TERMS & CONDITIONS
The agreement behind the platform.
These Terms govern access to and use of Whipcream, the agentic revenue intelligence platform supplied by Whipcream Ltd. They apply to every subscription, every trial and every connected data source, unless a signed Enterprise Agreement says otherwise.
Whipcream Ltd · Company no. 16958944
GOVERNING LAW
England and Wales
Business customers only · Free Trial · Whip Smart · Whip Max · Whip Ultra
1 Introduction and acceptance
These Terms and Conditions (the "Terms") govern the supply of the Whipcream platform and related services by Whipcream Ltd, a company incorporated in England and Wales with company number 16958944 and registered office at Covent Garden, London, WC2H 9JQ, United Kingdom ("Whipcream", "we", "us"), to the organisation that subscribes to or uses the Services (the "Customer", "you").
The Services are supplied for business use only. By creating an account, starting a trial, clicking to accept these Terms, signing an Order Form, or accessing or using the Services, you agree to be bound by these Terms and confirm that you are entering into a binding contract on behalf of the organisation you represent.
If you accept these Terms on behalf of an organisation, you warrant that you have authority to bind that organisation. If you do not have that authority, or your organisation does not agree to these Terms, you must not access or use the Services.
These Terms apply to the exclusion of any terms the Customer seeks to impose or incorporate, including terms contained in a purchase order, vendor portal, supplier questionnaire or similar document, and to the exclusion of any terms implied by trade, custom, practice or course of dealing. No such terms form part of the Agreement unless expressly accepted in writing and signed by an authorised signatory of Whipcream.
Whipcream may make the Services available at different subscription tiers, currently marketed as a Free Trial followed by Whip Smart, Whip Max and Whip Ultra. Plan names, features, usage allowances and prices are those set out on the Whipcream website, in the subscription page in the product, or in an applicable Order Form.
2 Definitions
In these Terms, the following words have the following meanings.
Any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where "control" means ownership of more than 50% of the voting interests or the power to direct the management of that entity.
Any automated or semi-autonomous software agent operated as part of the Services which analyses Customer Data, generates Outputs, or performs, schedules or proposes actions, whether within the Platform or, where the Customer has authorised it, in a Third-Party Service.
These Terms together with the documents listed in clause 3, and any Order Form or Enterprise Agreement entered into between the parties.
Authorised User
An individual who is an employee, officer, contractor or agent of the Customer or its Affiliates, whom the Customer authorises to access the Services under its subscription and who is issued with unique login credentials.
The Whipcream Acceptable Use Policy published at whipcream.io, as updated from time to time in accordance with clause 36.
Business Day
A day other than a Saturday, Sunday or public holiday in England, on which clearing banks in London are open for general business.
Competing Product
Any product, service, model, dataset or tool that (a) performs functions materially similar to the Services or to any material component of them, including revenue scoring, revenue diagnostics, prescriptive revenue recommendations or agentic revenue actions, and (b) is developed, trained, benchmarked, calibrated, marketed or improved using the Whipcream Technology, Whipcream Confidential Information, the Methodology, Outputs, or information derived from any of them.
Customer Data
All data, records, content and information that the Customer or its Authorised Users upload or input into the Services, or that Whipcream retrieves from a Third-Party Service on the Customer's instruction or with the Customer's authorisation, including CRM records, billing and subscription data, revenue data, product analytics and usage events. Customer Data does not include Outputs, Aggregated Data, Feedback or the Whipcream Technology.
The Whipcream Data Processing Agreement, where entered into by the parties or incorporated by reference, governing the processing of Personal Data by Whipcream on the Customer's behalf.
Enterprise Agreement
A written master agreement, subscription agreement or similar contract for the Services signed by authorised representatives of both parties.
The subscription charges and any other amounts payable for the Services, as set out on the order page, subscription page, or in an Order Form.
The proprietary logic underlying the Services, including the Revenue Health Score algorithm, formulas, component metrics, weightings, thresholds, benchmark logic, diagnostic rules, scoring architecture and implementation logic, together with all Prompts, agent workflows, orchestration logic, tool-calling logic, model configuration and AI business logic.
An ordering document or online checkout, signed or completed by the Customer, specifying the plan, term, Fees, usage allowances and any agreed variations.
Any report, dashboard view, insight, recommendation, diagnostic, alert, timeline entry, narrative, benchmark result or Revenue Health Score result generated by the Services and made available to the Customer.
Personal Data
Has the meaning given in the UK GDPR and, where applicable, EU Regulation 2016/679.
The Whipcream software-as-a-service application, including its user interfaces, APIs, Agents, models as configured by Whipcream, and supporting infrastructure.
Any system prompt, instruction, prompt chain, template, guardrail, evaluation criterion or configuration used by Whipcream to direct the behaviour of an AI model or Agent.
Revenue Health Score
The composite score generated by the Services from signals derived from Customer Data and other inputs, together with its component sub-scores.
Security Incident
Any confirmed unauthorised access to, or unauthorised acquisition, disclosure, alteration or destruction of, Customer Data.
The Platform, the Outputs, and any support, documentation and related services made available by Whipcream under the Agreement.
Subscription Term
The initial subscription period specified at checkout or in the Order Form, and each subsequent renewal period.
Third-Party Service
Any product, service, API, integration, model or infrastructure operated by a third party which the Customer connects to the Services or on which the Services depend, including Stripe, HubSpot, Google Analytics and Mixpanel.
A free evaluation period made available under clause 7.
Whipcream Technology
The Platform, the Methodology, all software, source and object code, architecture, data models (including the Business Timeline data model), database structures, user interfaces, user experience designs, workflows, benchmarks, documentation, trade secrets, know-how and all other technology and materials used to provide the Services, together with all improvements, modifications and derivative works, and all intellectual property rights in any of them.
In these Terms: "including" and "in particular" are illustrative and do not limit the preceding words; a reference to legislation includes its subordinate legislation and any amendment or re-enactment of it; "writing" includes email; and clause headings do not affect interpretation.
3 Contract documents and order of precedence
The following documents form part of the Agreement and are incorporated by reference: the AUP; the Privacy Policy; the DPA, where entered into; any service level agreement ("SLA") expressly agreed in writing; and any Order Form or Enterprise Agreement.
