Picturepark Onsite Agreement

Last changed: January 23, 2018

This agreement (“Agreement”) governs installation and use of the Picturepark Onsite software (computer information or software in object-code format including modules and third-party software; collectively “Software”) and any related sample materials, documents, forms and templates or related explanatory written materials or files (“Documentation”).
The parties to this Agreement are yourself, or the entity you represent including, but not limited to, your directors, managers, employees, representatives, associated companies or contractual partners, agents, Affiliates or contractors, or, if none of these entities are named by yourself, you personally (“you”, “your”, “yours”, “user”) and the Vision Information Transaction entity named in the Proposal completed by the parties (“Picturepark”, “we”, “us” or ”our”).

BY INSTALLING OR USING THE SOFTWARE OR DOCUMENTATION YOU CONFIRM THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, WHICH INCLUDES WITHOUT LIMITATION OUR SLA, PRIVACY POLICY AND DPA AND ALL OTHER DOCUMENTS REFERRED TO IN THIS AGREEMENT. YOU AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT AND DOCUMENTS REFERRED TO HEREIN AND INCORPORATED BY REFERENCE AND YOU GIVE YOUR ASSURANCE THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT.
IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO PURCHASE OR USE THE SOFTWARE (OR A NEW VERSION OF THE SOFTWARE).

Use of Software

1 Non-exclusivity. We grant you the perpetual, non-exclusive, non-transferable, worldwide right to install and use the Software as further described in this Agreement and in accordance with our proposals and our other licensing documents which detail the license metrics, subscribed features and plans, costs, payment and other specific terms related to the Software (or parts thereof) based on which you place your order (“Proposal”). Any such Proposal must be signed by us or an authorized and certified Picturepark partner (“Partner”), and you. No terms other than those set out in this Agreement shall apply to the subject matter of this Agreement.

2 Affiliates. For the purposes of this Agreement, “Affiliate” shall mean any corporation or other business entity, now or hereafter existing, which directly or indirectly controls, is controlled by or is under common control with one of the contracting parties. As used herein, “control” means (a) the power, by ownership of voting equity, contract or otherwise, to elect a majority of the board of directors or other governing body of the subject entity or to otherwise direct the management and policies of the subject entity, or (b) the record or beneficial ownership, directly or indirectly, alone or in combination with one or more Affiliate(s), other than by way of security interest only, of more than 50% of the voting rights, income or capital of the subject entity; and “controlled” has a corresponding meaning.

3 3rd party software & services. You acknowledge that the use of the Software requires 3rd party software or services listed in the Documentation such as operating systems, web browsers or runtimes that are subject to different terms and conditions of their licensors and hereby excluded from this Agreement and the purchase price. Additionally, the Software contains and uses open source 3rd party software libraries which are credited in the Software and for which a list can be provided upon request. You shall not use the Software or corresponding parts of the Software if you do not agree to the use of such 3rd party software and the applicable terms of use of such 3rd parties.

4 Not for Resale Software. If the Software is provided for the purpose of evaluation, proof of concept (POC), feature preview of future versions or a similar purpose (“Not for Resale,” collectively “NFR”), you may not install and use such NFR Software and Documentation for any revenue generation or any other productive business purpose. You acknowledge and agree that such NFR Software may be limited by time, features or other factors and is provided to you “as is” with no warranty or guarantee, not free from defects “with faults” and “as available” and all SLA, implied or express warranties and all liabilities for the NFR Software are expressly excluded and disclaimed.

5 Backup copies. You may create a reasonable number of backup copies of the purchased Software exclusively for backup purposes and not for productive use, assuming that these copies are appropriately marked and contain or are accompanied by a copy of this Agreement. This includes installing a single copy of the Software under NFR terms and an NFR license key on a cold-standby system for disaster recovery or non-automated fallback purposes, staging or development.

