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Terms & Conditions

WURL PLATFORM AND BROADCAST SERVICES AGREEMENT

CONFIDENTIAL

IMPORTANT – READ CAREFULLY:  THIS WURL PLATFORM AND BROADCAST SERVICES AGREEMENT WILL GOVERN USE OF THE WURL PLATFORM, INCLUDING THE WURL PLATFORM SERVICES AND WURL BROADCAST SERVICES.  CLICKING THE “I ACCEPT” BOX AND PRESSING ENTER ON THE WEB PAGE AT WHICH THIS AGREEMENT IS PRESENTED FOR ACCEPTANCE CONSTITUTES BINDING ACCEPTANCE OF THIS AGREEMENT ON BEHALF OF THE VIDEO PRODUCER AND A REPRESENTATION THAT THE PERSON CLICKING THE “I ACCEPT” BOX AND PRESSING ENTER IS AUTHORIZED TO BIND THE VIDEO PRODUCER TO THIS AGREEMENT.  IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, DO NOT CLICK THE “I ACCEPT” BOX AND YOU WILL NOT BE GIVEN ACCESS TO THE WURL PLATFORM AND SERVICES.\

This Wurl Platform and Broadcast Services Agreement, including the attachments (the “Agreement”), sets forth the agreement and understanding by and between Wurl, Inc., 591 Lytton Avenue, Palo Alto, CA 94301 (“Wurl”) and the video producer on whose behalf this agreement has been accepted (“Video Producer”) in connection with Wurl services to be provided by Wurl as of the Effective Date (as defined below).

Video Producer Programming.  Video Producer creates and licenses video programming content that it plans to distribute through various video services as streaming TV channels including live and/or pre-recorded programming (“Video Programming”).  Video Producer anticipates the generation of revenue from this distribution through the sale of advertising and/or subscriptions.  Video Producer will be granted access and use of the Wurl Services (as defined below) subject to the terms and conditions of this Agreement.

Wurl Services.  Wurl agrees to provide to Video Producer the following services, in each case as further specifically defined and described from time to time by Wurl at https://www.wurl.com/wurl-services and subject to the terms and conditions of this Agreement:  

  • The “Wurl Platform”:  the set of cloud-based services for the creation and management of linear TV and/or over-the-top channels based on Video Producer’s Video Programming (“Channels”), and
  • The “Wurl Broadcast Services”:  the services for the distribution of Video Programming and related advertising on the video services that Wurl supports, as listed from time to time at https://www.wurl.com/video-services (“Video Services Schedule”).

The Wurl Platform and the Wurl Broadcast Services are referred to collectively as the “Wurl Services.

Wurl Connectors.  Wurl distributes Channels using connectors between the Wurl Platform and the video services (“Connectors”).  Wurl Connectors include a combination of technology and services for the delivery of Video Programming to a selected Video Service.  If Video Producer desires to distribute a Channel to a Video Service for which Wurl does not already have a Connector, Video Producer may request the implementation of a new Wurl Connector, which Wurl will consider in its discretion.

Effective Date.  The term of this Agreement commences on the date that the person accepting this Agreement on behalf of Video Producer first clicks on the “I Accept” box and presses Enter.  The name of Video Producer and the date of such acceptance shall be electronically recorded by Wurl.

Term.  The term of this Agreement will commence on the Effective Date and will remain in effect until a modified version (if any) of this Agreement is presented by Wurl and accepted by a person acting on behalf of Video Producer by clicking on the “I Accept” box and pressing enter, unless earlier terminated as provided herein.

Limitation on Rights to Video Programming and Channels.  As between Wurl and Video Producer, Video Producer and its licensors shall retain all right, title and interest in the Video Programming and Channels produced by Video Producer and the content therein.  Wurl shall not have the right to distribute, use, sell, or otherwise exploit the Video Programming or Channels produced by Video Producer, except as expressly permitted under the terms of this Agreement in connection with providing the Wurl Broadcast Services selected by Video Producer.