If there is a conflict or inconsistency between the documents forming the Agreement, the following order of precedence applies, in descending order, but only to the extent of the conflict and only in respect of the subject matter that the higher-ranking document actually addresses: (a) a signed Enterprise Agreement, and any Order Form issued under it; (b) an Order Form or online order that is not issued under an Enterprise Agreement, but only in respect of commercial terms (plan, term, Fees, usage allowances and any expressly negotiated variations); (c) the DPA, in respect of the processing of Personal Data; (d) an agreed SLA, in respect of service availability, support response and service credits; (e) these Terms; (f) the AUP, in respect of permitted and prohibited use, save that where the AUP is more restrictive than these Terms, the more restrictive provision applies; and (g) the Privacy Policy and any other policy published by Whipcream, in respect of its own subject matter.
Adocument ranks above these Terms only where it has been agreed in writing between the parties, or, in the case of the DPA, AUP and Privacy Policy, where it has been published or provided by Whipcream and incorporated under clause 3.1. A purchase order, vendor onboarding form or similar Customer document does not vary the Agreement.
Nothing in this clause 3 prevents the parties agreeing bespoke terms in an Enterprise Agreement, including in relation to service levels, support, security commitments, data processing, refunds, termination and liability.
4 Eligibility and business use
The Services are offered exclusively to businesses, organisations and professional users acting in the course of a trade, business, craft or profession. The Services are not intended for, and must not be used for, personal, household or domestic purposes.
The Customer must be capable of entering into a binding contract, and each Authorised User must be at least 18 years old. The Services are not directed at children and must not be used by anyone under 18.
The Customer must not access the Services if it is a competitor of Whipcream acting for the purpose of evaluating, benchmarking or replicating the Services, or if it is acting on behalf of such a competitor, unless Whipcream has agreed otherwise in writing.
Where mandatory consumer protection law nevertheless applies to a Customer or user despite clause 4.1, nothing in the Agreement limits or excludes any right that cannot lawfully be limited or excluded, and the remainder of the Agreement continues to apply so far as permitted.
5 Accounts, users and account security
The Customer must provide accurate, current and complete information when registering, and keep it up to date. Whipcream may refuse, suspend or close an account where registration information is inaccurate, incomplete or fraudulent.
Access is licensed per Authorised User, or in accordance with the user, workspace or usage allowances of the Customer's plan. Login credentials are personal to each Authorised User.
The Customer must not, and must ensure that its Authorised Users do not, share, sell, transfer, publish or otherwise make available login credentials, API keys, tokens or session data to or with any person other than the Authorised User to whom they were issued. Credentials may be reassigned to a replacement individual where an Authorised User leaves the Customer's organisation or changes role, but must not be used concurrently by more than one individual.
The Customer is responsible for all activity carried out under its account and credentials, whether or not authorised by the Customer, except to the extent the activity results from Whipcream's breach of the Agreement or its negligence.
The Customer must: maintain the confidentiality of credentials; use strong, unique authentication and enable multi-factor authentication where offered; promptly deactivate access for individuals who cease to be Authorised Users; apply appropriate role-based permissions to its users; and maintain reasonable security on the devices and systems used to access the Services.
The Customer must notify Whipcream at support@whipcream.io without undue delay, and in any event within 24 hours, of becoming aware of any actual or suspected unauthorised access to its account, compromise of credentials, or other event that may affect the security of the Services or of Customer Data.
Whipcream may require re-authentication, credential rotation, or the disabling of a specific user, integration or API key where it reasonably considers this necessary to protect the security or integrity of the Services, the Customer, or other customers.
6 Subscriptions and plans
Subject to the Agreement and to payment of the Fees, Whipcream will make the Services available to the Customer for the Subscription Term in accordance with the plan selected by the Customer.
Each plan is subject to the features, user limits, connected source limits, data volume limits, rate limits and other usage allowances published for that plan or set out in the Order Form. Whipcream may apply reasonable technical controls to enforce those allowances.
Where the Customer's usage materially and consistently exceeds the allowances for its plan, Whipcream will notify the Customer and the parties will discuss an appropriate plan in good faith. If the Customer does not upgrade or reduce usage within 14 days of that notice, Whipcream may throttle the excess usage, or charge for the excess at its then-current rates, having first given the Customer written notice of the charge that will apply.
Whipcream may change plan names, plan compositions, usage allowances and Fees prospectively, in accordance with clause 26 and clause 36. Changes to Fees do not take effect during a Subscription Term for which the Customer has already paid, and take effect from the next renewal following at least 30 days' notice.
Beta, preview, evaluation and early-access features may be made available from time to time. Those features are provided "as is", may be changed or withdrawn at any time, are excluded from any SLA, and are supplied without the warranties in clause 27.2.
7 Free trial
Whipcream may offer a free trial of 7 days, or such other period as is stated at sign-up. During the Trial the Customer may access the Services subject to the Agreement and to any feature or usage limits applied to trial accounts.
Avalid payment method is required to start a Trial unless Whipcream states otherwise at sign-up.
AUTOMATIC CONVERSION TO A PAID SUBSCRIPTION
Unless the Customer cancels before the Trial ends, the Trial converts automatically into a paid subscription at the end of the trial period, and the Fees for the selected plan are charged to the payment method on file. The subscription then renews automatically under clause 9. The Customer may cancel at any time during the Trial, at no charge, from the account settings in the product or by emailing support@whipcream.io.
Whipcream will use reasonable endeavours to send a reminder to the email address on the account approximately one to two days before the Trial ends. That reminder is a courtesy. Failure to send or deliver it, for any reason including email filtering, does not affect the validity of the conversion, extend the Trial, or entitle the Customer to a refund. It remains the Customer's responsibility to cancel before the Trial ends if it does not wish to be charged.
Trials are limited to one per Customer organisation and its group of Affiliates, unless Whipcream agrees otherwise in writing. The Customer must not, and must not permit any person to, obtain or attempt to obtain more than one Trial, including by creating multiple or duplicate accounts, using alternative or aliased email addresses, using different payment methods or identities, using disposable email domains, or otherwise circumventing trial eligibility controls.
Whipcream may verify trial eligibility, refuse, shorten or withdraw a Trial, and suspend or close accounts that it reasonably determines have been created to circumvent this clause 7. Where Whipcream determines that paid Services were obtained through repeated trial abuse, it may invoice the Customer for the Fees that would have been payable for the period of that use.
8 Fees, payment and taxes
The Customer must pay the Fees for its plan in advance, at the frequency stated at checkout or in the Order Form, without set-off, deduction or counterclaim, except as required by law.
By providing a payment method, the Customer authorises Whipcream and its payment processor to charge that payment method for all Fees, taxes and other amounts due under the Agreement, including on automatic renewal, until the subscription is cancelled and all outstanding amounts are paid.
The Customer must keep its payment and billing details accurate and current, and must ensure it is authorised to use the payment method provided.
