SCHEDULE 2 – Terms of Use

INTERPRETATION
These Terms of Use regulate the rights and obligations between Bitfocus and the Client and are accepted and have binding effect as of the Effective Date. It is explicitly agreed and understood that any standard terms of the Client are waived and shall not apply between the Parties.

Bitfocus and the Client may each be referred to as a “Party” and collectively as the “Parties”.

In the Agreement, the words and expressions shall have the meaning as set out in Definitions as set out below (Appendix 1) unless the context requires otherwise.
SCOPE
The Product is delivered as a service delivered online (also named Software as a Service) or On-Premises Software as agreed, potentially also extended to In-App Purchases. These terms will apply regardless of delivery model, but specific terms for agreed delivery model and the content of the Product is set out and further described in the Order Form and Schedule 1.

The Product shall be used by and for the benefit of the Client and its employees’ work with broadcasting, AV, streaming, automation and connected services.

User administration is handled digitally thru designated tool. Only named persons shall have access to a user account, with one person per user account. Access to user accounts shall require the use of a unique username and password. In case of an enterprise model the username shall be traceable to a specific and named person within the Client’s organisation.

The Client is responsible for obtaining, installing and maintaining usable browser software and operating systems in order to be able to use the Product. The Client is also responsible for establishing and maintaining connection to the internet and thus to the servers hosting the Product. In case of an On-premise Product internet access may only be required for user administration and payment before the end of a subscription period…

Bitfocus will continuously and at its sole discretion change and update the functionality of the Product, including modifying or removing features that Bitfocus considers necessary to generally deliver the best possible service to its clients. It is Bitfocus who at all times determines which features meet this requirement, as long as the changes do not deprive the Client of material functions. Such changes do not imply any restrictions or changes in the Client’s obligations to Bitfocus, nor does it entitle the Client to any remedies for breach of contract. Bitfocus will endeavour to notify the Client of any material changes that may affect the Client’s infrastructure or production.
REMUNERATION
Unless otherwise stated in the Order Form, the Fees are quoted in USD.
All prices and charges are exclusive of any applicable value added tax or excise duties. If the Client is required to deduct or withhold any tax or
duty, the Client must pay the amount deducted or withheld as required by law and pay Bitfocus an additional amount so that Bitfocus receives payment of the Fees in full as if there were no deduction or withholding.

Fees are non-refundable, unless otherwise expressly agreed.

Unless Product is prepaid using our third party payment provider or otherwise agreed in the Order Form, payment shall be made within fourteen (14) calendar days of the invoice date. The time of payment shall be of the essence. Bitfocus shall bear any costs that the delivery of an electronic invoice or payment solution may entail. A Client invoicing fee will occur in case of manual invoicing. Partner terms may include different regulation of payment and payment default, but Products sold through Bitfocus will follow the Agreement.

Bitfocus retains the right to adjust the Fees annually due to inflation, currency fluctuations, changes in excise duties, changes in subcontractors’ prices, increase in the retail price index (the main index) of Statistics Norway (with the initial reference index value being the index value for the month in which the Agreement was formed) and increased cloud costs outside of Bitfocus’ control, with 30 days prior written notice. Irrespective, and in addition to the above, Bitfocus’ retains the right to increase the Fees corresponding up to ten (10) per cent per year after the first year of the Term. Said changes in pricing will not have retroactive effect.

If the Fees is not paid within the due date, Bitfocus may block access to the Product and charge the Client interest at lowest of two (2) per cent per month or the maximum legal rate permissible pursuant to applicable law. Any suspension by Bitfocus of the Product shall not relieve the Client of its payment obligations and Bitfocus shall not be held liable for any loss and/or damage suffered by the Client as a result of such suspension.

TERM AND TERMINATION
The Agreement enters into force at the Effective Date and the Agreement shall be valid for the Term.

Upon expiry of the Initial Term, the Agreement will automatically renew for a succeeding term of equal length as the Initial Term unless the Agreement is terminated in writing by either party with at least ten (10) days
written notice prior to the renewal date or otherwise agreed in the Order Form.
CLIENT DATA
The Client shall retain all rights to the Client Data.

Bitfocus shall only use the Client Data in accordance with the Agreement and otherwise in order to fulfil its obligations to the Client and/or to exercise its rights under the Agreement.

Upon the expiry of the Term, the Client will not have access to the Product and Bitfocus will permanently delete and destroy the Client Data held. The Client is solely responsible for ensuring that it has the necessary backups of the Client Data that it desires to retain when the Agreement is terminated.

