MASTER SUBSCRIPTION AGREEMENT

Last updated October 18, 2024

This Master Subscription Agreement (“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.

The Agreement together with the accompanying Exhibits, Documentation and/or Order Form, as applicable, constitute a single, integrated agreement binding on the parties.  In the event and to the extent of a conflict of terms, the order of precedence of construction shall be the following: Order Form, Agreement, Exhibits and Documentation.

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, or in the accompanying Exhibits and/or Order Form.

“Affiliate” means, with respect to a party, any entity or person which directly or indirectly controls, is controlled by, or is under common control with that party.

“CPU Core” means a processing unit within a central processing unit (CPU) that executes instructions independently of other cores. A CPU Core is a physical device, not emulated or virtualized.

“CPU Socket” means a physical or virtual CPU socket.

“Customer Data” has the meaning ascribed to it in Section 8.1, below.

“Deliverables” means the Product features and functionality to be developed and demonstrated by Platform9 to Customer as provided in an applicable Order Form.

“Device” means 24 cores of X86 compute or such other applicable compute technology (e.g., as a vCPU) leveraged for the capacity of such Device.

“Documentation” means the written or online documentation regarding the Products made available by Platform9.

“EMP” means, with reference to the Product and Deliverables, the “Elastic Machine Pool,” the product designed to optimize utilization of public cloud infrastructure.

“Extended Support” has the meaning ascribed to it in Section 8 of Exhibit B, below.

“Hosted Software” means Platform9’s Management Plane delivered as Software-as-a-Service

“Node” means any Physical Server or Virtual Server reporting into Platform9’s management plane.

“Non Supported Version” means Product of version n-3 or above.

“Order Form” means each order document in writing submitted to Platform9 by Customer and accepted by Platform9, to purchase a Subscription to the Products for the price and Subscription Term set forth therein. Each Order Form, when executed by Platform9, will be incorporated herein by reference.

“Physical Server” means a computing device running an operating system on which Kubernetes or Openstack are installed.  The operating system runs directly on the hardware of the device, not within a hypervisor.

“Platform9 Management Plane” means Platform9’s proprietary software solution for managing (cloud and on-prem) computing environments

“Products” means collectively the products and services, including the Hosted Software, the Self Managed Software (SaaS), the Software Agent, the Documentation, the Deliverables, and all modifications, updates, and upgrades thereto and derivative works thereof.

“Self Managed Software” means Platform9’s Management Plane delivered and installed within Customer’s DataCenter / Infrastructure

“Software Agent” means the Platform9 software downloaded by Customer to its datacenter and installed on “physical servers” in order to interact with the Platform9 Management Plane.

“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.

“Supported Version” means Product of versions n , n-1 or n-2.

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

“Virtual Server” means an emulated or virtual server running an operating system in a hypervisor on which Kubernetes is installed.

“vCPU” a virtual CPU core.

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, non-transferable, worldwide right, non-cancelable (except as otherwise expressly permitted under this Agreement) during each Subscription Term to (i) use the Products described in the applicable Order Form for up to the entitlement 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 security of the Products, or for any 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”).

2.3  Professional Services. If the parties execute a Professional Services Addendum in substantially the form of Exhibit C (each, a “Professional Services Addendum”), then Platform9 will provide the additional training, consulting, and/or advanced support services set forth in the Professional Services Addendum (“Professional Services”). Platform9 will own any and all improvements to the Products made by or on behalf of Platform9 that arise out of the Professional Services. Customer will own any work made for hire created for Customer by Platform9 and specifically identified on the Addendum. Any conflict between the terms of this Agreement and a Professional Services Addendum will be resolved in favor of the Professional Services Addendum but only with respect to the subject matter thereof.

 

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 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. To ensure efficient communication, Customer will designate no more than three 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 one year (the “Initial Term”), regardless of whether Customer has any active Subscriptions to the Products. The Initial Term will extend for the additional period of any successive Subscriptions then in effect pursuant to any Order Forms executed between the parties (the “Subscription Term”).  The Initial Term together with any such extension pursuant to any such Subscription Term shall be the “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 with immediate effect if such non-breaching party reasonably determines that such breach cannot be cured during such 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 then in effect, 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, APIs, and cloud provider instance information reasonably necessary for Customer to assume management of its networking environment without use of the Products.

