Platform terms of use

Effective as of September 13^th, 2023

These SUPERSCALE PLATFORM TERMS OF USE (the “Terms”) apply to any use of the Platform to render Services from SuperScale and to any MSA that explicitly incorporates these Terms.

1. Definitions 

1.1. For the purposes of these Terms and the MSA, the following terms and abbreviations have the following meaning: 

“Ad” means an individual post or advert within a Campaign;

“Ad Costs” means all costs or amounts paid to the ad networks (including Facebook and Google) to advertise the Game and attract new players via the Campaign Accounts;

“Applicable Law” means any statute, statutory instrument, bye-law, order, directive, treaty, decree or law; and legally binding rule, policy, guidance or recommendation issued by any governmental or statutory body, which relates to these Terms or the MSA;

“Applicable Privacy and Data Protection Law” means the EU GDPR, e-Privacy directive No. 2002/58/EC, e-Privacy regulation when and adopted, any applicable EU Member State data protection and privacy laws or implementations, the Swiss Federal Data Protection Act of 19 June 1992, if applicable, UK GDPR and Data Protection Act 2018 if applicable, the California Consumer Privacy Act and US Children’s Online Privacy Protection Act; if applicable, and any amendments thereof;

“Business Engine” means SuperScale Group Company’s know-how, experiences, trade secrets, techniques, methodologies, skills, formulas or generally any knowledge or valuable information, based on its long standing experience with data-based development, testing and improvement of mobile games which is the underlying value and immanent feature of any Consultancy Services;

“Campaign” means an organised course of action comprising from a series of Ads and/or other Creative Services aimed at promoting or selling of a Game or its features; improving or developing aspects of the Game and/or its technical code, structure, format or layout in order to improve user experience, add additional features and/or comply with requirements as agreed between SuperScale and Client;

“Campaign Accounts” means either: (i) the accounts allocated by the Client to SuperScale; or (ii) SuperScale’s accounts, in each case, at the UA Channel (e.g. Facebook / Google accounts), as specified in an MSA;

“Fees” means all fees, payments and remuneration payable by the Client for the Services as set out in the relevant MSA;

“Confidential Information” means all information disclosed to the relevant party by or on behalf of the other party in connection with these Terms or MSA including; (a) know-how, secret processes and inventions disclosed to the relevant party by or on behalf of the other party in connection with these Terms or MSA, including in the case of SuperScale, the functionality of the Platform, underlying software and tools including the Business Engine, SBDW, Recommendation Engine, the Anonymised Data and its associated Documentation, know-how, secrets and ancillary information; (b) all other information disclosed to the relevant party by or on behalf of the other party (whether before or after the date of MSA and/or Terms) which is marked as or has been otherwise indicated to be confidential or which derives value to a party from being confidential or which would be regarded as confidential by a reasonable business person; 

“Client” means the entity specified so in the MSA or registered for Free Trial that renders Services from SuperScale; 

“Client IPR” means all Intellectual Property Rights or other proprietary rights in any materials provided by the Client to SuperScale in connection with the Services (including the Client Data);

“Client Data” means all data (including Client Personal Data), information, applications and other content that the Client provides to SuperScale as part of the Services;

“Consultancy Services” means professional consultancy Services provided by SuperScale related to overall improvement of the Game; 

“Creatives” means the content of the Ad or Game including any graphics, pictures, canvases, videos, texts, that delivered by SuperScale as part of the Creative Services;

“Creative Services” means the Services of providing the Creatives;

“Data Processing Agreement” or “DPA” means data processing agreement concluded between the parties as per Schedule 1;  

“Documentation” means a) user manuals, installation manuals and other documents relating to the Services provided or made available by SuperScale to the Client under these Terms or MSA; and/or b) any work product, reports, data, deliverables that are directly generated as a result of the Services;

“Free Trial” means the free evaluation and trial of a limited version of the Platform which is available for new Clients by registering on SuperScale’s website and which is provided under these Terms as specified in section 4.9 of Terms below; 

“Full Game Management”, “Full Growth Management” or “Legacy Game Management” means specific Services that – if provided – put SuperScale in charge and give SuperScale discretion of deciding on how to improve the Game; 

“Game” means the mainly mobile or similar game owned, operated, developed or published by the Client for which the Services are requested as set out in the MSA;

“GDPR” means the EU GDPR or UK GDPR (as applicable);

“EU GDPR” means EU regulation No. 2016/679 known as general data protection regulation; 

