From what I've seen (quoted elsewhere in this thread) there isn't any significant penalty for Akamai if they are unable to mitigate, or choose to not mitigate,

From what I've seen (quoted elsewhere in this thread) there isn't any significant penalty for Akamai if they are unable to mitigate, or choose to not mitigate, a DDoS attack. They might negotiate other terms, but I doubt it. DDoS mitigation is, by its very nature, a best-effort service, and reputation for not giving in to attackers is more important than any contract terms you're reasonably going to be able to get.