Please read below the entire Platform 9 Reseller Agreement. Scroll to the bottom of the page to sign this agreement and become an authorized Platform9 reseller.

PLATFORM9 RESELLER AGREEMENT

Last Updated November 18, 2019

This Reseller Agreement (“Agreement”) governs the purchase and use of Platform9’s Products (defined below) between Platform9 Systems, Inc., a Delaware corporation, with its principal place of business at 2465 Latham Street, Suite 110, Mountain View, CA 94040 (“Platform9”) and you, the reseller of Platform9’s Products (“Reseller”).

By accepting this Agreement, whether by clicking “Submit” below or by executing a purchase order that references this Agreement, Reseller agrees to the terms of this Agreement. If Reseller and Platform9 have executed a written agreement governing Reseller’s resale of the Products, 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 Reseller accepts the terms of this Agreement as indicated above or first accesses, or registers for Platform9’s reseller program or its accompanying website (located here: https://platform9.com/partners/) (“Partner Site”) (“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 or (ii) Reseller’s continued participation in Platform9’s reseller program or use of the Partner Site or (iii) any permitted sale to an end-customer of Platform9.

Platform9 and Reseller hereby agree as follows.

1. Definitions.  As used in this Agreement:
   1. “Distributor” means Promark Technology, Inc.
   2. “End User” means the entity licensed to use the Products for its own internal purposes and not for distribution or resale to, or use on behalf of, others.
   3. “Master Subscription Agreement” or “MSA” means Platform9’s standard agreement that an End User is required to accept prior to use of the Products.  The Master Subscription Agreement is delivered either via Platform9’s website (at https://platform9.com/terms-conditions/msa/), which Platform9 may amend from time to time in its sole discretion, or as a written, negotiated agreement between Platform9 and the End User.
   4. “Platform9 Marks” means the trademarks and/or trade names of Platform9 provided to Reseller, as may be updated by Platform9 from time to time; and

   “Products” means the products and services, including software as a service (“SaaS”), that Platform9 provides to End Users using software installed on Platform9 or End User systems, including all modifications, updates, and upgrades thereto.