“Insolvency Event” means where a person ceases or threatens to cease to carry on business, is found unable to pay its debts within the meaning of the Insolvency Act 1986 section 123 , has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters any composition with creditors generally, or has an order made or resolution passed for it to be wound up (unless as part of any scheme for solvent amalgamation or solvent reconstruction) or undergoes any similar or equivalent process in any jurisdiction;

“Intellectual Property Rights” means all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, rights in know-how, registered trademarks, registered designs, models, unregistered design rights, unregistered trademarks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions;

“MSA” means the master services agreement or any agreement similar to MSA or work order concluded between the parties that explicitly incorporate or refer to these Terms including any Schedules to these Terms as applicable; 

“Moral Rights” means moral rights under the Copyright Designs and Patents Act 1988 (or equivalent or analogous rights under the laws of other jurisdictions);

“Recommendation Engine” means a AI-driven machine learning software hosted on SuperScale Group Company platforms, integrated with a Client’s Game via an API providing certain logic, rules, features, recommendations or other information directly to the Client and integrated into the Game for in-Game play; 

“SBDW” means the SuperScale Big Data Warehouse solution owned and developed by SuperScale Group Company;

“SuperScale” means SuperScale, s. r. o., a limited liability company established and operating under Slovak laws, with its registered seat at Bottova 2A, 811 09 Bratislava, Slovakia, company ID No. (IČO): 47 523 697, VAT ID: SK2023925739, registered in the Commercial Registry kept by Bratislava III Municipal Court, Section Sro, file No. 94037/B (the “SuperScale SK”) or any other SuperScale Group Company that is a contractual party under the MSA; 

“SuperScale IPR” means all Intellectual Property Rights or other proprietary rights in the Services, Platform and underlying rights including the Business Engine, the Recommendation Engine, SBDW, templates, Source Materials and tools used in providing the Creative Services and well as any know-how, ideas, methods, processes or techniques which relate to any developments of SuperScale Group Company arising out of the provision of or in connection with the Services, but excluding any Client IPR;

“SuperScale Personnel” means any person employed or engaged by any SuperScale, a SuperScale Group Company or a sub-contractor of SuperScale or a SuperScale Group Company who is wholly or partly engaged in the performance of SuperScale’s obligations under these Terms or MSA whether on an employment-law or business-law basis;

“Platform” means collectively all components of SuperScale’s data analytics infrastructure & dashboard platform that allows the Client to measure performance of its Game by way of any remote integration, whether via API and/or SDK or similar integration, to a Game of any SuperScale’s software, database, or tool owned or used by SuperScale including, but not limited to: a) SBDW or similar tools, b) AI-driven machine learning software providing certain logic, rules, features, recommendations, or other information integrated directly to the Game; c) any other software developed, owned, and provided as part of the Platform or by SuperScale together with all updates and modifications; d) any other tools, software, engines, algorithms, or database solutions owned or used by SuperScale integrated into a Game; and e) any resulting dashboards and data visualizations; 

“Representatives” means in relation to any person means any agent, director, officer, employee of or an auditor or professional adviser to that person;

“Restricted Transfer” means: (i) where the EU GDPR applies, a transfer of personal data from the European Economic Area to a country outside of the European Economic Area which is not subject to an adequacy determination by the European Commission; and (ii) where the UK GDPR applies, a transfer of personal data from the United Kingdom to any other country which is not based on adequacy regulations pursuant to Section 17A of the United Kingdom Data Protection Act 2018;

“Services” means the services to be provided by SuperScale that may include Consultancy Services, Creative Services, various growth or scale partnerships (such as Full Game Management) or the Platform and always only in the scope as set out and defined in the MSA and/or Terms;

“SuperScale Group Company” means any and all of following companies: (i) SuperScale Group, Ltd., with its registered seat at Fieldfisher Riverbank House, 2 Swan Lane, London, United Kingdom, EC4R 3TT, company number 14618626; (ii) SuperScale, s. r. o., a limited liability company established and operating under Slovak laws, with its registered seat at Bottova 2A, 811 09 Bratislava, Slovakia, company ID No. (IČO): 47 523 697, VAT ID: SK2023925739, registered in the Commercial Registry kept by Bratislava III Municipal Court, Section Sro, file No. 94037/B, (iii) SUPERSCALE UK LTD, with its registered seat at C/O Fieldfisher Riverbank House, 2 Swan Lane, London, United Kingdom, EC4R 3TT, company number 13791757, (iv) SuperScale CZ, s.r.o., a limited liability company established and operating under Czech laws, with registered seat at Dlouhá 730/35, Old Town, 110 00 Prague 1, Czech Republic, ID No. (IČO): 14177501 (v) SuperScale US Inc., a Delaware corporation, with its registered seat at 108 West 13th Street, Wilmington, County of New Castle, Delaware 19801, United States of America, File No. 7523433, (vi) any other affiliate or 100% subsidiary of other SuperScale Group Companies, including the subsidiaries established after effective date of Terms or after any MSA was concluded; 

“Term” means the period for which the MSA is concluded, as set out in the MSA;

“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018; and

“Source Material” means creatives or IP materials which are bought by SuperScale from 3^rd parties other than the Client and/or used by SuperScale as a basis for creation of Creatives delivered to the Client.

