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Introduction

MBASO LTD (trading as SUPAPASS) has developed a set of Software as a Service (SaaS) applications (“Platform”) which enable brands to market and sell their content over the Internet to their customers (“Purpose”) and may offer certain consultancy services and make certain parts of the Platform available for the Purpose (“Service”).

We may prepare a front-end app and/or website for you (the “App” which forms part of the Services) to allow your End Users to access your Client Content (capitalised terms are defined below).

The Service is built upon existing and future software, most of which we “white-label” (meaning the software and your App are already developed, then skinned with your logo and colour) to let you take advantage of our technology and expertise without having to build functionality yourself. As such, features, frameworks, layouts, and other aspects of the App functionality are fixed and generally the same across all of our clients.  As a result, we’re able to save you costs.

In addition, we can sometimes offer certain Feature Project software development services on request, and subject to any applicable fees.  If you would like further information please let us know.

If there are new standard features you’d like to suggest we incorporate, we invite you to let us know, so we can consider these in our roadmap planning and aim to prioritise improvements that are more important to our users.  Please note we are under no obligation to create such features, and we will prioritise features according to our strategic objectives in our sole discretion, which aim to take popularity of a feature request into account alongside other factors for consideration. While we may discuss features with you from time to time, only those features agreed as part of your Order are included within the scope of your Client SaaS Fee. These terms (together with the documents and materials referred to in them) set out the terms and conditions (“Terms of Use”) upon which you may use this Service, the Platform and any Outputs produced as a result.

This Platform and its associated Service are provided by MBASO LTD, a company registered in England and Wales under number 07786534 and whose registered office is International House, 24 Holborn Viaduct, City Of London, London, EC1A 2BN (“SupaPass”, “we”, “us”, or “our”).

Please read these Terms of Use carefully together with all documents and materials mentioned in them before placing an Order for any Services relating to the Platform. Each Order once accepted by us in writing in accordance with clause 4, or by your continued use of the Platform, together with the Terms of Use forms a legally binding agreement between us (the “Agreement”).

1. Definitions and interpretation

1.1  The headings in these Terms of Use do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of these Terms of Use.

1.2 The SupaPass Manifesto shall not be legally binding and is for information purposes only.

1.3  Unless the context otherwise so requires:

  1.3.1  references to statutory provisions include those statutory provisions as amended or re-enacted; and  

  1.3.2  references to any gender include all genders.

Words in the singular include the plural and in the plural include the singular.

  1.3.3  The word, “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.

1.4  These Terms of Use use some capitalised terms which have special meanings. These capitalised terms and their respective meanings are set out in this clause.

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;

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;

App means the application or website we create for you in the course of providing Services which enables your End Users to access the Platform and your Client Content.

Client means you (“you/your/yours”), a customer receiving Services, as defined in the Order;

Commencement Date has the meaning given to it in the Order;

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);

Client Content means all materials and data supplied, input or uploaded by or provided under licence (Clause 9.1, 10.4, 4.4) by you;

Client SaaS Fee means the relevant fee(s) (plus applicable taxes) payable to us by you, a Client, to access one or more of the Services;

End User means those end users who access and use the App, Services or Outputs via the Platform in accordance with these Terms of Use;

End User Data means information provided by End Users in connection with setting up and managing their account on the Platform, including, without limitation, their username, subscriptions, contact details, language and other preferences and settings (whether supplied through the Platform generally, or through your App);

Fees includes Client SaaS Fees, together with On-Boarding fees, consultancy and development fees (if any);

Indemnified Service: the Service, excluding any third party software or materials or any Client Content or End User Data;

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;

Outputs means materials created, supplied or made available to you as part of the Services, including, without limitation, the App, but excluding Client Content;

Order means your request for the Platform or Services, which is an offer to us to purchase any one or more of the Services in exchange for payment by you of the Client SaaS Fee, by submitting a request for Services and “Ordered” shall be construed accordingly;

Platform and Purpose have the meanings given in the introduction.

