Most recently updated in March 2023.
Scaleup Finance Denmark ApS
CVR number 43 19 63 08
1. Introduction to the Standard Terms and Conditions
1.1 These Standard Terms and Conditions (“Standard Terms and Conditions”) are Scaleup Finance’s standard terms and conditions and apply to subscription agreements made between Scaleup Finance and the business (“Customer”) that enters into an agreement to subscribe for Scaleup Finance’s services.
1.2 Scaleup Finance’s services mean the products and services (“Services”) that appear from Scaleup Finance’s website (“Website”).
1.3 The Website contains an overview of subscription types and add-on modules. Some functions, services and add-on modules may have separate conditions, which must be accepted in addition to the Standard Terms and Conditions.
1.4 Scaleup Finance’s Services are only provided to businesses.
2. Formation of contract
2.1 A contract is formed when the Customer orders one or more Services (request for an offer), after which Scaleup Finance sends an offer to be signed by the Customer.
2.2 When the Customer has signed the document and Scaleup Finance has subsequently received the signed document, the agreement (“Agreement”) is considered to have been concluded.
3. Term and termination of the Agreement3.1 The Agreement applies from the date when it was concluded and for the period appearing from the offer from Scaleup Finance (“Period of Agreement”).
3.2. The Agreement is automatically renewed for a period similar to the Period of Agreement, unless it is validly terminated by Scaleup Finance or the Customer in accordance with the below clauses.
3.3 The Customer is entitled to cancel the Agreement within fourteen (14) days after the conclusion of the Agreement. Afterwards, the customer is committing to an initial period of six (6) months of service from Scaleup Finance. Following the six (6) months, the customer may terminate the contract with effect thirty (30) days following the end of the five (5) current months. This does not affect the statutory right of the customer to terminate the contract with immediate effect within fourteen (14) days from the commencement of the Agreement.
3.4 Following the initial six (6) months, the Customer can terminate the Agreement or downgrade the Services that form part of the Agreement by written notice to Scaleup Finance by email to email@example.com giving one (1) month’s written notice to the end of a month.
3.5 Scaleup Finance can terminate the Agreement by giving one (1) months’ written notice to the end of a month.
3.6 Subject to a fourteen (14) days’ remedy period, Scaleup Finance can terminate the Agreement with immediate effect without liability if (i) the Customer fails to comply with the provisions of the Agreement, or (ii) the Customer ceases to exist. Such termination notice must take place by written notice to the Customer, including the reason for the termination.
3.7 If the last day for termination pursuant to the above clauses falls on a public holiday, a Saturday, a Sunday, Constitution Day (5 June), 24 December or 31 December, the notice period expires on the following weekday.
4. Terms of payment4.1 The terms of payment are net plus eight (8) days from the date of invoice, unless otherwise specifically stated in the Agreement. Scaleup Finance reserves the rights to suspend the Agreement if any invoice is overdue.
4.2 Scaleup Finance uses Mastercard Supplier Payment Service which is an automated payment process making it easy and efficient for both parties to respectively invoice and pay for the Services. Invoicing will take place prior to the agreed Service Period.
4.3 If the Customer does not pay on time, a reminder will be sent after the invoice due date. In case of continued non-payment, a reminder will be sent ten (10) days later with a reminder fee of DKK 150.00. If payment has still not been received seven (7) days after the reminder, the Customer’s access to its Services will be blocked immediately. Access to the Services concerned will be re-established after receipt of payment, unless Scaleup Finance has chosen to terminate the Agreement pursuant to clause 3.6.
4.4 In case Customer wishes for a different payment service than described in clause 4.2, Scaleup Finance reserves the right to include a reasonable administrative handling fee for such request.
4.5 All prices are exclusive of VAT.
5. Licensing terms5.1 The Customer obtains a non-exclusive, subscription-based access to use Scaleup Finance’s Services as chosen in the Agreement.
5.2 The Agreement gives the Customer the possibility of access to the chosen Services for the specific number of users stated in the agreement. If the Customer options for additional capacity, functionality or add-on modules, the Agreement will be automatically updated. The Customer accepts that the price will increase accordingly.
5.3 The right to use Scaleup Finance’s Services applies exclusively for the Customer, and Scaleup Finance’s Services may consequently not be used by any other users than the Customer without separate agreement. However, the Customer is always entitled to forward or otherwise provide insight into the products and data included in the Services to relevant third parties such as financial advisors, external board members, bank advisors and legal advisors provided that such access to the Services are based on such third-party acting in the interest of the Customer and does not use the Services for their own purposes.
5.4 Scaleup Finance is entitled to update and improve its Services on an ongoing basis. Scaleup Finance is also entitled to change the composition and contents of its Services, if it does not materially deteriorate the agreed Services provided to the Customer. Such updates, improvements and changes may be made with or without notice. Material changes will be announced by email.
6.2 Scaleup Finance is a data processor when processing personal information belonging to the Customer as a data controller. This includes for example payroll data. Consequently, a data processor agreement must be in place and will be part of the Agreement with the Customer.
7. Operational stability7.1 Scaleup Finance aims at maximum stability, but Scaleup Finance is not liable for breakdowns or interruptions of operation, including disruptions caused by circumstances outside Scaleup Finance’s control. This includes power failures, equipment defects, internet connections and telecommunications connections. Scaleup Finance disclaims any liability, any guarantee, any requirement or similar, whether direct or indirect.