Fees are stated exclusive of VAT and any other sales, use, withholding or similar taxes and duties, which the Customer must pay in addition at the applicable rate. If the Customer is required by law to withhold or deduct any amount, it must gross up the payment so that Whipcream receives the amount it would have received had no withholding or deduction been made, save where Whipcream can obtain relief under an applicable double taxation treaty and the Customer provides the documentation required to claim it.
Where a payment fails, Whipcream may re-attempt the charge in accordance with its standard retry schedule and may notify the Customer to update its payment method.
If an undisputed amount remains unpaid more than 7 days after its due date, Whipcream may, on notice, suspend access to the Services under clause 30, and may charge interest on the overdue amount at 8% per annum above the Bank of England base rate from time to time, accruing daily from the due date until payment, before and after judgment. This clause does not exclude any entitlement Whipcream may have under the Late Payment of Commercial Debts (Interest) Act 1998 where that Act applies.
The Customer must reimburse Whipcream's reasonable and properly documented costs of recovering overdue amounts, including reasonable legal and debt collection costs, to the extent recoverable under applicable law.
If the Customer disputes an invoice in good faith, it must notify Whipcream in writing within 14 days of the invoice date, giving reasons and identifying the disputed amount. The Customer must pay all undisputed amounts when due, and the parties will resolve the dispute promptly and in good faith.
9 Renewal, cancellation and refunds
Subscriptions renew automatically for successive periods equal to the then-current Subscription Term (monthly plans renew monthly; annual plans renew annually), at the Fees then applicable, unless cancelled in accordance with this clause 9 or terminated under clause 31.
The Customer may cancel renewal at any time, with effect from the end of the then-current Subscription Term, through the account settings in the product or by emailing support@whipcream.io. Cancellation takes effect at the end of the period already paid for. To avoid being charged for the next period, cancellation must be completed before the renewal date.
On cancellation, the Customer retains access to the Services until the end of the paid period, after which access ends and clauses 32 and 33 apply.
NO PRO-RATA REFUND ON ORDINARY CANCELLATION
Fees are charged for the whole Subscription Term. Cancelling part-way through a Subscription Term does not entitle the Customer to a refund or credit for the unused portion of that term, and does not cancel amounts already due. This does not affect the Customer's rights where Whipcream is in material breach, or any right that cannot lawfully be excluded.
Whipcream does not operate a general money-back guarantee. Whipcream may, at its sole discretion and without creating any right or precedent, consider a request for a refund of the first payment made under a subscription where the request is made within 14 days of that payment and relates to a genuine malfunction of the Services, a material technical issue that Whipcream is unable to resolve, or a genuine misunderstanding at the point of purchase. Requests should be sent to support@whipcream.io.
Where Whipcream terminates the Agreement for the Customer's material breach, or suspends or terminates under clause 30 or clause 31.3, no refund is due. Where the Customer lawfully terminates for Whipcream's uncured material breach under clause 31.2, Whipcream will refund the Fees the Customer has prepaid for the period after termination takes effect.
Where an Enterprise Agreement or Order Form contains different provisions on renewal, notice periods, cancellation or refunds, those provisions prevail over this clause 9 to the extent of the conflict.
10 Payment disputes, chargebacks and fraud
The Customer must not use, or attempt to use, a payment method that it is not authorised to use, or that is stolen, counterfeit or otherwise fraudulent, and must not provide false billing or identity information to obtain the Services.
Before initiating a chargeback, payment reversal or dispute with a card issuer, bank or payment provider, the Customer must first raise the matter with Whipcream at support@whipcream.io and allow a reasonable period, of at least 10 Business Days, to resolve it. Whipcream will engage with any such request in good faith.
Initiating a chargeback in respect of Fees that are properly due, in circumstances where the Services have been made available, is a breach of the Agreement. The Customer must not initiate a chargeback or payment dispute on a basis that the Customer knows to be untrue.
Where a payment is reversed, charged back or otherwise not received, the corresponding amount is treated as an unpaid Fee, becomes immediately due and payable, and clause 8.6 applies. Whipcream may also recover the chargeback, dispute or reversal fees actually charged to it by its payment processor in connection with that reversal, together with the reasonable costs of recovery under clause 8.7. These amounts represent Whipcream's actual costs and are not a penalty.
Whipcream may suspend or terminate access under clause 30 or clause 31 where there is an unremedied chargeback, a repeated pattern of payment disputes, or where Whipcream reasonably suspects payment fraud, and may decline to provide further Services to the Customer or to any account connected with the same organisation, payment method or individuals.
11 Licence and permitted use
Subject to the Agreement and payment of the Fees, Whipcream grants the Customer a non-exclusive, non-transferable, non-sublicensable, revocable licence, during the Subscription Term, to access and use the Services through Authorised Users, and to use the Outputs, in each case solely for the Customer's own internal business purposes (the "Permitted Purpose").
The licence extends to the Customer's Affiliates only where expressly stated in an Order Form or Enterprise Agreement. The Customer remains responsible for compliance with the Agreement by every person who accesses the Services through its account, including its Affiliates, Authorised Users and contractors.
The Customer may share Outputs with its professional advisers, investors, lenders and prospective acquirers on a confidential basis, and may incorporate Outputs into its own internal reporting and board materials, provided that the Customer does not remove any attribution or notice, does not present Outputs as an independent audit, assurance, valuation or verification of its financial position, and does not distribute Outputs on a systematic, commercial or public basis.
All rights not expressly granted are reserved. No right or licence is granted by implication, estoppel, exhaustion or otherwise, and nothing in the Agreement transfers ownership of any part of the Whipcream Technology.
Whipcream may monitor use of the Services for security, capacity, billing, abuse-prevention and compliance purposes, including by logging API calls, query volumes, session activity and integration events.
12 Prohibited activities
The Customer must not, and must not permit or enable any Authorised User or third party to, do any of the following.
Unlawful and fraudulent use. Use the Services in breach of any applicable law or regulation; for any fraudulent, deceptive or criminal purpose; to launder money or finance terrorism; to make bribes or facilitate corruption; to infringe the rights of any third party; or to present or represent Outputs in a way that is materially misleading to investors, lenders, acquirers, regulators or any other third party.
Account and access abuse. Share, resell or make credentials available to unauthorised persons; permit concurrent use of a single set of credentials by multiple individuals; impersonate any person or misrepresent an affiliation; access or attempt to access any account, workspace, environment or data of another customer; circumvent or attempt to circumvent authentication, authorisation, entitlement checks, rate limits, quotas, usage allowances, paywalls, trial restrictions or any other technical or contractual control.