Service(s) means any one or more of the online services described in the Order and available through the Platform and such other services as we may agree to provide to you in connection with the Platform or an App;

Service Data means metadata and other data derived from use of the Service, but excluding Client Data or personal data;

Set-Up Instructions means the instructions for setting up the Services as set out in the Order or otherwise notified by us to you in writing or on our website;

Specification means the functional and technical specification in respect of the Service from time to time available upon request;

Subscription Period has the meaning ascribed to it in clause 12.1;

Term means the duration the Agreement is in force in accordance with its terms;

Tier means the scope of your desired Service and Client SaaS Fee as set out in further detail on our Tiers and Fees page, as amended from time to time;

Tiers and Fees page means details of the Tiers and Client SaaS Fees described on our website or otherwise notified to you from time to time, which are payable in respect of the Services as set out in your Order and as amended from time to time in accordance with these Terms of Use;

Usage has the meaning set out in the Tiers and Fees Page, and shall include fees for storage and bandwidth.

2. Ordering, Configuration and Access to the Services

2.1  When you place an Order you become a Client and enter into these Terms of Use. Except for End Users accessing your App with their own account for the Purpose, you may not authorise any third party to access and/or use any of the Services on your behalf, except where we have given our prior written consent and we have provided a mechanism for Third Parties to access any of the Services on your behalf. You shall be responsible for ensuring that any login details used by you to access the Platform or Services is kept secure and confidential and you shall be responsible for all use of the Platform or Services using those login details.

2.2  Before we provide access to the Platform, you agree to follow the on-boarding and registration process (On-Boarding) as detailed in the Set-Up Instructions and otherwise instructed by our accounts team (and which shall be conditional for our granting access to the Platform, failing which we may terminate this Agreement without liability), which may include:

  2.2.1  provision by you of appropriate technical, marketing, branding and user details, visual assets and specifications and

  2.2.2  setting up Organisation accounts with app stores which will be used to distribute your App, setting up an account with Stripe which will be used to take web payments from your End Users, and providing us with all access, credentials, cooperation and information as we may request in order to support you in submitting, deploying and managing the App; and

  2.2.3  procuring such access, personnel, cooperation and information as are reasonably required by us to integrate and/or configure the Platform (including support with the review process overseen by any app store operator) as necessary to supply you with the Services, and

  2.2.4  payment of such consultancy and other fees and expenses (if any) as may be agreed between us to be due in advance, whether as part of the Order or otherwise.

2.3  You may start using the Services as soon as we give you access to them or only once initial fees have been received by us (if applicable). Time shall be material but not of the essence with respect to our supply of the Services.

2.4  Other than as expressly stated otherwise in these Terms of Use, 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 in writing from time to time.  Subject to those minimum technical requirements, the Services and 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.

2.5  To the extent that the Services include marketing, consultancy or development of bespoke products or special Feature Project work to help you integrate, and/or configure, customise and use the Platform:

  2.5.1  the scope of such Services, including the Services to be performed, any product or work intended  to result from those Services and to be supplied to you, applicable fees, and timescales shall be set out in the applicable Order or otherwise agreed between us in writing;

  2.5.2  you shall provide us with such access, materials, personnel, cooperation and information as are reasonably required by us to perform the Services;

  2.5.3  we shall not be liable for any delay or default in performance arising from your failure to comply with clause 2.5.2 and no such delay will relieve or suspend your obligation to pay us under this Agreement and we shall have the right to charge you for any and all costs and expenses incurred by us arising from any delay caused by you in accordance with the Tiers and Fees Page and/or the rates and charges set out in the Order or otherwise agreed between us in writing;

2.5.4  we shall invoice you for such Services either in advance, or (at our option) once such Services or part thereof are completed, or otherwise as agreed in the Order and you shall pay our invoices in accordance with clause 5;

2.5.5  all such Services and Outputs arising therefrom, or parts thereof, shall be deemed accepted on the earlier of: (i) the date upon which they are completed in all material respects in accordance with the Order; (ii) the date upon which you tell us they are accepted; (iii) the date upon which you make use of them in software made available by you or on your behalf to any End User; or (iv) within 5 Business Days of our supplying them;

  2.5.6  for the avoidance of doubt you shall not unreasonably withhold, condition, or delay acceptance of any such Services or Outputs.