7.2 In case of breakdowns or interruptions, Scaleup Finance endeavours to re-establish normal operation as quickly as possible.
7.3 Planned outage will mainly be scheduled between the hours of 21.00 and 6.00 CET. If it becomes necessary to deny access to Scaleup Finance’s Services outside the stated hours, this will be communicated in advance if possible.
8. Intellectual property rights8.1 Subject to the Customer’s prior acceptance, Scaleup Finance is entitled to use the Customer’s trademark, including use of logo on Scaleup Finance’s Website and in other marketing-related activities concerning Scaleup Finance’s Services, provided that such use is in accordance with good business conduct.
8.2 The software and underlying algorithms and report formats provided by Scaleup Finance through the Services are protected by copyright law and other intellectual property rights and belong to or are licensed to Scaleup Finance as the case may be. The Customer is not entitled to remove, change or destroy any kind of indication of copyright, trademarks or other rights placed in Scaleup Finance’s Services or constituting an integral part of the Services. The Customer must inform Scaleup Finance in case of any actual or potential infringement of Scaleup Finance’s rights or unauthorised use of Scaleup Finance’s Services that comes to the Customer’s attention.
8.3 There is no transfer of rights to the Customer, who obtains only a licensing right on the agreed conditions, cf. clause 5. The licensing right includes the Customer’s usual use of Scaleup Finance’s Services, also including the right to print, copy and download the contents of such services for its own use, insofar as it is not contrary to Scaleup Finance’s copyrights.
8.4 In relation to material uploaded by the Customer, and all the Customer’s data generated through use of the Services, the Customer gives Scaleup Finance and its suppliers a global licence to meet all obligations under the Agreement. The Customer’s data will thus always belong to the Customer, including after the Agreement expires and as long as the Customer respects clause 8.2. The Customer guarantees that any uploaded material does not infringe any third-party rights and does not contain material that may be offensive or in contravention of current laws and regulations.
9. Assignment of the Agreement
9.1 Scaleup Finance is entitled to assign its rights and obligations under the Agreement to (i) a group company or (ii) a third party in connection with a transfer of business.
9.2 The Customer is not entitled to assign the Agreement, in whole or in part, to a third party without prior written consent from Scaleup Finance.
10. The responsibility and obligations of Scaleup Finance
10.1 Scaleup Finance undertakes and agrees to perform all Services in a professional and diligent manner and to a standard expected of an expert in the field of the Services.
10.2 Scaleup Finance Aps agrees that all Services will be rendered by it as an independent contractor and that the Agreement between Scaleup Finance and the Customer does not create an employer-employee relationship. Furthermore, the Agreement shall in no case be construed to create or give rise to any agency, distributorship, partnership or joint venture between Scaleup Finance and the Customer. All such relationships are hereby expressly excluded.
10.3 Scaleup Finance shall have no authority to bind or act on behalf of the Customer without having obtained the prior consent of the Customer.
10.4 Scaleup Finance shall at its own cost and under its own responsibility provide all personnel, materials, and equipment necessary to perform the Services unless otherwise agreed in writing. The Customer shall at its sole discretion and subject to confidentiality of the agreement provide to Scaleup such access to its information, personnel and premises as may be reasonably requested by Scaleup Finance Aps upon reasonable notice and which access is strictly necessary to permit Scaleup Finance to perform the Services.
11. Prevention of money laundering11.1 Scaleup Finance ApS is subject to the Danish Act on Measures to Prevent Money Laundering and Financing of Terrorism.
11.2 By law, Scaleup Finance ApS is required to collect and store Customers’ identity information. When entering into an Agreement, Scaleup Finance ApS is thus required to obtain the Customer’s central business registration number as well as other types of identity information, depending on the type of business involved (e.g. Danish company, foreign company, shareholder structure, foundation, partnership, etc.).
11.3 If necessary, Scaleup Finance ApS will obtain identity information about the Customer or its shareholders.
11.4 If Scaleup Finance ApS suspects that Customers are linked to money laundering or financing of terrorism, Scaleup Finance ApS is required to investigate the matter. In this connection, Scaleup Finance ApS is also required to notify the State Prosecutor for Serious Economic and International Crime or the Danish Financial Supervisory Authority.
12. Liability12.1 Scaleup Finance is liable according to the general rules of Danish law on damages in contract with the limitations following from the below clauses.
12.2 Scaleup Finance and its sub-suppliers, distributors and other business partners have no liability for the Customer’s indirect loss or damage or consequential losses, including loss of data, business interruption loss and business disruption, loss of time, loss of profits or other indirect losses that may arise in connection with the Agreement, including for example if Scaleup Finance’s Services are not accessible irrespective of cause.
12.3 Scaleup Finance is not responsible for inaccurate data provided by the Customer or third parties contracted by the Customer. Thus, Scaleup Finance cannot be held responsible for the accuracy, completeness, quality and reliability of its Services if the error lies in such inaccurate data.
12.3 Except in the case of wilful intent or gross negligence, Scaleup Finance’s total liability is limited to the Customer’s aggregate payment in the last twelve (12) months before the liability arises. The limitation includes all amounts, e.g. subscription repayment claims and any direct losses.
