MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (this “Agreement”) is the main agreement between Platform9 Systems, Inc. (“Platform9”) and the end customer and user of Platform9’s products (“Customer”). If Customer registers for a free trial or Proof of Concept (POC), then this Agreement will also govern the free trial or POC.
By accepting this Agreement, either by clicking a box indicating its acceptance or by executing an Order Form (as defined below) that references this Agreement, Customer agrees to the terms of this Agreement. If Customer and Platform9 have executed a written agreement governing Customer’s access to and use of the Products (as defined below), then the terms of such signed agreement will govern and will supersede this Agreement.
This Agreement is effective as of the earlier of the date that Customer accepts the terms of this Agreement as indicated above or first accesses or uses any of the Products (the “Effective Date”). Platform9 reserves the right to modify or update the terms of this Agreement in its discretion, the effective date of which will be the earlier of (i) 30 days from the date of such update or modification and (ii) Customer’s continued use of the Products.
Platform9 and Customer hereby agree as follows.
The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.
“Affiliate” means, with respect to an entity, any entity or person which directly or indirectly controls, is controlled by, or is under common control with that entity.
“CPU Socket” means a physical or virtual CPU socket.
“Customer Data” has the meaning ascribed to it in Section 8.1, below.
“Documentation” means the written or online documentation regarding the Products made available by Platform9.
“Order Form” means each order document submitted to Platform9 by Customer and accepted by Platform9, to purchase a Subscription to the Products. Each Order Form, when executed by Platform9, will be incorporated herein by reference.
“Hosted Software” means Platform9’s proprietary, Software-as-a-Service solution for managing cloud computing environments, as described on each applicable Order Form.
“Products” means, collectively, the Hosted Software, the Software, the Documentation, and all modifications, updates, and upgrades thereto and derivative works thereof.
“Service Level Agreement” means the Service Level Agreement attached hereto as Exhibit A.
“Software” means the software agent downloaded by Customer to its network in order to interact with the Hosted Software.
“Subscription” has the meaning ascribed to it in Section 2.1.
“Subscription Term” means the length of the Subscription set forth on the applicable Order Form.
“Support” means the technical support services set forth on Exhibit B.
“Users” means individuals or entities that are authorized by Customer to use the Products.
2. ACCESS TO AND USE OF SERVICES
2.1 Right to Access and Use Products. Subject to the terms of this Agreement, Platform9 grants Customer a royalty-free, nonexclusive, nontransferable, worldwide right during each Subscription Term to (i) use the Products described in the applicable Order Form for up to the number of CPU Sockets identified on the Order Form, and (ii) install the Software on equipment owned or operated by or on behalf of Customer (together, the “Subscription”).
2.2 Restrictions. Customer will not: (i) access (or allow a third party to access) the Products in order to monitor the availability, security, performance, or functionality of the Products, or for any other benchmarking or competitive purposes without Platform9’s express written consent; (ii) market, sublicense, resell, lease, loan, transfer, or otherwise commercially exploit or make the Software or Products available to any third party, except to a third party that manages Customer’s computing environment; (iii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Products, or any of their components; (iv) use the Products to conduct any fraudulent, malicious, or illegal activities (each of (i) through (iv), a “Prohibited Use”).
3. PLATFORM9 OBLIGATIONS
3.1 General. Platform9 is responsible for providing the Products in conformance with this Agreement, the Order Form(s), and applicable Documentation.
3.2 Availability. Platform9 uses its best efforts to ensure that the Hosted Software is available in accordance with the terms of the Service Level Agreement, which sets forth Customer’s remedies for any interruptions in the availability of the Hosted Software.
3.3 Support. If Customer experiences any errors, bugs, or other issues in its use of the Products, then Platform9 will provide Support in order to resolve the issue or provide a suitable workaround. The fee for Support is included in the cost of the subscription set forth on the Order Form. In order to ensure efficient communication, Customer will designate no more than two representatives to contact Platform9’s Support team (the “Customer Support Contacts”).