The Client acknowledges that Bitfocus cannot guarantee the security of the Internet and the possibility of interception or corruption of Client Data transmitted from the Client to Bitfocus.

Nothing contained in the Agreement shall restrict Bitfocus’ right to collect, use, anonymise and analyse Client data including but not limited to user profiles, statistics and other non-personal information regarding the provision, use and performance of various aspects of the Product for product improvement purposes.

INTELLECTUAL PROPERTY RIGHTS
Each Party shall retain ownership of any Intellectual Property Rights that it has developed (including rights that have been developed on behalf of the Party), or that it independently develops (or is developed on its behalf).

Except as prescribed in the Agreement, neither Party grants to the other by implication, estoppel nor otherwise any right, title, licence, interest or other ownership rights in any of its Intellectual Property Rights or Confidential Information owned or controlled by the disclosing Party.

Unless the Parties have agreed on a perpetual licence model, and subject to timely payment and adherence to the Terms, Bitfocus grants to the Client a non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable and limited right to use the Product. The Client’s right of use is strictly limited to the use reasonably considered necessary for obtaining reasonable use of the Product. Any rights not expressly granted herein are reserved by Bitfocus. For perpetual licence, 12-months support and functional warranty is provided. See Schedule 1 for more details, rights and restrictions in the perpetual licence model.

The Client may not modify, enhance, improve, remove, delete, amend, augment, reverse engineer, decompile, or disassemble the Product or attempt to discover its code and/or underlying structure, ideas or algorithms, nor rent, loan, lease, sell or otherwise transfer to or permit use by any Third Party or otherwise create or facilitate other products or services that are derived of the Product.

Neither Party shall remove or otherwise alter any of the other Party’s trademarks, logos, copyrights,
notices or other proprietary notices or indicia, if any, fixed or attached to Confidential Information, Intellectual Property Rights or any parts thereof.

Bitfocus encourages suggestions, recommendations, improvement or enhancement requests or other feedback regarding the Product, including ideas for new promotions, products, technologies, concepts, know-how, techniques or processes. For the sake of avoiding any potential misunderstandings or disputes regarding ownership of such content matter, the Client acknowledges that Bitfocus will own all such content matter and hereby makes and/or undertakes to make all assignments and take all reasonable acts necessary to accomplish the foregoing assignment to and ownership by Bitfocus.

Each Party shall immediately inform the other of an infringement or suspected infringement of the Agreement or the Party’s Intellectual Property Rights. The rights holding Party shall not be obliged to defend its rights. If, however, such Party decides to defend its rights the other Party shall, without any extra cost and at the request of the rights holding Party, give reasonable assistance for the purpose of contesting any claim or demand made or action brought against a Party.
CONFIDENTIALITY
The Parties agree to keep and procure to be kept strictly confidential all Confidential Information. Furthermore, Confidential Information shall not be used by the Parties for any purpose other than fulfilling its obligations under and complying with the Agreement.

The Parties shall only reveal Confidential Information to employees or other persons engaged to whom disclosure is necessary for them to perform their duties for the purpose of the Agreement and provided that they are subject to a duty of confidentiality.

The term “Confidential Information” shall not include any information which a Party can demonstrate by way of written records is:
Not unique to the disclosing Party and is known to the receiving Party prior to the date of the Agreement.
Becomes generally known other than through disclosure of Confidential Information by the receiving Party.
Disclosed to the receiving Party by a Third Party lawfully in possession thereof and without restriction on disclosure.
Independently developed by the receiving Party without breach of the Agreement.
Required to be disclosed by law or regulation or by proper order of a court of applicable jurisdiction.

At the expiry of the Agreement or at a Party’s request, the other Party shall promptly and within ten (10) business days return all documents and other embodiments of Confidential Information and all related materials and notes to disclosing Party and erase all electronic embodiments of Confidential Information and certify destruction thereof and make no further use of the Confidential Information thus received.
PERSONAL DATA
Bitfocus is a separate and independent data controller as defined by Article 4 (7) of the GDPR with respect to its processing of Personal Data as necessary in order to develop, maintain and provide the Product.

The Client is a separate and independent data controller as defined by Article 4 (7) of the GDPR with respect to the Personal Data that it processes through their use of the Product.

PUBLICITY
Notwithstanding anything to the contrary, Bitfocus may use the name and logo of the Client during or after the expiry or termination of the Agreement.