3. Formation of Contract

3.1 All Orders are subject to:

  3.1.1  you paying applicable fees (if any) in advance (where any such fees are payable in advance, including any On-Boarding fee set out in the Order) and our receiving that fee in cleared funds; and

  3.1.2  acceptance by us by notifying you in writing that we have accepted your Order or by granting you access to the platform; whereupon a legally binding agreement will be formed between you and us.


3.2  Where the terms of an Order and these Terms of Use conflict, these Terms of Use shall take precedence save in respect of provisions labelled as “Special Conditions” in the Order.

4.  Apps and Revenue Sharing

4.1  The Services may include (subject to the terms of the Order) our developing a mobile application for submission to an app store operator (such as Google Play and/or Apple’s App Store) or a website or web-based application.  The product of any such development shall be deemed accepted provided that it complies in all material respects with the Order and any applicable Specification agreed between us.  We shall provide you with such information and cooperation as may reasonably be required for the purposes of submitting such a mobile application to Apple or Google play app store operators through your own account with those operators, and we may do this on your behalf, but we shall not be responsible for its acceptance or rejection.  You will provide us with full access to your developer or other accounts with app stores and Stripe and all such other assistance as we reasonably require to manage submission, deployment and operation of Apps on your behalf.  If you need help setting up an Organisation developer account please let us know so we might provide information about how we can help (please note such additional Services may be charged at our then-current rates).

4.2  Where you receive payments from your End Users directly:

  4.2.1  you shall pay us 0% SupaPass Revenue Share (or such other percentage as may be specified in the Order) of Net Revenue (as defined below) which has actually been received by you in full and final consideration of all rights granted by you to us under this Agreement.

  4.2.2  “Gross Revenue” means all gross income arising for you directly from and identifiably attributable to your App(s).  “Deductions” means all of the following paid or payable by you directly in respect of the Gross Revenue: applicable taxes and duties, third party platform costs (including without limitation Apple or Google Play App Store fees), all relevant returns, or chargebacks, transaction fees, server costs and costs incurred and borne by us in relation to processing, promoting and/or exploiting your Client Content under this Agreement. “Net Revenue” means the Gross Revenue less the Deductions. You shall reimburse us for any Deductions borne by us, if any.

  4.2.3  Within 30 days of the end of each Accounting Period, we will invoice, and you shall pay to us, or we may deduct from sums we owe to you, an amount equal to the SupaPass Revenue Share.

4.3 Where we receive payments from your End Users on your behalf:

  4.3.1  subject to your payment of the Fees (which we may recoup from the Net Revenue) we shall pay you 100% (or such other percentage as may be specified in the Order) of Net Revenue (as defined below) which has actually been received by us in full and final consideration of all rights granted by you to us under this Agreement (“Client Revenue Share”). 

  4.3.2  “Gross Revenue” means all gross income arising for you directly from and identifiably attributable to your App(s).  “Deductions” means all of the following paid or payable by us directly, or on your behalf in respect of the Gross Revenue: applicable taxes and duties, third party platform costs (including without limitation Apple or Google Play App Store fees), all relevant returns, or chargebacks, transaction fees, server costs and costs incurred and borne by us in relation to processing, promoting and/or exploiting your Client Content under this Agreement. “Net Revenue” means the Gross Revenue less the Deductions.   

  4.3.3  We shall account to you for your Client Revenue Share on a quarterly basis (each an “Accounting Period”, ending on the last day of the month of a 3 month period – the first quarter commencing the month when your Apps start receiving End Users) within thirty (30) days of receiving it (including applicable subscription funds from Apple and Google Play App Stores for the period (for example Apple and Google Play App Stores typically pay 45 days after the period, in which case the report will be within 75 days of the end of the period)). 