6 Documentation. Documentation for Software is provided in a generic form and does not cover specific use cases or custom configurations. You may copy, distribute and change our Documentation under the Creative Commons BY-SA 4.0 license unless such right is not expressively excluded in the Documentation. Any such modified Documentation is not warranted.

7 No modification, no reverse engineering. You shall not modify, adapt, port, translate, reverse engineer, disassemble, decompile or otherwise attempt to discover the source code of the Software unless such code is provided with the corresponding license declaration permitting you to do so. You shall not remove or modify any product label, product identification, copyright notices or Agreements.

8 Restrictions for AVC/H.264 video format. You agree not to use the Software for video on demand services where any user has to pay for videos on a title-per-title basis if these videos feature an AVC/H.264 output format and have a play length of more than 12 minutes each, and you have not licensed this codec for such use through separate agreements.

9 Intellectual Property. The Software and associated materials such as documentation, logos, designs etc. are at all times the sole and exclusive property of us and our licensors or suppliers. Except as expressly stated herein, we do not grant you any intellectual property rights in the Software or any such associated material.

New Versions, Maintenance & Support

10 New Versions. We may provide Upgrades and Updates (collectively “New Versions”) of Software from time to time. “Upgrade” means an available replacement of a then-current Software version with a newer, materially changed or enhanced version as signified by a change in either or both of the first two (2) digits of the four (4)-digit version number. “Update” means a maintenance version of the Software that contains immaterial changes or enhancements, error corrections or fixes for the then-current Software version as signified by a change in either or both of the last two (2) digits of the four (4)-digit version number.

11 Access to Updates & Upgrades. You are entitled to receive Updates for your licensed version of the Software at no additional cost. You are also entitled to receive new Upgrades either by: a) purchasing such Upgrade for an upgrade license fee defined at our sole discretion; or b) purchasing a Software Maintenance & Support subscription as defined in section 12 below. No Services are included for installing New Versions of Software unless explicitly stated in the Proposal.

12 Software Maintenance & Support (“SWS”). Your continuous purchase of a Software Maintenance & Support subscription starting on the expiry of the Warranty Period makes you: a) eligible to receive all New Versions of Software regardless of Upgrades or Updates; b) includes limited advice as described in the Documentation regarding your use of the Software and limited and non-warranted assistance to verify and potentially resolve problems with the Software (“Technical Support”); and c) extends our Technical Support to the versions released during the twelve (12)-month period immediately preceding the release date of the then-current available New Version of Software (“Supported Versions”). You acknowledge and agree that resolving issues in any of these Supported Versions might require you to install New Versions of the Software. We shall reasonably assist you in installing New Versions if they resolve Critical or Major Defects as defined in this Agreement. You acknowledge and agree that in the event you do not purchase SWS, we are under no obligation to provide Technical Support other than Updates of the Software as described herein. You further acknowledge and agree that if you purchase SWS but do not purchase the SLA (see section 13 below), you may receive only limited and non-warranted Technical Support, which shall be subject to our availability and at our sole discretion.

13 Service Level Agreement (“SLA”). The SLA extends SWS with warranted Response as well as Resolution Times for Technical Support, and provides SLA Credits if our warranties are not met. The SLA is defined in an Exhibit and incorporated herein by reference. Under the SLA, we warrant that the Software and Technical Support will perform in accordance with the terms of this Agreement and the SLA. Except as set out in the limited warranties, no warranty is provided after expiry of the warranty period if no SLA is purchased.

14 Technical Support provider. You acknowledge and agree that we may engage Affiliates or Sub-processors to provide you with Technical Support, in accordance with the terms of the data processing agreement (“DPA”) published online at https://www.picturepark.com/terms/dpa and incorporated into this Agreement by reference. We remain responsible at all times for compliance with the terms of this Agreement by our Affiliates and Sub-processors. In case you have purchased the Software from one of our eligible Partners, you shall contact such Partner for all and any Technical Support queries.

