SUPERSCALE PLATFORM

Terms of use

Effective as of April 1st, 2022

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 

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 this Terms;

Applicable Privacy and Data Protection Law” means the 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’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” shall mean 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 Fees 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) 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 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;

Full 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 mobile game owned, operated, developed or published by the Client for which the Services are requested as set out in the MSA;

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

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 similar 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 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;

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 I District Court, Section Sro, file No. 94037/B; 

SuperScale IPR” means all Intellectual Property Rights or other proprietary rights in the Services, Platform and underlying a 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 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-contract or of SuperScale or a SuperScale Group Company who is wholly or partly engaged in the performance of SuperScale’s obligations under this 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;

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 in always only in the scope as set out and defined in the MSA;

SuperScale Group Company” means (apart from SuperScale): (i) SuperScale, Sp. Z o.o., with its registered seat at Grzybowska 87, 00-844 Warsaw, Poland, registered in the register of entrepreneurs of the National Court Register kept by the District Court for Warsaw in Warsaw, XIII. Commercial Division under KRS No. 0000510468 being the ultimate parent SuperScale entity and/or (ii) any other 100% subsidiary of SuperScale, Sp. Z o.o. or 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;

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

2. General terms 

2.1. These Terms apply to any use of the Platform by Clients to render the Services from SuperScale 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. 

4. Platform 

4.1. Ownership. The Platform is operated and remains fully and exclusively owned by SuperScale. 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. Uptime Guarantee. SuperScale will make the Platform available 100% of the time excluding (minus) periods of maintenance downtime, third-party downtime and force majeure event (the “Uptime Guarantee”). In case the time for which the Uptime Guarantee has not been achieved reaches 10% of the Uptime Guarantee, SuperScale shall provide a discount of 10% of the corresponding Fee for the Platform to the Client if the Client requests so. For every other 10% of the Uptime Guarantee not achieved, SuperScale shall provide additional discount of 10% if the Client requests so. 

4.6. Maintenance downtime. Client acknowledges and agrees that SuperScale must, from time to time, perform routine maintenance, repair or update of the Platform when the Platform may not be available or functioning properly. SuperScale shall endeavor to inform Client of such maintenance at least two business days in advance and will perform maintenance on weekends for no more than 10 hours per month.

4.7. 3rd 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.

4.8. 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 this Agreement 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. 

4.9. 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. High: a. All Authorized Users of the Client are unable to login or use the Platform; b. Game data is not available in the Platform; c.  There is a security breach that exposes the personal data or highly confidential data of the Client. Medium:  a. At least one Authorized User of the Client is unable to login to the Platform; b. The Platform’s reporting functions are unavailable. Low: a. Client is experiencing operational inconvenience caused by the Services; b. Client needs or expects different functionality or presentation of information than SuperScale currently provides; c. An individual authorized user has reported a problem that has not been evidenced to be prevalent among other authorized users of the Client.

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

Severity Level 

Problem Response Time

High

Within 1 business day

Medium

Within 3 business days

Low 

Within 7 business days

 

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 right for receive Fees is not 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 this Work Order 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% above the base rate of the European Central Bank from time to time. The parties acknowledge that this amounts to a substantial remedy for late payment. 

 

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. 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

Subject to any overriding provisions in the MSA, each party’s maximum aggregate liability arising out of or in connection with each MSA will be limited to 100% of the total Fees actually paid under that 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.

 

9. Term and Termination

9.1. The Term is agreed 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 is the Term, always as defined by the MSA.  

9.2. Platform Subscription. The Platform is always used on an annual subscription basis with automatic renewal. The Client can notify SuperScale about non-renewal at least 2 months before the end of the original subscription term. If the Client substantially breaches license terms applicable to the Platform, SuperScale may unilaterally terminate all MSAs concluded with such 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 1 month from the service on it of a notice or 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 any MSA is triggered, SuperScale shall also have the right to suspend the provision of the Services until the Client remedies the trigger or until SuperScale exercises such right to terminates.

9.5. Upon termination or expiry of MSA for any reason 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 that existed at or before the date of termination or expiry, shall not be affected or prejudiced and unless expressly agreed otwerise, all licences and access rights granted shall immediately terminate. 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 clause. 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 (however arising) five (5) years after termination of the relevant MSA. If parties concluded prior 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. 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. Client warrants that contact person in the MSA is authorized to communicate any matter regarding the MSA 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, 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. If the Effective Date is missing, the MSA is valid and enforceable as of the day of its signature by both Parties. 