Security attacks and testing. Introduce or transmit malware, ransomware, worms, logic bombs or other malicious code; upload files containing malicious code; conduct any denial-of-service or resource-exhaustion attack; probe, scan or test the vulnerability of the Services or of Whipcream's systems, or conduct penetration testing, red-teaming or security research against the Services, without Whipcream's prior written authorisation and within any scope it specifies; or attempt to gain unauthorised access to the Services, to Whipcream's infrastructure, or to any account, system or network connected to them.
Extraction. Scrape, crawl, spider, index, harvest or otherwise systematically extract or record data, content, Outputs, interface elements or Service behaviour, whether manually or by automated means; use bots, scripts or automated agents to access the Services other than through interfaces expressly made available by Whipcream for that purpose and within their documented limits; or generate query, request or evaluation volumes that are abnormal relative to ordinary business use of the plan.
Reverse engineering and reconstruction. Engage in any activity prohibited by clause 13.
Commercial exploitation. Resell, sublicense, rent, lease, lend, distribute, time-share, or provide the Services or the Outputs as a service bureau, managed service or white-label offering to any third party; use the Services on behalf of, or for the benefit of, any person other than the Customer; or use the Services or the Outputs to develop, train, market, benchmark, calibrate or improve a Competing Product.
Data integrity and manipulation. Submit data that the Customer knows to be false, fabricated or synthetic, or manipulate connected data sources, with the intention of distorting the Revenue Health Score or other Outputs, of probing the behaviour of the Methodology, or of producing Outputs to be presented to a third party as a representation of the Customer's actual performance.
AI-specific abuse. Engage in prompt injection, jailbreaking, adversarial prompting, indirect injection through connected data sources or uploaded content, model extraction or distillation, membership-inference or model-inversion techniques, or any other technique intended to cause the Services to disclose Prompts, internal instructions, Methodology, Whipcream Confidential Information, or the data of another customer, or to cause an Agent to act outside the scope the Customer has authorised.
Content. Upload or transmit material that is unlawful, defamatory, obscene, harassing, or which the Customer is not entitled to provide, or Personal Data for which the Customer does not have a lawful basis and the necessary rights, permissions and authorisations.
The AUP supplements this clause 12 and forms part of the Agreement. A breach of clause 12 or of the AUP is a material breach of the Agreement and may result in immediate suspension under clause 30 and termination under clause 31.3.
13 Protection of the Whipcream Technology
The Whipcream Technology, and in particular the Methodology, the Revenue Health Score algorithm and weightings, the Prompts, and Whipcream's agent workflows and orchestration logic, are confidential, constitute trade secrets, and derive commercial value from not being generally known. Clause 21 applies to all of them.
No reverse engineering. The Customer must not reverse engineer, decompile, disassemble, decrypt, or attempt to derive the source code, object code, underlying structure or internal implementation of any part of the Services, or permit any person to do so.
No functional reconstruction. The Customer must not, whether or not it accesses source code, take any of the following steps with the purpose or effect of deriving, approximating, reproducing or reconstructing the Methodology, or of building or improving a Competing Product: (a) systematically varying, fabricating or synthesising inputs, or running repeated or automated experiments, in order to infer the components, weightings, thresholds, benchmark logic or scoring behaviour of the Revenue Health Score; (b) systematically collecting, storing or analysing Outputs, or input–output pairs, in order to model, approximate or replicate the behaviour of the Services; (c) using Outputs, or anything derived from them, to train, fine-tune, evaluate, distil, benchmark or calibrate any model, scoring engine, rules engine or similar system; (d) reproducing the sequence, structure, arrangement or logic of the Services' workflows, data models, dashboards or interfaces in another product; or (e) conducting or commissioning competitive benchmarking, teardown or replication exercises in respect of the Services, or providing access to the Services to any person for that purpose.
Legitimate use preserved. Nothing in this clause 13 prevents the Customer from: evaluating whether the Services meet its own business requirements, including comparing the Services with alternatives for its own internal procurement purposes; using, questioning, disagreeing with or acting on Outputs in the ordinary conduct of its business; conducting its own independent analysis of its own Customer Data using its own or third-party tools; or independently developing products or services without use of, reference to, or reliance on the Whipcream Technology, Whipcream Confidential Information or the Methodology.
Statutory rights. Clauses 13.2 and 13.3 do not apply to the extent that the relevant act is one which applicable law provides may not be prohibited or restricted by contract, including, in the United Kingdom, acts permitted by sections 50B and 50BA of the Copyright, Designs and Patents Act 1988. Where the Customer wishes to obtain information necessary to achieve interoperability between the Services and independently created software, it must first request that information from Whipcream in writing at info@whipcream.io, and Whipcream will provide the information reasonably necessary for that purpose on reasonable terms, including confidentiality terms, before the Customer takes any further step.
Prompts and agent logic. The Customer must not attempt to extract, elicit, reconstruct or publish any Prompt, system instruction, guardrail, tool definition, agent workflow, orchestration rule or model configuration used in the Services. If any such material is disclosed to the Customer, whether through an Output, an error, a defect or otherwise, the Customer must treat it as Whipcream Confidential Information, must not use or further disclose it, and must notify Whipcream promptly at info@whipcream.io.
Whipcream operates a responsible disclosure process. Reports of suspected vulnerabilities should be sent to info@whipcream.io. Good-faith reporting does not authorise the testing activity described in clause 12.4, which requires prior written authorisation.
The Customer acknowledges that damages alone may not be an adequate remedy for a breach of clauses 11, 12 or 13, and that Whipcream is entitled to seek injunctive or other equitable relief in respect of any actual or threatened breach, in addition to any other remedy.
14 Revenue Health Score
The Revenue Health Score is a proprietary analytical indicator generated from signals derived from Customer Data, from cohort and benchmark information, and from Whipcream's own research and methodology. It is an aid to management judgement.
The Revenue Health Score is not, and must not be presented or relied upon as: an audit, review or assurance engagement; a financial statement, valuation, credit rating, creditworthiness assessment or solvency opinion; a certification or verification of the Customer's data or performance; or a regulated financial, investment, accounting or actuarial opinion.
The Score depends entirely on the completeness, accuracy and timeliness of the data made available to the Services. Whipcream does not verify, audit or reconcile Customer Data or data retrieved from Third-Party Services, and does not warrant that Customer Data is complete, accurate or free from manipulation. The Customer is responsible for the integrity of its source data.