Recurring Wurl Connector Fees.  Video Producer agrees to pay the monthly fee set forth in the Video Services Schedule (“Monthly Fee per Channel”) for each Connector selected by Video Producer. Upon ordering a Wurl Connector, payment is due for the first month’s Monthly Fee per Channel.   Thereafter, the Wurl Monthly Fee Per Channel shall be payable by Video Producer to Wurl monthly, in advance, beginning on the first day of the second calendar month in which Video Producer’s Video Programming is available to recipients on the related Video Service.

Additional Service Fees.  Video Producer agrees to pay the following additional service fees associated with the delivery of Channels to specific Video Services, in the amounts set forth on the  Video Services Schedule:

  • CDN Charges.  Direct to device streaming. Applies only to certain Video Services set forth on the Video Services Schedule.
  • Head-End Transport Charges.  Broadcast transport to video service headend. Applies only to certain Video Services set forth on the Video Services Schedule.
  • Large Transcode Charges.  Wurl provides transcoding services for up to 500 input minutes per Channel of video content per month without additional charge.  Transcode requests exceeding 500 input minutes per Channel of video content per month will be subject to the Additional Transcode Charge set forth on the Video Services Schedule.

Fees for these additional services delivered to Video Producer will be invoiced by Wurl following the service month and will be payable “net 30” days from the date of Wurl’s invoice for such services.

Other Terms and Conditions.

1) Access to and Use of the Wurl Services.  Video Producer’s employees, contractors and other persons authorized by Video Producer to use the Wurl Services may access and use the Wurl Services solely in accordance with this Agreement and solely on behalf of Video Producer, provided, however, that if Video Producer is a direct competitor of Wurl or of the Wurl Services, Video Producer cannot access or use Wurl Services without Wurl’s permission. Video Producer will comply, and will cause all persons using the Wurl Services on its behalf to comply, with the terms of this Agreement and all laws, rules and regulations applicable to access and use of the Wurl Services.  Wurl may change, limit or discontinue any or all of the Wurl Services or change, limit or remove functionality of any or all of the Wurl Services from time to time. Wurl will make reasonable efforts to notify Video Producer in advance of any material change to or discontinuation of any of the Wurl Services, if practical to do so. Some of the Wurl Services are currently free, but Wurl reserves the right to charge for certain or all Wurl Services in the future. Wurl will notify Video Producer before any Wurl Service that Video Producer is currently using begins to carry a charge, and if Video Producer desires to continue using such Wurl Services it must pay all applicable fees.  Wurl may suspend Video Producer’s access or use of any portion or all of the Wurl Services immediately upon notice to Video Producer if Wurl determines that access or use of Wurl Services by anyone acting on behalf of Video Producer or accessing or using the Wurl Services through Video Producer’s account (i) poses a security risk to or could adversely impact the Wurl Services or any portion thereof, or any related systems, networks or storage, (ii) could subject Wurl or any third party to liability, (iii) could be fraudulent or illegal, or (iv) is in material violation of the terms or conditions of this Agreement. In addition, Wurl may in its sole discretion remove or block Video Programming, Channels or portions of the content therein in response to complaints or notices from rights holders submitted pursuant to the Digital Millennium Copyright Act (DMCA) or similar laws or regulations in any other country.

2) Video Producer Responsibilities.  Video Producer will be solely responsible (i) for meeting Wurl’s applicable minimum hardware, software, networking and system requirements for accessing and using the Wurl Services as published from time to time by Wurl at https://www.wurl.com/wurl-services ; (ii) for compliance with this Agreement and for any other activity by its employees, contractors and other persons authorized by Video Producer to use the Wurl Services; (iii) for the quality, integrity, accuracy, and legality of its Video Programming and Channels and any content therein or related thereto; and (iv) to use commercially reasonable efforts to prevent unauthorized access to or use of the Wurl Services through its account.

3) Prohibitions.  Video Producer will not (i) make the Wurl Services available to anyone other than its employees, contractors and other persons authorized by Video Producer to use the Wurl Services on behalf of Video Producer; (ii) resell, rent or lease the Wurl Services or include the Wurl Services in a service bureau or outsourcing offering; (iii) use the Wurl Services to distribute infringing, libelous, deceptive, fraudulent, threatening, harassing, obscene or other unlawful or tortious material; (iv) use the Wurl Services to store or transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Wurl Services; (vi) attempt to reverse engineer or to gain unauthorized access to the Wurl Services or any portion thereof, or of any related systems, networks or storage; (vii) access the Wurl Services in order to aid in the building of a competitive product or service or to copy any features, functions or graphics of the Wurl Services; (viii) attempt in any manner to obtain the password, account, or other security information from any other user of Wurl Services; (ix) use the Wurl Services, or permit them to be used, for purposes of product benchmarking or other comparative analysis.