13. Confidentiality13.1 Scaleup Finance shall keep secret all information that may come to their knowledge about the Customer because of the Agreement.
13.2 The duty of confidentiality does not comprise information that must be considered common knowledge or available to the public. The duty of confidentiality is subordinate to any duty of disclosure under applicable law or by stock exchange rules or pursuant to any order of court or other competent authority or tribunal. The duty of confidentiality does not prevent Scaleup Finance in disclosing information to its legal advisors or other third parties if such third parties are bound by identical confidentiality provisions in a contract, (e.g. a data processor agreement) or by law and the disclosure is necessary for pursuing a legitimate interest or delivering the Services to the Customer.
13.4 If Scaleup Finance becomes required to disclose confidential information, Scaleup Finance must consult the Customer prior to the disclosure, unless such consultation would go against the law, cf. e.g. clause 11.4.
13.5 The duty of confidentiality is not limited in time.
14. Amendments to the Standard Terms and Conditions14.1 Scaleup Finance is entitled to amend the Standard Terms and Conditions if such amendments and/or updates reflect usual provisions in B2B agreements. The Standard Terms and Conditions are always available on the Website. Scaleup Finance endeavours to give reasonable notice to the Customer in case of material amendments to the Standard Terms and Conditions, typically one (1) month’s notice. In case of amendments that may result in deterioration of the Customer’s terms in the Agreement, written acceptance from the Customer is required. After receipt of a notice of material amendments to the Standard Terms and Conditions that may require the Customer’s acceptance, the Customer has ten (10) days to object. Any objection not resulting in a mutual agreement is considered termination on the part of Scaleup Finance. If the Customer does not object in time or accept the amendments, continued use of Scaleup Finance’s Services will be considered acceptance after the expiry of the ten (10) days.
15. Disputes15.1 The Agreement is subject to Danish law. Any dispute arising from or in connection with the Agreement is settled with the Copenhagen City Court as venue.
Scaleup Finance UK Limited
7th Floor 19-21 Great Tower Street
These Standard Terms and Conditions ("the Terms"), together with the Service Agreement, Scoping Document and Required Systems Document and any other documents appended to or referenced therein, constitute a legal agreement ("the Agreement") between the Customer (as defined below) and Scaleup Finance UK Limited, company number 14156318, with its registered office at 7th Floor 19-21 Great Tower Street, London, England, EC3R 5AQ ("Scaleup Finance").
THE INDIVIDUAL WHOSE SIGNATURE APPEARS IN THE SERVICE AGREEMENT REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND THE CUSTOMER.
Scaleup Finance will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to the Agreement (whether or not it would materially alter the Agreement) that is introduced or supplied by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise (including the terms of any purchase order), unless Scaleup Finance specifically agrees to such provision in writing and signed by an authorized agent of Scaleup Finance.
1.1 The definitions and rules of interpretation set out in Schedule 1 (Definitions) shall apply in the Terms.
1.2 In the Terms, any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.3 In the Terms, a reference to "writing" or "written" includes email but not fax.
1.4 If there is a conflict between an Service Agreement and the Terms, then the Service Agreement shall take precedence.
2. Use of SAAS services
2.1. Scaleup Finance grants to the Customer a non-exclusive, non-transferable, non-sub-licensable right to permit the Users to use the SaaS Services and the Documentation for the Term solely for the Customer’s internal business purposes, subject to Clause 2.2.
2.2. The SaaS Services may not be used by a third party without a separate written agreement between Scaleup Finance and the third party, except that the Customer shall be entitled to forward or otherwise provide copies of the Reports and/or Deliverables to its professional advisors, external board members, prospective investors or regulators, provided that such access to the Services are based on such third party acting in the interest of the Customer and does not use the SaaS Services for its own purposes.
2.3. The Customer acknowledges that Scaleup Finance does not sell the Software or Documentation and remains the owner of the Software and Documentation at all times.
2.4. In relation to the SaaS Services, the Customer undertakes that:
(a) each Dedicated User ID shall only be used to access the SaaS Services by the User to whom it has been assigned. Use by any other person shall be a breach of the right of use granted in Clause 2.1.
(b) the Environment shall comply at all times with the System Requirements;
(c) it shall (and shall ensure that the Users shall):
a. cooperate with Scaleup Finance in all matters relating to the SaaS Services;
b. grant Scaleup Finance, its employees, agents, consultants and subcontractors, access to the Customer's premises, office accommodation and other facilities as reasonably required by Scaleup Finance to provide the SaaS Services;
c. provide Scaleup Finance with such information and materials as Scaleup Finance may reasonably require in order to supply the SaaS Services, and ensure that such information is complete and accurate in all material respects;
d. comply with any additional obligations as set out in the Specification;
e. only use the SaaS Services in compliance with all applicable laws and regulations, including Data Protection Laws;
(d) it shall not (and shall ensure that the Users shall not):
a. permit any unauthorised or unlawful use of the SaaS Services;
b. copy or reproduce in any way the whole or part of the Software or any information or other material or Documentation relating to the same, save to the extent permitted by law or the Terms;
c. attempt to ascertain or list the source programs or source code relating to the Software;
d. decompile, reverse engineer, disassemble or translate the Software into any other computer language or attempt to do so, save to the extent permitted by law;
e. modify, alter or in any way interfere with the Software, Documentation or data (other than the Customer Data) or merge the same with any other data, programs, material, information or documents save to the extent permitted by law;
f. knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts or agents
(e) it shall use best endeavours to prevent any unauthorised use of the SaaS Services and immediately notify Scaleup Finance in writing of any unauthorised use that comes to Customer’s attention. If there is unauthorised use by anyone who obtained access to the SaaS Services directly or indirectly through the Customer, the Customer shall take all steps reasonably necessary to terminate the unauthorised use. The Customer will cooperate and assist with any actions taken by Scaleup Finance to prevent or terminate unauthorised use of the Software or the Documentation.