  4.3.4  Payment of your Revenue Share shall be inclusive of applicable VAT or equivalent tax (if any) and subject to deduction of any applicable withholding tax. If your total aggregate Revenue Share due in any Accounting Period is less than £100 it shall carry forward and be paid in the next Accounting Period (and any subsequent Accounting Period(s), if applicable).

4.4 For the avoidance of doubt, we shall not be responsible for any payments to third parties in connection with any of the rights granted by you hereunder in and to Client Content and you shall be solely responsible for the payment of any royalties, fees or payments due to any party for the exploitation of any of the rights granted to us hereunder. To the extent that any such payments are demanded from us you shall indemnify us from and in respect of any such demand.  We shall be entitled to withhold and deduct any sums due to us in accordance with the foregoing indemnity or otherwise from any amounts payable by us to you.

5. Price and Payment

5.1  The Fees for the Services will be calculated in accordance with the Usage of the Services as set out in the Tiers and Fees page and the development and consultancy fees set out in the Order or otherwise agreed between the parties, if any.

5.2  Where Fees depend on your Usage, if your Usage exceeds what’s included within your current Tier you will charged a Usage Bolt-On Fee for the new Usage tier, in accordance with the Tiers and Fees page (for the then-current payment period and subsequent payment periods) and we will charge you the difference in the applicable Fees via your usual billing method, or may limit access by you or End Users unless or until you have paid those Fees.

5.3  We may review and amend fees payable in respect of the Services by notifying you. We will give you at least 30 days’ notice. Should you reject such increase in writing before the end of the aforementioned 30 day period, we shall have the option, by notice to you in writing, to either terminate the Agreement or to disapply the increase in respect of the Agreement, otherwise the increase shall be effective immediately following the expiry of that 30 day period. Save in respect of additional charges based on Usage in accordance with clause 5.2, no fee change will be implemented in respect of any period for which we have received Client SaaS Fees paid in advance. 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.

5.4  On-Boarding fees (where applicable) are payable in full on or before our acceptance of your Order. Fees for consultancy and/or development shall be payable in accordance with the Order. You will be charged your Client SaaS Fee for the Services from the earlier of the date we provide Services or the Commencement Date set out in the Order unless the Services have not been made available to you by that date wholly as a result of our breach of this Agreement in which case you may either: (i) agree to our proposal for a reasonable extension of the Commencement Date; or (ii) terminate this Agreement without further liability to us save for those sums validly invoiced up to the effective date of termination in respect of On-Boarding; and this shall be your exclusive remedy in respect of such delay. You may be liable to pay Client SaaS Fees in respect of Services which are not available if such non-availability arises from your delay or default, including, without limitation, your failure to comply with or support the On-Boarding (or a failure of any app to be approved by any applicable app store operator other than as a result of our breach of this Agreement).

5.5  Payment of Client SaaS Fees must be made in accordance with the Tiers and Fees page by such method as we shall require from time to time. Where your Client SaaS Fee is dependent upon a selected Tier or your Usage, it will be based on either your selected Tier or on your Usage (whichever is the higher).

5.6  All fees are payable either within 30 days of the date of invoice or by calendar month (or other period agreed by us in the Order) in advance by direct debit, credit or other payment card (in which case you authorise us to charge your bank or card for the sums referred to in this clause, 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), or such other payment mechanism as is agreed in your Order. 

5.7  Failure to pay fees when due shall be a material breach of these Terms of Use which entitles us to suspend or terminate (pursuant to Clause 12.3.1 of these Terms of Use). This, in turn, will affect your access to the Services. Fees remain chargeable at our standard rates during the suspension. If we terminate these Terms of Use for your material breach, we will require you to pay, without delay, all fees and costs accruing before the termination date, all unpaid Client SaaS Fees and any other amounts you owe us under these Terms of Use.

5.8  If you fail to pay any amount due under these Terms of Use, 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. Such interest shall accrue on a daily basis and be compounded quarterly.

5.9  All overcharges or billing disputes must be reported within 90 days of date of invoice. Failure to do so will mean you have accepted our invoice.