15 Obligations to verify and backup. Ensuring compatibility with your requirements is solely your responsibility. After every significant hardware and software change, installation, remedial action, maintenance or other intervention on the system, you shall validate the proper functioning of the Software as well as ensure that any functional operability of data backup (test of backup data for completeness and recoverability) is still working. It is your responsibility to backup and retain Customer Data and Software Configuration for a reasonable amount of time prior to executing any installations or configuration changes.

16 Modifications through New Versions. All New Versions of Software are subject to this Agreement. You acknowledge and agree that New Versions may be subject to changes to the terms and conditions of this Agreement and that they may add, eliminate or modify features as well as change system requirements. We shall notify you of substantial changes when New Versions are released. If you do not agree to such substantial changes that will apply automatically via use of a New Version, you must not install or use a New Version, and you may terminate the SWS and SLA in accordance with section 37 within 90 days of the New Version being officially released.

Data Protection

17 Obligations. To the extent that personal data is processed in the use or provision of the Software, Technical Support or Professional Services, the parties acknowledge that we (and our Partners) are data processors and you are a data controller and the parties shall comply with their respective statutory data protection obligations and their contractual obligations set out in our DPA.

Customer Data

18 You are responsible for the files, metadata and user information (collectively “Customer Data”) you store and exchange through the Software. You will secure and maintain all rights in Customer Data necessary for us to provide the Software to you without breaching the rights of any third party or otherwise obligating us to you or to any third party. We do not and will not assume any obligations with respect to Customer Data or to your use of Software other than as expressly set forth in this Agreement or as required by applicable law.

19 Ownership of Customer Data. You retain all right, title, and interest in and to your Customer Data. We acquire no rights in Customer Data, other than the right to store, use, reproduce, process and distribute Customer Data solely as necessary to provide the Software to you and all users.

20 Use of Customer Data. We will use Customer Data only to the extent necessary to provide you with Technical Support for Software.

Confidential Information

21 Privacy & confidential information. Each party may be given access to private, confidential or personal identifiable data (collectively “Confidential Information”) from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that; (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the receiving party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party and for which written evidence can be provided; or (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

22 Obligations. Each party shall hold the other’s Confidential Information in confidence and, unless required as set out in section 23, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in breach of the terms of this Agreement. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

23 Notice of disclosure. In the event that either party is required to disclose Confidential Information pursuant to a court order, law or regulation, it shall, if permitted, provide the other party with notice thereof to give such party sufficient opportunity to take steps to prevent the disclosure.

Warranties

24 Limited Warranties. Unless otherwise specified in this Agreement, we warrant that the Software will substantially perform in accordance with the Documentation (“Warranty”) for ninety (90) days following your initial purchase of the Software (“Warranty Period”). Any non-material defect does not establish a warranty right and this warranty does not apply to NFR Software, Software you have not paid for or Software that you have altered, to the extent that such alteration has caused a Defect (as defined in the SLA). If a Defect classified as “Critical”, “Major” or “Medium” as defined in this Agreement arises with any Software covered by the Warranty, we will correct the Defect during the Warranty Period. If we cannot make the Software operate during the Warranty Period as warranted, you are entitled to terminate this Agreement for cause, provided that you return and no longer use the Software. Following receipt of the returned Software, you shall be entitled to a refund of your license fees paid for the Software. Any New Version of Software installed after expiration of the Warranty Period is not covered under the Warranty unless you have purchased and paid for a SWS and SLA subscription in case of which your sole warranties and remedies for breach of warranties are those defined in the SLA. Warranty claims must always be made in writing during the applicable period of warranty to our business or email addresses as provided in the Proposal with a copy to legal@picturepark.com.

