OPTEL VISION LTD (Limerick, Ireland)
STANDARD TERMS AND CONDITIONS
CERTA™ (SaaS) SUBSCRIPTION + GOODS AND ANCILLARY SERVICES
20181211 v Europe
OPTEL Vision Ltd and Customer hereby enter into a contract regarding the services ordered by the Customer.
( ( available hours in a month – duration of outages in that month ) / ( available hours in a month ) ) x 100
Indemnification. For any failure to meet Certa™ Uptime Metric, as sole indemnity, Customer shall be awarded the following credits on its subscription fees (“Service Credits”):
|Uptime Metric||Rating||Service Credits|
|99.5% - 100%||Meets Goals||No credit|
|99.0% - 99.4%||Tolerable||One (1) day credit|
|98.9% - 80.0%||Unacceptable||Two (2) days credit|
|Below 80%||Failure||50% of the subscription fees applicable to a single month|
Optel’s Infringement Indemnification.
Defense and Indemnity. If any third party makes any claim against Customer that, if true, would constitute an OPTEL Infringement (defined in Section 18.3 herein) then, upon notification of such claim, OPTEL will, at its sole cost and expense, defend Customer against such claim and any related proceeding brought by such third party against Customer, and indemnify Customer from and against all damages, fines and penalties ultimately awarded against Customer or agreed to be paid by Customer in a written settlement approved in writing by OPTEL. OPTEL’s obligations under this section are subject to Customer’s compliance with the “Indemnification Conditions” (defined below).
“Indemnification Conditions” means the following conditions with which a party must comply in order to be entitled to defense or indemnification under the agreement by the other party: (i) the indemnified party promptly notifies the indemnifying party in writing of any claim that might be the subject of indemnification; (ii) the indemnifying party is given primary control over the defense and settlement of the claim (subject to the foregoing, the indemnified party may nonetheless participate in the defense at its sole cost and expense); (iii) the indemnified party makes no admission of liability nor enters into any settlement negotiation without the indemnifying party’s prior written agreement; (iv) the indemnified party provides such assistance in defense of the proceeding as the indemnifying party may reasonably request; (v) the indemnified party complies with any court order or reasonable settlement made in connection with the proceeding; and (vi) the indemnified party uses all commercially reasonable efforts to mitigate its losses.
Optel’s Mitigation Rights. If any Subscription Services become (or in OPTEL’s opinion are likely to become) the subject of any infringement or misappropriation claim, OPTEL may, and if Customer’s use of the Subscription Services is enjoined, OPTEL must, at its sole expense, either: (i) procure for Customer the right to continue using the relevant Subscription Services; (ii) replace or modify the relevant Subscription Services in a functionally equivalent manner so that they no longer infringe; or (iii) terminate the applicable order or Customer’s rights to use affected Subscription Services, and refund to Customer a pro-rata amount of any subscription fees prepaid to OPTEL and applicable to the unutilized portion of the subscription term for the terminated Subscription Services.
Exclusions. Notwithstanding the foregoing, OPTEL will have no obligation with respect to any infringement or misappropriation claim to the extent based upon (i) any use of the Subscription Services not in accordance with their applicable license rights, (ii) the combination of the Subscription Services with other products, equipment, software, services or data not supplied by OPTEL where the infringement would not have occurred but for such combination, (iii) OPTEL’s compliance with Customer’s specifications, configuration requirements, or other instructions, (iv) any use of any version of any Software other than the most current version made available to Customer after notice from OPTEL that Customer must upgrade to such release to avoid an infringement or misappropriation claim, or (v) any modification of the Software not made by OPTEL or its subcontractors, or at its or their express direction.
Improper Use of the Software – Indemnification by Customer.