MBASO LTD (trading as SUPAPASS) has developed a set of Software as a Service (SaaS) applications (“Platform”) which enable individuals, businesses and organisations to create and operate websites and applications, publish and distribute content, build and engage communities, and offer products, services and memberships to their audiences (“Purpose”). We provide access to the Platform and may also provide consultancy, support and development services in connection with the Purpose (this is our “Service” as defined in more detail below).
These terms and conditions (“Terms of Use”) set out the standard terms upon which you may use the Service, the Platform and any App or Outputs produced as a result.
The Platform and Service are provided by MBASO LTD, a company registered in England and Wales under number 07786534 and whose registered office is International House, 36-38 Cornhill, City of London, London EC3V 3NG, United Kingdom (“SupaPass”, “we”, “us”, or “our”).
Please read these Terms of Use carefully before registering for the Services or placing an Order. The contract between the Client and us (the “Agreement”) comprises these Terms of Use, each Order that becomes binding in accordance with clause 2.7, each Statement of Work that becomes binding in accordance with clause 4.1, and any other documents or materials expressly incorporated into that contract. The Agreement comes into effect in accordance with clause 2.1.
1.1 Unless the context otherwise so requires: (a) references to statutory provisions include those provisions as amended or re-enacted; (b) words in the singular include the plural and in the plural include the singular; (c) “including” shall be deemed to mean, “including, without limitation” and shall not limit the types or categories to the information or items following such types or categories.
1.2 Some capitalised and other terms have special meanings:
Additional Costs means reasonable additional costs and expenses incurred by us (beyond those already recovered through our other Fees) due to delay or failure by you to perform your obligations under the Agreement;
Admin Interface means the administrative dashboard you have access to once you have created your account, as made available via our apps, via admin.supapass.com or such other URL as we may notify to you from time to time;
Affiliate means, in relation to a body corporate, any subsidiary, subsidiary undertaking or holding company of this body corporate, and any subsidiary or subsidiary undertaking of any such holding company for the time being as defined in section 1159 of the Companies Act 2006;
App means the branded application or website we may create for you when providing Services, which enables your End Users to access the Platform and your Client Content;
Bespoke Consultancy means consultancy, support, or development work beyond the features offered by default through the Platform, for example to assist with design, migration, customer support, custom software development, or other matters;
Business Day means any day (other than a Saturday or Sunday) on which banks are open for the conduct of normal banking business in the City of London;
Business Hours means 9am to 5pm local UK time, on a Business Day;
Client means the individual, company, partnership, sole trader or other business, legal person, or organisation to whom we provide Services as further detailed in clause 2 (“you”, “your” or “yours”);
Client Content means all materials and data supplied, input or uploaded by or provided under licence by you;
Confidential Information means any non-public information, know-how, trade secrets or data in any form that is designated as being “proprietary”, “confidential” or “secret” or could reasonably be understood by a reasonable person to be confidential. The term “Confidential Information” shall also include any information not publicly available concerning the products, services (including the Services), finances or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party);
Consultancy Fees means our fees for Bespoke Consultancy as agreed between you and us in a Statement of Work or otherwise in writing;
“controller” shall have the meaning given to it in the Data Protection Laws;
“processor” shall have the meaning given to it in the Data Protection Laws;
“Data Processing Addendum” means our data processing addendum at Schedule 1;
“Data Protection Laws” means all applicable laws relating to data protection and privacy in force from time to time in the United Kingdom or the European Union, including the UK Data Protection Laws, the EU GDPR and any applicable national laws supplementing the EU GDPR, in each case to the extent applicable to the processing of personal data under this Agreement. References to legislation in this definition and in the definitions of UK Data Protection Laws, UK GDPR and EU GDPR include it as amended, extended, re-enacted or replaced from time to time, including, where applicable and in force, amendments made by the Data (Use and Access) Act 2025;
Distribution Channels means app stores (such as Apple/Google app stores) through which we may offer to help you publish an App, and any other distribution channels, services, platforms, or integrations through which we might make your App available or help you publish, distribute or integrate it, in each case specific details of which are made available to you through the Admin Interface or otherwise notified to you by us;
Documentation means user guides and other information about how to use our Platform, Apps and Services, as notified to you and updated by us from time to time;
End User means any person who accesses or uses your App, whether or not they register for an account or make a purchase;
End User Data means data collected from or generated about End Users;
“EU GDPR” means Regulation (EU) 2016/679 (General Data Protection Regulation) as it has effect in EU law;
Excess Hosting Costs means the additional amount, if any, by which the Hosting Costs incurred by us on your behalf in a calendar month exceed the total of: (a) Usage Fees paid or payable by you for Usage in that calendar month (including, for the avoidance of doubt, any credits for Usage purchased earlier but consumed during that month); and (b) the value of Metered Resources (calculated by reference to Usage Fee pricing and pro-rated for part of a calendar month) included within your Plan during that calendar month;
Fees means, collectively, the Plan Fee, the Usage Fee, and any applicable Revenue Share or Hosting & Additional Costs or Consultancy Fees;
“GDPR” means the UK GDPR and/or the EU GDPR, as applicable;
Hosting & Additional Costs means (if any) Additional Costs and Excess Hosting Costs;
Hosting Costs means hosting, server, storage, content delivery, bandwidth, application, and other third-party service costs we incur in providing the Services to you (where the foregoing are shared between you and our other clients, we shall calculate the proportion reasonably attributable to your use of the Services based on the records available to us from the supplier and/or our usage records);
Indemnified Service: the Service, excluding any third-party software or materials or any Client Content or End User Data;
Metered Resources means resources, features, actions or services which are limited, or subject to additional unit, variable or block-based pricing, as indicated through the Admin Interface (including, without limitation, anything where credits are described as required);
Minimum EULA Requirements: those terms which we may require you to include within the end user licence agreement between you and your End Users, as notified to you in writing by us and amended from time to time;
“Monthly Billing Date” is the day of each calendar month corresponding to the first day of your Subscription Period, or the last day of a month with no corresponding day;
