s use of the Software or Services (excluding claims indemnified by Platform9 pursuant to Section 18.B below); (vi) any and all acts or omissions its Users; and (vii) any reasonable costs and attorneys’ fees required for Platform9 to respond to a subpoena, court order or other official government inquiry regarding Customer Data or Customer’s use of the Software or Services.

B. Indemnification by Platform9.  Platform9 shall defend and hold Customer harmless from any claim by a third party that the Software or Services infringe any patent, copyright or trade secret of that third party. The foregoing obligation of Platform9 does not apply with respect to Software, Services or portions or components thereof: (i) not supplied by Platform9; (ii) used in a manner not expressly authorized by this Agreement or the accompanying Documentation (iii) made in accordance with Customer’s specifications; (iv) modified by anyone other than Platform9, if the alleged infringement relates to such modification; (v) combined with other products, processes or materials where the alleged infringement would not exist but for such combination; or (vi) where Customer continues the allegedly infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement.

In the event that Platform9 believes, in its sole discretion, that an infringement claim involving the Software or Services is likely to occur, Platform9 may, at its sole option, do one or more of the following: (i) procure the right to continued use of the Software or Services; (ii) modify the Software or Services so that their use becomes non-infringing; (iii) replace the Software or Services with substantially similar products in functionality and performance; or (iv) terminate the subscriptions and licenses granted for the affected Software or Services and refund the pro-rata unused portion of the fees paid by Customer for the Software or Services.

C. The parties may request indemnification under this provision, provided they: (a) promptly give written notice of the claim to the indemnifying party; (b) give sole control of the defense and settlement to the indemnifying party (provided any settlement relieves the indemnified party of all liability in the matter); (c) provide all available information and reasonable assistance; and (d) have not previously compromised or settled such claim.

D. THIS SECTION STATES PLATFORM9’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS.

19. WAIVER. Any waiver of rights under this Agreement must be in writing. Failure to exercise or enforce any right under this Agreement will not be deemed a waiver of that party’s right nor bar the exercise or enforcement of it at any time thereafter.

20. JURISDICTION/GOVERNING LAW; COSTS; LIMITATION PERIOD. This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of California. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The federal courts of United States District Court for the Northern District of California or state courts located in Santa Clara County, as applicable, shall have the exclusive jurisdiction over all disputes relating to this Agreement.

21. NOTICE AND ACCURACY OF INFORMATION. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after sending by express mail or overnight courier with a tracking system, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by confirmed email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the relevant Services system administrator designated by Customer.

All legal notices to Platform9 under this Agreement must be addressed to

Attention: Legal Department
Platform9 Systems, Inc.
350 Altair Way,
Sunnyvale CA 94086 USA

22. MODIFICATION TO TERMS. Platform9 reserves the right to modify the terms and conditions of this Agreement at any time, effective upon the posting of an updated version at www.platform9.com/terms-conditions. Customer is responsible for regularly reviewing this Agreement. Continued use of the Software or Services after any such change shall constitute Customer’s consent to the changes.

23. BINDING EFFECT AND ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Platform9 retains the right to assign this Agreement in its sole discretion. Customer may not assign this Agreement without the prior written permission of Platform9.

24. SURVIVAL. Sections 1, 7, 10-12, 17-21, 23 and 30 survive the termination or expiration of this Agreement.

25. EXPORT. Customer acknowledges that the Services and Software provided by Platform9 are subject to U.S. and when applicable non US export regulations. Customer shall comply with applicable export and import laws and regulations for the jurisdiction in which the Services will be imported, exported and/or provided. Customer shall not export the Services or Software to any individual, entity or country prohibited by applicable law or regulation. Customer is responsible, at Customer’s own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Services and/or Software provided by Platform9. Customer agrees to notify Platform9 if any customer data is or has been specifically designed, developed, configured, adapted, or modified for a military application listed on the United States Munitions List or USML, which would subject the service to the International Traffic in Arms Regulations (ITAR), Title 22 Code of Federal Regulations (CFR) Parts 120-130.

26. NOTICE TO U.S. GOVERNMENT END USERS: Platform9 provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Platform9 to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

27. FORCE MAJEURE. Platform9 is not liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused by forces of nature or any other cause beyond its reasonable control.

28. ENTIRE AGREEMENT AND SEVERABILITY. This Agreement represents the entire agreement between the parties and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein. This Agreement supersedes and controls over any conflicting terms contained in any Customer purchase order. If any provision of this Agreement is declared invalid or unenforceable by a court or administrative agency of competent jurisdiction, the remaining provisions hereof shall remain in full force and effect and this Agreement shall be construed and performed as if it did not contain the invalid or unenforceable provision.

29. RELATIONSHIP. The parties to this Agreement are independent contractors. Neither party will be deemed to be or hold itself out as a partner, joint venturer or agent of the other party. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.  This is a non-exclusive arrangement.

30. THIRD PARTIES. No term of this Agreement shall be enforceable by a person who is not a party to the Agreement.

ATTACHMENT A TO SAAS TERMS OF USE SUBSCRIPTION AGREEMENT

SERVICE LEVEL AGREEMENT

1. TELEPHONE SUPPORT. Platform9 will provide telephone support for the SaaS 24 hours x 7 days to the following two (2) named Customer contacts:

______________

______________

(the “Technical Support Contacts”). The Technical Support Contacts may be changed upon mutual written agreement of the parties.