5.10  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.  You agree that we may request, and require before supplying the Service, certain information from you or End Users in order to comply with our regulatory obligations or our obligations to those third parties and that we shall not be responsible for any delay or failure in performance arising from any delay or failure of you or End Users 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 third party payment processor.

6.  Warranties

6.1  You warrant, represent and undertake you shall:

  6.1.1  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, 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);

  6.1.2  not use the Service for any unlawful purposes and/or introduce any offensive, defamatory, illegal, infringing and/or obscene material via the Service;

  6.1.3  not use the Service for any purpose other than the Purpose;

  6.1.4  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

  6.1.5  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.

6.2  Subject to the remaining provisions in this clause, we warrant that:

6.2.1  during the Term we will provide the Services with reasonable due care and skill in accordance with these Terms of Use, and in compliance with such English law and regulation as is applicable to our supply of the Services;

6.2.2  subject to completion of the On-Boarding, the Services and the Platform will perform substantially in accordance with the Specification;

6.2.3  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 these Terms of Use);

6.2.4  we have the authority and right to license all rights to and in the Service as set out in these Terms of Use.

6.3  The warranties in Clause 6.2 do not cover or apply to failures or shortcomings in the provision of the Services caused by, arising out of or due to:

  6.3.1  your or any End User’s connection to the Internet;

  6.3.2  patents of which we are not aware; or

  6.3.3  accident, abuse or use of the Services in a manner inconsistent with these Terms of Use or resulting from events beyond our reasonable control.

6.4  Subject to Clause 6.3, if the Service does not meet the warranties in Clause 6.2, we will, at our sole option, either:

  6.4.1  modify, improve or update the Services to make them conform; or

  6.4.2  obtain such clearances, licences and consents at our cost as may be necessary to enable you to use the Services; or

  6.4.3  return Client SaaS 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

  6.4.4  this shall be your exclusive remedy for any breach of such warranties under this Agreement.

6.5  We shall have no liability under this Agreement for any breach of this Agreement, if any claim relates to:

  6.5.1  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

  6.5.2  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 Client Content or End User Data; or

  6.5.3  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

  6.5.4  where a claim for infringement arises directly in respect of a feature which was specified by you or on your behalf.

6.6  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-do-date virus prevention precautions and measures when accessing the Service. You agree to communicate the aforementioned recommendations to your End Users.

6.7  We do not warrant that the Services will be uninterrupted, error-free or entirely secure.

 7.  Liability and Insurance

7.1  This clause 7 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:

  7.1.1  any breach of the Agreement; and

  7.1.2  any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms of Use.

7.2  Except as expressly and specifically provided in these Terms of Use, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.

7.3  Nothing in this Agreement excludes our liability:

  7.3.1  for death or personal injury caused by our negligence; or

  7.3.2  for fraud or fraudulent misrepresentation; or

  7.3.3  any other liability which cannot be excluded by law.

7.4  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.

7.5  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:

  7.5.1  arose from the use of the Services for purposes other than for the Purpose;

  7.5.2 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.

7.6 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).

7.7 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 amount 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.

7.8  We will not be liable under this Agreement for:

  7.8.1  use not consistent with our applicable description of the Service in question; or

  7.8.2  indirect, special or consequential losses or loss of profits, revenue, goodwill, reputation, wasted management time or anticipated savings.

7.9  In the event of any breach of the warranties we give in Clause 6.2 your exclusive remedy and our only obligation and liability to you shall be as set out in Clause 6.4.

7.10  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.

7.11  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 6.3 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.

8. Confidentiality and Audit

8.1 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:

  8.1.1  is or becomes publicly known other than through any act or omission of the receiving party; or

  8.1.2  was in the other party’s lawful possession before the disclosure without obligation of confidentiality; or

  8.1.3  is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

  8.1.4  is independently developed by the receiving party without reference to the Confidential Information and which independent development can be shown by written evidence; or

  8.1.5  is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

8.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, 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.

8.3  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 these Terms of Use or used for any purpose other than the performance of its obligations hereunder, 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.

8.4  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.

8.5  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.