The Score, its components and its weightings may change over time as Whipcream improves the Methodology, adds or removes signals, updates benchmarks, or changes models or providers. Scores generated at different times, or under different versions of the Methodology, may not be directly comparable. Whipcream will use reasonable endeavours to indicate materially significant methodology changes within the product.
Whipcream is not obliged to detect data manipulation, and any monitoring it performs is for the protection of the Services and does not create a duty of care to the Customer or to any third party in respect of the accuracy of the Customer's data.
Where the Customer discloses a Score to a third party, it does so on its own responsibility and must not represent that Whipcream has verified, endorsed or certified the underlying data or the Customer's performance.
15 AI outputs and agentic functionality
The Services use artificial intelligence, including large language models supplied by third parties, together with Whipcream's own Methodology, to produce Outputs. Outputs are generated automatically and probabilistically.
HOW OUTPUTS MUST BE TREATED
Outputs may contain errors, omissions, inaccuracies and inferences that are not correct, and may change between runs even where inputs are unchanged. Outputs are decision support, not decisions. They must be independently reviewed by a competent person before being relied on or acted upon, particularly where the Customer's decision has financial, legal, employment or regulatory consequences.
Whipcream is not a financial adviser, investment adviser, accountant, auditor, tax adviser, actuary, lawyer, employment adviser or other regulated professional, is not authorised or regulated by the Financial Conduct Authority, and does not provide financial, investment, legal, tax, accounting, audit or regulatory advice. Nothing in the Services constitutes such advice or a personal recommendation, and the Customer should obtain independent professional advice where appropriate.
The Customer is solely responsible for its business, commercial, financial, pricing, operational and personnel decisions, including any decision taken, or not taken, on the basis of an Output.
The Customer must not use the Services or Outputs as the sole or determinative basis for any decision that produces legal effects concerning an individual, or similarly significantly affects an individual, including decisions relating to employment, recruitment, promotion, dismissal, remuneration, creditworthiness, insurance or access to essential services. Where the Customer uses Outputs in connection with any such decision, it must ensure meaningful human review and must comply with applicable data protection and AI law in its own right.
Agents. The Services may include Agents that analyse data, propose actions, and, where the Customer expressly enables the relevant functionality, perform actions within the Platform or in a connected Third-Party Service. The Customer controls whether such functionality is enabled and the scope of the permissions granted, and may withdraw or narrow those permissions at any time through the product or the relevant Third-Party Service.
Actions performed by an Agent within the scope authorised by the Customer are treated as actions taken by the Customer, and the Customer is responsible for them as between the parties, except to the extent an action results from Whipcream's breach of the Agreement or its negligence. Whipcream will maintain a record of automated actions taken through the Services and make it available to the Customer within the product.
Whipcream may change the AI models, model providers, Prompts, agent workflows, guardrails and orchestration used in the Services at any time, provided it does so in accordance with clause 26. Whipcream does not warrant that any particular model, provider or configuration will be used or maintained.
Outputs are generated for the Customer but are not unique to it. Similar or identical Outputs may be generated for other customers with similar data, and nothing in the Agreement restricts Whipcream from providing similar Outputs to any other person.
16 Customer responsibilities and warranties
The Customer must: use the Services in accordance with the Agreement and applicable law; provide accurate account and billing information; configure integrations correctly and maintain the permissions required for them to operate; keep its authentication credentials and API keys secure; review Outputs before relying on them; and cooperate reasonably with Whipcream in relation to security, billing and abuse matters.
The Customer warrants and undertakes that: (a) it has all rights, consents, permissions, licences and lawful bases necessary to provide the Customer Data to Whipcream, to connect each Third-Party Service, and to permit Whipcream to process the Customer Data as contemplated by the Agreement; (b) it is authorised to grant access to each Third-Party Service account that it connects, and its connection and use of that account does not breach its agreement with the relevant provider; (c) the Customer Data does not infringe the rights of any third party and is not unlawful; (d) it will comply with all applicable data protection, privacy, marketing, employment, financial services, competition, sanctions, export control, anti-bribery and anti-money laundering laws in its use of the Services and the Outputs; and (e) it will not use the Services in a jurisdiction, or in a manner, in which such use would be unlawful.
The Customer is responsible for the acts and omissions of its Authorised Users, Affiliates and contractors in relation to the Services as if they were its own.
Whipcream is not responsible for any failure or degradation of the Services to the extent caused by the Customer's systems, network, configuration, integrations, data, credentials, instructions, or failure to perform its obligations under this clause 16.
17 Customer Data
As between the parties, the Customer owns all right, title and interest in the Customer Data, including all intellectual property rights in it. Whipcream claims no ownership of Customer Data.
The Customer grants Whipcream a non-exclusive, worldwide, royalty-free licence to host, store, copy, transmit, process, analyse, display and otherwise use the Customer Data, and to permit its subprocessors to do so, solely to the extent necessary to: This licence ends when the Customer Data is deleted in accordance with clause 33, except in respect of Aggregated Data and of copies retained as permitted by clause 33. (a) provide, operate and maintain the Services, including calculating the Revenue Health Score and generating Outputs; (b) secure and monitor the Services, prevent and investigate abuse, and maintain audit and security logs; (c) provide support requested by the Customer; (d) generate Aggregated Data in accordance with clause 18; and (e) comply with its legal obligations.
Whipcream will not sell Customer Data, and will not disclose Customer Data to third parties except to its subprocessors for the purposes set out in clause 17.2, where instructed by the Customer, or where required by law or by a competent authority or court.
Whipcream will not use Customer Data to train foundation or general-purpose AI models for the benefit of third parties, and will not permit its AI model providers to use Customer Data to train their models, except where the Customer has expressly opted in. This does not restrict the use of Aggregated Data under clause 18, or the use of Customer Data to operate, tune, evaluate and improve the Services for the Customer.
The Customer may export Customer Data and Outputs using the export functionality made available in the product. Where no suitable export functionality exists, Whipcream will provide a reasonable extract in a structured, commonly used, machine-readable format on written request made during the Subscription Term or within the retention period set out in clause 33.
Whipcream may impose reasonable limits on the volume of Customer Data stored or processed, and will give the Customer reasonable notice before applying any new limit that would materially affect existing use.
18 Aggregated data and feedback
Whipcream may generate aggregated and statistical information derived from use of the Services, including cohort benchmarks and performance distributions ("Aggregated Data"), and may use Aggregated Data during and after the Subscription Term to operate, secure, benchmark, research and improve the Services and to produce industry insights and marketing materials.