1.2. In these Terms, unless the context otherwise requires or the contrary intention appears:

1.2.1. the singular includes the plural and vice versa; 

1.2.2. references to a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having a separate legal personality);

1.2.3. these Terms and the MSA shall be binding on, and enure to the benefit of, the parties to these Terms and/or MSA and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns;

1.2.4. a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time; and

1.2.5. the words “including” and “in particular” and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions.

1.3. The headings in these Terms and in the MSA are for convenience only and do not affect its interpretation.

2. General terms 

2.1. These Terms apply to any use of the Platform by Clients to render the Services from SuperScale (including Free Trial) and to any MSA incorporating or referring to these Terms. Clients accept these Terms as a binding legal MSA either by conclusion of the MSA or by accepting via the registration process within the Platform though its authorized user. 

2.2. List of Games. Each MSA can be concluded for one or more specific Games operated or owned by the Client. Parties may extend the list of Game to cover additional Games in an express confirmation of both Parties without the need to update the MSA. Other changes to the list of the Games for which Services are provided including removal of any Game from it are subject to a written amendment of the MSA signed by both Parties. 

2.3. Parties may conclude multiple MSAs and each such MSA shall form a separate MSA relationship between the Parties. In case of conflicts between these Terms and the MSA, the provision of the MSA shall prevail. If Parties want to exclude or amend any provisions of these Terms, it shall be done explicitly in the MSA by referring to the specific provisions which are excluded or amended. 

3. Services

3.1. The exact specification of the Services stems from the MSA. In general, SuperScale provides the following Services: (i) the Consultancy Services; (ii) Creative Services; and (ii) the Platform. 

3.2. SuperScale shall duly provide the Services in accordance with the MSA and these Terms. SuperScale shall ensure that all SuperScale Personnel are suitably skilled, experienced and qualified to carry out the duties and tasks assigned to them in connection with the performance of the Services.

3.3. SuperScale shall have the discretion and right to provide the Service via or subcontract any of the Services from any SuperScale Group Company and SuperScale Personnel. SuperScale shall remain responsible for all acts and omissions of its subcontract and the acts and omissions of those employed or engaged by the subcontract as if they were its own. SuperScale shall also have right to used approved Sub-Processors as is set out in the DPA.

3.4. Support. As regards the Consultancy Services (regarding analytical services provided by SuperScale Data Team), a regular support will be available to the Client via telephone, Slack, email or remote-access application between 9:00 A.M. to 5:00 P.M (CET) on Slovak business days not including weekends and bank/public holidays in Slovakia. After-hour emergency support is available via email / Slack and the severity level response set forth below still apply. The point 4.6 applies accordingly.

3.5. Severity levels. Any problem, inquiry or request of the Client regarding the analytical Consultancy services notified to SuperScale shall be classified by SuperScale according to the below severity levels, which determine obligatory response time by SuperScale. Severity Levels can be changed by SuperScale if circumstances or new information dictates so. Blocker issues: a. Dashboard is unavailable (Google Data Studio is down); b. No data in the dashboard available at all, the tables with data were deleted or rewritten completely. Critical issues: a. All data in dashboards are not up to date for multiple calendar days (for iOs data for more than 72 hours and google play data for more than 48 hours); b. Reprocessing data from Platform is unavailable.  Major issues: a. Data from dashboards are partly missing or are partly incorrect i.e. regarding one of the ad channels; some of the visualizations of dashboard are unavailable. Minor issues: a. The Client requests manual adjustments e.g. regarding client data correction. Trivial issues: The Client has reported minor cosmetic issues that doesn’t affect the functionality of dashboard e.g. misspelling, misalignment of dashboard colours. 