5.4  Transition Support.  In the event of termination of this Agreement or any Order Form hereunder, for any reason, Platform9 will, upon Customer’s reasonable written request, provide transition assistance for up to 60 days following the effective date of any such termination (the “Transition Period”), including, at Customer’s option, an extension of Customer’s continued use of the Product for such period, provided that Customer pay to Platform9 the Fees that would otherwise be applicable for such Transition Period under the Order Form then in effect.

5.5  Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 7; 8.1; 9; 12; 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”). Pricing for an Order Form is for the applicable Subscription Term only.

6.2  Overdue Charges. If any undisputed, invoiced amount is not received by Platform9 by the Due Date, then 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, which are specifically and particularly assessable with respect to the Products provided to Customer (collectively, “Taxes”). 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 such Taxes paid or payable by, demanded from, or assessed upon Platform9.

6.4  Over-subscription. If Customer provisions Nodes more than the number specified on the applicable Order Form, and the excess number remain provisioned for more than seven (7) days, then Platform9 will invoice Customer for the excess number of Nodes at the price as stated on the applicable Order Form during each month that the excess Nodes remain provisioned for at least one day.

6.5  Self Managed Software usage reporting.  Customers running Self Managed Software shall provide written license usage reports, on a quarterly basis, no later than 30 days after the end of each quarter.

6.6  Right to audit.  Platform9 shall have the right, with reasonable notice to Customer, to audit Customer’s use of Products no more than once each calendar year to assure compliance with the terms of the license agreement.

 

7.     CONFIDENTIALITY

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 and any information conveyed to Platform9 regarding such Customer Data, its technology, and operations and/or its use of the Product. Confidential Information does not include information which the Receiving Party can demonstrate through reasonable evidence is (i) already known by the Receiving Party without an obligation of confidentiality to the Disclosing Party, other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received by the Receiving Party 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 Receiving 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 the Receiving Party’ employees, agents and representatives who reasonably 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 hereunder 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 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 its counsel advises it 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”).  Subject always to the confidentiality obligations herein, Platform9 uses Customer Data exclusively for the purpose of providing the Products and Support to Customer, and Customer grants Platform9 a limited license during the Subscription Term to use Customer Data to the extent reasonably necessary 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 the workload Users, Use, or Customer’s products or services.

 

9.     OWNERSHIP

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.

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 always during the Term conform with the Documentation; and (b) the Products will be provided in a manner consistent with generally accepted and commercially reasonable industry standards.

10.3  Disclaimer. Except for 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 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.   INSURANCE

11.1  Insurance Coverage.  Platform9 will maintain in full force and effect (and will name and maintain Customer as a named additional insured thereunder) the following policies and levels of insurance during the Term:

1. 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;
2. 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;
3. 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;
4. Umbrella liability insurance on an occurrence form, for limits of not less than $1,500,000 per occurrence and in the aggregate; and
5. 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  Carrier Quality.  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.   INDEMNIFICATION

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 an unaffiliated third party against any of the Customer Indemnitees to the extent 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 reasonable 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 arises from: (a) use of the Products by Customer or the applicable Customer Indemnitee in a manner other than as expressly permitted in this Agreement; (b) any alteration or modification of the Products by Customer or the applicable Customer Indemnitee, except as expressly authorized by Platform9; (c) the combination of the Products by Customer or the applicable Customer Indemnitee with any other software, product, or services (to the extent that the alleged infringement arises from such combination); or (d) 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 Platform9, its Affiliates, and their respective owners, directors, members, officers, and employees (together, the “Platform9 Indemnitees”) harmless from and against any Claim to the extent alleging that (a) Customer’s or a User’s engaging in a Prohibited Use, and (b) all acts or omissions of its Users that would constitute a Prohibited Use. 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  NEITHER PARTY NOR ITS AFFILIATES NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER 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 SUCH 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  EACH PARTY 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 (TOGETHER, THE “EXCLUDED CLAIMS”), OR IN THE EVENT AND TO THE EXTENT OF A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF A 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 THE TOTAL AMOUNT PAID OR PAYABLE 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. NOTWITHSTANDING THE FOREGOING, PLATFORM9’S TOTAL, CUMULATIVE LIABILITY FOR ALL EXCLUDED CLAIMS WILL NOT EXCEED THREE (3) TIMES THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO PLATFORM9 UNDER THIS AGREEMENT.

