General Terms and Conditions – Preplay AS

1. Background

Preplay AS (hereinafter “the OWNER") has developed and owns all rights to the system Preplay (hereinafter “the System”). The System is based on a platform that is also developed by OWNER. The System is a web-based application for presenting, interacting and inform viewers through video.

These terms and conditions shall apply to the OWNER’s supply of the System under the User License Agreement with the customer (hereinafter “the USER"). The User License Agreement and the General Term and Conditions forms the agreement between the OWNER and the USER (hereinafter “the Agreement”).

2. Scope of use

Customer may only use the system in accordance with the provisions of the Agreement.
The Agreement does not confer any rights to the USER concerning the source code(-s) of the System, and no right to take part in the System’s building or structure.

3. Intellectual Property

The USER will not receive rights to any intellectual property rights of whatever nature they may be, to the System, or parts thereof, other than as expressly stated in this Agreement.

If the OWNER on the USER’s request makes adaptions, modifications, or develops new applications based on USER's specifications, all rights to the results of such adaptations or developments shall befall the OWNER.

4. OWNER’s obligations

The OWNER undertakes to provide the System to the USER in accordance with the terms of this Agreement.
The OWNER undertakes to be responsible for any errors and defects in accordance with the provisions hereof in this Agreement.

The OWNER will strive to further improve and develop the System. The OWNER will make such improvements and further developments available to the USER continuously. In that case, the OWNER shall no later than five (5) working days prior to the implementation, inform the USER of any improvements or developments that may affect the use of the System.

5. USER’s obligations

The USER undertakes not to use the System for any other purpose than as expressly stated in this Agreement. Under no circumstances shall the USER assume unauthorized access to OWNER’s System resources, or alter, change, amend or disrupt any information or functions provided by the System.
The USER undertakes not to use the system in a manner that violates any law, directive, governmental regulation, non-statutory law, fair use or in a manner that is likely to cause offence.

The USER is responsible for all data and information that the USER handles or publishes when using the System. It is the responsibility of the USER to ensure that the System is not used in a way that can be perceived as offensive, insulting or defamatory in any way. The OWNER is entitled to remove any questionable material pending a decision as to whether the material falls within an acceptable standard or not.
The USER is solely responsible for any damage or disruptions to a third party caused by the USER’s use of the System.

The USER is responsible for their customers use of the System. The USER is liable to the OWNER for acts committed by anyone using the System by way of the USER.
The USER undertakes to accept the continuous improvements and further developments implemented into the System by the OWNER. Any objections or complaints must be communicated to the OWNER within ten (10) days of the implementation of the improvement or further development.

The USER undertakes to ensure that the rights disclaimer “Powered by Preplay” is visible at the bottom of the USER’s website or application that connects to the System.
The USER must not sell, lease, lend or in any other manner provide access to the System or make it available, other than to the USER's customers, on the terms set forth in this Agreement, or offer the System through a subsidiary, sub-distributor or affiliate, without written approval from the OWNER. If such a representative is appointed, the USER shall ensure that, in all respects, the representative’s use complies with the provisions of this Agreement.

6. Subcontractors

The OWNER has the right to engage sub-contractors to fulfil its obligations under this Agreement.

7. Availability and Monitoring

The System is available 24 hours a day, 365 days a year.

If any fault occurs in the System troubleshooting and detection will start immediately, and within two (2) hours during normal working hours (non-holiday weekday between 08:00 and 17:00) from the problem is reported to or discovered by the OWNER.
If an error is found to be due to the USER's erroneous use of the system or any other circumstance at USER’s end for which the OWNER is not responsible, the OWNER reserves the right to invoice the USER for the expenses related to troubleshooting, detection and rectification, in accordance to the OWNER’s current price list.

8. Planned outages

The OWNER reserves the right to take down the System for planned maintenance. To the extent possible, such planned takedowns shall be located to the time between 18:00 and 06:00 on weekdays or on Sundays. To the extent possible, the OWNER shall notify the USER at least one (1) day of ahead of the planned takedown.