8.6  We may, during the Term and for at least three (3) years thereafter maintain records of all material information relating to this Agreement (“Records”).

8.7  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.

8.8  Clauses 8.1 - 8.7 shall survive termination of these Terms of Use, however arising, for a period of five (5) years.

9. Client content, Data Protection and Information Security

9.1  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 are under no obligation to review, edit, clip, moderate or otherwise consider your Client Content or any End User Data).

9.2  You and we shall comply with our respective obligations in respect of End User Data and the processing of personal data, as set out in Schedule 1.

9.3  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.  Intellectual Property Rights

10.1  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 these Terms of Use, 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.

10.2  The Service is provided subject to the following:

  10.2.1  you undertake you shall not (and shall not permit any End User or third party to) copy, adapt, reverse engineer, decompile, disassemble, modify, adapt 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.

  10.2.2  payment of the applicable On-Boarding, Client SaaS Fee and other Fees.

10.3  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 herein, these Terms of Use do 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 losses, claims, damages and expenses to your attention.

10.4  You, the relevant third party licensor or, where applicable, End Users, own all intellectual property rights in and to the Client Content. Except as expressly stated herein, these Terms of Use do not grant us any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (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 (or the applicable End User). 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 provide services to our other clients, subject always to the data protection and confidentiality provisions set out in these Terms of Use.

10.5  You shall include in any App or communication through the Service an acknowledgement in the form: “powered by SUPAPASS” (or in such other form as shall be mutually agreed between us from time to time during the Term) unless otherwise specified in the Order.

11.  Indemnity

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 these Terms of Use; (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).

 12.  Term and Termination

12.1  The Agreement will come into effect on the date of the Order, subject to clause 4.1, and shall remain in effect for the longer of the initial term or billing period specified in the Order (or, for one calendar month where no such period is specified in the Order) (“Initial Term”) and shall automatically renew for a period equal to the Initial Term upon the expiry of any Subscription Period (where each of the Initial Period and any such renewal period shall constitute a “Subscription Period”) at the fee then listed on the Tiers and Fees page at the Tier that is applicable at the time of renewal (or subject to such other fees as are agreed in the Order in respect of renewal periods) unless and until terminated in accordance with its terms.

12.2  Unless agreed otherwise in writing between you and us (for example where an alternative “Notice Period” is agreed in the Order), the Agreement may be terminated for convenience by either party giving notice at least 35 days prior to the expiry of any Subscription Period, provided that such notice shall not expire earlier than the expiry of the then current Subscription Period and, unless we approve such termination in writing, any such termination by you shall not be effective in respect of any consultancy or development Services until such Services have been completed, accepted and all applicable Fees received by us.

12.3  Notwithstanding anything else contained in these Terms of Use, we may terminate (or, at our option, suspend) the Agreement or part thereof:

  12.3.1  immediately on giving notice in writing to you if you fail to pay any sum due under the Agreement (otherwise than as a consequence of any default on our part) and such sum remains unpaid for 14 days after written notice from us requiring such sum to be paid;

  12.3.2  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 12.3.1 shall apply) and, in the case of a breach capable of being remedied, shall have failed to have remedied, within 30 days of receiving notice requiring you to do so.

12.4  If you choose to cancel pursuant to the terms of Clause 12.2 you are not entitled to a refund in respect of the remainder of any period in respect of which your Client SaaS Fee or other fee was paid in advance (if applicable). If we cancel without cause (which we may do on 90 days’ written notice), then we will refund to you (to the extent you have already paid it to us), on a pro-rata basis, the amount of unused Client SaaS Fee remaining right before the cancellation.

12.5  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. 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 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 or right of any third party (for example, we may remove content to comply with the terms of third party social networks or similar).

12.6  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:

  12.6.1  the other party commits a material or persistent breach of any of its obligations under these Terms of Use 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

  12.6.2  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

12.6.3  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

  12.6.4  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 12.6.1 to 12.6.3 (inclusive).

  12.6.5  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. 

  12.6.6  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, 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.  You are responsible for keeping your own master copy of your Client Content.