4) Wurl Broadcast Service Levels. Wurl will provide the Wurl Broadcast Services at the Service Levels, and with the related support, as described on Attachment 1 below.

5) Taxes.  All fees and other charges for Wurl Services are exclusive of any federal, state, local sales, international excise, value-added, and similar taxes, levies, duties, administrative or recovery fees or charges, or similar governmental assessments of any nature imposed by any jurisdiction, but not including any taxes assessable against Wurl based on its income, property and employees (“Taxes and Fees”).  Video Producer agrees to pay all Taxes and Fees, however denominated, that may now or hereafter be levied on the Wurl Services. Should Wurl pay or be required to pay any such Taxes and Fees, Wurl shall invoice Video Producer for such Taxes and Fees, and Video Producer shall pay or reimburse Wurl for such Taxes and Fees.

6) Suggestions.  Video Producer grants Wurl a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Wurl Services or Wurl’s other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Video Producer or its employees, contractors or other persons acting on its behalf.

7) Representations and Warranties.

  1. a) Each party represents and warrants to the other that (i) it has the right to enter into this Agreement; and (ii) in the case of Video Producer, the individual accepting it on its behalf has the power and authority to do so.
  2. b) EXCEPT AS EXPRESSLY COVENANTED IN THE SERVICE LEVELS, THE WURL SERVICES PROVIDED BY WURL ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. WURL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO VIDEO PRODUCER.
  3. c) Video Producer represents and warrants to Wurl that Video Producer owns or has enforceable license rights to all its Video Programming, Channels and content therein, and that such Video Programming, Channels and content do not and will not infringe or misappropriate any patent, copyright, trademark, trade secret, publicity or likeness right, or any other intellectual property right of any third party.
  4. d) The representations and warranties shall continue throughout the Term and shall survive, to the extent applicable to the actions or inactions occurring under this Agreement, the expiration or termination of this Agreement, regardless of the reason for such expiration or termination.

8) Indemnification by Video Producer.  Video Producer shall defend or settle, indemnify and hold harmless Wurl, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any claim (i) that a third party has suffered injury, damage or loss resulting from access or use of the Wurl Services by Video Producer or its employees, contractors or other persons authorized by Video Producer to use the Wurl Services, or that such access or use violates this Agreement in any manner; or (ii) that any of Video Producer’s Video Programming, Channels or content therein infringe or misappropriate any patent, copyright, trademark, trade secret, publicity or likeness right, or any other intellectual property right of any third party.  Video Producer’s obligations under this Section 8 are contingent upon (i) Wurl providing Video Producer with prompt written notice of such claim; (ii) Wurl providing reasonable cooperation to Video Producer, at Video Producer’s expense, in the defense and settlement of such claim; and (iii) Video Producer having sole authority to defend or settle such claim.

9) Indemnification by Wurl.  Wurl shall defend or settle, indemnify and hold harmless Video Producer, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any claim that any of the Wurl Services, as furnished by Wurl hereunder, infringes or misappropriates any patent, copyright, trademark, trade secret, publicity or likeness right, or any other intellectual property right of any third party.  Wurl’s obligations under this Section 9 are contingent upon (i) Video Producer providing Wurl with prompt written notice of such claim; (ii) Video Producer providing reasonable cooperation to Wurl, at Wurl’s expense, in the defense and settlement of such claim; and (iii) Wurl having sole authority to defend or settle such claim. In the event that Wurl’s right to provide one or more of the Wurl Services is enjoined or in Wurl’s reasonable opinion is at risk of being enjoined, Wurl may obtain the right to continue providing the Wurl Services, replace or modify the Wurl Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Video Producer.  Wurl shall have no liability under this Section 9 to the extent that any claims described above are based on any combination of the Wurl Services with products, services, methods, or other elements not furnished by Wurl, or any use of the Wurl Services in a manner that violates this Agreement or the instructions given to Video Producer by Wurl.

