1.1. An “Error” shall mean a reproducible defect in Company’s Platform resulting in the Platform not functioning in conformity with Company’s online documentation (the “Documentation”).
1.2. An “Error Correction” shall mean a change to Company’s Platform or a workaround provided to correct an Error that results in the Platform to function in substantial conformity with the Documentation.
PractiTest warrants that the Platform will perform substantially in accordance with the Documentation, under normal use and circumstances. The Company shall use best efforts to ensure that the Platform achieves 99.3% Availability (as defined below) in any given month of operation –
% Availability = (PM-SE-UO)/(PM-SE)
“PM” (Possible Minutes) is the total number of minutes in any month.
“SE” (Special Exception) is the number of minutes of downtime as a result of – (i) periods of scheduled or emergency maintenance activities, scheduled backups or scheduled outage (ii) unscheduled maintenance not exceeding five (5) hours per each month; and/or (iii) any corrective action taken by the Company when resolving Errors as set forth in Section 3 below.
“UO” (Unscheduled Outages) are the total number of minutes the Platform is unavailable due to its failure to materially conform to the Documentation.
3. Error Classifications and Required Company Response
Company shall respond to Errors reported by Customer according to their Error Priority as set forth below:
Description of Classification
Company Corrective Action
Complete Failure of Products.
These events are of the most critical nature and of highest priority. This category is characterized by all of the following: Errors that prevent the Platform from performing substantially all or all intended functions in accordance with the Documentation and prevent the Customer from carrying out business functions.
No alternative workarounds exist that can address the issue.
|The Company will notify Customer of confirming the Error and the Company will use commercially reasonable efforts to place follow–up calls every and/or online notifications every 24 hours to Customer until the Error is resolved.
|2 – High
Business Function Inoperable.
These issues have a severe negative impact upon a material business function.This category is characterized by the following: Errors preventing the Customer from performing a material business function.
|Company will use commercially reasonable efforts to start Error Correction within 48 hours.
Business Function Limitation.
Minimal functional limitations of Platform that do not currently impair the material business activities of Customer. These issues are characterized by the following:
· Impaired function is used daily.
· Error adversely affects business performance.
|Company will use commercially reasonable efforts to start Error Correction within 72 hours.
Limited Occurrence Error –
Errors in specific functions of the Platform that do not negatively impact daily operations. These issues are characterized by the following:
· Infrequent occurrence.
· Intermittent function.
|Company will reasonably determine the appropriate corrective action, including correction or non-correction.
- All efforts described above shall be performed on Company’s premises.
- Customer shall designate from its staff, a representative familiar with the Platform as a “Designated Error Reporter” (a “DER”) who shall be authorized to report Errors to Company. When reporting an Error to Company, the DER shall provide enough information and detail to enable Company to reproduce the Error, as shall be required by the Company. Customer is aware that failure to provide the Company with sufficient information may limit, delay or unable Company’s efforts to correct the Error.
- The Company’s support team shall provide support via e-mail, at: email@example.com
- Service Credits. If the Company fails to meet the % Availability set forth in Section 2 above, or fails to comply with the required Company Corrective Actions set forth in Section 3 above (a “Service Failure”) more than once in any given quarter, Customer will be entitled to receive a service credit in an amount equal to 1% of the monthly license fees actually paid by Customer to the Company, for each day during which the Service Failure(s) has occurred or continued, to be used solely as credit against future license fees due by the Customer to the Company (the “Service Credits”). In no event shall the Service Credits due to a Customer with respect to any given month, exceed 15% of the license fees actually paid by the Customer during the applicable month with respect to which the Service Credits are given. The Service Credits shall be the sole and exclusive remedy of the Customer for any Service Failure.
- Company shall not be responsible for any Error and/or failure of the Platform to meet the % of Availability set forth in Section 2 above, which: (i) do not result from the Company’s Platform and underlying software or other acts or omissions of the Company, or are outside of Company’s reasonable control, such as any force majeure event or internet access; (ii) result from any actions or inactions of Customer or any third party, or from the equipment, software or other technology of the Customer or any third party; and/or (iii) result from lack of availability or untimely response time of Customer. By way of illustration and not of limitation, the Company shall not be responsible for: (a) any problem resulting from the unauthorized, misuse or improper use of the Platform or use of the Platform in violation of the Terms of Service; (b) problems caused by modifications or alterations to the Platform not made or authorized by Company; (c) any problem resulting from the combination of the Platform with other programming or equipment to the extent such combination has not been approved or recommended by Company; and/or (d) any issues arising from Customer’s failure to implement the applicable Error Correction or enhancement provided by the Company.
- Company disclaims any and all other warranties, express or implied, including, without limitation, merchantability, fitness for a particular purpose, non-infringement, integration, absence of viruses or bugs or satisfactory quality. COMPANY’s total aggregate liability in connection with this Agreement IS limited to the amount of support and maintenance fees actually paid by Customer to the Company DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. This Agreement, together with the Terms of Service, contain the entire agreement of the parties respecting the subject matter hereof and supersedes all other understandings between them. The Company may assign its rights and obligations hereunder to any successor of all or substantially all of its business. This Agreement may only be amended by a writing signed by the parties. The Company shall not be liable for delay or failure to perform under this Agreement due to causes beyond its reasonable control. In the event of any such delay, the date of performance will be extended for a period equal to the time lost by reason of the delay. This Agreement shall be governed by and construed exclusively in accordance with the laws of Tel Aviv, Israel, excluding the application of the rules regarding conflict of laws. Any dispute regarding the this Agreement and/or the use of the Platform shall be brought before the competent court in the city of Tel Aviv, Israel, which shall have sole and exclusive jurisdiction over the matter. Each party hereby irrevocably consents to the personal jurisdiction of such courts. Nothing herein shall derogate from the provisions of the Terms of Service, which shall apply in addition to the terms hereof.
Last updated: October 2023