13.  Force Majeure

13.1  Provided we have complied with the provisions of clause 13.3, 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”).

13.2  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.

13.3  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.

14.  Variations

14.1  Subject to clause 14.2, 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.

14.2  We may amend these Terms of Use 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 these Terms of Use, and after giving to you as much as 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 these Terms of Use, you may notify us that you wish to terminate these Terms of Use, and such termination shall be effective on the date upon which such amendment to these Terms of Use 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.

14.3  In addition, you acknowledge that from time to time during the Term we may apply upgrades to the Platform, and that such upgrades may, subject to Clause 14.4, result in changes to the appearance and/or functionality of the Platform.

14.4  We endeavour for upgrades to not disable, delete or significantly impair the existing functionality of the Platform.  However, we may, in our discretion, need to discontinue some features and functionality or make wider changes to these Terms of Use or our Agreement from time to time.  If we do so, we will give you at least 30 days’ notice, and you will have a right to request termination of this Agreement, and we will either accept that request or continue providing the feature.  Following acceptance of the termination request, then 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 Client SaaS Fee remaining.

14.5  Software Updates and New Functionality and Features:

  14.5.1  Software Updates to the Platform, defined as compatibility with new browsers, devices, and operating systems, shall be rolled out from time to time at our discretion and are included in the Service and shall not be subject to any additional charges.

  14.5.2  New functionality and feature upgrades may be rolled out from time to time at our discretion.  On occasion some of these features may automatically be applied to your Service by us and as such shall not be subject to any additional charges.

  14.5.3  Typically new functionality and products shall be offered for additional charges.  You shall be given the opportunity whether or not to add such new functionality or products to your Order and Client SaaS Fee.

15.  General

15.1  You may not assign or sub-contract the Agreement or any rights and obligations thereunder without our prior written consent. We may assign the Agreement to our Affiliates.

15.2  Notices

Except as set out in the Order:

  15.2.1  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.

  15.2.2  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).

15.3  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.

15.4  If for any reason a court of competent jurisdiction finds any provision of the Order or these Terms of Use, 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 these Terms of Use and the Order will continue in full force and effect.

15.5  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.

15.6  These Terms of Use, including the Schedules, and the Order constitute the sole and entire understanding of the parties in relation to the subject matter of the Agreement and supersede all previous agreements, representations and arrangements between the parties (either oral or written) with regard to the subject matter of the Agreement. The parties confirm that they have not entered into the Agreement on the basis of any representations that are not expressly incorporated in these Terms of Use or the Order. 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 the subject matter of the Agreement whether or not contained in these Terms of Use or the Order or for breach of warranty not contained in these Terms of Use or the Order unless such misrepresentation or warranty was made fraudulently. The Agreement may only be amended or supplemented in writing and signed by an authorised representative of both parties.

15.7  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.

15.8  We may use subcontractors to provide the Services provided that we remain solely responsible for the Services of such subcontractors.

15.9  Throughout the Term and for 6 months thereafter you shall not, and shall procure that those Affiliates, employees or officers of yours who have used the Service in the preceding 12 months shall not, directly or indirectly develop, contribute to, or have a financial interest in, a service, platform or business which competes with or is likely to compete with, the Platform.

16.  Governing Law and Jurisdiction

These Terms of Use are 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.

 

SCHEDULE 1 - DATA PROCESSING ADDENDUM

1. If we process personal data on your behalf in the course of supplying the Services, the parties’ record their intention that you shall be the data controller and we shall be a data processor.

2. Where we collect personal data from you or on your behalf, you shall clearly inform the data subjects to whom personal data relates of such collection, provide them with a prominent link to our privacy policy and secure and maintain all consents, permissions and licenses required for us to lawfully: (i) transfer End User Data to or from us, and (ii) process End User Data in accordance with our privacy policy as amended from time to time.

3. For the purpose of this addendum “Data Protection Laws” means UK Data Protection Laws and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any other directly applicable European Union regulation relating to privacy; and “UK Data Protection Laws” means any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.