 

14.   MISCELLANEOUS

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 of such right. There are no third-party beneficiaries to this Agreement. This Agreement is and shall be governed, construed, and enforced by the laws of California without reference to conflicts of law rules. For any claim, cause, action, or dispute arising from this Agreement, the parties’ consent to personal jurisdiction and the exclusive venue of the federal and state courts, as applicable, located 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 by fact or act of corporate succession in connection with an acquisition of the assigning party or a sale of all or substantially all its assets.

 

 EXHIBIT A-1

SERVICE LEVEL AGREEMENT FOR PLATFORM9 PRIVATE CLOUD DIRECTOR (PCD), PLATFORM9 MANAGED KUBERNETES (PMK) AND PLATFORM9 MANAGED OPENSTACK (PMO)

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.

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 (“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:

 

Uptime	Days Credited
< 99.9% – >= 99.0%	3
< 99.0% – >= 95.0%	7
< 95.0%	15

1. 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.
2. 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.
3. 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.
4. Exclusive Remedy. This Agreement sets forth Customer’s sole and exclusive remedy for any failure by Platform9 to meet the Service Level Warranty.

 

 

 

EXHIBIT A-2

 

SERVICE LEVEL AGREEMENT FOR ELASTIC MACHINE POOL (EMP)

Introduction

This Service Level Agreement (SLA) outlines the availability commitments and remedies for the Elastic Machine Pool (EMP) service provided by Platform9.

• Definitions

• Elastic Machine Pool (EMP): The Platform9 service manages bare metal and virtual machine resources.
• Customer: The entity subscribing to the EMP service.
• Platform Impact: The effect of service disruptions on the Platform9 infrastructure.
• Customer Impact: The effect of service disruptions on the customer’s operations and usage of the EMP service.
• Monthly Uptime Percentage: This represents the total number of minutes in a calendar month minus the minutes of Downtime suffered, divided by the total number of minutes in a calendar month.
• Service Credits: The service credit is based on the daily savings rate at the time of invoicing.

• SLAs Impacted

2.1 Customer Impact Description

• Loss of EMP control plane:
  • Inability to provision new bare metal or virtual machine clusters.
• Loss of EMP data plane:
  • Impact on the availability of virtual machines.
  • Potential loss of data for affected virtual machines.

2.2 Platform Impact Description

• Loss of EMP control plane:
  • Hindrance in upgrades and management of the EMP control plane.
  • Interfere in creating new EMP control planes.
• Loss of EMP data plane:
  • Impact on the creation of new bare metal pool clusters.
  • Inhibited hosting and management of controller images and helm charts.

• Remedies

In the event of failure to meet SLA commitments, Platform9 offers service credits to eligible customers based on the severity and duration of the outage.

Given that the EMP billing model is based on a percentage of savings, it would likely be more beneficial for Platform9 and potentially more satisfactory for the customer to calculate the service credit based on the daily savings rate when invoicing.

Service credits are calculated as follows:

Uptime	Service Credit (% of Monthly Savings)
< 99.95% – >= 99.0%	1% of the daily savings rate at the time of invoicing
< 99.0% – >= 95.0%	3% of the daily savings rate at the time of invoicing
< 95.0%	5% of the daily savings rate at the time of invoicing

This approach ensures that the customer receives a service credit aligned with the current value they are deriving from the platform, reflecting the actual impact of the outage on their cost savings.

Let’s take an example of a different scenario:

Scenario	Uptime (%)	Service Credit Percentage	Daily Savings Rate	Duration of Outage (days)	Service Credit ($)
1	99.5	1%	$2000/day	2	$40
2	97.5	3%	$2000/day	3	$180
3	92.0	5%	$2000/day	4	$400