4. CUSTOMER OBLIGATIONS
4.1 System Administration. Customer will provide Platform9 contact information for Customer’s system administrator, who is authorized to provide the information required to configure and manage the Products (the “System Administrator”). Platform9 will provide Customer with a confidential access code to the administration tool, which may only be accessed by the System Administrator.
4.2 Maintenance of Network. Customer is responsible for maintaining the servers, network, and other equipment used by Customer to create and maintain its computing environment.
5. TERM AND TERMINATION
5.1 Term. The term of this Agreement will commence on the Effective Date and will continue for a period of three years (the “Initial Term”), regardless of whether Customer has any active Subscriptions to the Products. Thereafter this Agreement will automatically renew for successive one-year periods (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides 60 days prior written notice of its intent not to renew the then-current Term.
5.2 Termination for Cause. Either party may terminate this Agreement or any active Subscription 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 the 30-day period, or (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.
5.3 Effect of Termination. If Platform9 terminates this Agreement or any active Subscription in accordance with Section 5.2, then Customer will pay Platform9 any unpaid fees covering the Subscription Term up until the date of termination. Upon termination or expiration of this Agreement for any reason, Platform9 will, upon written request, provide Customer with (i) a backup of all Customer Data within ten business days of the termination or expiration and (ii) the Documentation, API’s, and cloud provider instance information reasonably necessary for Customer to assume management of its networking environment without use of the Products.
5.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 7; 8; 9; 10; 13; and 14.
6. FEES AND PAYMENT
6.1 Fees. Customer will pay the fees for the Subscription set forth on the applicable Order Form. Following execution of the Order Form, Platform9 will submit an invoice to Customer for the Subscription, and payment will be due on the terms set forth on the Order Form (the “Due Date”).
6.2 Overdue Charges. If any undisputed, invoiced amount is not received by Platform9 by the Due Date, then (i) those charges may accrue late interest at the rate of 3.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and (ii) Platform9 may condition future Subscriptions on receipt of payment for previous Subscriptions and/or payment terms shorter than those specified on the previous Order Form.
6.3 Taxes. The fees payable hereunder are exclusive of any sales taxes (unless included on the invoice), or similar governmental sales tax type assessments, excluding any income or franchise taxes on Platform9 (collectively, “Taxes”) with respect to the Products provided to Customer. Customer is solely responsible for paying all Taxes associated with or arising from this Agreement and shall indemnify, hold harmless and reimburse Platform9 for all Taxes paid or payable by, demanded from, or assessed upon Platform9.
6.4 Over-subscription. If Customer provisions a number of CPU Sockets in excess of the number specified on the applicable Order Form, and the excess number remain provisioned for more than 7 days, then Platform9 will invoice Customer for the excess number of CPU Sockets at the per-unit price indicated (or implied) on the most recent Order Form during each month that the excess CPU Sockets remain provisioned for at least one day.
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.
7.1 Confidential Information. Except as explicitly excluded below, any information of a confidential or proprietary nature provided by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) constitutes the Disclosing Party’s confidential and proprietary information (“Confidential Information”). Platform9’s Confidential Information includes the Products and any information conveyed to Customer in connection with Support. Customer’s Confidential Information includes Customer Data. Confidential Information does not include information which is (i) already known by the receiving party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the Disclosing Party; or (iv) independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.
7.2 Confidentiality Obligations. Each party will use the Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its Representatives.
7.3 Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
8. DATA PROTECTION
8.1 Customer Data. In connection with its use of the Products, Customer will transfer a limited amount of information to Platform9, consisting exclusively of (i) metadata about Customer’s network and computing environment, including the host server’s operating system, memory, CPU, storage, network and virtual machine attributes (collectively, “Metadata”), and (ii) User login information, including name, email, username, and password, except that if Customer makes use of SAML authentication, then only the User’s name will be transferred to Platform9 (collectively, “User Data” and together with Metadata, “Customer Data”). Platform9 uses Customer Data exclusively for the purpose of providing the Products to Customer, and Customer grants Platform9 a limited license during the Subscription Term to use Customer Data to do so.
