Platform9 Elastic Machine Pool – Free Tier Terms of Use

Last Updated July 15, 2024

These Platform9 Elastic Machine Pool – Free Tier Terms of Use (this “Agreement”) govern the use of services provided by Platform9 Systems, Inc. (“Platform9”) to the user of the services (“Customer”).

By accepting this Agreement, whether by clicking a box indicating its acceptance or navigating through a login page where a link to this Agreement is provided, 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, then the terms of such signed agreement will govern and will supersede this Agreement.

PLEASE NOTE THAT IF AN INDIVIDUAL SIGNS UP FOR THE PRODUCTS USING AN EMAIL ADDRESS FROM THEIR EMPLOYER OR ANOTHER ENTITY, OR OTHERWISE SIGNS UP FOR THE BENEFIT OF THEIR EMPLOYER OR ANOTHER ENTITY, THEN (A) THEY WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) THEIR ACCEPTANCE WILL BIND THE EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “CUSTOMER” IN THESE TERMS WILL REFER TO THE EMPLOYER OR THAT ENTITY.

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 the Products (the “Effective Date”). Company 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 Service.

Platform9 and Customer hereby agree as follows:

1.              DEFINITIONS

The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.

“Cluster” means a Kubernetes cluster, such as an Amazon Web Services Elastic Kubernetes Service cluster.

Customer Data” means (i) metadata about Customer’s network and computing environment, including the host server’s operating system, memory, CPU, storage, network and virtual machine attributes; and (ii) User login information, including name, email, username, and password.

Documentation” means the written or online documentation regarding the Software and Hosted Software made available by Platform9.

Hosted Software” means Platform9’s proprietary, Software-as-a-Service solution for managing cloud computing environments, currently known as Platform9 Elastic Machine Pool – Free Tier.

Node” means a physical server, such as an Amazon EC2 Metal Instance, that is connected to or operated or managed via the Products.

Products” means, collectively, the Hosted Software, the Software, related API’s, the Documentation, and all modifications, updates, and upgrades thereto and derivative works thereof.

Software” means the software agent downloaded by Customer to its network in order to interact with the Hosted Software.

Users” means individuals or entities that are authorized by Customer to use the Products.

2.              ACCESS TO AND USE OF PRODUCTS

2.1. Right to Access and Use Products. Subject to the terms of this Agreement, Platform9 grants Customer a royalty-free, nonexclusive, non-transferable, worldwide right during the Term to (i) use the Products in accordance with the usage limits imposed by Platform9 as described in the Documentation or on the Product website (the “Usage Limits”); and (ii) install the Software on equipment owned or operated by or on behalf of Customer. Usage Limits may include a maximum number of Clusters, a maximum number of Nodes per Cluster, a maximum amount of projected annual savings as calculated by Platform9 and reflected in the Product user interface, and other limits. Platform9 reserves the right in its sole discretion to change the Products and Usage Limits at any time, including by modifying or eliminating certain functionality or imposing a fee for the continued use of certain features. Without limiting any other rights and remedies that Platform9 may have, Platform9 may immediately suspend Customer’s access to the Products if Customer exceeds any Usage Limits.

2.2. Prohibited Uses. 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 for 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.             TERM AND TERMINATION

3.1. Term. The term of this Agreement will commence on the Effective Date and will continue for as long as Customer is using the Products, unless terminated by Company at any time and for any reason (the “Term”).

3.2. Survival. The following provisions will survive any expiration or termination of the Agreement: 4, 7, 9, 10, and 11.

4.              CUSTOMER EQUIPMENT AND LOGO LICENSE

4.1. Customer Equipment. Customer is responsible for maintaining the servers, network, and other equipment used by Customer to create and maintain its computing environment, including operating systems and regular data backups.

4.2. Logo License. Customer grants Platform9 a nonexclusive, nontransferable and limited license during the Term to use and reproduce Customer’s logo on Platform9’s website and in promotional and marketing materials to identify Customer as a customer of Platform9.

5.              CONFIDENTIALITY

5.1. 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.

5.2. 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 uses 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.

5.3. 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 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.

6.              DATA PROTECTION

6.1. 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 Term to use Customer Data to do so. 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.

6.2. Security. Platform9 maintains the technical and organizational measures described at http://assets.platform9.net/security.pdf in order to protect Customer Data and assist Customer with securing its own computing environment in its use of the Products.

7.              OWNERSHIP

7.1. 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.

7.2. Feedback. Customer may provide comments, suggestions and recommendations to Company regarding the Products such as modifications, enhancements, improvements and other changes (collectively, “Feedback”). Company may freely use and exploit any such Feedback without any obligation to Customer.

7.3. Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data and does not by means of this Agreement or otherwise transfer any rights in the Customer Data to Platform9, except for the limited license set forth in Section 6.1.

8.              REPRESENTATIONS AND WARRANTIES

8.1. Mutual Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.

8.2. Disclaimer. With the exception of the limited warranty set forth in Section 8.1, 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 purpose, 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.

9.              INDEMNIFICATION.

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.

10.           LIMITATIONS OF LIABILITY

10.1. NEITHER PLATFORM9 NOR ITS AFFILIATES NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES OF ANY OF THEM WILL BE LIABLE TO CUSTOMER 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.

10.2. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF PLATFORM9, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES, TO THE CUSTOMER 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 $100. 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.

11.           MISCELLANEOUS.

This Agreement is the entire agreement between Customer and Platform9 and supersedes all prior agreements and understandings concerning the subject matter hereof and may not be amended or modified except by a writing signed by both parties. 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. 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.

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