FOUNDATION Terms & Conditions
1. Introduction
These Terms & Conditions (“Terms”) govern the Customer’s participation in any free data evaluation offered by Golden Whale in connection with FOUNDATION (“Free Data Evaluation”) and, where applicable, the Customer’s access to and use of the FOUNDATION Starter subscription (“Starter Plan”).
By submitting a request for a Free Data Evaluation, registering for the Starter Plan, subscribing to the Starter Plan, or otherwise expressly accepting these Terms, the Customer agrees to be bound by them.
Where the Customer participates solely in a Free Data Evaluation and does not subscribe to the Starter Plan, only those provisions of these Terms which by their nature apply to the Free Data Evaluation shall apply.
2. Definitions
For the purposes of these Terms, the following definitions shall apply:
Agreement means these Terms together with, as applicable, the Free Data Evaluation and/or the Subscription selected by the Customer.
Customer means the legal entity participating in a Free Data Evaluation and/or subscribing to the Starter Plan.
Customer Data means all data, files and other information uploaded, transmitted or otherwise provided by the Customer to FOUNDATION.
FOUNDATION means the cloud-based machine learning decision platform operated by Golden Whale that generates prediction, recommendation and decision signals based on Customer Data.
Free Data Evaluation means the initial, free-of-charge evaluation offered by Golden Whale based on historic Customer Data submitted by the Customer for the purpose of assessing optimisation potential identifiable from such data. Unless otherwise stated on the applicable website or registration form, the Free Data Evaluation is based on at least thirty (30) days of historic data.
Monthly Active User (MAU) means a unique player identifier processed by FOUNDATION during a calendar month, measured in Central European Time (CET/CEST).
Outputs means predictions, recommendations, scores, classifications, signals, analyses or other machine-readable or human-readable results generated or provided by FOUNDATION or as part of a Free Data Evaluation.
Starter Plan means the standard self-service monthly subscription to FOUNDATION offered through the Golden Whale website.
Subscription means the Customer’s right to access and use FOUNDATION during the applicable Subscription Term.
Subscription Fee means the recurring fee payable by the Customer for the Starter Plan.
Use Cases means the machine learning capabilities included in the Starter Plan, namely Churn Risk, Player Value and Bonus Pilot.
3. Eligibility
The Free Data Evaluation and Starter Plan are intended exclusively for business customers.
By participating in a Free Data Evaluation or subscribing to FOUNDATION, the Customer represents and warrants that:
- it is a legally existing organisation;
- it has full authority to enter into this Agreement;
- the individual accepting these Terms has authority to bind the Customer;
- it holds all licences, permits, approvals and registrations required to lawfully conduct its business; and
- its use of FOUNDATION complies with all applicable laws and regulations.
Golden Whale may refuse or discontinue a Free Data Evaluation or refuse, suspend or terminate a Subscription where it reasonably believes these requirements are not satisfied.
4. Free Data Evaluation
4.1 Golden Whale may offer prospective Customers the opportunity to submit historic Customer Data for a Free Data Evaluation before subscribing to the Starter Plan.
4.2 Participation in the Free Data Evaluation requires completion of the applicable registration, sign-up or data-submission process and acceptance of these Terms and the applicable privacy information. Participation in a Free Data Evaluation does not require the Customer to purchase a paid subscription and does not by itself create any obligation to subscribe to the Starter Plan.
4.3 Unless otherwise agreed in writing, the Free Data Evaluation is based on at least thirty (30) days of historic Customer Data provided in the format specified or reasonably requested by Golden Whale.
4.4 Golden Whale may process and analyse the submitted Customer Data solely for the purposes of performing the Free Data Evaluation, assessing the optimisation potential identifiable from the submitted data, preparing and communicating the resulting analysis or Outputs, and supporting discussions regarding the possible use of FOUNDATION.
4.5 The Free Data Evaluation is intended to provide an initial indication of optimisation potential based on the Customer Data supplied. Its scope and reliability depend on, among other things, the volume, completeness, consistency, quality and representativeness of the submitted data.
4.6 Any results, estimates, potential improvements, projections or other Outputs provided as part of the Free Data Evaluation are indicative only. They do not constitute a guarantee that any particular commercial, operational or financial result will be achieved through subsequent use of FOUNDATION.