2. SERVICE AVAILABILITY. Platform9 will use commercially reasonable efforts to maintain the availability of the SaaS to Customer and its users as follows:

Service CategoryAvailability/Response TimeNotes
Service Availability
99.9% measured annually as the uptime of Platform9 controller APIs
The availability SLA excludes interruptions due to Scheduled Downtime or Force Majeure
Scheduled Downtime
As Platform9 notifies Licensee no less than twenty-four (24) hours in advance in writing, and subsequently mutually agreed upon.
Unplanned Outages (other than for system emergency)
Maximum 8 hours over a reference period of 1 year, excluding Force Majeure.
Unplanned Outages for system emergency
Maximum 24 hours over a reference period of 365 days, excluding Force Majeure. Platform9 will promptly notify Company of any Unplanned Outage (whether or not for system emergency), including a description of the Unplanned Outage and the expected or estimated time until normal operations will resume. This notification will be provided in writing
Frequency of back-ups
One incremental back-up per day 7 days a week and one integral back-up once a week
Schedule of back-ups
30 days, 5 weeks, and 12 months, each retained for one year
Customer review of back-ups may be subject to additional fees. These fees will be disclosed in advance in writing, and need to be mutually agreed.
Average time for remedy of incidents
< 48 hours for 90% of cases
Calculated as from opening until closing of a case.

2.1. Service Level Calculations

1. All SLA measurements will be implemented by Platform9. Customers can also choose to measure the SLA themselves for independent verification.

2. SLAs will be measured against defined performance targets.

3. At the end of each annual cycle, the activity counters for compliance and non-compliance shall be reset to zero, and the measurement process of SLA adherence shall begin again.

4. Material delays related to non-Platform9 teams will be excluded when reporting Operational SLA compliance.

5. Material design specific issues, hardware issues or product specific issues (including End of Life Products) will be excluded from SLA measurement.

6. Incident breaches that cannot be pended due to various dependencies, viz 3rd Party, non-Platform9 teams, or user feedback, will be excluded from Platform9 SLA calculations

2.2. Support Process

The Platform9 Support process and escalation path are as shown below.

1. First level Support handled via email or opening a Support Ticket on Platform9 Support portal (platform9.com/support)

2. Second level Support via phone call to Platform9 Support Line: 650-898-7369

3. Escalation to the dedicated Technical Account Manager

2.3. RACI Chart For Support Responsibilities

Service ElementService DescriptionPlatform9Customer
Pre-deployment - Platform9
Identify resource requirements - compute, storage and networking, for platform9 controller tier, based on scale
RAC
Deployment - Platform9
Automated deployment, installation and configuration of Platform9 Managed OpenStack. Including deployment of core services, REST API and CLI endpoints.
RAC
Patch Management - Platform9
Periodic patch and bugfix management for all OpenStack components and services deployed by Platform9
RAC
Upgrade Management - Platform9
Upgrades to Platform9 Managed OpenStack
RC
3rd party plugins - Platform9
Integration of any third party plugins with Platform9 - eg supported OpenStack plugins - including initial deployment and updates
CRA
Incident, Change and Problem Management - Platform9
Incident, Change and Problem management for any bugs, issues that end users or Customer experiences with any components deployed by Platform9 team - assuming appropriate support procedures are performed for reporting of incidents and problems
RAC
End user training - Platform9
Training end users on Platform9 Managed OpenStack offering capabilities, answering ongoing questions from end users.
CIRA
Pre-deployment and deployment (non-Platform9 components)
Pre-deployment, deployment and configuration of (a) any software such as but not limited to Hypervisors, Storage, Networks (b) all hardware necessary for the deployment
CRA
Capacity management
Capacity management for all resources - hardware and software deployed by Customer team that Platform9 Managed OpenStack depends on for the controller tier, as well as are required for the actual OpenStack deployment
CRA
Patching/Updates/Upgrades (non-Platform9 components)
Patch, update and upgrade management for all hardware and software deployed by the Customer team.
IRA
3rd party plugins - (non-Platform9 components)
Installation, configuration and management of any 3rd party plugins installed by Customer team not related to Platform9's offering
RA
Incident and Change Management - (non-Platform9 components)
Incident, change and problem management for all software and hardware deployed by Customer team - including handling support requests from end users and providing end users with a portal and tools for reporting problems
IRA
End user training - (non-Platform9 components)
Training end users on Platform9 Managed OpenStack offering capabilities, answering ongoing questions from end users.
RA

3. EXCLUSIONS. Platform9 shall have no liability for lack of availability due to: (1) outages caused by the failure of public network or communications components, (2) unauthorized use or misuse by Customer’s Users or anyone using any of the Users’ passwords provided that Platform9 has taken commercially reasonable steps to protect the Platform9 System from unauthorized access, intrusion, and disruption, (3) Force Majeure events as described in the terms of the Agreement, or (4) a failure of Customer’s equipment or third-party computer hardware, software, or network infrastructure.

4. CUSTOMER REPORTING. Customer shall report any unscheduled system downtime and any error, bug, or defect in the Platform9 System to the maintenance telephone number set forth above immediately upon becoming aware or receiving notice of such system downtime, error, bug, or defect.

5. SOFTWARE-AS-A-SERVICE CREDITS. Platform9 failing to meet or exceed the Monthly Availability as measured over any month may be reflected in adjustments pursuant to the following schedule (“Service Credits”):

  • When availability is less than 99.9% in a given month, Platform9 will credit 15% of the pro-rated subscription fee (pro-rated for that month) in the form of an extension of the term of the Order Form to Customer.  Therefore, any renewal of the Agreement or Order Form shall be effective after Service Credits have been fully utilized.
  • Customer shall request their Service Credit within 30 days of the failure to meet the Monthly Availability and shall waive any right to Service Credits not claimed in that period.
  • The annual Service Credits are capped at thirty (30) days per annum.

Updated: August 10, 2016

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