8.2 Security. Platform9 maintains the physical, technical, and administrative safeguards described at http://assets.platform9.net/security.pdf (the “Security Measures”) in order to protect Customer Data and assist Customer with securing its own computing environment in its use of the Products.
8.3 No Access. Except for the Customer Data, Platform9 does not (and will not) collect, process, store, or otherwise have access to any information or data, including personal information, about Users, Customer’s network, or users of Customer’s products or services.
9.1 Platform9 Property. Platform9 owns and retains all right, title, and interest in and to the Products. Except for the limited license granted to Customer in Section 2.1, Platform9 does not by means of this Agreement or otherwise transfer any rights in the Products to Customer, and Customer will take no action inconsistent with Platform9’s intellectual property rights in the Products.
9.2 Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data and does not by means this Agreement or otherwise transfer any rights in the Customer Data to Platform9, except for the limited license set forth in Section 8.1.
10. REPRESENTATIONS AND WARRANTIES
10.1 Mutual Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.
10.2 Limited Warranty. Platform9 warrants that (a) the Products will conform with the Documentation; and (b) the Products will be provided in a manner consistent with generally accepted industry standards.
10.3 Disclaimer. With the exception of the limited warranties set forth in this Section 10, the Products 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 performance, merchantability, fitness for any particular purposes, and non-infringement. Platform9 does not warrant that the Products (i) are error-free, (ii) will perform uninterrupted, or (iii) will meet Customer’s requirements.
11.1 Platform9 will maintain in full force and effect during the term of this Agreement:
(a) Commercial general liability insurance on an occurrence basis for bodily injury, death, property damage, and personal injury, with coverage limits of not less than $500,000 per occurrence and $1,000,000 general aggregate for bodily injury and property damage;
(b) Auto liability insurance covering all owned, non-owned and hired vehicles, with coverage limits of not less than $500,000 per occurrence for bodily injury and property damage;
(c) Worker’s compensation insurance as required by law in the state where the Services will be performed, including employer’s liability coverage for injury, disease and death, with coverage limits of not less than $500,000 per accident and employee;
(d) Umbrella liability insurance on an occurrence form, for limits of not less than $1,500,000 per occurrence and in the aggregate; and
(e) Technology Errors & Omissions and Cyber-risk on an occurrence or claims-made form, for limits of not less than $1,000,000 annual aggregate covering liabilities for financial loss resulting or arising from acts, errors or omissions in the rendering of the Products, or from data damage, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, virus transmission, denial of service, and violation of privacy from network security failures in connection with the Products. Coverage will be maintained for a period of no less than three years following termination of this Agreement.
11.2 Insurance carriers will be rated A-VII or better by A.M. Best Provider. Platform9’s coverage will be considered primary without right of contribution of Customer’s insurance policies. In no event will the foregoing coverage limits affect or limit in any manner Platform9’s contractual liability for indemnification or any other liability of Platform9 under this Agreement.