4.7 Golden Whale is not obliged to complete a Free Data Evaluation where the submitted Customer Data is incomplete, technically unusable, materially inconsistent with the required format, insufficient for meaningful analysis, or where Golden Whale otherwise reasonably determines that an evaluation cannot be performed.
4.8 Unless the Customer subsequently subscribes to the Starter Plan or the parties agree otherwise in writing, Golden Whale may delete or anonymise Customer Data submitted for the Free Data Evaluation following completion of the evaluation in accordance with the applicable Privacy Notice and Golden Whale’s data-retention practices.
4.9 Golden Whale may retain and use aggregated and/or anonymised information derived from the Free Data Evaluation where such information no longer constitutes Customer Data or personal data and cannot reasonably be used to identify the Customer or any individual player.
5. Subscription
Subject to these Terms and payment of the applicable Subscription Fees, Golden Whale grants the Customer a limited, non-exclusive, non-transferable and non-sublicensable right to access and use FOUNDATION during the applicable Subscription Term.
Unless otherwise specified, the Starter Plan includes:
- access to FOUNDATION;
- processing of up to 3,000 Monthly Active Users (MAU) per calendar month;
- the FOUNDATION Use Cases:
- Churn Risk;
- Player Value; and
- Bonus Pilot;
- machine-readable prediction, recommendation and decision signals generated for the supported Use Cases, including predicted player value, churn probability and Bonus Pilot incentive and action recommendations;
- daily processing of Customer Data and provision of Outputs through the interfaces supported by FOUNDATION from time to time;
- platform updates and maintenance; and
- standard email support.
The Outputs generated by FOUNDATION are intended to support customer-specific operational use cases, including personalised retention campaigns, player value optimisation, incentive and bonus optimisation, and reactivation campaigns.
The specific business outcomes achieved depend on numerous factors, including the quality and completeness of the Customer Data and the Customer’s implementation and use of FOUNDATION.
6. Subscription Term, Billing and Payment
The Subscription commences on the date the Customer successfully completes the registration process and the initial Subscription Fee has been received by Golden Whale.
Unless otherwise agreed, the Starter Plan is billed monthly in advance and automatically renews for successive monthly Subscription Terms until cancelled in accordance with these Terms.
The Customer may cancel the Subscription at any time through the self-service platform or by written notice to Golden Whale. Cancellation shall become effective at the end of the then-current Subscription Term. No pro-rated refunds or credits shall be provided for any commenced or partially used Subscription Term.
Subscription Fees are exclusive of any applicable taxes, duties or governmental charges, unless expressly stated otherwise. The Customer is responsible for the payment of all applicable taxes, excluding taxes based on Golden Whale’s income.
Payments shall be processed through the payment provider designated by Golden Whale from time to time. By subscribing to FOUNDATION, the Customer authorises Golden Whale and its payment provider to charge the applicable Subscription Fees using the selected payment method.
If a payment cannot be successfully processed, Golden Whale will notify the Customer and provide a grace period of up to one (1) month to update the payment method or settle the outstanding amount.
During the grace period, Golden Whale may restrict certain functionality of FOUNDATION where reasonably necessary. If the outstanding amount has not been settled upon expiry of the grace period, Golden Whale may suspend or terminate the Subscription in accordance with these Terms.
Golden Whale reserves the right to adjust Subscription Fees from time to time. Any change in Subscription Fees shall become effective only upon the commencement of the next Subscription Term following reasonable prior notice to the Customer.
7. Usage Limits
The Starter Plan includes processing of up to 3,000 Monthly Active Users (MAU) per calendar month.
If the Customer exceeds the applicable MAU limit, Golden Whale may:
- notify the Customer of the exceeded usage;
- recommend migration to an enterprise subscription or another suitable commercial arrangement; or
- suspend the processing of additional MAUs until the applicable usage limit is no longer exceeded or the Subscription has been upgraded.
FOUNDATION Starter is designed to operate on a daily data exchange cycle.
Subject to the Customer providing complete, accurate and timely Customer Data in the agreed format, Golden Whale will use commercially reasonable efforts to process Customer Data and provide updated Outputs on a daily basis through the interfaces supported by FOUNDATION from time to time.