25 WARRANTY DISCLAIMER. THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY US AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR US, OUR PARTNER’S AND OUR SUPPLIER’S BREACH OF WARRANTY. WE MAKE NO OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR OTHERWISE IN ANY COUNTRY OR JURISDICTION, RELATED TO OR ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE PROVISION OF SOFTWARE OR SERVICES UNDER THIS AGREEMENT. THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE SPECIFICALLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

Indemnification

26 Indemnification by us. Under the term of this Agreement, we shall indemnify and defend you against any claims made by an unaffiliated third party that the Software infringes the third party’s intellectual property rights or makes unlawful use of its trade secret, except to the extent a claim or award is based on: (a) Customer Data or custom modifications you make to the Software; (b) your use of our trademarks without our express prior written consent; (c) your redistribution of the Software to, or use for the benefit of, any unaffiliated third party; (d) NFR Software or services provided free of charge.

27 Indemnification by you. You shall indemnify and defend us against any claims made by an unaffiliated third party that: (a) Customer Data infringes the third party’s intellectual property rights or makes unlawful use of its trade secrets; (b) arise from your breach of this Agreement.

28 Remedies. Should the Software furnished under this Agreement become, or in our sole opinion be likely to become, the subject of a claim under section 26, we may at our sole discretion and at our own expense: (a) purchase any right required for continued use of the Software; (b) modify the existing Software so it is less likely to cause infringements; or (c) replace the Software with a substantially functional equivalent. If these or other options are not commercially reasonable, we may terminate your rights to use the Software and refund any unused advance payments for the Software.

29 Obligations. Each party must notify the other promptly of a claim under sections 26 and 27. The party seeking protection must: (a) give the other sole control over the defence and settlement of the claim; and (b) give reasonable help in defending the claim. The party providing the protection will reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and pay the amount of any resulting adverse final judgment (or settlement that the other consents to). The parties’ respective rights to defence and payment of judgments or settlements under this section are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law rights.

Limitation of Liability

30 Limitation of Liability. To the fullest extent permitted by applicable law and subject to section 31 and 32, the aggregate liability of each party under this Agreement is limited to direct damages up to the amount paid under this Agreement for the Software (or part of the Software) giving rise to that liability during the 12 months immediately preceding the date the liability arose. Each party hereby releases and forever discharges the other party from any and all obligations, liabilities, claims, or demands in excess of the foregoing limitation. The parties acknowledge that other provisions of this Agreement rely upon the inclusion of this section.
31 Exemption from Liability. Neither party is liable for indirect, special and/or incidental, punitive or exemplary damages, consequential loss or loss through lost profits, revenues, business interruption or the loss of business information or data, even if a party knew that such damages could occur.

32 Exceptions. Nothing in this Agreement shall limit a party’s liability for death or personal injury caused by its negligence, fraud, willful misconduct or gross negligence.

Term, Termination & Suspension

33 Term. If not defined otherwise in the Proposal, this Agreement will commence on the date of purchase and in no case later than the date on which the Software has been made accessible to you. This Agreement shall remain effective in perpetuity unless terminated pursuant to the termination provisions provided herein. Upon the effective date of termination, you shall no longer use the Software and destroy all Software and Documentation.

34 Term for SWS & SLA subscriptions. If ordered, SWS as well as SLA subscriptions start immediately following expiry of the Warranty Period but in no case later than ninety (90) days after purchase. SWS and SLA subscriptions continue for a period of one (1) year (the “Initial Term”), with automatic renewals for additional one (1) year periods (each, a “Renewal Term”; collectively “Term”), unless cancelled or until otherwise terminated pursuant to the termination provisions herein.

35 Termination for convenience. Subject to the Initial Term and Renewal Term, either party may terminate the subscriptions SWS and SLA subscriptions for convenience effective from the end of a calendar month by giving written notice to the other party at least ninety (90) days prior to the effective date of termination.

36 Termination for cause. Either party has the right to terminate this Agreement for cause if the other party defaults on any of its material obligations, provided that the non-defaulting party has warned the other party in writing of the material breach and provided that the defaulting party has failed to remedy such breach within thirty (30) calendar days after receiving such notice. If we are in material breach of this Agreement any fail to remedy and you terminate this Agreement for cause, we shall refund you any unused advance payments for future use of subscriptions within thirty (30) days.