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, 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 and 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 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 Slovak law or other governing law set out in the MSA. The parties irrevocably agree that the Slovak courts shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this MSA or these terms. In addition, 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. Nothing in this MSA 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 are 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. Since 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 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. 

History:

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

 

Schedule 1 – Data Processing Agreement

This Data Processing Agreement is made as an integral part of the MSA by and between the Client as the data controller and SuperScale as its data processor with regards to the processing of personal data by SuperScale on behalf of the Client within the context of provision of Services under the MSA pursuant to the Article 28 of the GDPR. Terms used in this Data Processing Agreement shall be interpreted in line with Article 4 of the GDPR. 

      1. Subject-matter. The Client hereby appoints SuperScale as its data processor to process the personal data on its behalf. Each party shall comply with its obligations under the Applicable Privacy and Data Protection Law. For the avoidance of doubt this DPA automatically covers processing of personal data under any and all MSAs and/or MSAs.
      2. Duration and termination. This DPA forms an inseparable part of the MSA. The Client acknowledges that it might be impossible to provide Services in accordance with the MSA without processing the personal data pursuant to this DPA. Therefore, this DPA can only be terminated by termination of the MSA as a whole. Upon termination of the MSA, SuperScale shall at the choice of the Client either return or securely delete all personal data processed under such MSA, unless there is a requirement or entitlement to store such data longer under the EU law or the EU member state law that applies to SuperScale or in respect of personal data which is archived on back-up systems, in which event SuperScale shall securely isolate and protect from any further processing except to the extent required by such law until deletion is possible. If the personal data is only processed via Campaign Accounts, removal of access rights to such Campaign Accounts is compliant with previous sentence. 
      3. Nature of processing. The nature of personal data processing under this DPA is determined by the nature of Services provided by SuperScale with the following characteristics: (i) the business model of SuperScale is not based on data monetization techniques like brokerage of data or databases or selling of data to third parties (there will be no sale of personal data under California Consumer Privacy Act); (ii) SuperScale respects ownership-like rights regarding the personal data by the Client and/or data subjects, where such personal data falls under the Client Data; (iii) processing of personal data shall only be made as far as necessary to provide the Services; (iv) SuperScale does not have a direct MSAual relationship with data subjects; (v) the processing should generally appear as done by the Client as the principal / data controller; (vi) SuperScale does not have access to all data held by the Client or third party, which can be used for the potential identification of users pursuant to the recital 26 of the GDPR.
      4. Purposes of personal data processing. The Client appoints SuperScale to process the personal data for the following purposes of processing undertaken by the Client: (i) product improvement purposes, e.g. improvement, development, maintenance and testing of the app/software (the Game) and its new features or updates; (ii) direct marketing communication, conducting marketing campaigns and related marketing analytics; and (iii) raising awareness about the organization, its products and services online including via social media, as necessary to provide the Services.
      5. Types of personal data. Parties do not foresee processing of special categories of personal data pursuant to the Article 9 of the GDPR or personal data about criminal convictions pursuant to the Article 10 of the GDPR. SuperScale is entrusted to process any standard type of personal data it deems necessary to provide the Services. Depending of the type of Services provided by SuperScale, types of personal data processed by SuperScale may include data such as online gaming or advertising identifiers, Game usage data (such as IAP, Game installs), operating system, device, location, session details (duration, frequency), ads or campaign served, user profile/segment and similar types of personal data which do not allow SuperScale to directly identify the data subject but in the context most likely qualifying as personal data under the GDPR. The above description relates to data processed via Campaign Accounts. It might be possible that SuperScale will not have access to any raw data. 
      6. Categories of data subjects. The personal data processed by SuperScale will primarily relate to users, potential users of the Game, visitors or potential visitors of the Client’s websites, games and social media profiles. As far as the communication regarding the MSA performance is concerned, SuperScale will also process personal data of the Client’s staff, directors, employees or Representatives (email addresses and business communication) in line with its own privacy policy available at https://superscale.com/privacy-policy/
      7. Sub-processors. As a data processor, SuperScale is not entitled to appoint another sub-processor or a third party to process the personal data without the Client’s prior consent or general authorization. The Client gives a consent to the use of SuperScale Group Companies, SuperScale Personnel and approved sub-contractors under the MSAs (list of which is provided and updated at https://superscale.com/privacy-policy/) provided SuperScale ensures that the data processing agreement is adequate with this DPA is concluded with such sub-processors. Under these conditions, Clients gives SuperScale general authorization to appoint new sub-processors after which the list shall be updated. 