2. Reseller Authorization.
   1. 2.1 Appointment.  Subject to the terms of this Agreement, Platform9 hereby appoints Reseller as a non-exclusive Reseller of Platform9 and authorizes Reseller to resell, or provide managed services using, the Products. The right to resell is limited to the term of this Agreement.  Reseller is authorized to demonstrate the Products to potential customers to promote the Products, however Reseller is not permitted to use any Products for Reseller’s own internal purposes or benefit.
   2. 2.2 No Exclusivity.  Nothing in this Agreement limits Platform9’s right to appoint other Resellers, sales representatives, or retailers, or directly or indirectly license, distribute, and/or provide the Products directly to End Users.
   3. 2.3 End User Agreement.  Reseller understands that Platform9 licenses the Products directly to End Users via the MSA. Platform9 makes all warranties regarding the Products directly to End Users via the MSA. Reseller is not authorized to make any different or additional warranties or other commitments to End Users on Platform9’s behalf. Reseller will (a) notify each End User that the Products are subject to the MSA and that by placing an order with Reseller the End User is agreeing to the terms of the MSA, (b) include either a copy of or link to the MSA in each quotation and order form Reseller issues to the End User, and (c) obtain from each End User written confirmation of acceptance of the MSA prior to the earlier to occur of acceptance of the order by Reseller or delivery of the Products. Reseller will inform Platform9 promptly upon any request from a prospective End User to modify the terms of the MSA.
   4. 2.4 Restrictions. Reseller will not (a) modify, adapt, translate, or create derivative works from the Products, (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Products, (c) install, implement, or provide its own support services for the Products.
3. Reseller Obligations.
   1. 3.1 Promotion and Marketing.  Reseller agrees to use its best efforts to promote, market, and resell the Products, which will include: (i) conducting itself in a professional and diligent manner representing the Products; (ii) using only marketing materials about to the Products that have been approved in writing by Platform9; and (iii) meeting standards set by Platform9 for promoting, displaying, demonstrating, and explaining the Products to potential customers.
   2. 3.2 Compliance Obligations.  During the term of this Agreement, Reseller will: (i) use best industry practices in performing its obligations under this Agreement; (ii) comply with all applicable international, governmental, federal, national, regional, state, and local laws and regulations (including, without limitation, all export/import laws and the U.S. FCPA); (iii) not engage in, or acquiesce in, any extortion, kickbacks, or other unlawful or improper means of obtaining business or promoting the Products; (iv) promptly inform Platform9 of any claim, action, or proceeding, whether threatened or pending, that comes to Reseller’s attention and involves Platform9 or the Products; and (v) immediately notify Platform9 of any known or suspected breach of the MSA or other unauthorized use of the Products by an End User.
4. Deal Registration; Orders and Pricing.
   1. 4.1 Purchase Orders. Unless otherwise agreed in writing by the parties, Reseller will submit all “Purchase Orders” for the Products to the Distributor whether such Products are (i) to be resold to an End User, or (ii) to be used by Reseller to provide managed services to a customer of Reseller (a “Managed Services Customer”), in which case Reseller will be considered the End User and Reseller’s use of the Products will be subject to an MSA. Any additional or inconsistent terms and conditions printed or referenced on any ordering document submitted by Reseller to Platform9 will be of no effect.  Purchase Orders will be deemed accepted upon receipt by Distributor. Following Distributor’s acceptance of a Purchase Order, Platform9 will provide access to the Products to the End User by means of an email sent to the address of End User set forth on the purchase order, subject to the terms of the MSA.
   3. 4.2 Pricing; Payment. In connection with each End User opportunity, unless otherwise agreed between the parties, Reseller will be entitled to purchase the Products pursuant to the price list made available from the Distributor. Reseller is free to set its own price for the Products it resells to the End User. Reseller will remit payments to Distributor, or Platform9, as indicated in the applicable invoice, within 30 days following receipt of an invoice from Platform9. If all or a portion of the invoiced amounts are not paid within such period of time, then any amounts remaining outstanding will bear interest until paid at a compounding monthly rate of 1.5%. Where invoices are submitted to Reseller by Distributor, terms of payment shall be as agreed between Reseller and Distributor. Reseller shall be solely responsible for invoicing and collecting fees for the Products from End Users. Payments due to Platform or Distributor shall not depend on Reseller’s receipt of payment from End Users.
5. Trademark License.  Subject to the terms of this Agreement, Platform9 grants to Reseller a non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license to use and reproduce the Platform9 Marks solely for purposes of marketing the Products to End Users or Managed Services Customers.  Reseller will state in appropriate places on all materials using the Platform9 Marks that the Platform9 Marks are trademarks of Platform9.  Reseller will not adopt, use, or attempt to register any trademarks, trade names, or domain names that are confusingly similar to the Platform9 Marks or in such a way as to create combination marks with the Platform9 Marks.
6. Support. Platform9 will provide technical support to the End User.
7. Term and Termination.
   1. 7.1 Term.  Unless earlier terminated in accordance with this Section 7, the term of this Agreement will begin on the Effective Date and remain in effect until January 31st of the year following the Effective Date (the “Initial Term”).  The Agreement will automatically renew on February 1 of each subsequent year for additional one-year periods (each a “Renewal Term” and together with the Initial Term, the “Term”), unless one party provides the other party with written notice of non-renewal at least 30 days prior to the expiration of the then-current Term.
   3. 7.2 Termination for Breach.  Platform9 may terminate this Agreement, effective immediately upon written notice to Reseller, if (a) Reseller breaches any provision in Section 8, (b) Reseller breaches any other provision of this Agreement and (if the breach is capable of cure) does not cure the breach within 30 days after receiving written notice thereof from Platform9, or (c) if Reseller fails to achieve the Reseller Volume Commitment in two consecutive Terms.  Reseller may terminate this Agreement, effective immediately upon written notice to Platform9, if Platform9 breaches any provision of this Agreement and (if the breach is capable of cure) does not cure the breach within 30 days after receiving written notice thereof from Reseller.