Neither Party shall, at any time during the Term of the Agreement and thereafter, make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage the other Party. Notwithstanding the foregoing, nothing in the Agreement shall preclude a Party from making truthful statements that are required by applicable law, regulation or legal process.
LIMITED WARRANTY
Each Party warrants that it
Has the full power and authority to enter into the Agreement and perform its obligations hereunder.
The Agreement is a legal and valid obligation binding upon it and enforceable according to its terms.
Its performance of the Agreement will not violate any agreement or obligation between it and a Third Party.
It will comply with all applicable laws, statutes and regulations applicable to its activities and performance under the Agreement.

The Product is provided “as is” and to the fullest extent permissible pursuant to applicable law and notwithstanding any conditions, warranties, express or implied by statute, common law, law of equity or otherwise, Bitfocus makes no representations or warranties, expressed or implied, and hereby disclaims and negates all other warranties including, without limitation, implied warranties or conditions of usefulness, timeliness, reliability, completeness, accuracy, adequacy, merchantability, fitness for a particular purpose or likely results of the use of the Product.

While Bitfocus will aim to provide the Client with uninterrupted use of the Product, Bitfocus does not warrant that the use of the Product will be uninterrupted or secure in excess of the potential service level commitment defined in Schedule 1, which shall be the Client’s sole and exclusive remedy and Bitfocus’ sole and exclusive obligations for any unavailability, non-performance or other failure to provide the Product.

INDEMNIFICATION
Bitfocus shall indemnify and hold the Client harmless from and against all losses, expenses, costs, claims (including reasonable legal fees), damages, liabilities, fines, actions, and proceedings brought against the Client by any Third Party arising out of Bitfocus or the Products infringement of the intellectual property rights of any such Third Party.

Bitfocus shall have no obligations under Clause 11.1 to the extent any claim is based on:
The combination or use of the Product with third party products not provided by Bitfocus, where the Product would not otherwise itself be infringing.
The Client’s use of the Product in violation of the Agreement or applicable law.
Use of the Product after Bitfocus notifies the Client to discontinue such use because of a third-party claim.
Any claim regarding Client Data.
Modifications to the Product made other than by Bitfocus (where the claim would not have arisen but for such modification).

If the Product is held to infringe the rights of others, Bitfocus will, at its own expense and in its sole discretion, use commercially reasonable efforts either (a) to procure a licence that will protect the Client against such claim without cost to the Client; (b) to replace the Product with non-infringing services; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement.

The Client shall indemnify Bitfocus against any costs, claims, expenses (including reasonable legal costs), damages, liabilities, fines, actions, and proceedings arising out the Client’s breach or misuse of Bitfocus’ Intellectual Property Rights or the intellectual property rights of any Third Party.

In the event a claim is commenced against an indemnified Party, the indemnified Party shall (i) inform the indemnifying Party of such claim and continue to provide the indemnifying Party with all reasonable necessary assistance and information relating thereto, and shall take all necessary action to mitigate its damages with respect thereto; and (ii) give full power and authority to the indemnifying Party to respond to, conduct any negotiation regarding and control the defence of, any action regarding such claim on behalf of and in the name of the indemnifying Party or itself. The indemnifying Party shall be responsible for engaging counsel for such defence and shall bear the costs and expenses of the same (for the avoidance of doubt, the indemnified Party shall pay the costs and expenses of any separate counsel it elects to engage).

The indemnified Party shall not agree to any settlement, nor make any admission or take, or fail to take any action, in each case, where such admission, action or failure to act could reasonably be expected to prejudice the defence of a third-party claim.

Subject to adherence to Clause 11.2, 11.5 and 11.6, the indemnifying Party shall defend the third-party claim and reimburse the indemnified Party for all reasonable costs incurred by the indemnified Party in complying with this clause and any damages payable by the indemnified Party pursuant to a final and enforceable court decision or a settlement agreed to by the indemnifying Party with respect to the relevant claim.
BREACH
Each Party shall provide all such information, data, documentation and equipment as may be reasonably required by the other Party to enable the other Party to meet its obligations under the Agreement.

If the Product cannot be delivered as agreed, Bitfocus shall give the Client written notice thereof as soon as possible. The notice shall specify the reason for the problem and, insofar as it is possible, when performance can take place.

The Parties has the right to rectify breaches of Agreement if such rectification can be performed without material disadvantage to the other Party.