10) Limitation of Liability.  TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY OF THE OTHER PARTY’S INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE WURL SERVICES OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11) Force Majeure.  Neither party shall be liable to the other for any failure of performance due to civil commotion, war, riots, strikes, explosions, fire, flood, earthquake or other catastrophic event, vandalism or "hacker" attacks, acts of terrorism, or other similar events beyond the reasonable control of the affected party (“Force Majeure”). If Force Majeure prevents Wurl from providing the Wurl Services for three (3) consecutive, or seven (7) cumulative, days during the Term, then Video Producer shall have the right to terminate this Agreement immediately upon notice to Wurl.

12) Termination.

  1. a) For Convenience.  Video Producer may terminate this Agreement for any reason by providing Wurl notice, which will become effective at the end of the calendar month following the calendar month in which Video Producer provides such notice.  Wurl may terminate this Agreement for any reason by providing Video Producer at least 180 days’ advance notice, with such termination becoming effective at the end of the calendar month in which the 180 day notice expires.
  2. b) For Cause. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice of breach by the other party.  Wurl may also terminate this Agreement immediately upon notice to Video Producer (A) if Video Producer is in breach of its payment obligations, or (B) in order to comply with the law or requests of governmental entities.
  3. c) Upon expiration or termination of this Agreement, Wurl shall remove all of Video Producer’s marks and the Video Producer’s Video Programming, Channels and content thereof from the Wurl Services and related systems.

13) Confidentiality. Each party (the “Receiving Party”) acknowledges that it has or may receive from the other party non-public business, technical or financial information that a reasonable person would understand to be confidential given the nature of such information and the circumstances of its disclosure, whether or not marked or identified as confidential or proprietary (“Proprietary Information”), relating to the business of the other party (the “Disclosing Party”).  The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information that are no less than the precautions it takes to protect its own Proprietary Information of similar import, and (ii) not to use (except as necessary for the Receiving Party to perform its obligations under this Agreement) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after one (1) year following the Termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public without breach of the obligations under this Agreement, or (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of, or reference to, any Proprietary Information of the Disclosing Party.  The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party shall disclose only such information as it reasonably deems is legally required and shall use reasonable efforts to obtain confidential treatment for any Confidential Information (to the extent legally permitted) that is so disclosed.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

14) Data Protection.  Each Party shall comply with any data protection, privacy or similar laws or regulations relating to the processing or other use of personal data (“Data Protection Laws”) including but not limited to the Data Protection Act 1998, that apply in relation to any personal data processed in connection with this Agreement (“Protected Data”), and render such assistance and co-operation as is reasonably necessary or reasonably requested by the other Party, including but not limited to the provision of information regarding the existence, applicability and extent of application of Data Protection Laws in particular jurisdictions to Protected Data.

15) Notices.  Any notices, documents, statements or other writings to be given by either party will be in writing and will be delivered by courier, certified mail-return receipt requested or such other method providing a receipt or confirmation of delivery to the respective party at its address set forth above, deemed received at the earlier of the recipient’s receipt, or five (5) days after posting. In addition to the foregoing, e-mail notice shall be given for all notices, and deemed as legally sufficient notice if made to the recipient’s notice e-mail address provided herein, with such e-mail confirmed by the recipient has having been received. All notices are effective upon receipt by the respective party.

16) Complete Agreement, Assignment. This Agreement constitutes the sole understanding between the parties hereto with respect to the subject matter hereof and supersedes any other agreements or understandings, oral or written, between them with respect thereto and cannot be amended, changed or modified except in a writing signed by an authorized representative of Wurl and Video Producer or as permitted in Section 17 below. This Agreement is binding on the parties and their respective successors and assigns, and is not assignable by either party without the other party’s prior written consent, such consent not to unreasonably be withheld, and any attempt to assign any rights, duties, or obligations hereunder without such consent will be void and invalid.   Notwithstanding the foregoing, either party may assign this Agreement to any person or entity controlling, controlled by or under common control with the assigning party or to any person or entity that acquires substantially all of the shares, assets, or business of the assigning party.