Order means a request for a Plan or any additional product modules, features, top-ups or other Services, or changes to them, made through your account or otherwise in writing by you or on your behalf;
Outputs means materials created, supplied or made available to you as part of the Services, including, without limitation, the App, but excluding Client Content and End User Data;
“personal data” shall have the meaning given to it in the Data Protection Laws;
Plan means the scope of Services you select in the Admin Interface or which are otherwise agreed between us (for the avoidance of doubt, this includes your subscription/plan tier and Engines/PowerUps/modules or additional features you Order);
Plan Fee means the price of your Plan as indicated through the Admin Interface at the time you place your Order, as subsequently amended in accordance with this Agreement;
Platform has the meaning given in the introduction;
Privacy Policy means our privacy policy as updated from time to time and available at https://www.supapass.com/user-terms;
Purpose has the meaning given in the introduction;
Revenue Share means (unless we agree otherwise in writing): (a) zero if you maintain a paid subscription to the Earnings Engine (either through your Plan or separately); or (b) otherwise 10% of the gross amounts charged by you to End Users (via your SupaPass-powered digital checkout and In-App-Purchases made in your App);
Service Data means metadata and other data derived from use of the Service, as further detailed in the Data Processing Addendum;
Service(s) means our provision to you of access to the Platform and features included within your selected Plan (including any App, product modules, features, or services you Order) and any Bespoke Consultancy agreed between you and us;
Specification means the functional and technical specification in respect of the Service from time to time available upon request;
Statement of Work means a communication or document setting out details of any Bespoke Consultancy, the scope and nature of the proposed work, applicable timescales and Fees;
“sub-processor” shall have the meaning given to it in the Data Protection Laws;
Sub-Processor List means our list of sub-processors as updated from time to time available at Annex 1 to the Data Processing Addendum;
Subscription Period has the meaning ascribed to it in clause 13.2;
“supervisory authority” shall have the meaning given to it in the Data Protection Laws;
Term has the meaning ascribed to it in clause 13.1;
“UK Data Protection Laws” means all applicable laws relating to data protection and privacy in force from time to time in the United Kingdom, including the UK GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations;
“UK GDPR” has the meaning given in section 3(10) of the Data Protection Act 2018;
Usage means your consumption of Metered Resources beyond those included in your Plan;
Usage Fee means the price for Usage as described in the Admin Interface;
2.1 An account is required to access the Platform and Services. When you, or an individual authorised to act on your behalf, complete initial registration for the Services, the Agreement arises between you, as the Client, and us, incorporating these Terms of Use.
2.2 While account creation is free, to place an Order you must subscribe and provide billing information. If we accept that Order then, from submission or update of that information, the subscriber identified in it is the Client, holds the account and assumes the Client’s rights and obligations under this Agreement, including responsibility for acts and omissions of the individual who created the account and other administrative users, whether or not that subscriber was identified at registration. The person submitting or updating that information warrants that they are authorised to bind that subscriber and, if different, the existing Client to that change, without releasing accrued liabilities of the existing Client.
2.3 You shall ensure your registration details are accurate and kept up to date and that only individuals authorised to incur charges on your behalf can place Orders.
2.4 You are responsible for acts and omissions of any users through your account (which includes the account created on initial registration, and any other administrative users granted access subsequently) as if they were your own.
2.5 You shall ensure that any login details used by you or individuals acting on your behalf are kept secure and confidential. You shall promptly revoke an individual’s access when they are no longer authorised to act on your behalf.
2.6 You may start using the Platform as soon as we give you access. Time shall be material but not of the essence with respect to our supply of Services.
2.7 You can request additions or changes to the Services (such as a new Plan, credits or features) by placing an Order through the Platform. Each Order is an offer to purchase or amend the Services, which is accepted and forms part of the Agreement when we notify you or make those Services or changes available to you.
2.8 Where the terms of an Order, Statement of Work, Data Processing Addendum and these Terms of Use conflict, the following (descending) order of precedence shall apply: (a) any provisions identified as “Special Conditions” which are agreed between us; (b) the Data Processing Addendum; (c) these Terms of Use; (d) a Statement of Work; (e) an Order.
3.1 You shall provide us with all access, materials, personnel, cooperation and information reasonably required by us to perform the Services. You shall only use the Platform, App and Services in accordance with our Documentation.
3.2 To make full use of certain Services you may need to provide technical, marketing, branding and user details, audiovisual assets, specifications, information about or access to accounts on Distribution Channels (and/or assistance with review processes overseen by operators of Distribution Channels) or with financial institutions or payment processing services, credentials, tokens, and other details. Our Documentation provides information about some of these requirements but please let us know if you need further detail.
3.3 We shall not be liable for any delay or default in performance of our obligations arising from your failure to comply with obligations under the Agreement. No such delay or default will relieve or suspend your obligation to pay (for example, and without limitation, if you pay for a Plan which includes features you cannot yet use because you have not provided the required information, you are still required to pay the Fees for that Plan).
3.4 You shall provide accurate information identifying the Client and, on request, promptly provide further information reasonably required to verify or confirm that identity and/or the authority of you or other individuals using Services on its behalf. You shall keep that information up to date. We may withhold Services pending the provision of such information to our reasonable satisfaction.
4.1 We may offer to carry out Bespoke Consultancy. Details including the nature and scope of that work, timescales, and applicable Fees, shall be set out in a written Statement of Work which shall be binding and part of this Agreement once executed by you and us (where such execution includes our acceptance via email).
4.2 All parts of the Services and Outputs are deemed accepted on the earliest of: (i) the date they are completed in all material respects in accordance with the applicable Order or Statement of Work; (ii) the date you tell us they are accepted; (iii) the date you deploy them through the Platform or an App, make them available to a third party or otherwise make use of them; or (iv) the date falling 10 Business Days after we supply them.