3.6. Response Time. After classification of the Severity Level, SuperScale shall respond to the issue within the following response times during support hours during business day:

Severity Level		First Response Time	Resolution Time (estimation)
1	Blocker issues	2 hours	depends on external providers
2	Critical issues	4 hours	4 hours / the same day if notified by 2:00 P.M. CET
3	Major issues	4 hours	8 hours / until 5:00 P.M. CET next day
4	Minor issues	4 hours	3 business days
5	Trivial issues	8 hours	5 business days

The resolution time represents just the estimation in which the issue will be resolved.

4. Platform 

4.1. Ownership. The Platform is operated and remains fully and exclusively owned by SuperScale Group. The Client is allowed to use the Platform only to the extend provided for in the MSA and these Terms on a strictly non-exclusive basis. The Client remains the sole owner and operator of the Game and all Client Data.  

4.2. SaaS. The Platform is operated and provided by SuperScale on a “software as a service” basis as part of the Services. The Client acknowledges that SuperScale continuously develops the Platform and that the list of individual software solutions, tools, engines or components of the Platform comprises of as well as their in-house names or designations continuously changes without the need to amend the MSA or notify the Client. The Platform may be available to the Client though one or more of its various components, deliverables or type of Services including by virtue of the connected services, various dashboards, visualisations, or via actual cloud platform access by Client via login credentials provided by SuperScale (either via www.superscale.com or other domain). 

4.3. Set-up. Set-up and integration of the Platform to process Game data takes initial setup period thought the Term. Exact setup period may be defined in the MSA, otherwise can take up to two months assuming all technical requirements by Client have been met in a timely manner. SuperScale shall inform the Client of any extension of the setup process in a timely manner.

4.4. Support. As regards the Platform, a regular technical support will be available to the Client via telephone, Slack, email or remote-access application between 9:00 A.M. to 5:00 P.M (CET) on Slovak business days not including weekends and bank/public holidays in Slovakia. After-hour emergency support is available via email / Slack and the severity level response set forth below still apply.

4.5. 3^rd party downtime. Client acknowledges that SuperScale relies on third parties including providers of standard software, cloud or hosting services in order to provide its Platform and Services. Client agrees that unavailability of third-party systems (i) may affect the availability of the Platform and/or the Services, (ii) is beyond the control of SuperScale, (iii) will not be part of computations regarding the uptime guarantee, and (iv) will result in no refunds or credits to Client.

4.6. Force Majeure Event. Force Majeure Event means an event or circumstance which is beyond the control and without the fault or negligence of SuperScale and which by the exercise of reasonable diligence SuperScale was unable to prevent.  Such events include, but are not limited to, (a) riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not) acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition or compulsory acquisition by any governmental or competent authority; (b) ionizing radiation or contamination, radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component; (c) earthquakes, flood, fire or other physical natural disaster, extreme weather conditions; and (d) strikes at national level or industrial disputes at a national level. SuperScale shall not be responsible for delays or failures in performance of these Terms or the MSA resulting from a Force Majeure Event. SuperScale will make commercially reasonable efforts to re-establish Services as soon as possible in the event of a Force Majeure Event. 

4.7. Severity Levels. Any problem, inquiry or request of the Client regarding the functionality of the Platform notified to SuperScale shall be classified by SuperScale according to the below severity levels, which determine obligatory response time by SuperScale. Severity Levels can be changed by SuperScale if circumstances or new information dictates so. Critical: a. All Authorized Users of the Client are unable to login or use the Platform; b. The Platform’s reporting functions are unavailable; c. Game data is not available in the Platform; d.  There is a security breach that exposes the personal data or highly confidential data of the Client. Significant:  a. At least one Authorized User of the Client is unable to login to the Platform; b. The Platform’s reporting functions are unable to change. Minor: a. Client is experiencing operational inconvenience caused by the Services representing e.g. a false positive error message about a task that actually succeeded. Low: a. The Client has reported minor cosmetic issues that doesn’t affect the functionality of Platform; b. An individual authorized user has reported a problem that has not been evidenced to be prevalent among other authorized users of the Client.

4.8. Response Time. After classification of the Severity Level, SuperScale shall respond within the following response times:

Severity Level		Problem Response Time
1	Critical	Within 1 hour during business day
2	Significant	Within 4 hours during business day
3	Minor	Within 2 business days
4	Low	Within 5 business days

4.9. Free Trial. Free Trial entitles new Clients to use the Platform for a limited period of time and free of charge in order to allow such new Client to evaluate using the Platform on a commercial basis (the “Purpose“), under the following conditions:

4.9.1. By registering on SuperScale website for a Free Trial, the Client enters into a contractual relationship with SuperScale SK that is governed exclusively by these Terms. The Terms become binding and effective on Client when the Client clicks “I Accept”, “I agree”, “Sign up” or a similar button or check box referencing to these Terms. The Client hereby represents and warrants that the person acting on its behalf (ordering the Free Trial) has the right, power and authority to enter into this contractual relationship on behalf of Client.