1. Scenario 1: Uptime between 99.95% and 99.0%
   • Uptime: 99.5%
   • Service Credit Percentage: 1% of the daily savings rate at the time of invoicing
   • Daily Savings Rate: $2000/day
   • Duration of Outage: 2 days
   • Service Credit Calculation: Service Credit = Daily Savings Rate × Service Credit Percentage × Duration of Outage = $2000/day × 1% × 2 days = $40
2. Scenario 2: Uptime between 99.0% and 95.0%
   • Uptime: 97.5%
   • Service Credit Percentage: 3% of the daily savings rate at the time of invoicing
   • Daily Savings Rate: $2000/day
   • Duration of Outage: 3 days
   • Service Credit Calculation: Service Credit = Daily Savings Rate × Service Credit Percentage × Duration of Outage = $2000/day × 3% × 3 days = $180
3. Scenario 3: Uptime below 95.0%
   • Uptime: 92.0%
   • Service Credit Percentage: 5% of the daily savings rate at the time of invoicing
   • Daily Savings Rate: $2000/day
   • Duration of Outage: 4 days
   • Service Credit Calculation: Service Credit = Daily Savings Rate × Service Credit Percentage × Duration of Outage = $2000/day × 5% × 4 days = $400

4.  EMP Management Plane SLA

Definition:

• Available: The EMP Management Plane Services, provided by Platform9 Systems Inc., respond to customer API calls without resulting in a “Failed API Call” during a 1-minute interval.
• Downtime: Any period when the Core Services are not available, excluding instances due to Emergency maintenance, Force Major events, Load or penetration testing by the Customer, or use of non-generally available features or services.
• EMP Management Plane Services: Refers to the APIs and UI hosted by Platform9 Systems Inc.
• Failed API Call: A customer API call that returns a 5xx error response or is received by the EMP Management plane but results in an unreturned call.

Service Levels:

• Service Level Standards: Platform9 will maintain, during each month of the contract term, an average Availability for EMP Management Plane Services of at least 99.95%.
• Determination of Service Level Percentage: The average Availability in each month will be calculated as (total minutes per month – Downtime (in minutes)) / (total minutes per month).

5.  EVM SLA

Definition:

• Available: The EVMs, created by the EMP Management Plane, are Connected to the EKS Cluster specified by the customer.
• Connected to the EKS Cluster: It means that the EVM appears as a Kubernetes worker node in the EKS Cluster and is marked as “connected” in the EMP management plane. The EVM will be labeled as “connected” in the EMP management plane as long as it maintains external connectivity within 1 minute.
• Downtime: Any period when the EVMs are not Connected to the EKS Cluster for specified reasons.

Service Levels:

• Service Level Standards:
  • For an EVM pool limited to a single AZ: The average Availability for EVM machines of at least 99.95%.
  • For an EVM pool distributed across multiple AZs: The average Availability for EVM machines of at least 99.99%.
• Determination of Service Level Percentage: The average Availability in each month will be calculated as (total minutes per month – Downtime (in minutes)) / (total minutes per month).

6.  When both SLAs are violated

When both SLAs are violated, meaning both the EMP Management Plane SLA and the EVM SLA does not meet the specified availability standards, Platform9 will handle service credits as follows:

1. Assessment of Violations: First, Platform9 will assess the extent of the violations for both SLAs separately. This involves calculating the actual downtime experienced for each service within the billing cycle.
2. Service Credit Calculation: Service credits will be determined independently for each violated SLA based on the severity of the violation and the corresponding service credit table provided in each SLA.
3. Cumulative Service Credits: The cumulative service credits for both SLAs will be calculated separately based on the individual service credit calculations.
4. Issuance of Service Credits: Platform9 will issue service credits to the customer for each violated SLA based on the calculated amounts. The service credits will be applied by the terms outlined in the respective SLAs.
5. Communication with Customer: Platform9 will communicate transparently with the customer regarding the violations, the calculated service credits for each SLA, and how they will be applied.
6. Application of Service Credits: Service credits will be applied to the customer’s account for future billing cycles, reducing or offsetting the charges for the affected services.
7. Review and Improvement: Platform9 will review the root causes of the SLA violations and take necessary actions to address them, improve service reliability, and prevent similar incidents in the future.

7.  Monitoring and Reporting

Platform9 monitors EMP services proactively and provides customers with detailed reports on service availability and performance. Customers can request reports and track their SLA status through the Platform9 support portal.

8.  Contact and Support

For any inquiries, service requests, or SLA-related claims, customers can contact the Platform9 support team via support@Platform9.com.

 

EXHIBIT B

 

 SUPPORT TERMS

 

This Support Services Exhibit sets forth the terms on which Platform9 provides technical support (“Support”) to Customer (“Support Terms”).

1. Definitions.

“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 a commercially reasonable timeframe considering the Priority Level of the Error.