37 Termination due to our modifications. You have the right to terminate SWS and SLA subscriptions by giving us prior written notice of at least thirty (30) days if you do not agree to our substantial modifications of the Software or our material modifications of this Agreement through New Versions as set out in section 16 and section 46. Your sole remedy for such termination shall be the refund of unused advance payments (if any) during the current Initial Term or Renewal Term for future use of SWS and SLA subscriptions within thirty (30) days. Under no circumstances will you be entitled to a refund for any version that was provided prior to the Software version in effect at the time you elect to terminate this Agreement pursuant to this section.

38 Temporary suspension and termination. We may temporarily suspend our obligation to provide you with any services or warranties under SWS and SLA subscriptions if in our reasonable view you or your use of the Software: a) poses a substantial security risk for users of the Software or any third party; b) may subject us or a third party to material liability; c) may be fraudulent and breach applicable law; d) you are in breach of this Agreement; e) you are the subject of any bankruptcy, liquidation, dissolution or similar proceeding; or f) you are more than thirty (30) days in delay of payment. During the temporary suspension, you remain responsible for fees and charges that you have incurred through the date of suspension unless such suspension proves unjustified in which case your sole remedies shall be a pro-rated credit of payments made for purchased subscriptions during the period of temporary suspension. We will always give you notice before we suspend.

39 Survival. Any terms of this agreement which by their nature should survive termination or expiry, in particular sections 1, 9, 21, 22, 23, 25, 26, 27, 30, 31 and 32 shall survive the termination of this Agreement for any reason.

Miscellaneous

40 Advance payment. If not defined else in the Proposal, payment for up-front Software licenses is due on the date when the license key is delivered and at the latest sixty (60) days after purchase. SWS and SLA payments are due on the date the Term begins any payments shall be made annually in advance.

41 Governing Law/Jurisdiction. This Agreement shall be governed by, enforced by and interpreted in all respects by laws in force in: (a) the State of New York, United States, if the Software is purchased by you from your entity registered in the United States, Mexico or Canada; or (b) the Canton Aargau, Switzerland, if the Software is purchased by you from your entity registered in any other country of the world, as evidenced by the company name and address in the Proposal. The respective state and federal courts located in New York City, New York, United States, shall apply for New York law and the city of Aarau, Canton Aargau, Switzerland, shall apply for Swiss law. In any event, this Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ITS RIGHT TO A TRIAL BY JURY.

42 Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.

43 Notice. Any notices required or permitted to be given pursuant to this Agreement shall be in writing, sent via email, certified mail, return receipt requested, or delivered by hand to the business or email addresses as provided in the Proposal with a copy sent to legal@picturepark.com. Notices shall be deemed effective on the earlier of the date of receipt or the fourth day after being deposited in the mail.

44 No Agency. You and we are independent contractors. This Agreement does not create an agency, partnership, or joint venture.

45 Complete Agreement. This Agreement and all referenced Exhibits are the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. In the event of any inconsistency between the terms of this Agreement and any documents referred to in it, the terms of the Agreement shall prevail, followed by the terms of the SLA, the DPA, the Privacy Policy and then any other documents in the order they are referred to in this Agreement and then only if they are mutually signed.

46 Modifications of this Agreement. We may modify this Agreement at any time. You are automatically bound by such modifications to the Agreement through installation of New Versions subject to such modified terms. If you do not agree with such materially modified Agreement terms then you are not permitted to install New Versions and you shall terminate any purchased SWS and SLA subscriptions using your termination rights in section 37.

47 Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.

48 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement that is due to any cause beyond the reasonable control of such party, including, without limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood or other weather, unavailability of necessary utilities or raw materials, including phone, Internet or other communications systems, strike, riot, war, insurrection, terrorism, export control regulations, ordinance, or instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction. If the force majeure continues for more than 14 days, either party may terminate this Agreement without further liability to the other.