4. You will comply with your obligations under Data Protection Laws and references in this addendum to “data processor”, “data controller”, “subprocessor”, “supervisory authority” and “personal data” shall have the meanings defined in the Data Protection Laws.

5. You instruct us to process personal data as reasonably necessary for the provision of the Services. In particular, you instruct us to process the following data:

The SupaPass Ethos

SupaPass was born out of a desire to enable creators to get paid a fair deal for the content they create. With that in mind, we’ve listed out some of our key principles below (though please refer to the terms of use).

  • Your Content - You own the rights to your content.
  • Your Audience - You get your audience’s email addresses.
  • Your Money - You keep 100% net revenue you generate; we charge a set fee for the tech.
  • Your App - You want to build your own brand, which is why we offer the tech to run your own website and apps for your subscription/content business, to brand as your own.

We trust and empower you to:

  • Only Use Content You’re Allowed To Use – You vouch that you have the right to use the content you upload to your site/app.
  • Follow The Law - We all have different opinions and beliefs. As a tech platform we don’t command the content you have on your channel as long as it is not illegal. We reserve the right to remove anything considered illegal in the territories we operate.
  • Embrace Responsibility - Your sites/apps and your end users are your responsibility.

6.  In relation to any End User Data processed in connection with the performance by us of the Services, to the extent we are a data processor, we shall:

6.1  only process End User Data on your documented instructions or as otherwise set out in this Agreement to deliver the Service, including in respect to transfers of End User Data to a country outside of the European Economic Area (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 of the End User Data;

6.2  take reasonable steps to ensure the reliability of staff who have access to End User Data, ensuring all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;

6.3 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 that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR in order to protect against unauthorised or unlawful processing of any End User Data, or any accidental loss, destruction or damage of such data;

6.4  taking into account the nature of the processing and the information available to us, we shall, to a reasonable extent, assist you: (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 in particular Chapter III of GDPR, as set out at clause 10 below, and (ii) in ensuring compliance with your obligations pursuant to Articles 32 to 36 of GDPR; 

6.5 (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) relating to the End User Data.

7. We shall make available to you information reasonably necessary to demonstrate compliance with the obligations laid down in this addendum, and allow for and contribute to audits (at your cost), conducted by you or an auditor designated by you. We will maintain a record of any processing of End User Data pursuant to Article 30(2) of GDPR. 

8. You hereby grant a general authorisation to us to engage subprocessors. We shall inform you of any intended changes concerning the addition or replacement of subprocessors. We shall ensure that the arrangement between us and subprocessors is governed by a written agreement, including, to the extent required by applicable Data Protection Laws: terms which offer an equivalent level of protection for End User Data as those set out in this addendum; and terms which meet the requirements of Article 28(3) of the GDPR. 

9. Taking into account the nature of the processing, we shall assist you by implementing appropriate and commercially reasonable technical and organisational measures for the fulfilment of your obligations to respond to requests to exercise data subject rights under the Data Protection Laws. 10.Our obligation pursuant to clause 6 above shall include assisting you (at your expense), upon your documented instruction, without undue delay to respond to a data subject’s request to exercise their rights: of access; of rectification; of erasure; of data portability; to object to processing; to restriction of processing; and not to be subject to automated individual decision making; in each case as set out at Chapter III of the GDPR. 

11. To the extent we are a data processor, we shall:

  11.1 notify you within 3 (three) business days if we or any subprocessor receives a request from a data subject under any Data Protection Law in respect of your End User Data unless the data subject has forbidden the notification in which case we shall inform the data subject that we are only able to respond to such request on your instruction; and

  11.2  ensure that neither us nor any subprocessor responds to that request except on your documented instructions or as required by applicable law. 

12. You shall indemnify us and keep us indemnified against all costs, damages, expenses (including reasonable legal expenses) incurred by us arising out of your or any of your users’ breach of this addendum, or applicable law (including Data Protection Laws). 

13.We shall not be liable for 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. 

Thank you for visiting SupaPass.  https://www.SupaPass.com