“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 support@Platform9.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 resolve the Error after responding to the Customer Support Contact(s) within the Response Times set forth below. If an Error is not addressed within a commercially reasonable timeframe considering the Priority Level, then Platform9 will commence an Escalation.

 

Priority Level	Description	Response 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
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
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
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

5. RACI Chart for Support Responsibilities 

Key:

R = Responsible (The person who performs the task)

A = Accountable (The person who is ultimately accountable and has yes/no authority)

C = Consulted (The person who needs to be consulted before a decision or action is taken)

I = Informed (The person who needs to be informed after a decision or action is taken)

5.1  RACI for PCD, PMK and PMO. Responsibilities are set forth in the table below (using the RACI method) for the various Support functions listed below:

Service Element	Service Description	Platform9	Customer
Pre-deployment – Platform9	Identify resource requirements – compute, storage and networking, for platform9 controller tier, based on scale	RA	C
Deployment – Platform9	Automated deployment, installation, and configuration of the Services. Including deployment of core services, REST API and CLI endpoints.	RA	C
Patch Management – Platform9	Periodic patch and bugfix management for all OpenStack components and services deployed by Platform9	RA	C
Upgrade Management – Platform9	Upgrades to the Services	R	C
3rd party plugins – Platform9	Integration of any third-party plugins with Platform9 – e.g. supported OpenStack plugins – including initial deployment and updates	C	RA
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	RA	C
End user training – Platform9	Training end users on the capabilities of the Services, answering ongoing questions from end users.	CI	RA
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	C	RA
Capacity management	Capacity management for all resources – hardware and software deployed by Customer team that the Services depend on for the controller tier, as well as are required for the actual deployment of the Services	C	RA
Patching/Updates/Upgrades (non-Platform9 components)	Patch, update and upgrade management for all hardware and software deployed by the Customer team.	I	RA
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	I	RA
End user training – (non-Platform9 components)	Training end users on the capabilities of the Services, answering ongoing questions from end users.		RA

 

5.2  RACI for Elastic Machine Pool (EMP): 

 

Service Element	Service Description	EMP Ops	Customer
Deployment – EMP	Automated deployment, installation, and configuration of the EMP Services. Including deployment of core services, REST API, and CLI endpoints	RA	C
Patch Management – EMP	Periodic patch and bug fix management for all EMP components and services deployed by the EMP team	RA	CI
Upgrade Management – EMP	Upgrades to EMP Services include Bare Metal, EVM, and EKS.	RA	C
EKS Add-ons	Integration of EKS add-ons for clusters running with EMP – including initial deployment and updates based on a separate SoW	C	RA
Incident, Change, and Problem Management – EMP	Incident, change, and problem management for any bugs or issues that end users or Customers experience with any components deployed by the EMP team – assuming appropriate support procedures are performed for reporting incidents and problems	RA	CI
End User Training – EMP	Training end users on the capabilities of the EMP Services and answering ongoing questions from end users	CI	RA
Capacity Management	Capacity management for all resources – hardware, and software deployed by the Customer team that the EMP Services depend on for the controller tier, as well as are required for the actual deployment of the EMP Services	C	RA
Incident, Change, and Problem Management – (non-EMP components)	Incident, change, and problem management for all software and hardware deployed by the Customer team – including handling support requests from end users and providing end users with a portal and tools for reporting problems	I	RA
End User Training – (non-EMP components)	Training end users on the capabilities of the Services and answering ongoing questions from end users based on a sereparte SoW	CI	RA

 

6. Maintenance Window. Customer will provide Platform9 with a monthly maintenance window during which Platform9 may adjust its computing environment to appropriately align its capacity with Customer’s usage. The parties will work together to monitor and anticipate changes to Customer’s deployment that may warrant capacity adjustments. A minimum of 7 days notice will be provided to schedule the maintenance window
7. Standard Support. To receive Standard Support, Customer is required to be running on a Supported Version (ie, n, n-1 or n-2).   Customer will automatically be enrolled into Extended Support for Non Supported Versions, (ie n-3 or older)
8. Extended Support. Customer will be charged the Extended Support Fee for Extended Support.  Extended Support allows Customer to continue receiving Support for Products of a version older than the Supported Version past the end date of Standard Support.  Extended Support is for versions n-3 and above. On the date which Standard Support expires, Platform9 will automatically enroll Customer Nodes in Extended Support. Automatic enrollment into Extended Support does not change the Node and does not impact the uptime or performance of Customer Nodes.

