for limited consultancy and creative Services of SuperScale
“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 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 CCPA and COPPA if applicable, and any amendments thereof;
“App Stores” mean Apple App Store, Google Play or any other app store or platform specified in the MSA;
“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 its 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 the MSA;
“CCPA” means the California Consumer Privacy Act (“CCPA”);
“Fees” means all fees payable by the Client for the Services as set out in the MSA;
“Confidential Information“ means: all information disclosed to the relevant party by or on behalf of theother party in connection with this MSA; know-how, secret processes and inventions disclosed to the relevant party by or on behalf of the other party in connection with the MSA, including in the case of SuperScale, the Business Engine, the Anonymised Data and its associated documentation, know-how, secrets and ancillary information; all other information disclosed to the relevant party by or on behalf of the other party (whether before or after the date of this 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;
“COPPA” US Children’s Online Privacy Protection Act;
“Client IPR” means all Intellectual Property Rights or other proprietary rights in the Game or 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;
“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;
“Data Processing Agreement” or “DPA” means data processing agreement concluded between the parties as per schedule 1;
“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;
“SuperScale” means SuperScale, s.r.o., with its seat at Bottova 2A, 811 09, Bratislava, Slovakia, ID No. (ICO): 47 523 697 or any other SuperScale Group Company that is a contractual party under the MSA;
“SuperScale Group Company” means: (i) SuperScale, Sp. Z o.o., with its registered seat at Zacna 2 1, 50-283 Gdańsk, Poland, registered in the register of entrepreneurs of the National Court Register kept by the District Court for Gdańsk-Północ in Gdańsk, VII 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 this MSA was concluded;
“SuperScale IPR” means all Intellectual Property Rights or other proprietary rights in the Services, the Business Engine, Source Materials and SuperScale own software or tools (if any) used in providing the Services; any modifications or updates to these, regardless of whether such modifications or updates are created as part of the Services; and 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 subcontractor of SuperScale or a SuperScale Group Company who is wholly or partly engaged in the performance of SuperScale’s obligations under this MSA whether on an employment-law or business-law basis;
“Services” means the Services to be provided by SuperScale as set out in the MSA as described in the MSA;
“Term” means the period for which the MSA is concluded;
“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.
1.1. In consideration for the Client’s payment of the Fees, SuperScale shall provide the Services as set out in the MSA. The Client shall co-operate with SuperScale in all matters relating to the Services and shall provide to SuperScale any reasonable assistance required by SuperScale to provide the Services. Services are provided only for Games defined in the MSA.
1.3. The Client acknowledges that in order to benefit from the Services, it is necessary to comply with SuperScale’s advice on the necessary changes to be introduced to the Game by virtue of the Services.
1.4. SuperScale shall have the discretion and right to subcontract any of the Services from any SuperScale Group Company and SuperScale Personnel. SuperScale shall remain responsible for all acts and omissions of its subcontractors and the acts and omissions of those employed or engaged by the subcontractors as if they were its own.
2.1. SuperScale shall invoice the Client for the Fees as specified in the MSA. Fees do not include any Ad Costs which are borne solely by the Client directly. If it is agreed that SuperScale will pay for the Client’s Ad Costs, such Ad Costs are invoiced in addition to the Fees.
2.2. The Client shall pay no later than 30 days after the date of receipt of invoice. Payment shall be made in Euros to such bank account as SuperScale may nominate from time to time.
2.3. 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.
2.4. If the Client fails to duly pay for any invoice, SuperScale may at its sole discretion suspend the provision of the Services 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 (substantial remedy for late payment). In addition, SuperScale may immediately terminate the MSA.
3.1. The Client or its licensors shall retain all right, title and interest in and to the Game and Client IPRs. SuperScale shall retain all right, title and interest in the Business Engine and any SuperScale IPRs.
3.2. Licences. SuperScale may only use Client IPR only to the extent necessary and for the purpose of providing the Services to the Client and performing SuperScale’s other obligations hereunder. Subject to the Client’s compliance with the MSA and these terms (including the payment of the Fees), the Client is entitled to translate the advice, recommendations or suggestions provided by SuperScale by virtue of such Services inside the Game’s source code and its appearance and keep such changes in the Game. If SuperScale uses its own UA dashboards, tools or software for Client Data health checks or test, and Data Health checks, the Client has non-exclusive, limited, revocable licence to use such tools during the Term of the MSA and only for the specified Game.