4.3 You shall not unreasonably withhold, condition, or delay acceptance of any Services or Outputs.
5.1 Services may include delivering a website or application based on a design you have configured through the Platform. You acknowledge and agree there may occasionally be limited differences between how an App appears in our design tools, and the appearance and functionality of Apps once deployed as a website or through a Distribution Channel. We shall not be liable for such differences.
5.2 We may provide you with information and cooperation required for the purposes of submitting an App to a Distribution Channel, and may do this on your behalf, but we shall not be responsible for its acceptance or rejection.
5.3 Subject to your compliance with the terms of this Agreement, we grant you a non-exclusive, non-sublicensable, limited and revocable right and licence to use the Platform and Services and any App, to promote and deliver your Client Content to your End Users.
6.1 You shall pay us the Fees, which comprise the following, details of which are provided in the Admin Interface or notified to you by us or described in these Terms of Use:
6.1.1 Plan Fees. You shall pay us the Plan Fees for your base plan tier monthly or annually (depending on the option you choose in the Admin Interface) in advance, and we shall issue you invoices for the relevant amounts.
6.1.2 Upgrades. If you upgrade to a higher Plan we charge and invoice you for the difference between the applicable Plan Fees prorated from activation to the end of the current Subscription Period after which the Plan Fee for the higher tier is payable. If you Order an Engine, PowerUp or other additional feature offered monthly, we charge and invoice the monthly fee prorated to your next Monthly Billing Date, and thereafter for the monthly fee on each Monthly Billing Date.
6.1.3 Downgrades. You may downgrade your Plan to a lower paid tier or downgrade or cancel an Engine, PowerUp or other additional feature at any time through the Admin Interface or by notifying us in writing. The change to the Services may take effect immediately, but you will not receive a refund and remain liable for the Fees until the end of the current Subscription Period for your Plan tier, or until the next Monthly Billing Date for the additional feature.
6.1.4 Usage Fees. You may purchase additional Usage in advance (including through allowances within your Plan, credits or top-ups, or through automated top-ups) in which case we will issue an invoice for those purchases at the time you make them. If you do not, we may invoice you retrospectively for Usage used but not paid for (for the avoidance of doubt, prepaid credits, top-ups or other amounts are applied first before you incur any Usage Fees).
6.1.5 Revenue Share. If a Revenue Share applies, you authorise us (if supported) to instruct our or your payment processor(s) or Distribution Channels to deduct it from payments due to you from End Users and pay it to us. We shall invoice any Revenue Share on or after such automatic deduction, or where automatic deduction is not supported, after the end of each calendar month.
6.1.6 Hosting & Additional Costs. If applicable, we may invoice Hosting & Additional Costs in accordance with this clause 6.
6.1.7 Consultancy Fees. We may invoice you for Consultancy Fees in advance, or (at our option) once such Services or part thereof are completed, or otherwise as agreed in the Statement of Work.
6.2 You will pay our invoices at the latest within 14 days of receipt, in cleared funds, into the account identified in the invoice. Notwithstanding the foregoing, you authorise us to immediately charge any sums due to us to the payment card or other payment method you have made available to us or our payment services provider, agree to keep your bank or card details with us up to date, and agree that you shall be responsible for payment of any third-party bank or other charges incurred in the course of payment. If an invoice remains unpaid after 14 days, you authorise us to instruct our or your payment processor(s) and/or Distribution Channels to deduct that amount from any payments due to you from End Users and pay it to us.
6.3 You may not be able to use Metered Resources unless you pay Usage Fees in advance. If you have not done so, and your Plan does not include adequate Metered Resources, Services may be partly restricted or suspended where they involve or depend on Metered Resources (for example, you may not be able to upload content or accept new community engagement or End Users). Notwithstanding the foregoing, we may alternatively charge you for excess Usage in accordance with clause 6.1.
6.4 Unless otherwise indicated in the Admin Interface, any monthly allowances within your Plan are applied first before consuming any pay-as-you-go credits, which are then used before you incur any additional Usage Fees. Details of credits, what they enable, and how they are used, including if/when they reset, rollover, or expire, are as set out in the Admin Interface. Where you enable automated top-ups, you authorise us on a continuous basis to execute a purchase by you of additional Usage (at then-current pricing) when your prepaid Usage of the relevant Metered Resource(s) runs out, until automated top-ups are disabled through the Admin Interface.
6.5 On reasonable written notice, and no more than once in any 12-month period, you (or an independent accountant appointed by you and reasonably acceptable to us, bound by obligations of confidentiality) may inspect our records relating to the calculation of any Hosting & Additional Costs invoiced to you in the preceding 12 months, during Business Hours and at your own cost, to verify that calculation. If that audit identifies a discrepancy, we shall refund the overcharged amount to you (or you shall pay to us any amounts due but not paid) within 30 days.
6.6 Excluding in respect of Fees you have already paid in advance, we may review and amend our rates and charges for Services by notifying you at least 15 days before the changes take effect. Should you object to an increase in writing before the end of the aforementioned 15-day period, we shall have the option, by notice to you, to either terminate the Agreement or disapply the increase for you, otherwise the increase shall be effective immediately following the expiry of that 15-day period. For periodic subscriptions such as Plan Fees, changes to Fees will not take effect until the next renewal following expiry of that 15-day period (unless you agree otherwise in writing or through the Admin Interface).
6.7 Unless expressly stated otherwise, all Fees are exclusive of VAT and/or any other applicable sales tax, which you may be able to reclaim. We will provide you with an invoice itemising the amount of the VAT. Revenue Share is inclusive of any applicable VAT, which will not be added separately.