17) Governing Law, Jurisdiction. This Agreement will be governed by the laws of the State of California, notwithstanding any conflicts or choice of law principles. The parties agree that if any controversy, dispute, or claim arising out of or relating to this Agreement cannot be settled through direct discussions between the parties, then the matter shall be submitted to JAMS, or its successor, for non-binding mediation in California before commencing any litigation. If the matter is not otherwise resolved through direct discussions or mediation, then either party may seek judicial relief. The prevailing party in any such litigation shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the litigation, including reasonable attorneys' fees and expenses and court costs.

18) Modifications to the Agreement.  Wurl may modify this Agreement at any time by posting a modified version of the Agreement on a Wurl website page in such a fashion that the modified Agreement must be accepted by a person acting on behalf of Service Provider by clicking the “I Accept” box and pressing Enter on such website page before being given further access to the Wurl Services.  Upon such acceptance, the modified Agreement will be in force going forward with an Effective Date of the date on which such person accepted the modified Agreement; provided, however, that any adverse changes to the Service Levels in such modified Agreement will not go into effect until 30 days after such acceptance. Except as set forth in the preceding sentences, only a writing executed by both parties to the Agreement may amend this Agreement.

19) Relationship of the Parties.  The parties are independent contractors.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or similar relationship between the parties.

Attachment 1

Wurl Service Levels & Related Support

  1. SERVICE LEVELS AND SUPPORT

(a) Uptime Percentage Service Level.   Wurl will provide the Wurl Broadcast Services with an Uptime Percentage (as defined below) of 99.6%, measured on an aggregate monthly basis.  “Uptime Percentage” means, with respect to a given month, 100 times the following ratio (computed to one decimal point):  

(1) the total number of minutes during the month that the Wurl Broadcast Services are functioning without a Severity 1 level problem (for clarity, this clause (1) shall not count any Maintenance Window minutes),

divided by

(2) the total number of minutes in the month minus (i) minutes during which a Severity 1 level problem exists with respect to the Wurl Broadcast Services that is caused by Force Majeure or Internet Problems (as defined below), and (ii) up to 120 actual Maintenance Window minutes (as defined in Section 1(b)(iv) below).  

Internet Problems” means outages and interruptions of Wurl Broadcast Services due to technical problems that are not within the reasonable control of Wurl, including but not limited to Domain Name Service (“DNS”) errors, caching outages, routing errors, Internet performance issues and other technical issues both within the Video Producer’s Internet protocol infrastructure or the Internet as a whole. “Force Majeure” is defined in Section 11 above.

(b) General Support.  Wurl will provide support for the Wurl Services as set forth below:

(i) Wurl will provide support for assistance in identifying and resolving any Severity 1 and 2 problems with respect to the Wurl Broadcast Services (in accordance with the Severity Levels and Response Times set forth in Section 1(c) and 1(d) below), and will provide standard support during regular business hours to answer questions related to the operational use of the Wurl Services;

(ii) Wurl will reasonably monitor the Wurl Broadcast Services to determine whether they are being provided according to the service levels of this Exhibit;

(iii) Wurl will schedule upgrades and maintenance for the Wurl Services during appropriate, non-peak usage hours (except in the case of emergencies) (the “Maintenance Window”).

(c) Severity Levels.  When Wurl initially detects a problem with the Wurl Broadcast Services, and/or when Video Producer reports to Wurl a problem with the Wurl Broadcast Services, the problem will be classified by Wurl in accordance with the following severity incident guidelines.

Severity Incident Level

Definition

1

A critical problem with the Wurl Broadcast Services in which any of the following occur: the Wurl Broadcast Services are down, inoperable, inaccessible or unavailable, the Wurl Broadcast Services otherwise materially cease operation; the performance or nonperformance of the Wurl Broadcast Services prevents distribution of Video Programming or Channels to Video Services.

2

A problem with the Wurl Broadcast Services in which any of the following occur: the Wurl Broadcast Services are severely limited or degraded, major functions are not performing properly, the situation is causing a significant impact to Wurl Broadcast Services users’ operations or productivity; or the Wurl Broadcast Services have been interrupted but recovered, and in Video Producer’s or Wurl’s reasonable opinion there is high risk of reoccurrence.