4.9.2. The Free Trial commences on the date confirmed by SuperScale in writing via email or other electronic means (the “Free Trial Commencement Date”) and ends on the earlier of: (i) 30 days from the Free Trial Commencement Date, (ii) the commencement date of any payable Services, or (iii) termination by either party. The section 9.2 of the Terms does not apply to Free Trial. 

4.9.3. Only new Clients are eligible to use the Platform or render Services via the Free Trial. During the Free Trial, Client shall only use the Platform for the Purpose and no other affiliates of Client are permitted to access or use the Platform unless agreed otherwise. For avoidance of doubt a Client is considered new, when neither it (nor any of its group affiliates) has had a contractual relationship with SuperScale and/or any entity belonging to SuperScale Group in respect to the Platform and/or Services during the previous three (3) years prior to registration to the Free Trial.  If a Client uses the Platform outside the scope permitted for the Free Trial, SuperScale reserves the right to charge the Client for such use at its current standard rates.

4.9.4. The Free Trial is composed of and mainly applies to the initial onboarding to the Platform, setup of the Platform and performance assessment via the Platform. The purpose of the Free Trial is to showcase the Platform’s environment and capabilities to new Clients before ordering a paid access to the Platform. The Free Trial is provided only for the Purpose and does not substitute provision of the other Services nor does it serve as a discount from Fees. 

4.9.5. The Terms apply to Free Trial, but in the event of conflict between this section 4.9 and the rest of the Terms, this section 4.9 shall take precedence. The Platform is provided “as is” and “as available” without any conditions or warranties of any kind.  In particular, the sections 4.4, 4.6, 4.7 and 4.8 of the Terms do not apply to the Free Trial and for the purposes of section 8, SuperScale’s maximum liability shall be limited to [£500].

4.9.6. Both Client and SuperScale may terminate the Free Trial anytime on written notice to the other. When the Free Trial terminates or expires without the parties entering into a contract for payable Services, SuperScale shall cease providing Client with the Free Trial and Client will no longer have access to the Platform. Following such termination or expiry, Superscale shall have no obligation to retain any Client data on the Platform and the Client is advised to remove any of its data from the Platform before terminating the Free Trial. 

5. Client Rights and Obligations 

5.1. The Client is entitled to use the Services and the Platform provided by SuperScale only for its legitimate business purposes and in compliance with MSA and these Terms. The Services and the Platform can only be used by the Client and entities listed in the MSA.   

5.2. The Client warrants to SuperScale that the Games for which Services are rendered are operated or owned by the Client and that the Client is authorized to contract the Services from SuperScale for such Games without violation of the law or any agreements. 

5.3. Assistance. The Client acknowledges that in order for SuperScale to perform the Services and set-up the Platform, SuperScale will need cooperation and assistance from the Client in timely manner which the Client agrees to provide at no charge (for example to provide access to Game data, Client systems and other facilities as reasonably required by SuperScale). SuperScale is not in breach of contract if the Client does not provide such assistance and SuperScale’s right to continue to invoice and receive the Fees shall not be affected.    

6. Invoicing and Payment

6.1. Fees. SuperScale shall invoice the Client for the Fees at the address and at the frequency specified on the MSA. Any receivables / sums in USD or other currencies shall be converted to Euros in the invoice with currency conversion rates on invoice date using OANDA.com rates. 

6.2. Subscription. Unless otherwise expressly specified in an MSA, the Fees are payable upfront for each month of Term. SuperScale is entitled to invoice the Fee as of the first day of the month/Term with a due date of at least 14 days. The Client can request to pay the Fees for the whole duration of the Term upfront applying the pre-agreed discount. 

6.3. Each additional Game is billed by an additional 5,000 EUR monthly fee, billed from the addition until MSA is terminated.

6.4. Ad Costs. Unless otherwise expressly specified in an MSA, the Fees do not include any Ad Costs which are borne solely by the Client directly via a Campaign Account. Where the parties specified in an MSA that SuperScale will pay for the Client’s Ad Costs, such Ad Costs are invoiced in addition to the Fees.

6.5. VAT. The Fees are exclusive of any applicable VAT or any sales tax which shall be added to such amounts pursuant to any local and international tax legislations. The Client shall pay all applicable taxes if invoiced or as may be applicable in accordance with this clause. 