2.5. If the Customer provides any feedback to Scaleup Finance regarding the functionality and performance of the SaaS Services (including identifying potential errors and improvements) ("Feedback"), Customer hereby assigns to Scaleup Finance, at no additional cost, all right, title, and interest in and to the Feedback.
2.6. The Customer shall defend, indemnify and hold harmless Scaleup Finance against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Software, SaaS Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Scaleup Finance provides reasonable cooperation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.
3. Use of services (general)
3.1. Scaleup Finance shall supply the Services to the Customer with reasonable care and skill and in accordance with the Specification in all material aspects.
3.2. Scaleup Finance reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Scaleup Finance shall notify the Customer in any such event.
3.3. If Scaleup Finance's performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, consultants or employees, then, without prejudice to any other right or remedy it may have, Scaleup Finance shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
3.4. If the Customer wants to upgrade the Services by subscribing to additional Services (other than Incidental Services) or receiving additional Software features, it shall notify Scaleup Finance in writing. If Scaleup Finance agrees to such upgrade, it shall implement such upgrade as soon as reasonably practicable and the Fees shall be amended accordingly to reflect the upgrade.
3.5. If, following the Initial Period, the Customer wishes to downgrade the Services by unsubscribing from some Services, it shall notify Scaleup Finance in writing. Such downgrade shall take effect no sooner than the end of the following calendar month from the Customer's notice and the Fees shall be amended accordingly to reflect the downgrade.
3.6. From time to time, the parties may agree that Scaleup Finance shall provide Incidental Services to the Customer, in which case the parties shall agree the details of such Incidental Services and the associated Incidental Fees in writing. The provision of Incidental Services shall be governed by the terms of the Agreement.
3.7. Scaleup Finance may amend, modify, or upgrade the functionality and the look and feel of the Software and Documentation from time to time (“Update”). Any Update shall be made in good faith by Scaleup Finance and Customer assumes sole responsibility for procuring and maintaining the Environment and correctly installing the Update in order to make proper use of the same. Where an Update requires enhancements to the Environment, the Customer shall procure and implement such enhancements. If the Software becomes unusable due to the incompatibility of the Environment with the Update, this shall not be considered a breach of the Agreement by Scaleup Finance and Scaleup Finance shall be entitled to suspend the Customer's access to the Services until such time as the Environment is enhanced by the Customer to state which allows the execution of the Software.
3.8. Scaleup Finance does not warrant that the Services will be uninterrupted or error free or that such errors can be corrected, or that any new version will not affect the functionality of the Software or Documentation. 2
3.9. Scaleup Finance will endeavour, but not be obliged to, run planned outages of the Services between the hours of 20:00 and 5:00 GMT. If it becomes necessary to limit the Customer's access to the Services for maintenance purposes outside these hours, Scaleup Finance shall endeavour to provide the customer with reasonable prior notice.
3.10. The Customer acknowledges and accepts that the Services, the Deliverables and the Reports are provided "AS-IS" without any warranty of any kind, whether express or implied including, but not limited to, warranties as to the accuracy of the information and any implied warranties of satisfactory quality and / or fitness for a particular purpose. Scaleup Finance does not warrant that the Services will be uninterrupted or error free or that such errors can be corrected, or that any new version will not affect the functionality of the Services.
3.11. The Customer acknowledges and agrees that:
3.11.1.it shall be solely responsible for ensuring the legality, reliability, integrity, accuracy and quality of the Customer Materials;
3.11.2.Scaleup Finance's ability to provide the Services is subject to and conditional upon the Customer complying, to Scaleup Finance's reasonable satisfaction, with Clause 3.11.1 and providing the Customer Materials in the format stipulated by Scaleup Finance; and
3.11.3.Scaleup Finance is not responsible for any delays, delivery failures, or any other loss or damage resulting from inaccurate or incomplete Customer Materials or the lack of availability of Customer Materials.
3.12.In order to provide the Services , Scaleup Finance uses reputable third party hosting providers (the “Hosting Provider”). To the extent there is a failure in the hosting services and the Customer suffers any losses, Scaleup Finance shall use all reasonable endeavours to recover such losses from the Hosting Provider, and Scaleup Finance’s liability for all such losses shall be limited to the
4. Fees and payment
4.1. In consideration of Scaleup Finance’s supply of the Services, the Customer will pay Scaleup Finance the Fees.
4.2. Scaleup Finance shall issue an invoice for the Fees for Onboarding Services on the Effective Date, which shall be due and payable immediately upon receipt.