The Customer acknowledges that the timing and quality of the Outputs depend on the completeness, accuracy and timeliness of the Customer Data supplied to FOUNDATION. Golden Whale shall not be responsible for delayed, incomplete or inaccurate Outputs resulting from missing, delayed, corrupted or otherwise deficient Customer Data.
8. Support
The Starter Plan includes standard email support.
Golden Whale will use commercially reasonable efforts to respond to Customer enquiries and resolve reported issues in a timely manner. Response and resolution times may vary depending on the nature and complexity of the request.
The Starter Plan does not include:
- a service level agreement (SLA);
- guaranteed response or resolution times;
- dedicated support personnel;
- telephone support; or
- 24/7 support.
Golden Whale may, at its sole discretion, provide additional support services or service level commitments under separate enterprise agreements.
9. Availability
Golden Whale will use commercially reasonable efforts to make FOUNDATION available on a continuous basis.
The Starter Plan is provided without any service level agreement. Golden Whale does not guarantee uninterrupted, error-free or continuous availability of FOUNDATION.
Availability may be affected by, among other things:
- scheduled maintenance;
- software updates and upgrades;
- emergency maintenance;
- failures of third-party infrastructure or service providers;
- internet or telecommunications outages;
- security incidents; or
- circumstances beyond Golden Whale’s reasonable control.
Golden Whale may temporarily suspend access to FOUNDATION where reasonably necessary to:
- maintain, improve or update the platform;
- protect the security, integrity or availability of FOUNDATION;
- investigate suspected misuse, fraud or security incidents;
- comply with applicable laws or regulatory requirements; or
- protect the rights, property or legitimate interests of Golden Whale, its customers or third parties.
Where reasonably practicable, Golden Whale will seek to minimise disruption and restore availability as soon as reasonably possible.
Golden Whale may modify, enhance, replace or discontinue features of FOUNDATION from time to time in order to improve the platform, introduce new functionality, maintain security or ensure the continued operation of the service, provided that such changes do not materially reduce the core functionality of the Starter Plan.
10. Customer Responsibilities
The Customer is solely responsible for its participation in the Free Data Evaluation and/or use of FOUNDATION, as applicable, and for ensuring that such participation and use comply with these Terms and all applicable laws and regulations.
In particular, the Customer shall:
- operate a lawful business and maintain all licences, permits, approvals and regulatory authorisations required for its business activities;
- use FOUNDATION only for lawful business purposes;
- ensure that all Customer Data have been collected, processed and disclosed lawfully and may legally be processed by Golden Whale for the purposes of performing the Free Data Evaluation and/or providing FOUNDATION, as applicable;
- ensure that Customer Data do not infringe the intellectual property rights, privacy rights or other rights of any third party;
- provide complete, accurate and timely Customer Data in the agreed format;
- maintain the confidentiality of user credentials and ensure that access to FOUNDATION is limited to authorised personnel; and
- promptly notify Golden Whale of any unauthorised access to Customer accounts or any suspected security incident affecting FOUNDATION.
The Customer remains solely responsible for evaluating, interpreting and implementing the Outputs generated by FOUNDATION.
FOUNDATION provides prediction, recommendation and decision signals intended to support business decisions. The Customer remains solely responsible for all operational, commercial, financial, regulatory and customer-facing decisions taken on the basis of such Outputs.
Golden Whale shall not be responsible for the Customer’s implementation of FOUNDATION or for any actions taken or omitted in reliance on Outputs generated by FOUNDATION.
11. Artificial Intelligence, Predictions and Recommendations
FOUNDATION and the Free Data Evaluation use statistical, machine-learning and other analytical methods to generate predictions, recommendations and other Outputs. Outputs are probabilistic in nature and may not be accurate in every individual case.
Outputs are provided as decision-support information and do not constitute a guarantee of player behaviour, revenue, retention, profitability or any other commercial outcome.
The Customer remains responsible for determining how Outputs are used within its business, including the configuration and operation of campaigns, CRM workflows, incentives and other customer-facing actions.
Golden Whale does not warrant that implementation of any Output will produce a particular result. Actual outcomes may be affected by factors outside Golden Whale’s control, including Customer actions, campaign configuration, market conditions, player behaviour and changes in the underlying data.