9. Fees, charges and payment terms

For the access to and use of the System, the USER shall pay the compensation set forth in the Agreement. For any additional modifications, adaptions or additional applications requested by the USER, the USER shall pay compensation according to the current price list. Prices listed excludes VAT unless otherwise stated in the Agreement.

The OWNER reserves the right to an annual revision of all prices in accordance with the retail price index or by any other circumstances that has caused an increase in the OWNER’s costs related to the System.
The USER shall reimburse the OWNER for any extra work or cost increases due to any circumstances that is the USER’s responsibility. The compensation shall be made in accordance to the current price list.

Invoices shall be paid within thirty (14) days after the invoice date unless otherwise stated in the Agreement. Default interest rate will be added to any delayed or defaulted payments.

10. Compensation for outages

In case of outages with continuous duration for more than five (5) working hours, the USER is entitled to compensation in accordance with this Article. “Working hours” refers to weekdays between the hours of 8-12, 13-17. Compensation shall be paid within thirty (30) days after the USER’s claim for compensation. Compensation shall be based on the fixed fee paid by the USER for the use of the System, and shall be equivalent to one (1) percent of the fixed fee for every full work hour that the outage lasts. The duration of the outage will be calculated from the time of USER’s report of the error and to the fault is rectified. The total compensation due to the outage shall be limited to the [fixed monthly fee] payable by the USER during the current month of the outage. If the outage has a duration that entitles the USER to maximum compensation, the USER shall also be entitled to terminate this Agreement.
Compensation under this paragraph is not entitled if and to the extent the outage is due to circumstances at the USER’s end, including but not limited to interruptions in the USER's internet connection or malfunctions in USER’s own IT-systems. In such case the OWNER reserves the right to invoice the USER for any expenses incurred in troubleshooting, detection and rectification, in accordance with the current price list.

The above compensation shall constitute USER’s full remedy in case of outages and the USER is not entitled to any other remedies or indemnities with respect to the outage.
As outage under this Article shall not be deemed outages that are due to planned takedowns according to Article 8 here above.

11. Warranty

The OWNER guarantees for the functionality of the System the duration of the Agreement.

The OWNER warrants that the information that the USER puts into the System is not used for any other purpose than the operation of the system, and that such information will not be disclosed to third parties

12. Liability for errors

With "errors" is meant that the System does not maintain the agreed functionality.
Complaints regarding errors in the System must be made in writing to the OWNER no later than five (5) working days after it was discovered or reasonably should have been discovered. A complaint must contain a detailed description of the claimed error. If a complaint is not filed on time, the USER foregoes his right to invoke the alleged error.

Errors in the System will be remedied by the OWNER at OWNER’s own expense. If the System cannot be used due defects that the OWNER cannot influence, including but not limited to third party hardware or Internet related problems, or if an error is due erroneous or negligent use of the System by the USER, then the OWNER shall carry no responsibility and may invoice the USER for any expenses incurred in troubleshooting, detection and rectification.
The OWNER’s responsibility for any errors in the System is limited to what is stated in this Agreement. The USER is not entitled to any rectification, compensation or indemnity that exceeds the provisions in this Agreement.

13. Disclaimer

The OWNER is not responsible for any consequential damages, lost profits, interruptions, expenses for hiring of a consultant or equipment. The OWNER is only responsible for damage to USER’s property caused by negligence from the OWNER or OWNER’s employees. The OWNER is not responsible for USER’s loss of data, unless this due to gross negligence from the OWNER.

The OWNER’s total liability under this Agreement shall not, unless the OWNER can be held for intent or gross negligence, exceed an amount equivalent to what the USER has paid under this Agreement at the time the reason for the claim arose.
The USER must file a claim in writing within one (1) month from the time that the reason for the claim occurred. If a claim is not filed on time, the USER foregoes his right to invoke the claim.