6.6. Non-payment. If the Client fails to pay any undisputed sum due for payment under the MSA on or before the due date, SuperScale may (without prejudice to its other rights or remedies): suspend the provision of the Services or the Client’s access to Platform on written notice until all outstanding payments are received in full; and/or charge the Client interest on such sum from the due date until the date of actual payment (whether before or after judgment) at the rate of 4% per annum above the base rate of the European Central Bank from time to time. 

7. Intellectual Property Rights

7.1. The Client or its licensors shall retain all right, title and interest in and to the Client IPRs and Client Data and SuperScale or its licensors shall retain all right, title and interest in and to the SuperScale IPRs. Specific licence terms applicable for individual types of Services stem from Schedules. 

7.2. SuperScale may use Client IPR and Client Data only to provide the Services to the Client and to perform other obligations under the MSA and these Terms save that SuperScale may further use the Client Data to create the Anonymized Data and to use and copy Client Data that is not personal data (and to sub-license subcontractors) for the purposes of: (a) improving the quality and reliability of the Platform; and, (b) maintaining the security and operational integrity of the Platform or Services, including for security monitoring and incident management, managing the performance and stability of the Platform.

7.3. Unless expressly specified otherwise in the MSA, where the MSA relates to the provision of Services which involve the use and/or incorporation of SuperScale IPR, SuperScale grants to the Client a non-exclusive, revocable, non-sublicensable and non-transferable licence during the relevant Term to the SuperScale IPR to the extent necessary to enable the Client to benefit from the Services. The Client agrees not to remove, suppress or modify in any way any proprietary marking on the Platform, Services or Documentation (including any trademark or copyright notice).

8. Liability

8.1. Nothing in these Terms or the MSA shall limit or exclude a party’s liability for (i) death or personal injury caused by its negligence; (ii) fraud; or (iii) any other liability which cannot be excluded by applicable law.

8.2. Subject to section 8.1, neither party shall be liable to the other for any:

8.2.1. loss of profit, revenue, goodwill, anticipated savings, corruption of data or account of profits (in each case whether direct or indirect); or 

8.2.2. indirect loss, 

arising out of or in connection with these Terms or the MSA or any breach or non-performance of it no matter how fundamental (including by reason of that party’s negligence).

8.3. Subject to sections 8.1 and 8.2, each party’s maximum aggregate liability arising out of or in connection with these Terms or the MSA or any breach or non-performance of them no matter how fundamental (including by reason of that party’s negligence) in contract, tort or otherwise will be limited to 100% of the total Fees actually paid under the MSA (excluding any recharges such as Ad Costs) in the 12 months prior to the date on which the first claim under the MSA was made by the other party.

8.4. The parties agree that each of sections 8.1, 8.2 and 8.3 are separate and independent terms of these Terms. 

9. Term and Termination

9.1. Subject to section 9.2, the Term of each MSA is set in the MSA and defines the time-period during which the Services are provided under such MSA. Some Services might be provided for a shorter time-period as set out in the MSA.  

9.2. Platform Subscription. The Client’s use of the Platform shall be on an annual subscription basis with automatic renewal. The Client may notify SuperScale in writing at least 2 months before the end of the original subscription term if it wishes to cancel the renewal. If the Client materially breaches the license terms applicable to the Platform, SuperScale may unilaterally terminate all MSAs concluded with the Client.  

9.3. Either party may terminate the MSA at any time on written notice, either immediately or following such notice period as it shall see fit if the other party: (a) is in material breach of these Terms or MSA (as applicable), and such breach is irremediable; or (b) commits any remediable material breach of Terms or MSA and fails to remedy such breach within a period of 30 days from the service on it of a notice; (c) undergoes an Insolvency Event; or (d) where the MSA or these Terms provide so. The parties may also terminate any or all MSAs by mutual agreement. 

9.4. Where SuperScale’s right to terminate the MSA is triggered, SuperScale shall also have the right to suspend the provision of the Services under any other MSA until the Client remedies the trigger or until SuperScale exercises such right to terminate.

9.5. Upon termination or expiry of the MSA for any reason:

9.5.1. the Client shall immediately cease using the Platform, any SuperScale IPR and any Services and the Client shall pay all outstanding Fees due under the MSA;

9.5.2. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of these Terms or the MSA that existed at or before the date of termination or expiry, shall not be affected or prejudiced and unless expressly agreed otherwise, all licences and access rights granted shall immediately terminate; and

9.5.3. each party shall return any Confidential Information or other materials belonging to the other party. 