12.1 By Platform9. Platform9 will indemnify, defend, and hold Customer, its Affiliates, and their respective owners, directors, members, officers, and employees (collectively, “Customer Indemnitees”) harmless from and against any claim, action, demand, suit or proceeding (each a “Claim”) made or brought by a third party against any of the Customer Indemnitees alleging that Customer’s use of the Products infringes or misappropriates any patent, trademark, copyright, or any other intellectual property of such third party. Platform9 will pay any settlement of such Claim, or any damages finally awarded against any Customer Indemnitees by a court of competent jurisdiction as a result of any such Claim, so long as Customer (i) gives Platform9 prompt written notice of the Claim, (ii) gives Platform9 sole control of the defense and settlement of the Claim (provided that Platform9 may not settle any Claim without the Customer Indemnitee’s written consent, which will not be unreasonably withheld), and (iii) provides to Platform9 all reasonable assistance, at Platform9’s request and expense. If Customer’s right to use the Products hereunder is, or in Platform9’s opinion is likely to be, enjoined as the result of a Claim, then Platform9 may, at Platform9’s sole option and expense procure for Customer the right to continue using the Products under the terms of this Agreement, or replace or modify the Products so as to be non-infringing and substantially equivalent in function to the claimed infringing or enjoined Products. Platform9 will have no indemnification obligations under this Section 12.1 to the extent that a Claim is based on or arises from: (a) use of the Products in a manner other than as expressly permitted in this Agreement; (b) any alteration or modification of the Products except as expressly authorized by Platform9; (c) the combination of the Products with any other software, product, or services (to the extent that the alleged infringement arises from such combination); or (d) where the Claim arises out of specifications provided by Customer. This Section 12.1 sets forth Platform9’s sole and exclusive liability, and Customer’s exclusive remedies, for any Claim of infringement or misappropriation of intellectual property.
12.2 By Customer. Customer will indemnify, defend, and hold harmless Platform9, its Affiliates, and their respective owners, directors, members, officers, and employees (together, the “Platform9 Indemnitees”) from and against any Claim related to (a) Customer’s or a User’s engaging in a Prohibited Use, and (b) any and all acts or omissions of its Users. Customer will pay any settlement of and any damages finally awarded against any Platform9 Indemnitee by a court of competent jurisdiction as a result of any such Claim so long as Platform9 (i) gives Customer prompt written notice of the Claim, (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Platform9’s prior written consent which will not be unreasonably withheld), and (iii) provides to Customer all reasonable assistance, at Customer’s request and expense.
13. LIMITATIONS OF LIABILITY
13.1 EACH PARTY HERETO AGREES THAT WITH THE EXCEPTION OF THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7, AND PLATFORM9’S SECURITY OBLIGATIONS UNDER SECTION 8.2, AND ABSENT GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE OTHER PARTY, NEITHER THE OTHER PARTY NOR ITS AFFILIATES NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES OF ANY OF THEM WILL BE LIABLE TO SUCH PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
13.2 IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THREE TIMES THE TOTAL AMOUNT PAID BY CUSTOMER TO PLATFORM9 UNDER THIS AGREEMENT. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT’S SOLE AND EXCLUSIVE REMEDY.
This Agreement is the entire agreement between Customer and Platform9 and supersedes all prior agreements and understandings concerning the subject matter hereof. Customer and Platform9 are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between Customer and Platform9. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the Parties consent to personal jurisdiction and the exclusive venue of the courts in Santa Clara County, California. Any notice provided by one party to the other under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above or, if to Customer, by electronic mail to Customer’s primary email address on file with Platform9. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets.
EXHIBIT A to Master Subscription Agreement
SERVICE LEVEL AGREEMENT
1. Definitions. For purposes of this Service Level Agreement, the following terms have the meaning ascribed to each term below:
“Downtime” means if Customer is unable to access the Products by means of a web browser and/or API as a result of failure(s) in the Products software or architecture, as confirmed by Platform9.
“Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.
“Service Credit” means the number of days that Platform9 will add to the end of the Term, at no charge to Customer.
2. Service Level Warranty. During the Term, the Products will be operational and available to Customer at least 99.9% of the time in any calendar month (the “Service Level Warranty”). If the Monthly Uptime Percentage does not meet the Service Level Warranty in any calendar month, and if Customer meets its obligations under this Agreement, then Customer will be eligible to receive Service Credit as follows:
|< 99.9% - ≥99.0%||3|
|< 99.0% - ≥ 95.0%||7|
3. Customer Must Request Service Credit. In order to receive Service Credit, Customer must notify Platform9 within 30 days from the time Customer becomes eligible to receive a Service Credit under the terms of this Agreement. Failure to comply with this requirement will forfeit Customer’s right to receive Service Credit.