Whipcream will only use or disclose Aggregated Data where it has been aggregated with data from other customers and processed so that it does not identify, and cannot reasonably be used to identify, the Customer, any Authorised User, any individual, or any of the Customer's own customers, whether alone or in combination with other information reasonably available. Whipcream will apply appropriate aggregation thresholds and will not publish Aggregated Data derived from so few sources that individual contributions could be inferred.
Whipcream will not disclose Customer-identifiable metrics, including the Customer's Revenue Health Score, to any other customer or third party without the Customer's prior written consent.
Aggregated Data is not Customer Data and is owned by Whipcream. Where Aggregated Data is or may be derived from Personal Data, the DPA and the Privacy Policy govern the basis on which that derivation is carried out, and this clause 18 is subject to them.
"Feedback" means suggestions, ideas, enhancement requests, comments and other feedback provided by the Customer or its Authorised Users about the Services. The Customer grants Whipcream a perpetual, irrevocable, worldwide, royalty-free, sublicensable licence to use, modify and exploit Feedback for any purpose, without obligation, attribution or compensation. Feedback does not include Customer Data, and nothing in this clause 18.5 grants Whipcream any right in Customer Data or in the Customer's own confidential information, business plans or intellectual property, even where these are described in the course of giving Feedback.
19 Third-party services and integrations
The Services integrate with Third-Party Services, currently including Stripe, HubSpot, Google Analytics and Mixpanel, and rely on third-party hosting, infrastructure, authentication, AI model, analytics and observability providers. Third-Party Services are not part of the Services and are not controlled by Whipcream.
The Customer's use of a Third-Party Service is governed by its own agreement with that provider. The Customer is responsible for its own compliance with those terms, for maintaining its accounts, subscriptions and permissions with those providers, and for any charges they levy.
The Customer acknowledges that Third-Party Services may change, impose or alter rate limits and quotas, deprecate or discontinue APIs, alter data structures or field definitions, experience outages, latency or errors, revoke or expire authentication tokens, return incomplete or inaccurate data, or suffer their own security incidents, and that any of these may interrupt, degrade or distort the Services and the Outputs.
Whipcream is not liable for the acts, omissions, availability, security, accuracy or performance of any Third-Party Service, or for any failure of the Services to the extent caused by a Third-Party Service, provided that Whipcream has taken reasonable care in selecting and integrating that Third-Party Service and acts with reasonable skill and care in responding to the failure. Nothing in this clause 19.4 excludes liability that cannot lawfully be excluded, or liability for Whipcream's own negligence or breach.
Whipcream may add, replace, suspend or remove Third-Party Services, subprocessors, model providers and infrastructure providers where reasonably necessary, including for reasons of security, performance, cost, availability, compliance or provider change. Where a change would materially and adversely affect the Services, clause 26 applies. Changes to subprocessors handling Personal Data are governed by the DPA.
Where a Third-Party Service ceases to be available and this materially affects the Services for the Customer, Whipcream will use reasonable endeavours to provide an alternative or a workaround, but is not obliged to replicate functionality that depends on a discontinued third-party capability.
20 Intellectual property and Outputs
Whipcream and its licensors own all right, title and interest in the Whipcream Technology, including all intellectual property rights in it, and in all Aggregated Data, Feedback and improvements to the Services. The Agreement grants the Customer a licence to use the Services and the Outputs; it does not sell, assign or transfer the Whipcream Technology or any part of it.
Subject to the Customer's compliance with the Agreement and payment of the Fees, Whipcream grants the Customer a perpetual, non-exclusive, non-transferable, worldwide licence to use, reproduce and internally distribute the Outputs delivered to it for the Permitted Purpose and in accordance with clause 11.3. This licence survives termination in respect of Outputs already generated and lawfully retained by the Customer.
The licence in clause 20.2 does not permit the Customer to: use Outputs to develop, train, benchmark or improve a Competing Product; use Outputs to derive or reconstruct the Methodology; resell, syndicate, publish or systematically distribute Outputs; or use Outputs in breach of clauses 11, 12 or 13.
The Outputs are generated by the Whipcream Technology. Nothing in clause 20.2 transfers any right in the Methodology, the models, the Prompts, the templates, the benchmarks, the data structures or the presentation logic used to produce an Output, all of which remain the property of Whipcream and its licensors.
The Customer must not remove, obscure or alter any proprietary notice, watermark, attribution or identifier contained in the Services or in an Output.
Whipcream may identify the Customer as a customer, and use the Customer's name and logo, on its website and in customer lists and sales materials, only where the Customer has given prior written consent. Consent may be withdrawn on 30 days' written notice, after which Whipcream will remove the Customer's name and logo from materials within its reasonable control.
21 Confidentiality
"Confidential Information" means information disclosed by one party (the "Discloser") to the other (the "Recipient") which is identified as confidential or which a reasonable person would understand to be confidential given its nature and the circumstances of disclosure, whether disclosed before or after the date of the Agreement, and in any form.
Whipcream's Confidential Information includes the Whipcream Technology and, in particular: source and object code; algorithms; the Methodology, including the Revenue Health Score formulas, components, weightings and thresholds; Prompts and system prompts; agent workflows, orchestration and tool-calling logic; model configuration; product architecture and data models; non-public benchmarks and cohort data; technical, security and penetration testing documentation; incident information; non-public pricing and discounting; and the product roadmap.
The Customer's Confidential Information includes the Customer Data, the Customer's Outputs and Revenue Health Score, and its non-public business, financial, product and commercial information.
The Recipient must: keep the Discloser's Confidential Information confidential; use it only to perform its obligations and exercise its rights under the Agreement; protect it using at least the same degree of care it applies to its own confidential information of similar importance, and in no event less than a reasonable degree of care; and disclose it only to those of its employees, officers, professional advisers, contractors and Affiliates who need to know it for those purposes and who are bound by confidentiality obligations at least as protective as this clause 21. The Recipient is responsible for any breach by a person to whom it discloses Confidential Information.
This clause 21 does not apply to information which the Recipient can show: is or becomes public other than through its breach; was lawfully in its possession without restriction before disclosure; is lawfully received from a third party entitled to disclose it; or was independently developed by the Recipient without use of or reference to the Discloser's Confidential Information.
The Recipient may disclose Confidential Information to the extent required by law, regulation or a competent authority or court, provided it gives the Discloser prompt notice where lawful and practicable, discloses only what is required, and uses reasonable efforts to obtain confidential treatment.
Confidentiality obligations continue for 5 years after termination of the Agreement, and, in respect of any Confidential Information that constitutes a trade secret, for as long as it remains a trade secret under applicable law.