In the event of a material breach, the other Party
may terminate the Agreement subject to 30 days
written notice, detailing the nature of the breach and stating that the Agreement will be terminated unless the breach is remedied within thirty (30) days.
LIABILITY
Neither Party will be liable to the other for loss of profits or for any special, indirect, incidental, reliance, exemplary, punitive or consequential damages, including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data, howsoever caused and whether arising under contract, tort (including liability for negligence or breach of statutory duty), negligence, or other theory of liability arising out of the Agreement or out of the use of or inability to use the Product, even if such Party, or its employees, officers, directors, agents or Affiliates have been advised of the possibility of such damages.

Neither Party’s liability for damages, whether resulting from contract or tort (including liability for negligence or breach of statutory duty) or otherwise, shall under any circumstances exceed the aggregated Fees (excl. VAT) invoiced by Bitfocus during the Term of the Agreement.

The limitations contained in this clause shall not apply to violations of Clause 6 and 7, the indemnifications in Clause 11 or where a Party has acted grossly negligent or with wilful intent.

In no event shall a Party’s directors, officers, board members or employees have any liability under the Agreement for any losses, expenses, costs, claims, damages, liabilities, fines, actions, and proceedings, howsoever caused and whether arising under contract, tort (including liability for negligence or breach of statutory duty), negligence, or other theory of liability arising out of the Agreement or out of the use of or inability to use the Product, even if these directors, officers, board members or employees have been advised of the possibility of such liability.

Unless otherwise prescribed by law, any claim or cause of action a Party may have with respect to the other Party must be commenced within three (3) months after the Party became aware or should have become aware of the claim or cause of action.

The rights and obligations agreed herein reflect the Parties’ allocation of risk and the limitation of
liability arising therefrom.
NOTICES
Any invoice, correspondence and notice required to be given under the Agreement shall be in writing and in English and may be given by email addressed to that Party at the address set out in the Order Form or user registration. Notice given by email transmission shall be deemed to be served immediately provided that, in the case of a notice by email, the sender has received confirmation of successful transmission.
COMPLIANCE WITH LAWS
The Client is solely responsible for compliance with its own legal requirements, and for determining whether it can utilise the Product in accordance with applicable law.

The Client warrants that in carrying out its obligations under the Agreement it will not breach applicable law or do or omit to do anything that might cause Bitfocus to be in breach of the same.

ASSIGNMENT
The Client may not assign or otherwise transfer in whole or in part, voluntarily or involuntarily, or by operation of law, the Agreement or the duties or rights therein, without the prior written approval of Bitfocus, which shall not be unreasonably withheld. Any assignment by the Client without such approval shall be deemed to constitute a violation of the Agreement, and its content shall be void.

Bitfocus may transfer its rights and duties under the Agreement to a Third Party if the assigned party, at the time of the assignment, is financially and technically capable of performing the obligations of Bitfocus under the Agreement, and the assigned party expressly assumes and agrees to perform such aforementioned obligations.
FORCE MAJEURE
Except for the obligation to make payments, the non-performance of either Party’s obligations shall be excused to the extent such performance is prevented by unforeseen circumstances beyond the Parties’ control. In the event of a force majeure event, the Parties’ obligations will be suspended for the duration of the event contingent on the Party claiming Force Majeure notifying the other Party without undue delay after having been made aware of the event.

Each Party may terminate the Agreement if a substantial part of its performance is prevented for more than 60 days. In the event of such termination, the Client shall pay the agreed price for the part of the Product that was contractually delivered before the termination of the Agreement.
MISCELLANEOUS
Bitfocus may change these Terms with one (1) weeks’ notice placed by email. The change will take effect from the expiry of the notice period. If the Client does not accept the change, the Client shall be entitled, within seven (7) calendar days from the date the email was sent, provided that the changes have a material adverse effect on the Client, to terminate the Agreement with immediate effect. Where the Agreement is not terminated by the Client within the aforementioned time, the Client shall be deemed to have accepted the new terms and conditions of the Agreement.

If any provision of the Agreement is held by court of competent jurisdiction or other competent authority to be void, voidable or unenforceable in whole or in part, the validity of the other provisions of the Agreement and the remainder of the provision in question shall not be affected. The provision being rendered void, voidable or unenforceable shall be interpreted or replaced by a provision aiming to achieve the purpose of the original provision.

The Agreement constitutes the entire understanding between the Parties regarding the subject matter hereof and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns.

Nothing contained in the Agreement is intended or
shall be construed to confer upon any Third Party any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.

No failure or delay by a Party in exercising any right, power or privilege under the Agreement, and no course of dealing between the Parties hereto, will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege under the Agreement.