For example, if the end of Standard Support date for version n-2 is July 31 (release of the new version), 2024. If Customer does not manually upgrade to version n-1 before July 31, 2024 the Nodes become n-3 on July 31, 2024, and Platform9 automatically enrolls Customer Nodes in Extended Support on July 31, 2024.  Starting July1, 2024, Platform9 will automatically invoice Customer for the upcoming quarter of Extended Support.

Extended Support is available for up to one year past the end of Standard Support date. After this time, if Customer has not upgraded to a supported version, then Platform9 will mandate an upgrade.

9. Extended Support Fee. Extended Support Fee is calculated monthly and automatically invoiced quarterly.  The first six months of Extended Support is charged at 2x the per node price set out in the Order Form.  The second six months is charged at 4x the per node price set out in the Order Form.  Platform9 recommends that Customer upgrades to a supported version as soon as possible.

 

Pricing example:  Per Node price on Order Form is $2500 per year, which is equivalent to $625 per quarter.  In the first 3 months Extended Support Fee is $625 * 2 = $1,250. In the second 3 months Extended Support Fee is $625 * 2 = $1,250.  In the third 3 months Extended Support Fee is  $625 * 4 = $2,500.  In the forth 3 months Extended Support Fee is  $625 * 4 = $2,500.  The total for a full year of Extended Support for a Node will be $7,500

 

10. Conditions, Exclusions, and Termination.

10.1  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.

10.2  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.

10.3  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.

 

EXHIBIT C

PROFESSIONAL SERVICES ADDENDUM

This Professional Services Addendum (“Addendum”), if executed between the parties, is made a part of the Master Subscription Agreement between Platform9 and Customer (“Agreement”) and is effective as of the Effective Date of the Agreement, unless otherwise specified herein. All capitalized terms used but not otherwise defined in this Addendum have the respective meanings ascribed to them in the Agreement.

Platform9 intends to provide certain professional services described in this Addendum (“Services”) to Customer, and Customer wishes to engage Platform9 to do so.

Therefore, the parties agree as follows.

SERVICES & DELIVERABLES

The Services and Deliverables under this Addendum are those set forth below and as further described in their corresponding datasheets where applicable:

[INSERT PRODUCT/SERVICE/SKU NAME]: [INSERT DATASHEET LINK]

☐ Custom Software Description:

“Deliverable(s)” means any item (including Custom Software if applicable) prepared and actually delivered by Platform to Customer in connection with the Services under this Addendum.

The parties’ rights and obligations with respect to the Deliverables are subject to the provisions of Section 2.3 of the Agreement and this Addendum.

MILESTONES AND TIMELINES

Platform9 will establish a mutually agreeable “Timeframe” in writing with the Customer for the completion of the Services and Deliverables due under this Addendum. From time to time, the parties may agree upon minor changes, to the Timeframe and the requirements of this Addendum, via email (see below).

For Platform9: [INSERT ALIAS]

For Customer:

Substantial changes to the Timeframe and requirements require the parties to execute an amendment in writing.

FEES AND EXPENSES

Fees under this Addendum shall be paid pursuant to the following “Payment Plan”:

• Payment Plans:
  ☐ Upfront & Completion: Customer shall pay Platform9 the Upfront Amount and Project Completion Amount each as set forth below:
  Upfront Amount: $
  Project Completion Amount: Fees for all hours performed by Platform9 at then current rate
  ☐ Estimate & Remainder: Customer shall pay Platform9 twenty-five percent (25.0%) of the Estimated Amount and Project Completion Amount each as set forth below:
  Estimated Amount: $
  Project Completion Amount: Fees for all hours performed by Platform9 at then current rate
  ☐ Hourly Rates: Customer shall pay Platform9 Fees for all hours performed at Platform9’s then current rate.
• Invoices. Payment of all undisputed amounts will be due 30 days from Customer’s receipt of the invoice.
• Expenses. Customer will reimburse Platform9 for all reasonable expenses incurred by Contractor in performing Services so long as Contractor receives written consent (including via email) from an authorized agent of Customer prior to incurring the expenses and submits receipts for the expenses to Customer together with each invoice.