3

A minor or cosmetic problem with the Wurl Broadcast Services in which any of the following occur: the problem is an irritant, affects non-essential functions, has minimal impact to business operations; the problem is localized or has isolated impact; the problem is an operational nuisance; the problem results in documentation errors; or the problem is any other problem that is not a Severity 1 or a Severity 2 level, but is otherwise a failure of the Wurl Broadcast Services to operate correctly.

(d) Incident Response Service Level.  Wurl will respond to Video Producer and provide Initial Responses, Temporary Resolutions and Final Resolutions (as defined below) in accordance with the time requirements set forth in the table below.    

Severity Level:

Initial Response will be provided within:

Temporary Resolution will be provided within:

Final Resolution will be provided within:

1

2 hours from receipt of initial notice from Video Producer, or other discovery, of a problem

72 hours from receipt of initial notice from Video Producer, or other discovery, of a problem

7 days from receipt of initial notice from Video Producer, or other discovery, of a problem

2

6 hours from receipt of initial notice from Video Producer, or other discovery, of a problem

5 days from receipt of initial notice from Video Producer, or other discovery, of a problem

14 days from receipt of initial notice from Video Producer, or other discovery, of a problem

3

12 hours from receipt of initial notice from Video Producer, or other discovery, of a problem

7 days from receipt of initial notice from Video Producer, or other discovery, of a problem

30 days from receipt of initial notice from Video Producer, or other discovery, of a problem

For purposes of this Section 1(d), the following definitions apply:

  • Initial Response” means a verbal, written, or electronic response from Wurl to Video Producer regarding a reported or discovered problem;
  • Temporary Resolution” means a temporary fix or patch that has been implemented and incorporated into the Wurl Services by Wurl to restore the Wurl Services functionality to correct operation until the Final Resolution is available;
  • Final Resolution” means a permanent fix that has been implemented and incorporated into Wurl Services by Wurl to restore Wurl Services functionality to correct operation.
  1. SERVICE CREDITS

(a) Uptime Percentage Service Level.  If Video Producer believes that Wurl has failed to meet the Uptime Percentage identified in Section 1(a) above for a particular month, Video Producer must give Wurl written notice of the failure within three (3) months after the end of the month during which such failure occurred.  The notice shall include the period(s) during which Severity 1 problems occurred and a description of the problems during those periods. Upon verification by Wurl that Wurl failed to meet the Uptime Percentage during that month, Video Producer shall be entitled to credits as follows:

Uptime Percentage

Credit (against Monthly Fee per Channel for the affected Wurl Service)

98% - 99.5%

5%

97%-97.9%

7%

95% -96.9%

8%

Less than 95%

10%

(b) Incident Response Service Level.  If Video Producer believes that Wurl has failed to provide a Temporary Resolution or Final Resolution within the Incident Response Service Levels identified in Section 1(d) above for any Severity 1 or Severity 2 level problems on two (2) or more occasions within a month, Video Producer must give Wurl written notice of the failure within three (3) months after the end of the month during which such failure occurred.  The notice shall describe the failures of Wurl to provide a Temporary Resolution or Final Resolution as required. Upon verification by Wurl that Wurl failed to meet the Incident Response Service Level during that month, Video Producer shall be entitled to a credit equal to 5% of the total Monthly Fee per Channel charged to Video Producer for the affected Wurl Service for the month in which Wurl failed to meet the metric.

(c) Chronic Failure to Meet Service Levels.  If the Uptime Percentage Service Level is missed (by any amount) for three consecutive months or for four months out of any twelve month period, Video Producer reserves the right, at its sole discretion, to terminate the Agreement immediately upon written notice.

(d) Limitations.  Wurl will have no obligation or liability for a failure to provide a Temporary Resolution or Final Resolution within the Incident Response Service Levels caused by circumstances beyond Wurl’s reasonable control or by Video Producer or any of its Video Programming, Channels or content therein, or by Video Producer’s IT network or systems.

  1. SOLE REMEDY    

The service credits set forth herein are Video Producer’s sole and exclusive remedy for any unavailability or service interruption of the Wurl Services.  Nothing in this Section will be deemed to limit or obviate Video Producer's right to terminate this Agreement pursuant to Sections 11 or 12 above.

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