Nothing herein contained shall constitute a partnership between or joint venture by the Parties hereto or constitute any Party the agent of the other.

Those clauses of the Agreement which based on their nature are meant to survive the expiration or termination of the Agreement, shall survive such expiration or termination. This includes, without limitation, all terms of the Agreement pertaining to Intellectual Property Rights or terms requiring the Client to pay any fees for the Product provided prior to the time of expiration or termination and all other provisions of the Agreement that by their nature are intended to survive the expiration or termination of the Agreement.

The Agreement shall be construed in accordance with and governed by the laws of Norway, without regard to its choice of law principles. Any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof shall be brought before Oslo District Court as the agreed venue, unless otherwise specified in the Order Form and except that Bitfocus may, at its own option, bring suit for collection in the country where the Client is located.
ELECTRONIC SIGNATURE
By downloading and making use of the Products or signing the Order Form, the Client accept the terms and conditions herein. The Parties agree that an Order Form entered into through use or digital contract solutions shall be deemed: (a) to be ”written” or ”in writing”; (b) to have been signed, and (c) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. Neither Party shall contest the admissibility of true and accurate copies of an Order Form signed with a digital contract solution based on the best evidence rule or as not satisfying the business records exception to the hearsay rule.

DEFINITIONS
In the Agreement, the following words and expressions shall have the following meaning unless the context otherwise requires:

“Agreement" means the Order Form, these Terms of Use and all other Schedules listed in the Order.

“Affiliate" means, a company which is either directly or indirectly owned or controlled by a Party, or is under the common direct or indirect ownership or control of that Party or which directly or indirectly owns or controls that Party, but only for so long as such ownership or control exists, and “control” for the purpose of this definition, shall mean direct or indirect ownership of more than 50% of the issued voting equity share capital.

“Bitfocus” means the Bitfocus entity specified in the Order Form.

“Client” means any person, user or entity and its agents, successors that have purchased, or is authorized to, access the Product and/or entity specified in the Order Form.

"Client data” means the digital data, text, images, audio, video, form entries, clicks or similar content provided by the Client or its users for use with the Product.

“Confidential information” means all any and all information disclosed, furnished or communicated (whether orally or in writing, text, drawings, photographs, graphics, designs, plans or any other form whatsoever) by or on behalf of a Party to the other Party, hereunder information concerning or belonging to the disclosing Party, its properties or business, or information proprietary to a Third Party, including, but not limited to, the goodwill of any business symbolised thereby, technical information, financial data, product and service costs, prices, profits and sales, client or employee relationships and any intellectual property rights or any other confidential information or proprietary aspects of the business of the disclosing Party, including any information which the receiving Party has reason to believe to be Confidential Information, or which the disclosing Party treats as being Confidential Information.

“Effective Date” means the last signature date of the relevant Order Form.

“Fees” means all fees for the Product as set forth in the relevant Order Form.

“Intellectual Property Rights” means all rights, privileges and priorities provided under applicable supranational, national, federal, state or local law, rule, regulation, statute,
ordinance, order, judgement, decree, permit, franchise, licence, or other government restriction or requirement of any kind relating to intellectual property, whether registered or
unregistered, in any country, including without limitation: the Product, any copyright, copyrightable works, database rights and related items, rights in designs, domains names, trade secrets, trademarks, service marks, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, moral rights, inventions, software, utility certificates, utility models, patents, patent applications (including any patent that in the future may be issued in connection therewith and all divisions, combinations, continuations, continuations-in-part, extensions, additions, registrations, confirmations, re-examinations, supplementary protection certificates, renewals or reissues thereto or thereof), rights in Confidential Information (including know-how and trade secrets) and any other intellectual property right or proprietary right recognised in any country or jurisdiction in the world, whether registered or not, and whether in existence as of the Effective Date or arising or recognised thereafter and all applications and registrations thereof, whether wholly or partly developed, and/or used and/or owned by a Party.

“Order Form” means the Bitfocus ordering document, one click purchase, or order thru sales that identifies the specific Client and Product ordered by the Client, which both Parties have signed.

"Personal Data” shall have the meaning set out in Article 4 (1) of the GDPR.

“Product” means the underlying technology, design and other intellectual property rights of Bitfocus’ Product as specified in the Order Form and Schedule 1.

“Term” means the period from the Effective Date and until expiry of the Agreement or the termination by either Party thereof.

“Terms” means these Terms of Use.

“Third Party” means a party other than the Parties to the Agreement.