      8. Campaign Accounts. In case SuperScale is granted access to the Client’s Campaign Accounts (which may or may not include processing of Personal Data) it remains responsibility of the Client to comply with Article 26 or 28 of the GDPR and to conclude a data processing agreement with such 3rd party provider of Campaign Account (e.g. Facebook), if required. In such case, SuperScale is entitled to share data with such 3rd party Campaign Account providers without a data processing agreement with such 3rd parties based on the Client’s instruction or general authorization pursuant to this DPA. However, where the Client instructs SuperScale as per the MSA to use SuperScale’s own Campaign Account, the Client hereby warrants, agrees and acknowledges that such an instruction is an instruction of the Client as a data controller pursuant to Art. 29 of the GDPR addressed to SuperScale as a processor and even if SuperScale concluded data processing agreement with such 3rd party Campaign Account provider as a controller, it acts as a processor of the Client and 3rd party Campaign Account provider therefore acts as the Client’s sub-processor. Therefore, this DPA applies equally to situations where Client’s or SuperScale’s Campaign Accounts are used, meaning that the Client remains liable for having a sufficient legal basis for processing of personal data as well as for any other controller’s obligations pursuant to the Applicable Privacy and Data Protection Laws. In case of conflict between 3rd party Campaign Accounts providers’ terms or agreements (even if concluded by SuperScale) and conditions and this DPA, parties will apply terms of this DPA.
      9. Cross-Border Transfers. As a data processor, SuperScale is not entitled to transfer the Personal Data outside the European Economic Area without the Client’s prior consent. If the Client’s consent is obtained, it remains the responsibility of SuperScale to ensure that Articles 44-50 of the GDPR in respect to any such potential cross-border transfers are complied with. Subject to these conditions, the Client hereby gives SuperScale a general written authorization / documented instruction to transfer the personal data from the European Economic Area to the United States of America or the United Kingdom or other 3rd countries where the approved sub-processors are located. List of the approved sub-processor is available and updated at https://superscale.com/privacy-policy/. Where the Client is established outside the European Economic Area, parties agree to conclude specific EU standard contractual clauses separately. 
      10. Documented Instructions. SuperScale shall process the personal data only in accordance with documented instructions by the Client. Certain general authorizations and documented instructions are already contained in this DPA which are hereby given by the Client to SuperScale. Any other general authorizations or documented instructions of the Client can be given to SuperScale in writing, orally, by email, by post, by telephone or by similar means, provided such means can be documented. It remains the responsibility of the Client to record or document such instructions. SuperScale is obliged to inform the Client if it believes that the Client’s instruction would infringe the GDPR or other law. 
      11. Local Law. The Client shall inform SuperScale about any local deviances or country specific provisions of the Applicable Privacy and Data Protection Laws where such provisions do not explicitly stem, are contrary or are different to those in the GDPR and/or ePrivacy directive. Unless SuperScale receives such information from the Client sufficiently upfront, it shall not be obliged to comply with such a requirement.
      12. Data Subject Rights. According to Article 28(3)(e) of the GDPR, SuperScale acting as a data processor shall insofar as this is possible and taking into account the nature of the processing, assist the Client as a data controller, with the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights under the GDPR. SuperScale will comply with this obligation by providing supporting information available to it upon request of the Client. Such supporting information may include an updated list of sub-processors, recipients and respective third countries. However, SuperScale shall not be obliged or requested to handle or respond to the data subject request regarding the Client’s purposes of processing, such requests should be handled and responded to exclusively by the Client. Should SuperScale receive a data subject request that is related to this DPA, SuperScale will forward such request to the Client without undue delay.
      13. Legal Grounds. The legal grounds for processing of the personal data pursuant to this DPA are determined by the Client and are subject to change mainly due to a possibility of a different regulatory approach by different EU supervisory authorities. The Client relies on the legal ground of legitimate interest under the Article 6(1)(f) of the GDPR, performance of MSA under the Article 6 Article 6(1)(b) of the GDPR and/or data subject’s consent under the Article 6(1)(a) of the GDPR where required. It remains the sole responsibility of the Client to comply with Article 6 GDPR and to obtain consent of the data subjects, where required. SuperScale relies on the Client to have sufficient legal grounds to undertake processing via SuperScale foreseen by this DPA.
      14. Transparent Information. Every data controller has a general obligation to provide certain information to data subjects pursuant to  Article 13 or Article 14 of the GDPR. The Client is responsible for providing this information in respect to the purposes of processing contemplated herein as well as for complying with any transparency principles and obligations towards data subjects under Applicable Privacy and Data Protection Law. 
      15. Confidentiality. SuperScale shall implement such organizational measures that ensure that ensure all SuperScale Personnel is committed to the confidentiality in respect to the personal data processed under this DPA either MSAually, by law or by internal policies.
      16. Security. SuperScale will maintain, implement and enforce safety and security procedures in performing the Services that are compliant with Article 32 GDPR. 
      17. Security incidents.  If it becomes aware of a confirmed Security Incident, SuperScale shall inform the Client without undue delay and shall provide reasonable information and cooperation to the Client so that the Client can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Privacy and Data Protection Laws.  SuperScale shall further take such any reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and shall keep the Client informed of all material developments in connection with the Security Incident.
      18. Audits. SuperScale shall make available to the Client all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and the Client may request, upon 20 days’ prior written notice to SuperScale auditing SuperScale’s compliance with its obligations under this DPA and the GDPR. Audits shall be subject to all applicable confidentiality obligations agreed to by the Client and SuperScale and shall be conducted in a manner that minimizes any disruption of SuperScale’s performance of Services and its normal business operations. Audits shall not uncover or lead to disclosing any Confidential Information. Any costs for undertaking audits or making available to the Client all information necessary to demonstrate compliance with Article 28 of the GDPR shall be borne by the Client including reasonable attorney fees expended by SuperScale.
      19. Data Protection Impact Assessment. Client remains solely responsible for conducting the data protection impact assessment pursuant to Article 35 of the GDPR and prior consultation pursuant to Article 36 of the GDPR with respect to its own purposes of processing. SuperScale agrees to reasonably assist the Client when conducting its own DPIA. 