4.3. Subject to Clause 4.2, the remainder of the Fees are payable from completion of the Onboarding Services onwards (such completion to be notified by Scaleup Finance to the Customer) and are based on the following price structure:
(a) SaaS Services shall have a fixed monthly Fee;
(b) CFO Services shall have a fixed monthly Fee;
(c) Operational Finance shall have a variable Fee, based on Transaction Credits, as set out in the Service Agreement; and
(d) the amount and payment profile of the Incidental Fees shall be as agreed pursuant to Clause 3.6.
4.4. Once per year Scaleup Finance may increase some or any of the Fees and the capped Transaction Credit cost per activity for Operational Finance, to take effect from the start of the next calendar month. Any such increase shall not exceed the average percentage increase in the Consumer Price Index for the preceding twelve (12) months.
4.5. Without prejudice to Clause 4.4, where the Fees for the SaaS Services include the costs incurred by Scaleup Finance for procuring the third party software described in the Required Systems Document, Scaleup Finance may increase the relevant Fees to reflect any increases of the cost of the Required Systems, provided it gives the Customer no less than 2 months' notice of any such increase.
4.6. Subject to Clause 4.2, Scaleup Finance shall invoice the Customer for the Services monthly in advance. The invoice shall be raised mid-month 15 days before the beginning of the invoice period.
4.7. Payments shall be collected through Direct Debit on a monthly basis.
4.8. Subject to Clause 4.2, the terms of payment are net plus eight (8) days from the date of invoice, unless otherwise specifically stated in the Service Agreement. If the Customer does not pay on time, Scaleup Finance may send a reminder seven (7) days after the invoice due date. In case of continued non-payment, Scaleup Finance may send a subsequent reminder ten (10) days later with an administrative fee of £20.00. If payment has still not been received seven (7) days after the second reminder, then such non-payment shall constitute a material breach of the Agreement and, without prejudice to its other rights and remedies available under the Agreement, Scaleup Finance may pause the Services until the Customer pays all outstanding Fees.
4.9. Other than net income taxes imposed on Scaleup Finance, the Customer shall bear all taxes, duties, and other governmental charges, including but not limited to sales taxes, resulting from the Agreement.
5. Terms and termination
5.1. The Agreement shall commence on the Effective Date and shall continue until the end of the Initial Period after which it shall continue on a rolling basis, until terminated in accordance with this Clause 5 (together, its "Term").
5.2. The Customer may terminate the Agreement for convenience as follows:
5.2.1. to terminate the Agreement at the end of the Initial Period, the Customer shall give Scaleup Finance written notice no later than the Break Date; or
5.2.2. where the Customer gives written notice to terminate the Agreement at any time after the Break Date, the Agreement shall expire at the end of the calendar month following the calendar month in which the notice to terminate was given.
5.3. Scaleup Finance may terminate the Agreement by giving the Customer not less than one month prior written notice. Once notice is served in accordance with the terms of the Agreement, the Agreement shall terminate at the end of the following calendar month.
5.4. Either party may serve a notice on the other party to terminate the Agreement with immediate effect if the other party:
(a) is in material breach of any of the terms of the Agreement and, where the breach is capable of remedy, the other party fails to remedy such breach within fourteen (14) days’ service of a written notice, specifying the breach and requiring it to be remedied. For the avoidance of doubt, failure to pay any sums due under or in connection with the Agreement in accordance with Clause 4, or breach of the undertakings in Clause 2.4, shall constitute such a breach; or
(b) has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver, administrator or manager appointed over any of its assets, or a court or arbiter with authority to so determine, determines that the debtor is unable to pay its debts.
5.5. If the Agreement is terminated for any reason:
(a) any Fees and other amounts (including expenses) owed to Scaleup Finance under the Agreement, shall be immediately due and payable and any and all liabilities accrued prior to the effective date of the termination will survive;
(b) except as expressly set out herein, all licences granted under the Agreement shall cease and the Customer shall have no further access to the Services or the Software, and Scaleup Finance shall have no obligation to maintain, make available, or otherwise provide access to any Customer Materials, except as otherwise agreed by the parties (e.g., Scaleup Finance may offer the Customer assistance in extracting Customer Materials that may remain in Scaleup Finance’s systems after termination, chargeable at Scaleup Finance’s then-current rates);
(c) Scaleup Finance shall endeavour (but not be obliged to) delete all Customer Materials within 60 days after the termination of the Agreement;
(d) if the Customer wishes to retain a copy of any Customer Materials after termination, the Customer shall be responsible for downloading that copy of Customer Materials before termination.
5.6. If the Agreement is terminated by Scaleup Finance pursuant to Clause 5.4, the licence granted pursuant to Clause 6.2 shall terminate.
6. Proprietary rights
6.1. The Customer acknowledges that all Intellectual Property Rights in or arising in relation to the Software, Documentation and Services (including the Reports and Deliverables) ("Proprietary Materials") are and shall continue to be the property of Scaleup Finance. The Customer shall, and shall procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose giving full effect to this Clause 6.1 and ensuring that the Intellectual Property Rights in the Proprietary Materials vest in Scaleup Finance.
6.2. Scaleup Finance grants to the Customer a non-exclusive, non-transferable, non-sub-licensable right to permit the Users to use the Deliverables and Reports solely for the Customer’s internal business purposes. Subject to Clause 5.6, the licence granted under this Clause 6.2 shall be perpetual.