14. Liability for infringement of third party rights

The OWNER warrants that, to the best of his knowledge, neither the System nor any part thereof, by possession, use or license, infringes upon any third party intellectual property rights.

Any third party products embedded and supplied under this Agreement is subject to the third party's terms and conditions concerning intrusion. The OWNER is responsible solely for the forwarding of any claims to the third party regarding third party products.

USER agrees to, without undue delay, notify the OWNER in writing about any claims or actions from third parties. The OWNER undertakes to keep the USER harmless of any claim or action from third parties based on the USER’s of fair, correct and contractual use of the System. However, this only applies if the OWNER is granted charge of any actions or litigations, and to negotiate settlements.

If the OWNER does not fulfil his commitment under this Article, the USER shall be entitled to terminate this Agreement and/or claim full damages.

15. Ownership of Information

The USER has all the rights to the data and information that the USER discloses to the OWNER in relation to the OWNER’s provision of System under this Agreement. The OWNER shall nevertheless be entitled to dispose over such information to the extent necessary for the OWNER to fulfil their obligations under this Agreement.

16. Force Majeure

A party is not obliged to fulfil its commitments if fulfilment is hindered by reasons beyond the Party’s control, such as strike, labour disputes, illness, storm, flooding, fire, war, insurrection or riot, legal enactments, legal seizures, delayed delivery deu to interruptions at subcontractors, or any another circumstance that at the Parties could not reasonably foresee at the time of contracting. If the hindrance lasts for longer than one (1) month and seriously affects the fulfilment of the Agreement, each Party is entitled, without any liability to the other Party, to terminate the Agreement with immediate effect.

17. Confidentiality

The Parties undertakes, without limitation to the duration of the Agreement, not to disclose to third parties any confidential information that a Party receives from the other Party under this Agreement.

"Confidential Information" shall under this Agreement mean any information – technical, commercial or other - regardless of whether the information is disclosed in writing or orally, and regardless the type of media the information is presented by, except for:

  1. information that is generally known or come into the public domain otherwise than by a breach of this Agreement by any of the Parties;
  2. information that a Party can show that it already knew before receiving it from the other party;
  3. information that a Party has received or will receive from a third party, without being bound by secrecy in relation to him.

The Parties undertakes to ensure that their employees, directors and consultants does not disclose any confidential information to third parties.

The Parties undertakes to comply with the other Party’s instructions on how to handle information. The Parties shall undertake any reasonable precaution in the handling of confidential information.

18. Premature termination

Each Party shall be entitled to fourteen (14 ) days notice of termination of the Agreement if:

  1. the other Party is guilty of material breach of the Agreement, or
  2. the other Party is declared bankrupt, initiates debt settlements proceedings, goes into liquidation or for other reasons can be assumed to be insolvent.

Each Party shall further be entitled to terminate the Agreement with immediate effect if the other Party breaches its obligations under this Agreement and does not rectify the breach within ten (10) days written notice.

The notice of termination shall be submitted without undue delay after the fact that gave right to invoke termination was known or should have been known to the terminating Party.

19. Consequences of termination of the Agreement

Upon termination of this Agreement, the USER shall immediately cease the use of the System, unless the Parties in writing has agreed otherwise. The USER shall herewith return to the OWNER all material received from the OWNER in relation to the System.

Likewise, upon termination the OWNER shall return to the USER any material received from the USER in relation to the System.

20. Transfer of rights and obligations

This Agreement, or any rights and obligations under Agreement, cannot be assigned to a third party without the other party’s prior written consent, unless the Agreement is transferred as part of a full merger, purchase or takeover of USER’s business by a third party.

21. Changes and additions

Any additions, changes and amendments to this Agreement shall be made in writing and signed by both parties.

22. Applicable Law

Norwegian law shall apply to this Agreement and any dispute arising from the Agreement shall be resolved by Norwegian Law. The City Court of Oslo is mandatory legal venue.