6.8 Failure to pay fees when due shall be a material breach of the Agreement which entitles us to suspend or terminate the Services or the Agreement. This, in turn, will affect your access to the Services. Fees remain chargeable at our standard rates during the suspension. If we terminate the Agreement or part of it for your material breach, we will require you to pay, without delay, all fees and costs accruing before the termination date, all unpaid Fees and any other amounts you owe us under the Agreement.
6.9 If you fail to pay any amount due to us, we may charge you interest on the overdue amount, payable by you on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base rate for the time being of the Bank of England. Interest shall accrue daily and compound quarterly.
6.10 Subject to clause 6.5, all overcharges or billing disputes must be reported within 90 days of the date of invoice. Failure to do so will mean you have accepted our invoice.
6.11 We may use various payment service providers from time to time to accept payments on your behalf and transfer payments to you or integrate payment service providers on your behalf. We may request, and require before supplying Services, certain information from you or your End Users or others to comply with our regulatory obligations or our obligations to those service providers. We shall not be responsible for any delay or failure in performance arising from any delay or failure of you or End Users or others to supply such information. Depending upon the payment service provider we use, or with whom you request us to integrate the Services, you may be required to agree to additional terms, including, without limitation, the terms of service of such payment processor.
6.12 Should we identify an error in the way the Admin Interface presents Fees, rates or billing frequencies, we will notify you and, subject to your preferences, we may cancel any affected Order and you shall be charged only on a pro-rata basis for the Services in that Order which you have used (we may either charge you via invoice, or refund you for the unused portion if you paid in advance).
6.13 An error or omission in the Admin Interface’s subsequent display of Fees, rates or billing frequencies does not, by itself, amend or waive payment obligations already validly established under this Agreement. Where we identify such an error or omission, we shall notify you and correct the display as soon as reasonably practicable.
7.1 You warrant, represent and undertake you shall:
7.1.1 comply with all laws, regulations, regulatory policies, guidelines or industry codes (and shall be responsible for obtaining all licences, clearances and consents) which apply to your use of the Service including, for the avoidance of doubt, as required for us to use (where “use” includes storing, adapting, modifying, reproducing, and distributing) Client Content as contemplated by this Agreement, and acknowledge that we are merely a provider of access to the Platform and accept no responsibility for your use thereof or compliance with applicable law or regulation or to any End User (other than to the extent we are required by applicable statutory law);
7.1.2 not use the Service for any unlawful purposes and/or introduce any offensive, defamatory, illegal, infringing and/or obscene material via the Service;
7.1.3 not use the Service for any purpose other than the Purpose;
7.1.4 not do, or omit to do, anything which disparages, defames or puts into disrepute us, our trade marks/trading names, goodwill and/or the Service; and
7.1.5 be and are fully entitled to enter into and grant all rights granted under this Agreement and that entering into this Agreement shall not in any way conflict with any of your existing obligations, either at the date hereof and/or throughout the Term.
7.2 Subject to the remaining provisions in this clause, we warrant that:
7.2.1 during the Term we will provide the Services with reasonable due care and skill in accordance with the Agreement, and in compliance with such English law and regulation as is applicable to our supply of the Services;
7.2.2 subject to performance of your obligations under the Agreement, the Services and the Platform will perform substantially in accordance with the Specification;
7.2.3 the Indemnified Service and the Outputs shall not infringe any third party’s intellectual property rights (save that we shall have no liability in respect of content which may be included within the Outputs or delivered in the course of the Indemnified Service to the extent that such content is a reproduction or adaptation of content supplied by you or any End User, notwithstanding any other term of the Agreement);
7.2.4 we have the authority and right to license all rights to and in the Service as set out in the Agreement.
7.3 The warranties in Clause 7.2 do not cover or apply to failures or shortcomings in the provision of the Services caused by, arising out of or due to:
7.3.1 your or any End User’s connection to the Internet;
7.3.2 patents of which we are not aware; or
7.3.3 accident, abuse or use of the Services in a manner inconsistent with the Agreement or resulting from events beyond our reasonable control.
7.4 Subject to Clause 7.3, if the Service does not meet the warranties in Clause 7.2, we will, at our sole option, either:
7.4.1 modify, improve or update the Services to make them conform; or
7.4.2 obtain such clearances, licences and consents at our cost as may be necessary to enable you to use the Services; or
7.4.3 return Plan Fees paid for such Services for the period that they failed to conform (excluding any unavoidable third party costs incurred by us in providing the Services during that period); and
this shall be your exclusive remedy for any breach of such warranties under this Agreement.
7.5 We shall have no liability under this Agreement for any breach of this Agreement, if any claim relates to:
7.5.1 a modification of the Services, or use of the Services in combination with any third party service, software or data, by you or your agents; or
7.5.2 your use (or use by your End Users) of the Services in a manner contrary to the instructions given to you by us or any claim relating to the content of Client Content or End User Data; or
7.5.3 your use (or use by your End Users) of the Services after notice of an alleged or actual infringement has been given to you by us or by any appropriate authority; or
7.5.4 where a claim for infringement arises directly in respect of a feature which was specified by you or on your behalf.
7.6 We will use reasonable endeavours to maintain the Services free of viruses but we do not warrant or represent that no viruses or other contaminating or destructive materials or elements will be transmitted to you or that your computer system will not be damaged or that defects will be corrected. Accordingly, we recommend that you have your own local anti-virus, anti-spam and anti-spyware programs, that they are of good quality and that they are kept up to date. You are therefore advised to implement and operate your own commercially reasonable and up-to-date virus prevention precautions and measures when accessing the Service. You agree to communicate the aforementioned recommendations to your End Users.