While Golden Whale continuously develops and improves FOUNDATION, Golden Whale does not warrant that any Output generated by FOUNDATION will be complete, accurate, error-free or suitable for the Customer’s specific business objectives.
The Customer remains solely responsible for determining whether and how Outputs are implemented within its operations.
12. Intellectual Property
Ownership of FOUNDATION
FOUNDATION, including all software, machine learning models, algorithms, prediction models, recommendation models, decision models, methodologies, workflows, documentation, user interfaces, APIs, databases, trademarks, know-how and all related intellectual property rights, are and shall remain the exclusive property of Golden Whale or its licensors.
Except for the limited right to access and use FOUNDATION during the applicable Subscription Term in accordance with these Terms, no ownership or other intellectual property rights are transferred to the Customer.
Ownership of Customer Data
The Customer retains all right, title and interest in and to Customer Data.
The Customer grants Golden Whale a non-exclusive, worldwide licence for the duration of the Free Data Evaluation and/or Subscription, as applicable, to host, store, copy, process, analyse and otherwise use Customer Data to the extent necessary to perform the Free Data Evaluation and, where the Customer subscribes to the Starter Plan, to provide, operate, maintain and improve FOUNDATION and the applicable services, in accordance with these Terms and the applicable Privacy Notice.
Following completion of a Free Data Evaluation or termination or expiry of the Subscription, Golden Whale may delete, return, anonymise or retain Customer Data only to the extent permitted under these Terms, the applicable contractual arrangements, the FOUNDATION Privacy Notice and applicable law.
Golden Whale may retain and use aggregated and/or anonymised information derived from Customer Data where such information no longer constitutes Customer Data or personal data and cannot reasonably be used to identify the Customer or any individual player.
Ownership of Outputs
Outputs generated specifically for the Customer may be used by the Customer for its own internal business purposes. The underlying software, machine learning models, algorithms, methodologies and all intellectual property embodied in such Outputs remain the exclusive property of Golden Whale.
Nothing in these Terms grants the Customer any ownership rights in FOUNDATION or its underlying technology.
Product Improvement, Model Development and Anonymous Data
Golden Whale may use Customer Data, Outputs and other information generated through the Customer’s use of FOUNDATION for the purpose of developing, testing, training, validating, calibrating and improving FOUNDATION and other products or services offered by Golden Whale, including machine learning models, algorithms, prediction methodologies, recommendation methodologies, benchmarking methodologies, statistical analyses and related know-how.
For customers subscribing to the Starter Plan, Golden Whale may use anonymised and aggregated information derived from multiple customers to train, validate, calibrate and improve the machine learning models and algorithms underlying FOUNDATION.
The Customer acknowledges and agrees that the models and algorithms provided as part of the Starter Plan are general-purpose models continuously improved using anonymised and aggregated information across multiple customer environments.
Golden Whale shall only use such information in anonymised and aggregated form and in a manner that does not identify the Customer, any individual or any other identifiable natural or legal person.
Nothing in these Terms shall require Golden Whale to delete anonymised and aggregated information or to discontinue its use following termination of the Subscription, provided that such information cannot reasonably be used to identify the Customer, any individual or any other identifiable natural or legal person.
For the avoidance of doubt, all improvements to FOUNDATION resulting from the analysis of Customer Data, including improvements to machine learning models, algorithms, prediction methodologies, recommendation methodologies, benchmarking approaches and other general know-how, shall remain the exclusive intellectual property of Golden Whale.
13. Confidentiality
Each party shall treat as confidential all non-public business, commercial, technical and financial information received from the other party in connection with the Agreement (“Confidential Information”).
Each party shall:
- use Confidential Information solely for the purposes of performing the Agreement;
- protect Confidential Information using at least the same degree of care it applies to its own confidential information, but no less than reasonable care; and
- not disclose Confidential Information to any third party except to employees, contractors or professional advisers who have a legitimate need to know and are subject to appropriate confidentiality obligations.
Confidential Information shall not include information that:
- is or becomes publicly available without breach of this Agreement;
- was lawfully known by the receiving party before disclosure;
- is independently developed without use of the Confidential Information; or
- is lawfully obtained from a third party without confidentiality obligations.
A party may disclose Confidential Information where required by applicable law, regulation or court order, provided that, where legally permissible, it gives prior notice to the other party and reasonably cooperates to limit the scope of such disclosure.