3.3. Business Engine. 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 based on individual assessment. 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 Services as well as its economic value to the Client. Client 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. In jurisdictions where the Business Engine is not recognized 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.
3.4. Creatives. Creatives are created, acquired or developed by SuperScale from: (i) Client-owned materials; (ii) 3rd party Source Materials; or (iii) scratch solely by SuperScale’s team; as specified in the MSA. Subject to the Client’s compliance with the MSA and these terms (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 the MSA as to be owned by the Client (“Exclusive Creatives“). If the Exclusive Creatives cannot be assigned to Client under applicable law, SuperScale to the extent allowed under Applicable Law: (i) waives the right to enforce such rights, and waives all claims and causes of action of any kind against the Client with respect to such rights, and (ii) hereby grants and agrees to grant to the Client an exclusive, irrevocable, perpetual, worldwide, fully paid up and royalty-free license, with rights to sublicense through multiple levels of sublicenses. 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 the MSA. 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.
3.5. Restrictions. The Client shall not, without express consent of SuperScale or a separate MSA: (i) copy the changes introduced to the Game by virtue of the Services and/or the Business Engine to other games; (ii) use the Services and/or Business Engine to provide services to third parties; (iii) publish or make available any reports, presentations or materials that materialize or summarize the content of the Services or the Business Engine; or (iv) present, explain, showcase to the public or pass on to the 3rd parties the Business Engine.
3.6. Should the Client breach any terms under this Section 3, SuperScale has the right to revoke the licences granted herein, to immediately suspend or cease to provide the Services and/or terminate the MSA on written notice.
4.1. Subject to following clauses, each Party’s maximum aggregate liability arising out of or in connection with each MSA, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, howsoever caused including by negligence shall be limited to 100% of the total Fees actually paid under such MSA in the 12 months prior to the date on which the first claim under the MSA was made by the other party.
4.2. Nothing in the MSA or these terms will operate to exclude or restrict one party’s liability (if any) to the other for: (a) death or personal injury resulting from negligence; (b) fraud or fraudulent misrepresentation; (c) infringement of any of the other party’s Intellectual Property Rights; (d) in the case of the Client, payment of the Fees.
4.3. Except as expressly stated in the MSA, all warranties, representations and terms and conditions, whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law. In particular, SuperScale does not provide any warranty or representation, whether express or implied, that the provision of the Services will increase revenue or make the Game more profitable.
5.1. MSA is concluded for term specified in the MSA. In case of a fixed term, MSA cannot be terminated by notice or for convenience by neither party. In case of indefinite term, the notice period is 2 months as of its serving to other party, unless the MSA provides otherwise.
5.2. Either party may terminate the MSA immediately if the other party is in material breach and such breach is irremediable or if the other party commits any remediable material breach and fails to remedy such breach within a period of 10 business day.
5.3. Termination of the MSA does not affect Client’s obligation to pay for the already provided or incurred Services or costs. No already paid Fees or reimbursed costs will be returned by SuperScale in case of any termination.
6.1. 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. A party may disclose Confidential Information: (i) if and to the extent required by law or order of the public authority having jurisdiction; (ii) on a necessary basis and under conditions of confidentiality to the professional advisers or auditors of such party; (iii) if such Confidential Information has come into the public domain other than by a breach of any obligation of confidentiality; (iv) or with the prior written approval of the other party.
6.2. Parties may disclose Confidential Information to their own subsidiaries or affiliates (including SuperScale Group Company), their personnel and representatives who need access to that Confidential Information in order for such party’s obligations to be performed or to defend any claim.
6.3. 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 the MSA five (5) years after termination of the relevant MSA.
7.1. 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.
7.2. 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.
8.1. 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.
8.2. Parties acknowledge that SuperScale, as part of providing 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).
9.1. 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.
9.2. 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.
9.3. Survival. Any provision of this MSA or these terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this MSA shall remain in full force and effect including but not limited to clauses 3, 4, 6, 7 and 8.
9.4. Severance. If any term under MSA or hereunder 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 this MSA or terms.
9.5. 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. 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.
9.6. 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 there in. 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.
9.7. 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.
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.