6.3. Without prejudice to Clause 2.4(d), the Customer shall not attempt to de-compile, reverse compile any of the Proprietary Materials (or any part thereof) or attempt to reduce any of the same to template form.
6.4. The Customer shall not remove or obliterate any copyright, trade mark or proprietary rights notices of Scaleup Finance from the Software or the Documentation.
6.5. Scaleup Finance acknowledges that the Customer Materials remain the sole property of the Customer. The Customer grants to Scaleup Finance a non-exclusive and non-transferable right to use the Customer 4 Materials for the Term to enable the exercise of Scaleup Finance’s rights and obligations under the Agreement. .
6.6. Any third-party products that Scaleup Finance may provide in connection with the Services are provided pursuant to the terms of the applicable third party agreement, and Scaleup Finance assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third party products.
6.7. Scaleup Finance warrants that the Customer's use of the Services will not infringe the Intellectual Property Rights of any third party.
7.1. Each party that receives ("Receiving Party") Confidential Information from the other ("Disclosing Party"), whether before or after the date of the Agreement shall: (i) keep the Confidential Information confidential; (ii) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clause 7.2 or Clause 7.3; and (iii) not use the Confidential Information for any purpose other than the performance of its obligations or its enjoyment of rights under the Agreement ("Permitted Purpose").
7.2. The Receiving Party may disclose Confidential Information to any of its officers, directors, employees, agents and advisers who reasonably need to know for the Permitted Purpose (each a "Permitted Third Party"), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this Clause 7 of such Permitted Third Party as if such Permitted Third Party were the Receiving Party (and a party to the Agreement). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Clause 7.
7.3. If required by law, the Receiving Party may disclose Confidential Information to a court or regulatory authority or agency, provided that the Receiving Party shall (if legally permissible) provide reasonable advance notice to the Disclosing Party and co-operate with any attempt
8. Data security and privacy
8.1. Both parties will comply with all applicable requirements of Data Protection Laws. This Clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Data Protection Laws.
8.2. The Processing of Personal Data under the Agreement shall be governed by Schedule 2 (Data Protection).
8.3. Without prejudice to Clause 8.1 and 8.2, Scaleup Finance may fully and irreversibly anonymise Customer Data which amounts to Personal Data. The parties acknowledge that at the point of the anonymisation, such data shall no longer amount to Personal Data nor Customer Data, and Scaleup Finance may use it for analytics, service improvement and similar purposes.
9. Limitations of liability
9.1. Neither party excludes or limits its liability (if any) to the other party for:
(a) personal injury or death resulting from its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any matter which it would be illegal to exclude or to attempt to exclude liability.
9.2. Save as provided for in Clause 9.1, Scaleup Finance will be under no liability to the Customer under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, for any:
(a) loss of profits;
(b) loss of business;
(c) depletion of goodwill and / or similar losses;
(d) pure economic loss;
(e) special or indirect loss;
(f) consequential loss;
(g) business interruption or disruption loss; or
(h) any loss arising from loss of or corruption of data, including Customer Data.
9.3. The Customer agrees that it will have no remedy in respect of any untrue statement or representation made to it upon which it relied in entering into the Agreement and that its only remedies can be for breach of contract (unless the statement was made fraudulently).
9.4. Scaleup Finance’s total aggregate Contractual Liability to the Customer under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, shall not exceed an amount equal to the Fees paid or payable by the Customer to 5 Scaleup Finance under the Agreement in respect of the calendar year during which the Customer suffers the relevant loss. "Contractual Liability" means liability howsoever arising under or in relation to the subject matter of the Agreement that is not: (i) unlimited by virtue of Clause 9.1; or (ii) excluded pursuant to Clauses 9.2 or 9.3.
9.5. Except as expressly provided in the Terms, Scaleup Finance hereby excludes any implied condition or warranty concerning the merchantability, quality or fitness for purpose of the Services whether such condition or warranty is implied by statute or common law.
9.6. Neither party shall be in breach of the Agreement or otherwise liable to the other party in any manner whatsoever to the extent that it is prevented from performing any or all of its
10. Prevention of money laundering
10.1.Scaleup Finance is subject to The Money Laundering and Terrorist Financing (Amendment) Regulations 2019 (MLR 2019).
10.2.By law, Scaleup Finance is required to collect and store Customers’ identity information. When entering into an Agreement, Scaleup Finance is thus required to obtain the Customer’s company registration number as well as other types of identity information, depending on the type of business involved (e.g. English company, foreign company, shareholder structure, foundation, partnership, etc.).
10.3.If necessary, Scaleup Finance will obtain identity information about the Customer or its shareholders.
10.4.If Scaleup Finance suspects that the Customer is linked to money laundering or the financing of terrorism, Scaleup Finance is required to investigate the matter.
11.1.Relationship. Scaleup Finance will be and act as an independent contractor (and not as the agent, employee or representative of Customer) in the performance of the Agreement.
11.2.Assignment. The Customer may not assign its rights, duties, and obligations under the Agreement without Scaleup Finance's prior written consent, which consent will not be unreasonably withheld or delayed. Scaleup Finance may freely assign its rights, duties and obligations under the Agreement.
