Availability of the Bitmovin Encoding Service and Bitmovin Analytics Service

  1. Definitions.
    1. “Available” means the Bitmovin Encoding Service and/or the Bitmovin Analytics Service, as applicable, is available for access and use by Company and operating in material accordance with the Documentation.
    2. “SaaS Excluded Problems” means any Incident or Error, as applicable (as defined in Support and Maintenance Services) that is due, in whole or in part, to any: (i) act or omission by Company or access to or use of the Bitmovin Encoding Service and/or the Bitmovin Analytics Service, as applicable, by Company that does not strictly comply with the Agreement and the Documentation or Company’s negligence or misconduct, (ii) unavailability of or interruption or delay in Company’s or its End User’s Internet connectivity or telecommunications providers or Company’s infrastructure providers (including AWS, Google Cloud, Azure or any other providers and DNS issues), (iii) force majeure event, (iv) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Bitmovin to the Agreement (v) Company’s live video stream functionality, unless such Incident or Error, as applicable was caused solely by Bitmovin or the Bitmovin Encoding Service and/or the Bitmovin Analytics Service, as applicable, (vi) malicious intrusions by third parties or virus attacks, or (vii) scheduled or emergency maintenance.
    3. “Service Level Failure” means a material failure of the Bitmovin Encoding Service and/or the Bitmovin Analytics Service, as applicable, to meet the Availability Requirement.
  2. Service Levels. Subject to the terms and conditions of the Agreement, Bitmovin will use commercially reasonable efforts to make the Bitmovin Encoding Service and/or the Bitmovin Analytics Service, as applicable, available at least 99.5% of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of a SaaS Excluded Problem (the “Availability Requirement”).
  3. Service Level Failures and Remedies. In the event of a Service Level Failure, Bitmovin shall issue a credit to Company in the amount of five percent (5%) of the monthly Solution Fees for the affected Bitmovin Encoding Service and/or the Bitmovin Analytics Service, as applicable due for the Service Period the Service Level Failure occurred (each a “Service Credit”), subject to the following: Bitmovin has no obligation to issue any Service Credit unless: (a) Company reports the Service Level Failure to Bitmovin immediately on becoming aware of it; and (b) requests such Service Credit in writing within fifteen (15) days of the Service Level Failure.  In no event will a Service Level Credit for any Service Period exceed twenty percent (20%) of the total Fees that would be payable for the affected Bitmovin Encoding Service and/or the Bitmovin Analytics Service, as applicable for that Service Period if no Service Level Failure had occurred. Any Service Credit payable to Company under the Agreement will be issued to Company in the calendar month following the Service Period in which the Service Level Failure occurred or such other time as mutually agreed upon. This Section 3 sets forth Bitmovin’s sole obligation and liability and Company’s sole remedy for any Service Level Failure.
  4. Scheduled Downtime. Bitmovin will use commercially reasonable efforts to: (i) schedule downtime for routine maintenance of the Bitmovin Solution between the hours of 2:00 a.m. and 10:00 a.m., Pacific Time, and (ii) give Company at least 24 hours prior notice of all scheduled outages of the Bitmovin Solution (“Scheduled Downtime”)
DATE: June 20, 2019