 

Schedule 2 – Platform Licence Terms 

Where the Platform is integrated with the Game or used to provide the Services to the Client, this Schedule applies.

      1. Licence grant to use the Platform  
        1. Subject to the Client’s compliance with the terms of the MSA and these Terms (including the payment of the Fee), SuperScale grants the Client a non-exclusive, non-transferrable, non-sublicensable and revocable licence during the license period to use the Platform for legitimate analytic business purposes. 
        2. The license includes the Client’s right to access and use any reporting and dashboard functions of the Platform (if agreed to be delivered). 
        3. This license also includes the Client’s right to use and keep all results and changes introduced to a Game by virtue of the Platform and/or Services (but excluding the underlying software used by SuperScale to provide or operate the Platform), provided that the Client continues to fully comply with all its obligations and is not in material breach.  
        4. The license period for any use above is agreed only for the duration of the Term. Any API/SDK or other integration of the Platform will remain owned by and under SuperScale’s control and discretion and after the Term or earlier termination of the MSA, will be removed or disabled by SuperScale. 
        5. For avoidance of doubts, the Client will not be granted any right to access, license, use or keep the underlying / background software used by SuperScale to provide the Platform. For avoidance of doubt, the Client shall not receive any actual copy of the such software or sources codes. 
      2. Limitations 
        1. The Platform may only be used in relation to the Game or Games listed or approved under the relevant MSA. 
        2. The Platform or any underlying / background software used to provide the Platform shall not be attempted to be: (i) copied, modified, duplicated, used to create derivative works from, framed, mirrored, republished, published, transmited, or distributed or (ii) de-compiled, reverse compiled, disassembled, reverse engineered or otherwise reduced to human-perceivable form.  
        3. Platform may not be used to provide platform-related analytics, consultancy or similar services to 3rd parties or to build a product or service which is the same or substantially the same as, or competes with the Platform. The Platform may not be marked 
        4. The Platform may not be used for any illegitimate purposes that are prohibited by law, contract or harm others. 
        5. It is prohibited to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Platform or related Documentation. 
      3. Suspension

SuperScale may suspend  or disable the Client’s access to and use of the Platform without notice if the Client fails to comply with the licence terms applicable to the Platform. 

 

Schedule 3 – Consultancy Services Licence Terms 

Where SuperScale is providing the Consultancy Services to the Client under the MSA, this Schedule applies.