10. Confidentiality

10.1. Subject this section, each party shall treat all Confidential Information as strictly confidential and shall only disclose such Confidential Information in the manner and to the extent expressly permitted by this section. Each party shall keep Confidential Information safe and secure and apply to it documentary and electronic security measures that match or exceed those that the recipient of such Confidential Information operates in relation to its own Confidential Information and will never exercise less than reasonable care. 

10.2. A party may disclose Confidential Information: (a) if and to the extent required by law or order of the courts, or by any securities exchange or regulatory or governmental body to which such party is subject, wherever situated; (b) on a necessary basis and under conditions of confidentiality to the professional advisers, auditors and bankers of such party; (c) if such Confidential Information has come into the public domain other than by a breach of any obligation of confidentiality; or (d) with the prior written approval of the other party. 

10.3. SuperScale may disclose Confidential Information to any SuperScale Group Company, SuperScale Personnel and Representatives who need access to that Confidential Information in order for SuperScale’s obligations to be performed or to defend any claim.

10.4. Save for any Confidential Information in the Business Engine (which shall continue in perpetuity), the restrictions contained in this clause shall continue to apply after the termination or expiry of this MSA or Free Trial (however arising) five (5) years after termination of the relevant MSA or Free Trial. If the parties concluded a mutual confidentiality agreement before the MSA that provides for higher or longer standard of confidentiality than this section 10, the provisions of such prior confidentiality agreement continue to apply and prevail. 

11. Notices

11.1. Parties agree on primarily electronic communication and delivery of any notices or related communication regarding the MSA including any termination notice or invoice using the email contact address mentioned in the MSA or registration form for Free Trial. The Client can deliver any notice or communication for SuperScale also to [email protected]. Parties may deliver any notice also by registered mail or courier to the registered seat of the other party mentioned in the MSA or registration form. Client warrants that contact person in the MSA or registration form is authorized to communicate any matter regarding the MSA or Free Trial and cooperation of Parties on its behalf. 

11.2. Parties are obliged to immediately inform each other about change of their contact details. Any notice will be deemed to have been served as of moment of sending when delivered by email or of receipt when delivered by registered mail or courier. If the notice cannot be delivered to the provided contact details, such notice is deemed delivered as of the moment of delivery’s failure. 

12. Data Protection

12.1. To the extent that SuperScale is processing personal data on behalf of the Client as a consequence of providing the Services according to the MSA and/or Terms, then the parties will comply with the Data Processing Agreement set out in Schedule 1 (Data Processing Agreement) under which SuperScale acts as the Client’s data processor. SuperScale’s privacy policy informing about SuperScale’s own purposes of processing is available and regularly updated at www.superscale.com/privacy-policy/. 

12.2. With regard to confidentiality, the parties acknowledge that SuperScale, as part of providing and improving the Services creates aggregated, anonymised data by way of patterns, trends, knowledge, metadata or other insights: (i) by aggregating Client Data with other data in a de-identified and anonymised manner; and/or (ii) comprising anonymous learnings, logs and data regarding the use by the Client of the Services (jointly as the “Anonymised Data”). The parties agree that SuperScale may use such Anonymised Data for any lawful business purpose during or after the relevant Term (including without limitation to develop, provide, operate, maintain, and improve SuperScale products and services and to create and distribute reports and other materials). 

13. Final provisions

13.1. The MSA is valid and enforceable as of the effective date set out in the MSA. If the effective date is missing, the MSA is valid and enforceable as of the day of its signature by both Parties. With regard to Free Trial. the Terms are valid and enforceable as of the registration of Client and accepting the Terms.

13.2. Publicity. Neither party shall make any announcement, either written or otherwise, in relation to the existence of or subject matter of the MSA, Terms, except with the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, except as required by law. The Client hereby agrees that SuperScale can publish general information about collaboration with the Client and general description of the Services provided to the Client on its websites, social media and marketing channels including using the Client’s business name and trademarks as well as name, marks, trademarks or screenshots of the Game.

13.3. Campaigns. By default, all Campaigns shall be managed by SuperScale via the Client’s allocated Campaign Accounts unless otherwise agreed in the MSA. The costs of Ad Costs incurred by SuperScale are borne directly by the Client. If not agreed otherwise, the Client is obliged to provide to SuperScale login / access details to the Campaign Accounts before commencement of Services. The Campaign Accounts shall only permit SuperScale to create and manage Campaigns for the Game and SuperScale shall only access and use the Campaign Accounts to perform the Services. If the parties agree in the MSA that SuperScale’s Campaign Accounts shall be used, then SuperScale shall pay for Ads and subsequently recoup the costs of Ads from the Client as an addition to the agreed Fees. Ad Costs due to the UA Channels are not included in the Fees and shall be invoiced to the Client in addition. 