4. Maximum Service Credit. The aggregate maximum amount of Service Credit to be issued by Platform9 to Customer for all Downtime that occurs in a single calendar month will not exceed 15 days. Service Credit may not be exchanged for, or converted into, monetary amounts.
5. Exclusions. The Service Level Warranty does not apply to any performance issues that (i) are caused by riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, earthquakes, or any other causes that are beyond Platform9’s reasonable control so long as Platform9 uses commercially reasonable efforts to mitigate the effects of such force majeure, (ii) resulted from Customer’s equipment or third party equipment or service (e.g. Customer’s internet connection), or both, or (iii) resulted from Customer’s violation of the Agreement.
6. Exclusive Remedy. This Agreement sets forth Customer’s sole and exclusive remedy for any failure by Platform9 to meet the Service Level Warranty.
EXHIBIT B to Master Subscription Agreement
This Support Services Exhibit sets forth the terms on which Platform9 provides technical support (“Support”) to Customer (the “Support Terms”).
“Error” means a failure of the Products to conform to the published specifications, resulting in the inability to use, or material restriction in the use of, the Products.
“Escalation” means the process by which Platform9 will work continuously, and at multiple levels of its organization, to resolve an Error if not resolved within the specified Resolution Time set forth in Section 4, below
“Start Time” means the time at which Platform9 first becomes aware of an Error during Platform9’s regular business hours, following initiation of a Support case by Customer in accordance with Sections 2 and 3, below.
2. General. During a Subscription Term, Platform9 will provide the Support described in these Support Terms, 24 hours a day, 7 days a week.
3. Contacts. The Customer Support Contacts may initiate a Support case by emailing email@example.com, by opening a Support ticket on the Platform9 Support portal at www.platform9.com/support, or by calling the Platform9 Support Line at (650) 898-7369. Emergency cases must be opened via phone. Customer may initiate an unlimited number of Support cases.
4. Priority Levels and Timeframes. Platform9 will establish the Priority Level of an Error and the corresponding Support case in its sole discretion and will use its best efforts to adhere to the Response Times and Resolution Times set forth below. If an Error is not addressed within the Resolution Time set forth below, Platform9 will commence an Escalation.
|Priority Level||Description||Response Time||Resolution Time|
|1||Major Impact: Products are inoperable or the performance of the Products are so severely reduced that Customer cannot reasonably continue to use the Products because of the Error, the Error cannot be circumvented with a workaround, and it affects Customer’s ability to perform its business.||2 hours||8 hours|
|2||Moderate Impact: Performance is significantly degraded such that Customer’s use of the Products are materially impaired, but the Error can be circumvented with a workaround.||4 hours||24 hours|
|3||Minor Impact: Customer is experiencing a performance, operational, or functional issue in its use of the Products that can be circumvented with a workaround, and the Error causes only minimal impact to the Customer’s ability to use the Products.||24 hours||3 days|
|4||General Questions: No issue with performance or operation of the Products. These include standard questions on the API configuration, dashboard functionality, enhancement requests, or documentation clarification.||3 days||7 days|
5. Conditions, Exclusions, and Termination.
(a) Conditions. Platform9’s obligation to provide Support is conditioned upon the following: (i) Customer makes reasonable efforts to solve the Error after consulting with Platform9; (ii) Customer provides Platform9 with sufficient information and resources to correct the Error, as well as any and all assistance reasonably requested by Platform9; and (iii) Customer procures, installs, and maintains all equipment, telephone lines, communication interfaces and other hardware necessary to access and operate the Products.
(b) Exclusions. Platform9 is not obligated to provide Support in the following situations: (i) the problem is caused by Customer’s negligence, hardware malfunction, or other causes beyond the reasonable control of Platform9; or (ii) the problem is with third party software not licensed through Platform9.
(c) Termination. Platform9 reserves the right to conclude its performance of a Support case when, in its reasonable discretion, Platform9 determines that it has provided a satisfactory resolution or workaround to the Error.
Updated: November 22, 2017