OWNERSHIP

• Ownership of Deliverables. All Deliverables, including any improvements to the Products made by Platform9 not specifically enumerated herein, will be the sole and exclusive property of Platform9 and deemed to be licensed to Customer pursuant to the terms of Section 2.1 of the Agreement.
• Custom Software. For any Custom Software identified in Section 1 above, and delivered by Platform9 to Customer under this Addendum, Platform9 grants Customer a non-exclusive, royalty-free, worldwide and perpetual license for internal purposes only to use the Custom Software solely in connection with Customer’s business, products and services. “Custom Software” means the software, library, utility, tool or other computer or program code, identified in Section 1 of this Addendum.
• Pre-Existing Works. If in the course of performing the Services, Platform9 incorporates into any Deliverable any other work of authorship, invention, or other proprietary information owned by Platform9 or in which Platform9 has an interest, Platform9 will grant and does now grant to Customer a nonexclusive, royalty free, perpetual, irrevocable, worldwide license to reproduce, manufacture, modify, distribute, use, import, sublicense and otherwise exploit the material as part of or in connection with the Deliverable.

WARRANTIES AND COVENANTS

In connection with its provision of the Services to Customer, Platform9 represents, warrants, and covenants to Customer as follows:

• Standard of Service. Platform9 will perform the Services in a timely, competent, professional and workmanlike manner by qualified personnel in accordance with standard industry practices and all policies and procedures provided by Customer in writing, including any third-party policies and procedures that Customer is required to comply with.
• Harmful Code. During the Term, the Deliverables will not contain any computer instructions, code, or other technological means the purpose or effect of which is to disrupt, damage, interfere with and/or circumvent the security of any of Customer’s computers, IT infrastructure, systems and/or equipment, including, any code containing viruses, worms, disabling code, time bombs, Trojan horses, adware, spyware, Internet bots, malware, bugs, web bugs or other like destructive or surreptitious code or code that self-replicates.

DELIVERY AND ACCEPTANCE

• Acceptance Testing. Customer will have [10] business days (the “Evaluation Period”) following the date Platform9 provides each of the Deliverables to Customer in accordance with Section 3, above, to evaluate the Deliverables and perform any testing it deems necessary to ensure the Deliverables meet the agreed upon specifications. Unless Customer provides the notice described in Section 7.2, below, the Deliverables will be deemed to be accepted by Customer as of the expiration of the Evaluation Period.
• Deficiencies. If Customer determines in its reasonable discretion, prior to the expiration of the Evaluation Period, that the Deliverables do not meet the agreed upon specifications, then Customer will notify Platform9 in writing of the deficiencies in reasonable detail (the “Deficiency Notice”). Platform9 will thereafter have [10] business days (the “Remediation Period”) to remediate the defects described in the Deficiency Notice. Promptly following the expiration of the Remediation Period, Platform9 will provide the corrected Deliverables to Customer, and Customer will have [five] business days (the “Second Evaluation Period”) to evaluate the corrected Deliverables and perform any testing or re-testing it deems necessary.
• Final Acceptance or Rejection. Following the process described in Section 7.2, above, the Deliverables will be deemed to be accepted by Customer as of the expiration of the Second Evaluation Period, unless Customer provides written notice to Platform9 of its final rejection of any of the Deliverables, in which case Customer will either (a) terminate this Addendum in accordance with Section 8.2, below, or (ii) work in good faith to reach a resolution with Platform9 either through an adjustment to the Fees or to the list of Deliverables.

TERM AND TERMINATION

• Term. The term of this Addendum will commence as of the Effective Date and continue until the earlier of (i) the completion of the Services and (ii) [one] year[s].
• Termination. Either party may terminate this Addendum 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.

IN WITNESS WHEREOF, the parties hereto have caused this Professional Services Addendum to be executed by their duly authorized representatives.

Customer	Platform9 Systems, Inc.
By:	By:
Name:	Name:
Title:	Title:
Date:	Date:

EXHIBIT D to ORDER FORM

ELASTIC MACHINE POOL – SHARING OF CUSTOMER COST SAVINGS

 

Unless otherwise stated on the applicable Order Form, Customer shall pay to Platform9 during each calendar month of the applicable Subscription Term an incremental Cost Savings Fee, calculated as follows:

• 25% of the Net Realized Customer Cost Savings

 

(the “Cost Savings Fee”).