      1. Licence grant
        1. Subject to the Client’s compliance with the terms of the MSA and these Terms (including the payment of the Fee), SuperScale grants to the Client a non-exclusive, non-transferable, non-sublicensable and revocable licence to: (a) use the Documentation supplied with such Consultancy Services in respect of the Game; (b) translate the advice, recommendations or suggestions provided by SuperScale by virtue of such Consultancy Services inside the Game’s source code and keep such changes in. License period for the use above is agreed only for the duration of the Term. 
        2. This license also includes the Client’s right to use and keep all changes introduced to a Game by virtue of the Consultancy Services (but excluding the underlying Source Material or software used by SuperScale), provided that the Client continues to fully comply with all its obligations and is not in material breach. 
        3. The Client shall ensure that any change to the Game made by the Client or any 3rd party as a result of the Consultancy Services or Business Engine are easily removable without affecting any other functionalities of the Game. The Client be solely responsible for implementation of the Consultancy Services and/or Business Engine into the Game or its source code including security of such code update; 
        4. The Client shall not, without express consent of SuperScale or a separate MSA translate the Consultancy Services into other games, not covered by the MSA. 
        5. For avoidance of doubt, changes to the Game recommended by SuperScale will be implemented into the Game by the Client, not SuperScale, unless agreed otherwise. 
        6. Should the Client breach any terms under this schedule, SuperScale has right to revoke the licence granted in section 1.1, immediately suspend or cease to provide the Consultancy Services and/or terminate the MSA on written notice. 
      2. Additional obligations in relation to Business Engine 
        1. The Business Engine has been developed in-house by SuperScale and SuperScale Personnel based on long-term experiences with providing Services to the game developers and publishers prior to the cooperation of the parties. The Business Engine may include recommendations, learnings, observations, rules, ideas or advice generally provided by SuperScale to other clients and/or games which are specifically tailored to the Game’s needs by virtue of the Services. 
        2. SuperScale protects the Business Engine as its own intellectual property, property, know-how or trade secret and the Client acknowledges the existence of the Business Engine as an immanent feature of any Consultancy Services as well as its economic value to the Client. 
        3. Clients acknowledges that the Business Engine itself or its features are or can only be registered as SuperScale’s IPR and therefore, the Client agrees not to take any action to challenge, deny or exploit the Business Engine other than through the allowed use of the Services granted in this Schedule. 
        4. In jurisdictions where the Business Engine is not recognized under Applicable Law as a copyright work, know-how or trade secret, the parties will apply the same level of protection as if it was and the Client will not legally challenge its existence or agreed protection.

 

Schedule 4 – Creative Licence Terms 

Where SuperScale is providing Creative Services to the Client under the MSA, this Schedule applies.

      1. Licence grant 
        1. Creatives can be created, acquired or developed from: (i) Client-owned materials; (ii) 3rd party Source Materials; or (iii) scratch solely by SuperScale’s team; always in accordance with the MSA. 
        2. Subject to the Client’s compliance with the terms of the MSA (including the payment of all Fees) SuperScale: (a) grants to the Client a non-exclusive, non-transferable, non-sublicensable and revocable licence to use and keep the Creatives created, acquired or developed from 3rd party Source Materials or from scratch by SuperScale; and  (b) hereby assigns (as a present assignment of future rights) to the Client absolutely with full title guarantee all of its  right, title and interest in and to the Creatives created, acquired or developed solely and only from Client-owned materials or any other Creatives which are specifically identified in an MSA as to be owned by the Client (“Exclusive Creatives“).
        3. Unless explicitly specified otherwise in the MSA, the license period for any use of the Creatives (other than Exclusive Creatives) is agreed only for the duration of Term. The licence shall apply during and after the license period, provided that the Client continues to fully comply with all its obligations under the MSA, is not in material breach and the MSA has not been terminated early for any reason. Unless explicitly specified otherwise in the MSA, the Client shall have no rights towards the Source Materials and SuperScale shall have no obligation to provide any such Source Materials to the Client. 
      2. Additional obligations in relation to Creatives
        1. SuperScale shall ensure that all Creatives are approved by the Client before using such Creatives in any Ads or Games. Discretion of the Client to select Creatives to be used does not affect SuperScale’s right to receive corresponding Fees for such Creatives as agreed in an MSA. 
        2. All Ads and Creatives must be approved in writing (with email/slack/SMS confirmation being sufficient) by the Client prior to being distributed or published by SuperScale. At the sole discretion of the Client and upon written request, SuperScale agrees to immediately take down and remove any and all of the Client’s Ads and Creatives, published in pursuance to the MSA.
        3. Unless otherwise agreed by the parties, SuperScale shall only promote the Ads and Campaigns on the UA Channels in accordance with the MSA and may utilise any approved Creatives and materials provided by the Client incorporated into approved Creatives. Any use of new UA Channels not listed in an MSA shall be agreed in writing between the parties individually.
        4. Where the Creatives are acquired by SuperScale from 3rd party platforms, banks or registries the Client acknowledges that additional licence terms of such 3rd party will apply to the use of such Creatives and the Client agrees to be bound by such terms. The Client shall review such terms before executing an MSA for any Creative Services. The Client agrees that SuperScale is entitled to use Envato Elements (sounds) – licence terms available at https://elements.envato.com/license-terms or any other platforms or banks approved by the Client.