7.7 We do not warrant that the Services will be uninterrupted, error-free or entirely secure.
7.8 Other than as expressly stated otherwise in the Agreement, you acknowledge that it is your sole responsibility to determine that the Services meet your business requirements and, to the fullest extent permissible by law and without limitation, we give no warranties that the Service or Outputs will be fit for purpose, of satisfactory quality, uninterrupted or error free save where expressly set out in the Agreement. We may not support operating systems, browsers or devices which are more than 2 years old or which do not have significant market share. Certain parts of the Services may have minimum technical requirements which we will notify to you from time to time. Subject to those minimum technical requirements, the Services and any App are and will aim to be designed to work with the current latest, and immediately preceding OS version of iOS, Android, and major web browsers, at the time of development.
8.1 This clause 8 sets out our entire financial liability to you arising under or in connection with the Agreement, the Platform, Services or Outputs, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty or otherwise, including liability for the acts or omissions of our employees, agents and subcontractors.
8.2 Except as expressly and specifically provided in the Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
8.3 Nothing in this Agreement excludes or limits our liability:
8.3.1 for death or personal injury caused by our negligence; or
8.3.2 for fraud or fraudulent misrepresentation; or
8.3.3 for any other liability which cannot be excluded by law.
8.4 We shall not, unless otherwise agreed between the parties in writing, be obliged to back up (or restore if it is damaged) the Client Content. Therefore, you undertake to back up (and restore if it is damaged) the Client Content as often as would be considered reasonably prudent to limit the risk of any data loss and you agree to take sensible precautions to minimise your loss. This may include backing up any locally held data that is also Client Content.
8.5 We shall accept liability for reasonably foreseeable losses arising as a direct result of breach by us of our statutory duty. However we shall not be liable where the causes or potential causes of the loss:
8.5.1 arose from the use of the Services for purposes other than for the Purpose;
8.5.2 were reasonably foreseeable and preventable by you such as those arising from, but not limited to:
(a) virus damage; or
(b) user inflicted problems such as those caused by failure to read and/or follow user instructions provided in writing or orally by one of our technicians.
8.6 In claiming against us for any losses you are expected to avoid such losses occurring and take reasonable precautions to avoid loss (such as contacting us promptly upon becoming aware of an issue).
8.7 Subject to clause 8.3, our total aggregate liability to you arising under or in connection with this Agreement or otherwise (whether in contract, tort, including negligence or otherwise, or for breach of statutory duty), whether foreseeable or not will not exceed a sum equal to 100% of the Plan Fees actually paid by you to us in connection with the provision of the Service to you in the 12-month period preceding the date upon which the claim arose.
8.8 We will not be liable under this Agreement for:
8.8.1 use not consistent with our applicable description of the Service in question; or
8.8.2 indirect, special or consequential losses or loss of profits, revenue, goodwill, reputation, wasted management time or anticipated savings.
8.9 In the event of any breach of the warranties we give in Clause 7.2 your exclusive remedy and our only obligation and liability to you shall be as set out in Clause 7.4.
8.10 If our performance of our obligations under this Agreement is prevented or delayed by any act or omission of you, your Affiliates, agents, subcontractors, consultants or employees, End Users, or third party services, we shall not be liable for any costs, liabilities, charges or losses sustained or incurred by you or your Affiliates that arise directly or indirectly from such prevention or delay. For the avoidance of doubt, this includes where a Distribution Channel delists or fails to approve your App (in which case, you remain liable for any Fees due for our assistance with that App, notwithstanding that it is not live on the relevant Distribution Channel).
8.11 We may make available to you a template for your own end user licence agreements, terms of use, privacy policies and other documents which you may choose to incorporate in the App or otherwise use to regulate your relationship with End Users. Such material is provided for your information only, does not constitute legal advice, and we offer no warranty in respect of its accuracy, reliability, completeness or compliance with applicable law. Subject to clause 8.3 we shall have no liability in respect of your use of such materials and you agree that you will use (and permit use of) those materials or any derivative, modification or reproduction thereof only for your own personal use to regulate your relationship with End Users.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall be deemed not to include information that:
9.1.1 is or becomes publicly known other than through any act or omission of the receiving party; or
9.1.2 was in the other party’s lawful possession before the disclosure without obligation of confidentiality; or
9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
9.1.4 is independently developed by the receiving party without reference to the Confidential Information and which independent development can be shown by written evidence; or
9.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law (or as directed by you through the Admin Interface or otherwise), not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than for the purposes of the Agreement.
9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, sub-contractors or agents in violation of the Agreement or used for any purpose other than the performance of its obligations under the Agreement, and shall co-operate with the other to help regain control of the Confidential Information if it is lost, and prevent further unauthorised use or disclosure of it.
9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party without the participation and/or knowledge of a party hereto.
9.5 We may, before and after the term of our Agreement (a) issue press releases regarding your selecting us as a provider of the Service and, for this purpose, may include your logo and/or name and screenshots of your App(s) in any such releases and/or on our website; (b) include details of your service offering as a case study and/or client reference when marketing to other clients and prospects and for participating in trade industry events or awards. If you would like us to make changes to any such materials, please let us know by email.
9.6 We may, during the Term and for at least three (3) years thereafter maintain records of all material information relating to this Agreement (“Records”).
9.7 Notwithstanding our obligations of confidence to you, we may, where required by law, permit competent regulatory authorities to audit or investigate the Records, and provide such other information and/or access as may be required by lawful order of such authority. You acknowledge and agree that we may be required by such authority to refrain from disclosing the occurrence or details of any such audit or investigation to you. We will notify you as soon as reasonably possible of any formal request by such an authority, if we are permitted to make such a disclosure to you under applicable law or regulation. You agree that we are authorised to provide all such records and information, upon advance notice to you if feasible and allowed by law, when formally required to do so by an authorised governmental agency.
9.8 Clauses 9.1 - 9.7 shall survive termination of the Agreement, however arising, for a period of five (5) years.
10.1 As between you and us, you shall own all rights, title and interest in and to all of the Client Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of it (we may, but are under no obligation to review, edit, clip, moderate or otherwise consider your Client Content or any End User Data).