The Recipient acknowledges that damages may not be an adequate remedy for breach of this clause 21 and that the Discloser may seek injunctive and other equitable relief. The Agreement does not include any "residuals" right, and the Recipient must not use the Discloser's Confidential Information on the basis that it is retained in the unaided memory of its personnel.
Whipcream will implement and maintain appropriate technical and organisational measures designed to protect Customer Data within systems under its control against unauthorised or unlawful access, loss, destruction, alteration and disclosure, having regard to the state of the art, the costs of implementation, and the nature, scope, context and purposes of processing and the risks involved.
Those measures currently include: encryption of Customer Data in transit and at rest; role-based access controls and least-privilege access for Whipcream personnel; authentication of Third-Party Service connections using OAuth or API keys; storage of integration credentials and API keys in a form that is not plaintext; logging and monitoring of access to production systems; and defined change management and incident response processes. Whipcream may change these measures provided the overall level of protection is not materially reduced.
Whipcream does not warrant that the Services or Customer Data can never be compromised. No system is completely secure. Whipcream's obligation is to exercise reasonable skill and care and to maintain the measures described in this clause 22, not to guarantee an outcome.
The Customer is responsible for security within its own control, including the security of its systems, networks, devices, accounts and credentials, its user provisioning and de-provisioning, its own configuration of the Services and of connected Third-Party Services, and the security practices of its personnel and contractors.
Where an SLA, security schedule, security policy or Enterprise Agreement sets out additional or more specific security commitments, those commitments apply in addition to this clause 22.
23 Security incidents and allocation of responsibility
Whipcream will notify the Customer without undue delay after becoming aware of a Security Incident affecting Customer Data within systems under Whipcream's control, will provide the information reasonably available to it, and will take reasonable steps to investigate, contain and remediate the incident. Where the incident involves Personal Data, the notification, assistance and timing obligations in the DPA and applicable data protection law apply and prevail over this clause 23.1.
The Customer must notify Whipcream without undue delay, and in any event within 24 hours, of becoming aware of any actual or suspected compromise of its account, credentials, API keys or connected Third-Party Service accounts, and must cooperate reasonably with Whipcream's investigation and containment measures, including credential rotation and temporary suspension.
Responsibility for a security incident is determined by its cause. Whipcream is not responsible for, and has no liability in respect of, a security incident or unauthorised access to the extent it results from: (a) compromise, sharing, loss or misuse of the Customer's credentials, API keys or tokens, other than where the compromise was caused by Whipcream's breach or negligence; (b) acts or omissions of the Customer, its Authorised Users, employees, contractors or Affiliates, including insider misuse; (c) compromise of the Customer's own systems, networks, devices, email accounts or identity provider; (d) the Customer's configuration of the Services, of user permissions or of a Third-Party Service integration; (e) a security incident affecting a Third-Party Service or the Customer's account with a Third-Party Service; or (f) the Customer's failure to apply security measures reasonably available to it, including multi-factor authentication where offered, or its failure to notify Whipcream under clause 23.2.
The fact that the Services were connected to, or held data originating from, a system affected by a security incident does not of itself make Whipcream responsible for that incident.
Nothing in this clause 23 limits Whipcream's liability for a Security Incident to the extent caused by Whipcream's own breach of the Agreement, negligence, wilful misconduct or breach of applicable data protection law, or limits any liability that cannot lawfully be limited.
Neither party may make any public statement attributing a security incident to the other without that party's prior written consent, unless required by law or by a regulator. This does not restrict either party's own regulatory notifications or communications with affected individuals.
24 Data protection
Each party will comply with the data protection and privacy laws applicable to it in connection with the Agreement, including the UK GDPR and the Data Protection Act 2018 and, where applicable, EU Regulation 2016/679.
Where Whipcream processes Personal Data contained in Customer Data on the Customer's behalf, the Customer is the controller and Whipcream is the processor, and that processing is governed by the DPA. Where the parties have not entered into a separate DPA, the DPA published by Whipcream applies and is incorporated into the Agreement by reference; the Customer may request execution of a signed copy at info@whipcream.io.
Whipcream acts as a controller in respect of account registration data, billing data, support communications, and platform usage, security and telemetry data that it processes for its own purposes of operating, securing, billing for and improving the Services. Its processing in that capacity is described in the Privacy Policy.
The Customer is responsible for determining the lawful basis for the collection and disclosure of Personal Data to Whipcream, for providing any required notices to individuals, for obtaining any required consents, for responding to requests from individuals except to the extent the DPA provides otherwise, and for assessing whether its own use of the Services and Outputs requires a data protection impact assessment.
The Customer must not upload or connect special category personal data, criminal offence data, payment card numbers, health data or children's data, unless the parties have agreed additional safeguards in writing.
The Privacy Policy, the Cookie Policy, the DPA and the subprocessor list govern the matters they address, and prevail over this clause 24 to the extent of any conflict in respect of the processing of Personal Data.
25 Availability, maintenance and support
Whipcream will use commercially reasonable endeavours to make the Services available and to perform them with reasonable skill and care. Except where an SLA has been agreed in writing, Whipcream does not commit to a specific uptime percentage, and no service credits are payable.
Availability may be affected by: scheduled maintenance, for which Whipcream will use reasonable endeavours to give advance notice and to schedule outside normal United Kingdom business hours where practicable; emergency maintenance, security patching or mitigation of an active threat, which may be carried out without notice; Third-Party Service failures; hosting, infrastructure, network or internet failures; the Customer's own systems, configuration or integrations; a Force Majeure Event; or suspension under clause 30.
Standard support is provided by email at support@whipcream.io during Whipcream's normal business hours, which are 9:00 to 18:00 UK time on Business Days. Whipcream will use reasonable endeavours to respond promptly, and prioritises requests by severity.
Customers on the Whip Ultra plan may contact ultrasupport@whipcream.io. Whipcream's current target for Whip Ultra is an initial response within 4 business hours of receipt during the support hours in clause 25.3, with requests received outside those hours treated as received at the start of the next support period. This is a service target, not a guarantee, and does not create a 24-hour or 24/7 obligation. Binding response times, escalation paths and remedies apply only where set out in an SLA or Enterprise Agreement signed by both parties.
Support covers use of the Services and investigation of defects. It does not cover the Customer's own systems, data quality, integrations at the Third-Party Service end, bespoke development, or advice on the Customer's business decisions.
26 Changes to the Services
Whipcream develops the Services continuously and may modify, improve, add to or remove features and functionality, including by changing the Methodology, scoring logic, benchmarks, AI models and providers, Prompts, agent workflows, integrations, user interfaces and infrastructure.