11.3.Subcontractors. Scaleup Finance may utilise a subcontractor or other third party to perform its duties under the Agreement so long as Scaleup Finance remains responsible for all of its obligations under the Agreement.
11.4.Users. The actions of all Users are attributable to Customer for all purposes. The Customer will ensure that (i) each User strictly complies with all of the terms and conditions of the Agreement and the applicable documentation and (ii) any use of the Services by Customer and its Users must, in the aggregate, be within the scope of use restrictions designated in the Agreement.
11.5.Notices. Any notice required or permitted to be given in accordance with the Agreement will be effective if it is in writing and sent either by (i) certified or registered mail, return receipt requested; or (ii) email, to the appropriate party. For Scaleup Finance, the only acceptable email address for service of a notice shall be firstname.lastname@example.org. Either party may change its address for receipt of notice by notice to the other party in accordance with this Clause 11.5. Posted notices are deemed given two business days following the date of mailing or one business day following delivery to a courier and email noticed are deemed given on successful sending of the email. This Clause 11.5 does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.6.Governing Law and Jurisdiction. Agreements by and between Scaleup Finance and the Customer will be interpreted, construed, and enforced in all respects in accordance with the laws of England and Wales. Each party hereby irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
11.7.Waiver. The waiver by either party of any breach of any provision of the Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with the Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of the Agreement.
11.8.Entire Agreement. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
11.9.Variation. The Agreement may be changed only by a written agreement signed by an authorised agent of the party against whom enforcement is sought.
Schedule 1 (definitions)
"Break Date" means the date falling 30 days prior to the expiry of the Initial Period;
"CFO Services" shall have the meaning set out in the Service Agreement, Scoping Document and Required Systems Document;
"Confidential Information" means all information on any medium in respect of the business and financing of the parties, including any ideas, business methods, finance, prices, business, financial, marketing, development, manpower plans, market opportunities, processes, plans, intentions, product information, design rights, trade secrets, customer lists or details, computer systems, software, and know-how belonging to and imparted by either party, any other matters connected with the products or services manufactured, marketed, provided or obtained by the parties, and information concerning the parties' relationships with actual or potential clients or customers and the needs and requirements of such persons or operations;
“Contractual Liability “ shall have the meaning given to it in Clause 9.4;
"Customer" means the legal entity receiving the Services, which is a party to the Agreement, as specified in the Service Agreement;
“Customer Data” means the data inputted by the Customer, Users, or Scaleup Finance on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services;
"Customer Materials" means any materials provided by the Customer to Scaleup Finance to enable the supply of the Services, including the Customer Data;
"Data Protection Laws" means the laws and regulations regarding the handling of Personal Data, applicable to a particular set of processing of Personal Data, including, but not limited to UK Data Protection Law;
"Dedicated User ID" means an account for access to the Services, which is unique for each User;
"Deliverable" means any output of the Services other than the Reports and the Documentation;
“Disclosing Party” shall have the meaning given to it in Clause 7.1;
"Documentation" means the documents made available to the Customer by Scaleup Finance from time to time which sets out a description of, and user instructions for, the SaaS Services;
"Effective Date" shall have the meaning given to it in the Service Agreement, or, if none is specified, the date on which the Customer signs the Service Agreement;
“Environment” means the hardware, software, and telecommunications/network environment of the Customer which is used to receive the Services;
“Feedback” shall have the meaning given to it in Clause 2.5;
"Fees" means all applicable fees payable by the Customer to Scaleup Finance for the Services as set out in the Service Agreement or, in the case of Incidental Services, as agreed pursuant to Clause 3.6;
"Force Majeure Event" means any acts, events, omissions or accidents beyond a parties' reasonable contemplation and control including, without limitation, strikes, lockouts or other industrial disputes (whether involving the work force of the party so prevented or any other party), protest, act of God, war, riot, civil commotion, terrorism, pandemics, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm, default of suppliers or subcontractors, or unavailability of or issues in third party networks or services, including the Internet;
“Hosting Provider” shall have the meaning given to it in Clause 3.10;
"Incidental Services" means services other than SaaS Services, Onboarding Services and Professional Services, which the parties may agree are to be provided pursuant to Clause 3.6; "Initial Period" means, unless otherwise specified in the Service Agreement, six calendar months from the completion of the Onboarding Services, such completion to be notified by Scaleup Finance to the Customer;
"Intellectual Property Rights" means any and all patents, trademarks, trade names, service marks, logos, copyright, moral rights, rights in design, rights in databases, know-how, Confidential Information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating thereto;
"Onboarding Services" means the configuration and related work to be performed by Scaleup Finance to configure the Platform for the Customer's business, as set out in the Service Agreement;
"Operational Finance" shall have the meaning set out in the Service Agreement and Scoping Document;
“Permitted Purpose” shall have the meaning given to it in Clause 7.1;
“Permitted Third Parties” shall have the meaning given to it in Clause 7.2;
"Personal Data", "Process", "Processor", "Controller" and "Data Subject" shall have the meaning given to them in UK Data Protection Law;
“Professional Services” means any professional services, which includes the CFO Services and Operational Finance, as may be applicable, as well as any other service set out in the Service Agreement (excluding the SaaS Services);
“Proprietary Materials” shall have the meaning given to it in Clause 6.1;