8. Confidentiality.
   1. 8.1 Confidential Information.  Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain non-public information regarding the Disclosing Party’s business (“Confidential Information”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
   2. 8.2 Exceptions.  The Receiving Party’s obligations under Section 8.1 will not apply to any Confidential Information that: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party without being subject to any confidentiality obligations; (b) was rightfully disclosed to the Receiving Party by a third party without being subject to any confidentiality obligations; (c) through no fault of the Receiving Party has become generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.  In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, so long as the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure, and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any action to contest or limit the scope of such required disclosure.
   3. 8.3 Injunctive Relief.  Both parties acknowledge that any actual or threatened breach of this Section 7 will constitute immediate, irreparable harm to either party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
9. Warranties.
   1. 9.1 Warranties by Both Parties.  Each party represents and warrants that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
   2. 9.2 Disclaimer.  THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS OR ANY SERVICES PROVIDED BY PLATFORM9, OR ITS DISTRIBUTOR, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.  RESELLER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE WARRANTIES IN THIS AGREEMENT AND THAT NO WARRANTIES ARE MADE BY ANY OF PLATFORM9’ SUPPLIERS OR DISTRIBUTORS. THE PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.”
10. Indemnification. Reseller will indemnify Platform9 from and against any liabilities incurred as a result of or in connection with claims brought by third parties (including any End User) resulting from or relating to (a) any disputes arising between Reseller and any End User (other than claims arising from direct contractual obligations between Platform9 and the End User under the MSA), and (b) any fraud, gross negligence, or intentional misconduct by Reseller. Platform9 will (i) give Reseller prompt written notice of any such claim, (ii) allow Reseller to control the defense and settlement of the claim (except that Reseller may not offer any defense or agree to any settlement that does not unconditionally release Platform9 or that imposes any obligation or liability on Platform9, without Platform9’s prior written consent), and (iii) cooperate with Reseller, at Reseller’s reasonable request and expense, in defending or settling the claim.
11. Limitation of Liability.  EXCEPT WITH RESPECT TO SECTION 10 AND EXCEPT FOR A BREACH OF SECTION 8: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT AND THE PRODUCTS, REGARDLESS OF WHETHER SUCH PARTY WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO PLATFORM9 BY RESELLER UNDER THIS AGREEMENT IN THE PREVIOUS TWELVE (12) MONTHS.
12. Effects of Termination
    1. 12.1 Payment; Licenses; Return of Materials.  Upon termination or expiration of this Agreement for any reason Reseller will pay any amounts owed to Platform9 under this Agreement before such termination or expiration.  In addition, all licensed rights granted in this Agreement will immediately cease to exist and Reseller will promptly discontinue all further use, marketing, and promotion of the Products.  Both parties will also destroy or return to the other party all materials of the other party (including Confidential Information).
    2. 12.2 Survival.  Sections 1 (Definitions), 8 (Confidentiality), 10 (Indemnification), 11 (Limitation of Liability), 12 (Effects of Termination), and 13 (General) will survive expiration or termination of this Agreement for any reason.
13. General.
    1. 13.1 Assignment.  Reseller may not assign or transfer any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party without Platform9’s prior written consent, except in the case of a merger or change of control, in which case Reseller will provide prior written notice to Platform9 of such transaction.  Any attempted assignment or transfer in violation of the foregoing will be void.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the respective successors and assigns of the parties.
    2. 13.2 Governing Law and Venue.  This Agreement will be governed by the laws of the State of California without regard to conflict of laws principles. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court in the State of California, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
    3. 13.3 Notices. Any notice or communication required or permitted hereunder shall be in writing and shall be delivered by hand, international courier service, confirmed facsimile, or confirmed email transmission and addressed as set forth on the signature page to this Agreement, or to such other address as each Party may designate in writing.  Any notice or other communication (i) given personally shall be deemed to have been given and received on delivery thereof, (ii) given by international courier service shall be deemed to have been given and received on the date of delivery shown on the service’s records, (iii) given by confirmed facsimile transmission shall be deemed to have been given and received on the date of delivery shown on the electronic confirmation of that facsimile, and (iv) given by a confirmed email transmission, which shall be deemed to have been given and received on the date that the Party’s designated recipient  confirms receipt of such email.
    4. 13.4 Modification and Waiver.  Any modification or amendment to this Agreement must be in writing and signed by duly authorized representatives of the parties.
    5. 13.5 Integration.  This Agreement, including the exhibits attached hereto, is the final, complete, and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings relating to such subject matter.
    6. 13.6 Force Majeure.  Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, so long as such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
    7. 13.7 Independent Contractor.  Reseller’s relationship to Platform9 is that of an independent contractor, and nothing contained in this Agreement will be construed to allow Reseller to create or assume any obligation on behalf of Platform9 for any purpose whatsoever.  All financial and other obligations associated with Reseller’s business are the sole responsibility of Reseller.