49 Compliance with Laws. We will comply with all laws applicable to our provision of the Software and services excluding any laws applicable to you or your industry that are not generally applicable to information technology Software providers. You will comply with all laws applicable to your solution, Customer Data, and your use of the Software, including any laws applicable to you or your industry.

 

Exhibit “Picturepark Service Level Agreement (SLA)”

Last changed: January 23, 2018

Definitions

1 “Defect” shall mean a reproducible error, defect, bug or malfunction of the Software arising from regular use according to the Documentation. The Defect must be covered under this SLA and reproducible using Supported Versions of the Software. Defects are classified at our sole reasonable discretion into Service Levels according their severity as defined in Table A.

2 “Defect Resolution” shall mean a bug-fix, patch, correction code, update, upgrade or other modification, procedure, routine or workaround that corrects a Defect or eliminates the practical adverse effects of a Defect to you to a reasonably tolerable amount.

3 “Support Query” shall mean your query for Technical Support.

4 “Reaction Time” is defined as the period of time beginning with receipt of your Support Query and ending with delivery of a first non-automated response as warranted in Table A.

5 “Resolution Time” is defined as the period of time beginning with receipt of your Support Query and ending with Defect Resolution, as warranted in Table A.

6 Support regions and hours. Technical Support is available per region (“Support Hours”) and all Reaction Times and Resolution Times defined in “Hours” or “Days” are subject to these Support Hours, as defined in this SLA. Support Hours for Europe are from Monday to Friday, 8 AM to 6 PM Central European Time (CET) excluding Swiss statutory holidays (“EMEA Support”), and Support Hours for the Americas are from Monday to Friday, 6 AM to 4 PM Eastern Time (EST) excluding U.S. federal holidays (“Americas Support”). Limited to Priority 1 Defects only, we provide you with 24/7 global escalation support. We reserve the right to charge for such support, if your escalation is not reasonably justifiable. If not defined else in the Proposal, support hours for EMEA Support apply.

Service Level Warranties & Limitations

7 SLA Warranties. Through this SLA we warrant to you Reaction and Resolution Times for Technical Support as well as Defect Resolution during the Support Hours according to Table A.

8 Classifications. You will pre-classify your Support Query when filing according it to Table A and we will use reasonable efforts to verify and inform you of our initial assessment and classification within the Reaction Time.

9 Limitations. Strictly excluded from the SLA and any warranties provided herein are the following situations: (a) Defects due to factors outside the reasonable control of us such as failure of upstream infrastructure providers; (b) Defects due to components, modules or cloud services provided by unaffiliated 3rd parties; (c) Defects in and due to components for which warranties have been explicitly excluded in the Proposal; (d) You have modified or used the Software other than in accordance with the terms of this Agreement or Documentation, our reasonable instructions or guidance; (e) You are not using a supported version Software or you do not comply with our system requirements; (f) You have not purchased an SLA or not paid any fees for the Software when due; (g) The Software is provided to you for free or under NFR terms; (h) Your Support Query is not filed through a registered Support Contact and we cannot validate the identity and authority of the requestor using reasonable efforts; (i) Your Support Query can be answered by consulting the Documentation; (j) Your Support Query constitutes a request for consultancy, configuration change or delivery of other professional services; or (k) Other restrictions apply as set out in this Agreement.
Your Obligations

10 First Level Support & Support Contacts. You will provide internal first-level support for adequately addressing your end-user questions before escalating Support queries to us through your Support Contacts. Unless otherwise defined in the Proposal, Technical Support is only warranted to Support Contacts you had previously registered, limited to a maximum of two (2) Support Contacts at a time.

11 Reporting a Defect. Unless otherwise defined in the Proposal, your Support Contacts will report Defects according to instructions and through the form provided on http://www.picturepark.com/support.