“Receiving Party” shall have the meaning given to it in Clause 7.1;
"Report" means the final versions, but not drafts or templates, of financial reports produced by Scaleup Finance for the Customer's benefit as part of the SaaS Services;
"Required Systems Document" means the document labelled Required Systems, appended to the Terms;
"SaaS Services" means access to and use of the Software and the Documentation and Reports generated through such use, as further set out in the Service Agreement, Scoping Document and Required Systems Document;
"Scoping Document" means the document labelled Scoping Document, appended to the Terms;
"Service Agreement" means the document labelled Service Agreement, appended to the Terms;
"Services" means the subscription services provided by Scaleup Finance to the Customer under the Agreement, as selected by ticking the relevant boxes in the Service Agreement and upgraded and downgraded from time to time, and includes the SaaS Services, Incidental Services, Onboarding Services and Professional Services;
"Software" means the online software applications provided by Scaleup Finance as part of the Services, including the 'Scaleup Finance Management Platform', and as further specified in the Service Agreement, Scoping Document and Required Systems Document;
"Specification" means the description or specification of the Services provided in the Scoping Document;
"System Requirements" means the minimum hardware, software and network speed specifications required for the operation of the Software on the Environment, as advised from time to time by Scaleup Finance;
"Term" shall have the meaning given to it in Clause 5.1;
"Transaction Credit" means the baseline Fee of [2 £] per single credit, used to calculate the Fees for Operational Finance, as further outlined in the Service Agreement, and as amended from time to time in accordance with Clause 4.3;
"UK Data Protection Law" means (i) as applicable, the Data Protection Act 2018, the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (the Data Protection Regulations, the General Data Protection Regulation ((EU) 2016/679) ("GDPR") and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK, including the ‘UK GDPR’ (as defined in the Data Protection Regulations); (ii) the Privacy and Electronic Communications Regulations 2003; and (iii) any binding guidance or codes of practice issued by the ICO and/or European Data Protection Board from time to time;
“Update” shall have the meaning given to it in Clause 3.6; and
"User" means an employee or individual contractor of the Customer who has access to the Services via a Dedicated User ID.
Schedule 2 (data protection)
1. Both parties will comply with all applicable requirements of Data Protection Laws. This Schedule 2 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Data Protection Laws.
2. The parties have determined that, for the purposes of the Data Protection Laws, Scaleup Finance shall process the Personal Data set out in the Data Processing Appendix as a Processor on behalf of the Customer, who is the Controller in relation to such Personal Data. The Data Processing Appendix sets out the scope, nature and purpose of Processing by Scaleup Finance, the duration of the Processing and the types of Personal Data and categories of Data Subject.
3. Without prejudice to the generality of Clause 1.1 of this Schedule 2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to Scaleup Finance for the duration and purposes of the Agreement.
4. Without prejudice to the generality of Clause 1.1 of this Schedule 2, Scaleup Finance shall, in relation to Personal Data Processed in connection with the Agreement:
(a) process that Personal Data only on the documented instructions of the Customer, which shall be to Process the Personal Data for the purposes set out in the Data Processing Appendix, unless Scaleup Finance is required by applicable laws to otherwise Process that Personal Data. Scaleup Finance shall inform the Customer if, in the opinion of Scaleup Finance, the instructions of the Customer infringe Data Protection Laws;
(b) implement the technical and organisational measures to protect against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, which are appropriate to the harm that might result from the unauthorised or unlawful Processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that any personnel engaged and authorised by Scaleup Finance to process Personal Data under the Agreement have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Scaleup Finance), and at the Customer's cost and written request, in responding to any request from a Data Subject and in ensuring the Customer's compliance with its obligations under Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a personal data breach involving Personal Data Processed in connection with the Agreement;
(f) at the written direction of the Customer, delete or return Personal Data Processed in connection with the Agreement and copies thereof to the Customer on termination of the Agreement unless Scaleup Finance is required by applicable law to continue to process that Personal Data; and
(g) maintain records to demonstrate its compliance with this Schedule 2 and allow for reasonable audits by the Customer or the Customer's designated auditor, for this purpose, on reasonable written notice.
5. The Customer hereby provides its prior, general authorisation for Scaleup Finance to:
(a) appoint third party Processors to Process Personal Data in connection with the Agreement, provided that Scaleup Finance shall: (i) ensure that the terms on which it appoints such Processors comply with Data Protection Laws, and are consistent with the obligations imposed on Scaleup Finance in this Schedule 2; (ii) remain responsible for the acts and omission of any such Processor as if they were the acts and omissions of Scaleup Finance; and (iii) inform the Customer of any intended changes concerning the addition or replacement of the Processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Scaleup Finance's reasonable satisfaction, that the objection is due to an actual or likely breach of Data Protection Law, the Customer shall indemnify Scaleup Finance for any losses, damages, costs (including legal fees) and expenses suffered by Scaleup Finance in accommodating the objection; and
(b) transfer Personal Data outside of the UK as required for the purpose of performing its obligations under the Agreement, provided that Scaleup Finance shall ensure that all such transfers are effected in accordance with Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Scaleup Finance, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time or adopted by the UK Information Commissioner from time to time (as applicable).
Data processing appendix
The details of the Processing taking place under the Agreement are set out below.