The confidentiality obligations under this Section shall survive termination of the Agreement for a period of five (5) years.
14. Acceptable Use
The Customer shall participate in the Free Data Evaluation and use FOUNDATION only in accordance with these Terms and all applicable laws and regulations.
The Customer shall not, and shall not permit any third party to:
- use FOUNDATION for any unlawful, fraudulent or deceptive purpose;
- upload, transmit or process data that the Customer is not legally entitled to use or disclose;
- upload malware, malicious code or any material intended to disrupt or compromise FOUNDATION or any third-party systems;
- interfere with, disrupt or attempt to gain unauthorised access to FOUNDATION, its infrastructure or any related systems;
- circumvent, disable or otherwise interfere with any security features or technical restrictions implemented by Golden Whale;
- copy, reproduce, modify, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, algorithms or underlying methodologies of FOUNDATION, except to the extent such restriction is prohibited by mandatory law;
- use FOUNDATION to develop or support a competing product or service;
- resell, sublicense, lease, distribute or otherwise make FOUNDATION available to any third party without Golden Whale’s prior written consent; or
- use FOUNDATION in any manner that could reasonably be expected to damage the reputation, security or operation of Golden Whale or FOUNDATION;
- attempt to test, benchmark or measure the performance of FOUNDATION for publication or commercial comparison without Golden Whale’s prior written consent.
Golden Whale reserves the right to suspend or restrict access to FOUNDATION where it reasonably believes that the Customer has breached this Section.
15. Limitation of Liability
Disclaimer of Warranties
FOUNDATION and the Free Data Evaluation are provided on an “as is” and “as available” basis except where expressly stated otherwise in these Terms.
Except as expressly provided in these Terms or required by mandatory applicable law, Golden Whale makes no representations or warranties, whether express or implied, regarding FOUNDATION or the Free Data Evaluation, including any implied warranties of merchantability, fitness for a particular purpose, non-infringement, uninterrupted availability or suitability for the Customer’s specific business objectives.
Golden Whale does not warrant that FOUNDATION or the Free Data Evaluation will operate without interruption, be error-free or generate any particular commercial, operational or financial outcome.
Limitation of Liability
To the fullest extent permitted by applicable law, Golden Whale shall be liable only for damages caused by wilful misconduct (Vorsatz) or gross negligence (grobe Fahrlässigkeit).
In cases of slight negligence (leichte Fahrlässigkeit), Golden Whale shall only be liable for the breach of essential contractual obligations (Kardinalpflichten), and only for damages that were reasonably foreseeable at the time of entering into this Agreement.
Except where liability cannot be excluded under mandatory law, Golden Whale shall not be liable for:
- indirect or consequential damages;
- loss of profits;
- loss of revenue;
- loss of business opportunities;
- loss of goodwill;
- business interruption;
- loss or corruption of Customer Data not caused by Golden Whale;
- costs of substitute services; or
- claims asserted against the Customer by third parties.
Liability Cap
To the fullest extent permitted by applicable law, Golden Whale’s aggregate liability arising out of or in connection with this Agreement shall not exceed the total Subscription Fees actually paid by the Customer during the twelve (12) months immediately preceding the event giving rise to the claim.
Customer Decisions
The Customer acknowledges that FOUNDATION provides prediction, recommendation and decision signals intended solely to support business decisions.
Golden Whale shall not be liable for decisions taken, actions performed or omissions made by the Customer or any third party based on FOUNDATION Outputs.
The Customer remains solely responsible for evaluating FOUNDATION Outputs and determining whether, when and how such Outputs are implemented within its operations.
Third-Party Services
Golden Whale shall not be liable for interruptions, delays or failures caused by third-party service providers, cloud infrastructure providers, internet service providers, payment providers or other services outside Golden Whale’s reasonable control.
16. Suspension and Termination
Golden Whale may suspend, restrict or terminate the Customer’s access to FOUNDATION with immediate effect if:
- the Customer materially breaches these Terms;
- Subscription Fees remain unpaid following expiry of the applicable grace period;
- the Customer uses FOUNDATION in violation of applicable laws or regulations;
- the Customer’s use of FOUNDATION poses a security risk to Golden Whale, FOUNDATION or other customers; or
- Golden Whale is required to do so by applicable law or a competent authority.