12 Cooperation. For the sole purpose of facilitating our Support obligations, you shall: (a) Fully cooperate in promptly providing us with all reasonably requested information so we can verify, reproduce and classify a Defect; (b) Support us in verifying your identity and authority for cooperation on your Support query; (c) Allow and provide us with full, free-of-charge and reasonably performing remote access to your computer; (d) Promptly and at no cost to us implement reasonably required actions for Defect Resolution; and (e) Ensure that corresponding systems and data are backed up and can be restored before applying changes based on our advice.

13 Charges. We will always inform you in advance if your Support Query constitutes a professional service or expenses are incurred for which we will charge you.
SLA Credits

14 SLA Credits. SLA Credits credited towards future use of the SWS and SLA under this Agreement are your sole and exclusive remedy for any breach of this SLA and in addition to your other rights under this Agreement.

SLA Credit Calculation

15 SLA Credit Calculation. SLA Credit calculation is based on your fees paid or payable for the SWS or SLA (or the affected part thereof) during the period in which a Defect effectively occurs (“Credit base”). SLA Credits shall be calculated by applying the corresponding percentage (or a pro-rata fraction thereof) as defined in Table A or Table B to the Credit base.

Credit base×SLA Credits in %

For example: Defect Resolution on the tenth (10) Day for Priority 1 (Critical) with warranted resolution within four (4) Days will make you eligible to receive SLA Credits for six (6) Days of delay, equivalent to a 100% of the amount paid or payable for the SWS or SLA during that month.

16 SLA Credit Limitations. In aggregate for Reaction Times and Resolution Times, SLA Credits shall in no event exceed your fees actually paid or payable for the Software during the period in which a Defect effectively occurs. All SLA Credits are strictly limited in aggregate by the caps and restrictions on liability set out in this Agreement.

17 Claiming for SLA Credits. To submit a claim, you must send it in writing to our business or email addresses as provided in the Proposal with a copy sent to legal@picturepark.com within 10 days after the date on which the warranted Defect Resolution Time or Reaction Time was not met. You must provide us with all reasonably requested details regarding and substantiating your claim, including but not limited to, detailed descriptions and durations of the Defect(s), copies of your Support Queries as well as our responses, logs of experienced effective Reaction Times; and the affected URL(s) and/or license ID.

18 Judgment. We will use all information reasonably available to validate your claim and make a good faith judgment as per the definitions in the Agreement on whether the SLA Credits apply to the claim, and to what degree you are eligible to SLA Credits. Our judgment shall be final and binding.

Table A) Service levels with warranted Reaction Times & Resolution Times

Service Levels Basic SLA Premium SLA  SLA Credits
Reaction time Resolution time Reaction time Resolution time  
Priority 1: Critical

Defect that causes the Software or its critical core components such as login, search, download or share to become completely inoperable or in-accessible, severely affecting all users and all Customer Data.

Immediate reaction and efforts for resolution within 4 Days Immediate reaction and continuous efforts for resolution within 2 Days 20% for each Day of delay

 

Priority 2: Major

Defect which materially distorts your use of the Software by severely limiting a core component or function, effectively affecting the majority of users and Customer Data. Potential workarounds, if applicable, cause substantial side-effects and can only be applied temporarily.

4 Hours Resolution within 30 Days 2 Hours  Resolution within 15 Days 10% for each Day of delay
Priority 3: Medium

Defect which materially distorts your use of the Software by severely limiting a non-core component or function, effectively affecting many users and Customer Data.

8 Hours Resolution within 70 Days 4 Hours Resolution within 35 Days 5% for each Day of delay
Priority 4: Minor

Defect not classified as Critical, Major or Medium such as tolerable limitations to certain components or functions, isolated performance or non-reproducible issues of Software, minor compatibility issues for supported web-browsers, file conversion issues for few files of generally supported formats, and similar.

24 Hours 12 Hours  Tentatively scheduled for a future New Version