10.2 You and we shall comply with the Data Processing Addendum.
10.3 We shall use all our reasonable commercial endeavours to safeguard Client Content and End User Data from unauthorised or unlawful processing, or accidental loss, destruction or damage by complying with our own internal information security policies.
10.4 Access to data: (a) we have access to Client Content, End User Data, and Service Data which you or End Users provide or which we generate, but may only use them as permitted by our Agreement (including, in respect of personal data, as described in the Data Processing Addendum); (b) you have access to data generated or provided through the Platform (but only in relation to your App and End Users and not those of other clients) via the dashboards, reports, exports, webhooks and other tools made available (which may be subject to you purchasing additional features in some cases as described in the Admin Interface) on the Platform from time to time, and (following termination) in accordance with the Data Processing Addendum and clause 13.9; and (c) we do not share Client Content, End User Data or Service Data with third parties for purposes beyond operating the Services (although we may use it in accordance with clause 11.4 to provide a better service to all our clients, and for statistical and promotional purposes) save for with our sub-processors and via integrations you enable and as permitted by clause 9.5.
11.1 We grant to you a personal, non-exclusive, non-transferable right for End Users to access and use the Services, the Platform and the Outputs solely in connection with the Purpose upon and subject to the terms of the Agreement and, where applicable, our Minimum EULA Requirements (if any). You may not use the Services, Outputs or the Platform for any other purpose without our prior written consent and you acknowledge that additional fees may be payable on any change of use approved by us.
11.2 The Service is provided subject to the following:
11.2.1 you undertake that you shall not (and shall not permit any End User or third party to) copy, adapt, reverse engineer, decompile, disassemble, modify or make error corrections to the Service in whole or in part, except to the extent permitted by law or with our prior written consent.
11.2.2 payment of the applicable Fees.
11.3 We and/or our licensors own all intellectual property rights in and to the Service, the Platform, the Outputs and the Service Data. Except as expressly stated in the Agreement, the Agreement does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, designs, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or any related documentation. Where the Service comprises features, data, software or other materials which are licensed from a third party, you shall (and shall procure that End Users shall) comply with all applicable policies, restrictions and limitations relating to use of such third party features and shall indemnify us and our Affiliates against all losses, claims, damages and expenses suffered and/or incurred by us arising out of your failure to do so, provided we have brought the policies, restrictions or limitations to your attention.
11.4 You or the relevant third-party licensor own all intellectual property rights in and to the Client Content. Except as expressly stated in the Agreement, the Agreement does not grant us any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Client Content and all such rights are expressly reserved to you. You grant us a non-exclusive, royalty-free licence to use the Client Content for the purposes of providing the Service, and as part of Service Data, to publish insights, statistics and reports, and promote and provide services to our other existing or prospective clients, subject always to data protection and confidentiality provisions set out in the Agreement.
12.1 You shall defend, indemnify and hold us, our Affiliates and their (and our) respective directors and employees harmless against claims, actions, proceedings, losses, liabilities, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with: (a) your use (or that of your End Users) of the Services; (b) claims from a third party that the Client Content infringes the intellectual property rights or other rights of a third party; (c) any breach of your warranties or representations under the Agreement; (d) any breach by you of applicable data protection, consumer protection, employment or other law or regulation; and/or (e) any claim for compensation, refund or other reimbursement by End Users (whether or not such claim arises from termination of the Agreement or suspension of the Services by us, in which case you shall be responsible for satisfying any such claims directly).
13.1 The Agreement begins when you create an account on the Platform and continues until terminated in accordance with its terms (the “Term”).
13.2 Your Plan begins when you first subscribe, and runs for one month or one year, as selected through the Admin Interface, automatically renewing for successive periods of the same length (each such period and each renewal period being a “Subscription Period”) unless you give us notice or we give you notice (through the Admin Interface or in writing) of at least 35 days that you or we do not wish to continue with renewal.
13.3 Provided you do not have an active Plan (you can bring your active Plan to an end by opting not to renew it as described above), you or we may terminate the Agreement by giving the other written notice or requesting or notifying account closure through the Admin Interface.
13.4 Notwithstanding anything else contained in the Agreement, we may terminate (or, at our option, suspend) the Agreement or part thereof:
13.4.1 immediately on giving notice in writing to you if you fail to pay any sum due under the Agreement (other than as a consequence of default on our part) and such sum remains unpaid for 14 days after written notice from us requiring such sum to be paid;
13.4.2 immediately on giving notice in writing to you if you are in material breach of any term of the Agreement (other than any failure by you to make any payment hereunder, in which event the provisions of Clause 13.4.1 shall apply) and, in the case of a breach capable of being remedied, have failed to remedy it within 30 days of receiving notice requiring you to do so.
13.5 No refund of Fees is due if you downgrade or cancel a Plan or Bespoke Consultancy or otherwise terminate the Agreement for convenience. On termination (other than for our material breach) we may invoice you for and you shall pay any unpaid Fees, including for any unused part of a Subscription Period or Bespoke Consultancy even if not yet delivered. If we cancel without cause (which we may do on 90 days’ written notice), we will refund any prepaid unused Fees on a pro-rata basis as at the effective date of cancellation.
13.6 Notwithstanding the above, we may suspend access to any part of the Platform and/or the Services immediately without notice if: (a) you are in breach of this Agreement; (b) your use of the Platform, Outputs or Services has or is likely to have an adverse impact on us, our clients, or any other third party (which includes, without limitation, where your use is inconsistent with the terms or policies of any Distribution Channels, hosts, payment processors or other third-party suppliers). Suspension in accordance with the foregoing shall not relieve you of any of your liabilities or obligations under this Agreement. We may remove Apps or Client Content or End User Data from the Platform where, in our sole discretion, we believe it may adversely impact us, our clients or any third party, or cause offence or be contrary to any law or regulation or contractual obligation, policy, or right of any third party (for example, we may remove content to comply with the terms of third party social networks, Distribution Channels, hosts, payment processors, other third-party suppliers or similar).