13.4. Survival. Any provision of these Terms or MSA terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the MSA shall remain in full force and effect including but not limited to clause 7, 8, 9, 10, 13 as well as any licence terms and limitations. 

13.5. Severance. If any term under MSA or these Terms is or becomes invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is valid, legal and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. If such modification is not possible, the relevant term shall be deemed deleted. Any modification to or deletion of a term shall not affect the validity and enforceability of the rest of the terms.

13.6. Governing law and jurisdiction. The MSA, Terms and any disputes or claims arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with laws of England or other governing law set out in the MSA. The parties irrevocably agree that in case of any dispute or claim arising out of or in connection with this MSA or these terms, each party may initiate arbitration administered by London Court of Arbitration under its LCIA Rules, and judgment on the award(s) rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of the arbitration shall be London and the language of the arbitration shall be English. If a court action has been initiated by the Client at the time that SuperScale chooses to submit the matter to arbitration, then it is agreed that such court action is to be discontinued, unless the arbitrator finds that SuperScale has waived such right by substantially participating in the court action without having raised its right under this clause. Save where a party initiates arbitration (or Superscale chooses to submit a matter to arbitration), the parties submit to the exclusive jurisdiction of the English courts for all purposes relating to and in connection with these Terms and the MSA and any dispute or claim arising from it. Nothing in MSA or Terms shall prevent, restrict or hinder a party from taking proceedings to protect its Intellectual Property Rights in any jurisdiction.

13.7. Schedules. Schedules to the Terms are inseparable part of these Terms and the MSA. Each Schedule contains specific license and business terms for particular type of Services or instances and applies only if such type of Services is provided based on the MSA or when such instance is present. Schedule 1 (Data Processing Agreements) always covers and applies any type of Services or instances of cooperation.  

13.8. Amendments. These Terms may be updated and amended unilaterally by SuperScale from time to time with the effect as of their publishing at www.superscale.com/platform-terms or at different domain determined by SuperScale. New version of the Terms is effective as of their publishing or as of the later effective date specified therein. Where the MSA provisions prevail over the Terms (including their future amendments), such amendments cannot without Client’s consent alter business terms agreed upon in the MSA. SuperScale shall maintain history of any changes to these Terms for benefit of both Parties. Any update or amendment of these Terms shall be communicated or notified to the Client prior to their effective date, while such notification can be made electronically via the Platform (e.g. alert or pop-up). This is without prejudice to SuperScale’s right to make grammatical and stylistic changes to the text without such notifications. 

13.9. Assignment. Neither the MSA, Terms nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other party, except by operation of law and except for assignment to a new entity in case of any merger, acquisition, fusion, sale of substantially all assets, or corporate re-organization. 

13.10. Third Party Rights. A person who is not a party to these Terms or the MSA has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term in these Terms or the MSA.

13.11. No Partnership. Nothing in these Terms or the MSA is intended to or shall give rise to any relationship of partnership, joint venture or profit sharing in the nature of partnership between the parties.

13.12. Counterparts. The MSA may be executed in any number of counterparts and by the different parties on separate counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of the MSA.

13.13. Waiver. The failure to exercise or delay in exercising a right or remedy provided to a party under these Terms or the MSA shall not constitute a waiver of that right or remedy, and no waiver by a party of any breach of these Terms or the MSA shall constitute a waiver of any subsequent breach of the same or any other provision. Each right or remedy of a party under these Terms or the MSA is without prejudice to any other right or remedy of that party under Terms, the MSA or at law.

13.14. Entire Agreement. These Terms and the MSA (and any documents referenced by them) constitutes the entire agreement and understanding between the parties relating to the transactions contemplated by or in connection with these Terms and the MSA and the other matters referred to in them and supersedes any other agreement or understanding (written or oral) between the parties or any of them relating to the same.  Each party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any promise, assurance, statement, warranty, undertaking or representation made (whether innocently or negligently) by any other party or any other person except as expressly set out in these Terms or the MSA in respect of which its sole remedy shall be for breach of contract. To the fullest extent permitted by law, all implied terms (whether under statute or otherwise) are expressly excluded from these Terms and the MSA. Nothing in this section 13.14, however, shall operate or be construed to exclude or limit any liability of any person for fraud, including fraudulent misrepresentation.

History:

Version 1 – Published and effective as of April 1^st, 2022

Version 2 – Published and effective as of August 3^rd, 2023