The Cost Savings Fee will represent the difference between (x) the fee Customer would have incurred from Amazon Web Services (“AWS”) during any applicable month with respect to Customer’s “on-demand” CPU unit usage under its then-contractual pricing agreement with AWS (the “Imputed On-demand Fee”), and (y) the actual, lower on-demand fee Customer incurred in fact from AWS during such applicable quarter based on Customer’s actual, lower CPU unit usage, to the extent such lower on-demand CPU unit usage is due to Customer’s use during the period of the Product.  Customer has no obligation to direct, at any time during the Subscription Term, at all or in any minimum amount, CPU unit usage volume to utilize or be processed by means of the Product and will always determine during the Subscription Term, in its discretion, what infrastructure and/or platforms, including third-party cloud infrastructure, to utilize in its business.

In determining the Imputed On-demand Fee, Platform9 will attribute and credit to Customer the any percent CPU unit usage fee discount in effect for Customer as of the Effective Date under Customer’s current contractual pricing agreement with AWS, with the assumption that the entire footprint is running with a 3-year, all-upfront AWS Savings Plan that derives the above-said percent discount.  If Customer’s AWS footprint exceeds their AWS pre-purchase savings plan (the “Exceeded Usage Footprint”), the Imputed On-demand Fee for Exceeded Usage Footprint will be computed based on AWS on-demand instance pricing.  If the AWS Savings Plan agreement between Customer and AWS changes in the future to either a different savings arrangement offered by AWS and/or a discount price other than a discount price comparable to the percent CPU unit usage discount in effect for Customer as of the Effective Date, including in the event Customer is able in the future to negotiate with AWS a discount or savings plan arrangement more favorable than the AWS Saving Plan in effect as of the Effective Date, the Imputed On-demand Fee shall be adjusted to accommodate and reflect these changes (including more favorable discount structure otherwise available to Customer absent use of the Product).  Platform9 will use best efforts to leverage the usage fee discount that then exists between Customer and AWS over the term of this Agreement to maintain the Customer Cost Savings anticipated by this Agreement based on Customer’s then actual contractual pricing agreement with AWS at the time of deploying AWS capacity to reflect Customer’s then CPU unit usage.

Platform9 will demonstrate during the Subscription Term its methodology to determine and report to Customer the Imputed On-demand Fee and will cooperate reasonably with Customer in Customer’s efforts to investigate, validate, and periodically confirm the accuracy of such methodology reporting.

Platform9 will calculate, evidence demonstrate through reasonable data and evidence and report in writing to Customer with respect to each calendar month during an applicable Subscription Term the Cost Savings Fee applicable to such month (the “Monthly Report”).

Customer will have 30 days from receipt of such Monthly Report to identify in writing reasonable questions or objections with respect to the Cost Savings Fee represented in the applicable Monthly Report.  Customer’s failure to timely identify such questions or objections will be deemed an acceptance of the Monthly Report.  However, in the event Customer timely identifies any such questions or objections, the parties will attempt promptly to meet, confer, and resolve in good faith any such questions or objections.

Customer will pay to Platform9 the amount of the Cost Savings Fee (or portion thereof) represented in a Monthly Report immediately upon acceptance (actual or deemed).  Any unpaid or disputed Cost Savings Fee (or portion thereof) will be subject to further good faith negotiations between the parties, or the dispute resolution terms of the Agreement.

Subject to reasonable confidentiality safeguards, and no more frequently than once during any 12-month period during the applicable Subscription Term (or the 24-month period thereafter) (the “Audit Period”), Customer may investigate and audit the records of Platform9 to validate and confirm the amount of any such Cost Savings Fee paid or payable by Customer to Platform9 hereunder (the “Audit”).  Customer may perform such Audit following reasonable written notice, during normal business hours, and directly or by means of a reputable third-party auditing or forensic investigation entity, if it does not impose an undue burden or expense on Platform9.  Should any such Audit determine by reasonable evidence an overcharge by Platform9, and over payment by Customer, of any such Cost Savings Fee (the “Overcharge”), then Platform9 shall promptly refund the amount of such overcharge paid or adjust the amount of such Cost Savings Fee owing.

Customer will bear its own costs and fees of the Audit.  However, if any such Audit determines an Overcharge which exceeds 5% of the Cost Savings Fee owing (but for the Overcharge), then Platform9 will bear, be directly liable for and promptly refund to Customer the full amount of fees and expenses Customer incurred with respect to such Audit.