13.7 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on giving written notice to the other if:
13.7.1 the other party commits a material or persistent breach of any of its obligations under the Agreement and (in the case of a breach capable of being remedied) does not remedy such breach within 30 days of receiving from the other party written notice of the breach and a request to remedy the breach; or
13.7.2 the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
13.7.3 the other party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party; or
13.7.4 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 13.7.2 to 13.7.3 (inclusive).
13.8 Any termination of the Agreement howsoever occasioned shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
13.9 Following termination or expiry of this Agreement we may but shall not be obliged to retain all Client Content and End User Data. If you want us to delete your Client Content from our servers at any time, we shall within 30 days of your written notice. Subject to applicable fees, if any, and applicable law, and if we retain it, you may request a copy of certain End User Data relating to End Users of your App up to 30 days following termination or expiry of this Agreement to the extent we are a processor of personal data in End User Data on your behalf. You are responsible for keeping your own master copy of your Client Content.
13.10 Where we suspend or restrict access to the Platform or the Services, remove any App or Client Content, or terminate this Agreement, we will provide you with a statement of reasons. For suspensions, restrictions and content removals, the statement will be provided prior to or at the time the measure takes effect. For terminations, the statement will be provided at least 30 days before the termination takes effect, save that this 30-day notice period will not apply where (a) we are subject to a legal or regulatory obligation that does not permit us to respect that notice period, (b) we exercise a right of termination under an imperative reason under applicable law, or (c) you have repeatedly infringed these Terms of Use. We are not required to provide a statement of reasons where we are subject to a legal or regulatory obligation not to do so or you have repeatedly breached those Terms of Use.
14.1 Provided we have complied with the provisions of clause 14.3, we shall not be in breach of the Agreement nor liable or responsible for any failure to perform, or delay in the performance of, any of our obligations under the Agreement that is caused by events outside our reasonable control (“Force Majeure Event”).
14.2 Our performance under the Agreement is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period.
14.3 We will use our reasonable commercial endeavours to mitigate the effect of any Force Majeure Event and to carry out our obligations under the Agreement in any way that is reasonably practicable despite the Force Majeure Event and to resume the performance of our obligations as soon as reasonably possible.
15.1 As described below, we may revise and amend these Terms of Use from time to time to reflect changes in, but not limited to, market conditions affecting our business, changes in technology, changes in payment methods, changes in the options available in relation to the Services, changes in relevant laws and regulatory requirements, changes in our capabilities and changes in what we are able to obtain from our third party licensors, contractors and other suppliers.
15.2 We may amend these Terms of Use (and our Agreement with you) from time to time but only to the extent reasonably necessary to comply with any requirement under or change of applicable law or any regulatory requirements affecting rights and/or obligations arising from or connected with the Agreement, and after giving to you as much advance written notice as reasonably possible of such amendment and the date upon which it is to be effective. If such amendment materially prejudices your interests under the Agreement, you may notify us that you wish to terminate the Agreement, and such termination shall be effective on the date upon which such amendment would otherwise be effective between you and us, unless we notify you before that date that such amendment shall not be effective between you and us.
15.3 From time to time we may apply upgrades to the Platform, which may, subject to Clause 15.4 if they necessitate a change to these Terms of Use, result in changes to the appearance and/or functionality of the Platform.
15.4 We may, in our discretion, need to discontinue some features and functionality or make changes to these Terms of Use (which will in turn change our Agreement) from time to time. If we do so, we will give you at least 15 days’ notice, and you will have the right to terminate this Agreement before the end of the notice period. Following termination pursuant to the foregoing, we will refund to you (to the extent you have already paid it to us), on a pro-rata basis for the date your App ends, the amount of unused Plan Fee remaining. If you do not terminate, your placing of an Order, provision of new Client Content, or continued use of the Services, constitutes your acceptance of any such change following expiry of the notice period.
16.1 You may not assign or sub-contract the Agreement or any rights and obligations thereunder without our prior written consent (which is deemed given for the purposes of clause 2.2 where we accept new billing information). We may assign the Agreement to our Affiliates.
16.2 Notices
16.2.1 References to notification by us in these Terms of Use include where we make information available to you through the Services or associated documentation. Where these Terms of Use indicate information is available through the Admin Interface, we may alternatively make that information available to you separately in writing via email or otherwise. Subject to the foregoing, any notice under the Agreement must be in writing and must be delivered by email to the email address notified by a party for such purposes or to such other email address as may have been notified by a party for such purposes.
16.2.2 A notice sent by email will be deemed to have been received when sent (or, if despatch is not in Business Hours, at 9am on the first Business Day following despatch).
16.2.3 We may offer access to chat or other interactive functionality through the Platform which is powered by AI (including, without limitation, such interfaces powered by large language and other models). You acknowledge and agree that: (a) output from AI shall not be binding on us and we give no warranty in respect of such output; (b) you shall not rely on the output from any such AI functionality and shall ensure you verify any such output before using it to inform your decisions.
16.3 No failure by either party to enforce any rights under the Agreement shall constitute a waiver of such right then or in the future. Any waiver must be in writing and signed by an authorised representative of the waiving party.
16.4 If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to give effect to the economic intent of the parties, and the remainder of the Agreement will continue in full force and effect.
16.5 Other than our Affiliates, a person who is not a party to the Agreement has no right or benefit under or to enforce the Agreement whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
16.6 The Agreement constitutes the sole and entire understanding of the parties in relation to its subject matter and supersedes all previous agreements, representations and arrangements between the parties (either oral or written) with regard to that subject matter. The parties confirm that they have not entered into the Agreement on the basis of any representations that are not expressly incorporated in the Agreement. Each party irrevocably and unconditionally waives any rights it may have to claim damages and/or to rescind the Agreement for any misrepresentation in relation to its subject matter, whether or not contained in the Agreement, or for breach of warranty not contained in the Agreement, unless such misrepresentation or warranty was made fraudulently. Save where the Agreement provides we may vary its terms, the Agreement may only be amended or supplemented in writing and signed by an authorised representative of both parties.