Where reasonably practicable, Golden Whale will notify the Customer before suspending access and provide an opportunity to remedy the breach.
Upon termination of the Subscription:
- the Customer’s right to access FOUNDATION shall immediately cease;
- Golden Whale may delete Customer Data after a reasonable retention period unless continued storage is required by applicable law or otherwise agreed between the parties. Nothing in this Agreement shall require Golden Whale to delete or cease using anonymised and aggregated information derived from Customer Data in accordance with Section 12 (Intellectual Property);
- outstanding Subscription Fees shall remain immediately due and payable; and
- those provisions of these Terms which by their nature are intended to survive termination shall remain in full force and effect, including those relating to intellectual property, confidentiality, limitation of liability and governing law.
Where the Customer participates in a Free Data Evaluation without subsequently subscribing to the Starter Plan, the Free Data Evaluation shall end upon delivery of the applicable evaluation results, withdrawal of the Customer’s request, or notification by Golden Whale that the evaluation cannot or will not be completed. The provisions of these Terms concerning confidentiality, intellectual property, data handling, limitations of liability and any other provisions intended by their nature to survive shall remain applicable.
17. Platform Improvements
FOUNDATION is a continuously evolving software platform.
Golden Whale may modify, update, enhance, replace or discontinue features, functionality, user interfaces, machine learning models, algorithms, processing methodologies or other components of FOUNDATION from time to time in order to:
- improve functionality or usability;
- introduce new features;
- improve prediction quality;
- maintain security or performance;
- comply with legal or regulatory requirements; or
- ensure the continued operation of FOUNDATION.
Provided that such changes do not materially reduce the core functionality of the Starter Plan, such modifications shall not constitute a breach of this Agreement.
Nothing in these Terms shall require Golden Whale to maintain any specific feature, interface or implementation indefinitely.
18. Force Majeure
Neither party shall be liable for any delay or failure in performing its obligations under this Agreement where such delay or failure results from circumstances beyond its reasonable control, including but not limited to:
- natural disasters;
- acts of government;
- war;
- terrorism;
- civil unrest;
- labour disputes;
- pandemics;
- failures of telecommunications networks;
- cloud infrastructure outages;
- cyber attacks; or
- failures of third-party service providers.
The affected party shall use commercially reasonable efforts to mitigate the effects of the force majeure event and resume performance as soon as reasonably practicable.
19. Governing Law and Jurisdiction
These Terms and any dispute or claim arising out of or in connection with them, their subject matter or their formation shall be governed by and construed in accordance with the laws of Austria, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The competent court in Vienna, Austria, shall have exclusive jurisdiction over all disputes arising out of or in connection with these Terms, provided that such agreement on jurisdiction is legally permissible.
20. Miscellaneous
These Terms constitute the entire agreement between Golden Whale and the Customer regarding the Free Data Evaluation and/or Starter Plan, as applicable, and supersede all prior agreements, understandings and communications relating to their subject matter.
If any provision of these Terms is held to be invalid, illegal or unenforceable, the remaining provisions shall remain in full force and effect. The invalid provision shall be replaced by a valid provision that most closely reflects the commercial intent of the original provision.
Any failure or delay by either party to exercise any right under these Terms shall not constitute a waiver of that right or any other right.
The Customer may not assign or transfer this Agreement, in whole or in part, without Golden Whale’s prior written consent. Golden Whale may assign this Agreement to an affiliated company or in connection with a merger, acquisition, corporate restructuring or sale of substantially all of its assets.
Golden Whale may amend these Terms from time to time. For Customers with an active Subscription, material changes shall become effective upon the commencement of the next Subscription Term following reasonable prior notice. For a Free Data Evaluation, the version of these Terms accepted by the Customer at the time of submitting the applicable request shall apply to that Free Data Evaluation.
21. Feedback
If the Customer provides suggestions, enhancement requests, recommendations or other feedback regarding FOUNDATION (“Feedback”), Golden Whale may freely use, incorporate, modify and commercialise such Feedback without restriction and without any obligation to compensate the Customer.
Contact
Golden Whale Productions GmbH
Antonigasse 3/5
1180 Vienna
Austria
E-mail: legal@goldenwhale.com
Website: https://www.goldenwhale.com