16.7 We are an independent contractor and neither we nor any of our personnel assigned to provide Services to you under this Agreement will be, or be deemed to be for any purpose, an employee or agent of yours, save to the extent that we may process payment for you as described in these Terms of Use and, for the avoidance of doubt, you acknowledge and agree that any agreement for the supply of Client Content to End Users is between you and those End Users directly.
16.8 We may use subcontractors to provide the Services provided that we remain solely responsible for the Services of such subcontractors.
17.1 The Agreement is governed by and construed according to English law and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales in relation to any dispute arising therefrom, including both contractual and non-contractual disputes.
1. Terms defined in our Terms of Use have the same meaning in this Data Processing Addendum. Both parties shall comply with Data Protection Laws.
2. We process personal data:
(a) as an independent controller, in respect of personal data we process for our own purposes to operate the Platform as described in our Privacy Policy; and
(b) as a processor on your behalf to deliver Services as set out in the table in Part 3.
3. Where we process the same personal data both as a controller for our own purposes, and as a processor on your behalf, details of this are set out in the table in Part 3 and the data in the final column is Service Data for the purposes of our Terms of Use.
4. We may allow you to integrate your third-party systems (such as CRM systems, or single-sign-on providers) with our Platform, to enable you to facilitate logins by End Users and/or to send or receive data described in Part 3 to or from the Platform. Subject to clause 8 in our Terms of Use, we shall have no liability to you for any interruptions, errors, unauthorised access, or loss or corruption of data arising from your use thereof.
5. To access some of the personal or statistical data we process or generate for you as a processor through a dashboard, or to use wider CSV data export functionality, you may be required to purchase additional features. This will be explained in the Admin Interface and is without prejudice to our obligations as set out in this Data Processing Addendum.
6. Where the functionality of the Platform changes (such as through new features) we may need to update the terms of this Data Processing Addendum. If we notify you of changes to this Data Processing Addendum and you subsequently place an Order or enable or make use of a new feature, by doing so you agree to the terms of the updated Data Processing Addendum which replace the previous version.
7. The obligations in this Part 2 apply only to the extent we process personal data on your behalf as a processor. Details of the nature and purpose of this processing, and the type of personal data and categories of data subjects involved, are set out in Part 3. Your rights and obligations in respect of that processing are set out in this Data Processing Addendum.
8. You shall inform data subjects about the processing of their personal data, provide them with a prominent link to your privacy policy, and all information required by Data Protection Laws, and secure and maintain all consents, permissions and licences required for us to lawfully: (i) transfer personal data to or from us, and (ii) process personal data in accordance with Data Protection Laws and your instructions. We may offer functionality which helps you comply with these obligations, but you remain responsible for compliance.
9. You instruct us to process personal data as described in Part 3, as reasonably necessary for the provision of the Services in accordance with the Agreement, and as otherwise specified through the Platform. In respect of that processing, we shall:
9.1 only process personal data on your documented instructions, including in respect of international transfers to a country outside the United Kingdom or EEA, unless processing is required by applicable laws in which case we shall, to the extent permitted by applicable law, inform you of that legal requirement prior to the relevant processing;
9.2 inform you if, in our opinion, an instruction infringes Data Protection Laws (in which case we may suspend the processing pending lawful instructions);
9.3 take reasonable steps to ensure the reliability of staff who have access to personal data, ensuring they are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;
9.4 taking into account the nature, scope, context and purpose of the processing, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR, to protect against unauthorised or unlawful processing of personal data, or any accidental loss, destruction or damage of such data;
9.5 taking into account the nature of the processing and the information available to us, assist you to a reasonable extent: (i) by implementing appropriate technical and organisational measures for the fulfilment of your obligations to respond to requests to exercise data subject rights under the Data Protection Laws; and (ii) in ensuring compliance with your obligations pursuant to Articles 32 to 36 of GDPR;
9.6 to the extent permitted by law, notify you without undue delay on becoming aware of a personal data breach (as defined in the Data Protection Laws);
9.7 at your election, delete or return to you all personal data after the end of the provision of the relevant Services, and delete existing copies of that personal data, unless applicable law requires us to retain some or all of it, in which case we shall protect that personal data from further processing except to the extent required by that law.
10 We shall make available to you information reasonably necessary to demonstrate our compliance with this Data Processing Addendum, and shall, on reasonable written notice, allow for and contribute to audits including inspections (at your cost), conducted by you or an auditor designated by you, of our processing of personal data.
11 You hereby grant us a general authorisation to us to engage sub-processors, including those set out in our Sub-Processor List. We shall notify you of intended changes concerning the addition or replacement of sub-processors (which may be by updating our Sub-Processor List or otherwise in writing) and you may object to such change on reasonable grounds relating to data protection within 14 days of our notice, in which case we shall work with you in good faith to find a resolution. We shall ensure the arrangement between us and any sub-processor is governed by a written agreement which imposes, to the extent applicable to the sub-processor's role, terms which offer an equivalent level of protection for personal data as those set out in this Data Processing Addendum and which meet the requirements of Article 28(3) GDPR. We shall remain responsible to you for the performance of any sub-processor's obligations in respect of personal data.
12 You shall indemnify us and keep us indemnified against all costs, damages, expenses (including reasonable legal expenses) and other liabilities incurred by us arising out of: (a) your breach of this Data Processing Addendum or applicable law (including Data Protection Laws); or (b) our processing of personal data on your behalf in accordance with this Data Processing Addendum.
13 As between you and us, and subject to clause 8 of our Terms of Use, we shall not be liable in respect of any claim brought by a data subject arising from any action or omission to the extent that such action or omission resulted from your instructions.