Whipcream will not, during a Subscription Term for which the Customer has paid, make a change that materially and adversely reduces the core functionality of the Services as described on the order page or in the Order Form, taken as a whole. Improvements, changes to the composition of the Revenue Health Score, and changes to underlying models, providers or infrastructure are not of themselves a material adverse reduction.
Where Whipcream nevertheless makes a change that materially and adversely reduces that core functionality, or discontinues a material feature on which the Customer relies, Whipcream will give the Customer at least 30 days' notice where practicable, and the Customer may terminate the affected subscription by written notice given within 30 days of the change or notice, in which case Whipcream will refund the Fees prepaid for the period after termination takes effect. This is the Customer's sole remedy in respect of such a change.
Whipcream may discontinue the Services entirely on 60 days' written notice, in which case Whipcream will refund Fees prepaid for the period after the Services cease.
ùWhipcream may make changes immediately and without notice where necessary to comply with law, to respond to a security threat or vulnerability, or to address a change imposed by a Third-Party Service or model provider. Whipcream will notify the Customer of any such change that materially affects it as soon as reasonably practicable.
27 Warranties and disclaimers
Each party warrants that it has the authority to enter into the Agreement and that it will comply with applicable laws in performing it.
Whipcream warrants that it will provide the Services with reasonable skill and care and substantially in accordance with the documentation published for the Customer's plan. If the Services do not conform to this warranty, the Customer must notify Whipcream, and Whipcream will use reasonable endeavours to correct the non-conformity or, if it cannot do so within a reasonable period, the Customer may terminate the affected subscription and receive a refund of Fees prepaid for the period after termination. This is the Customer's exclusive remedy for breach of clause 27.2, without prejudice to clause 29.
Except as expressly stated in the Agreement, and to the maximum extent permitted by law, all conditions, warranties, representations and terms implied by statute, common law or otherwise are excluded. In particular, Whipcream does not warrant that: (a) the Services will be uninterrupted, timely, error-free or free from vulnerabilities; (b) Outputs, insights, recommendations, benchmarks or Revenue Health Scores will be accurate, complete, current, reproducible or suitable for any particular purpose; (c) the Services will be compatible with, or continue to integrate with, any particular Third-Party Service, system or configuration; (d) data retrieved from Third-Party Services will be accurate, complete or timely; or (e) defects will be corrected, or that all Customer Data can be recovered following loss.
NO GUARANTEE OF BUSINESS OUTCOMES
Whipcream provides analytical intelligence and recommendations. It does not guarantee any business, financial or commercial outcome, including increased revenue, improved conversion, reduced churn, improved retention or profitability, successful fundraising, successful sales, or an improved Revenue Health Score. Results depend on the Customer's data, market, execution and decisions.
Nothing in the Agreement excludes or limits any liability or right that cannot lawfully be excluded or limited, including under section 2(1) of the Unfair Contract Terms Act 1977.
28 Indemnities
Customer indemnity. The Customer will indemnify Whipcream, its Affiliates and their respective officers, employees and contractors against all losses, damages, liabilities, fines, costs and reasonable expenses (including reasonable legal fees) arising out of or in connection with any third-party claim, or any regulatory investigation or enforcement action, resulting from: (a) the Customer Data, including any claim that it infringes third-party rights or was provided, collected or processed unlawfully; (b) the Customer's connection of, or access to, a Third-Party Service without the necessary rights or authority; (c) the Customer's breach of clauses 11, 12, 13 or 16.2; (d) the Customer's use of the Services or Outputs in breach of applicable law; or (e) decisions, actions or omissions of the Customer or its Authorised Users based on the Outputs, where relied on in breach of clause 15.
Whipcream IP indemnity. Whipcream will defend the Customer against any third-party claim that the Customer's use of the Services in accordance with the Agreement infringes that third party's copyright, database right, registered trade mark or United Kingdom or European patent, and will indemnify the Customer against amounts finally awarded by a court of competent jurisdiction or agreed in settlement by Whipcream.
The indemnity in clause 28.2 does not apply to a claim arising from: Customer Data or any content or instruction supplied by the Customer; use of the Services in breach of the Agreement or applicable law; combination of the Services with any product, data, service or process not supplied by Whipcream, where the claim would have been avoided but for that combination; modification of the Services by anyone other than Whipcream; use of a version of the Services after Whipcream has provided a non-infringing update or workaround; Third-Party Services; Outputs used in breach of clause 20.3; or use of the Services during a Trial or otherwise free of charge.
If the Services become, or Whipcream reasonably considers they may become, the subject of a claim under clause 28.2, Whipcream may at its option and expense: procure the right for the Customer to continue using the Services; modify or replace the Services so they are non-infringing while materially preserving their functionality; or, if neither is reasonably achievable on commercially reasonable terms, terminate the affected subscription on notice and refund the Fees prepaid for the period after termination. This, together with clause 28.2, states the Customer's exclusive remedy for intellectual property infringement by the Services.
Conduct of claims. The indemnities in this clause 28 are conditional on the indemnified party: notifying the indemnifying party promptly in writing of the claim; giving the indemnifying party sole control of the defence and settlement, provided that no settlement imposing a non-indemnified liability, an admission of fault or an injunction on the indemnified party may be made without its consent, not to be unreasonably withheld; providing reasonable cooperation at the indemnifying party's expense; and not making any admission or settlement without the indemnifying party's prior written consent. The indemnified party may participate in the defence with its own counsel at its own cost.
Whipcream's aggregate liability under clause 28.2 is subject to the cap in clause 29.4. The Customer's liability under clause 28.1 is not subject to the cap in clause 29.4, but the Customer's liability under clause 28.1 is limited to third-party claims, regulatory action, and the losses, costs and expenses that Whipcream actually incurs as a result.
29 Limitation of liability
Nothing in the Agreement limits or excludes either party's liability for: death or personal injury caused by negligence; fraud or fraudulent misrepresentation; breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 or section 12 of the Sale of Goods Act 1979 where applicable; or any other liability that cannot lawfully be limited or excluded.
Subject to clause 29.1, neither party is liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any of the following, whether direct or indirect: loss of profits; loss of revenue; loss of anticipated savings; loss of business, contracts or opportunity; loss of goodwill or reputation; loss of, or corruption of, data, other than the reasonable costs of restoring data from the Customer's own backups; wasted management or staff time; or any indirect or consequential loss.
Subject to clause 29.1, Whipcream is not liable for any loss or damage to the extent arising from: the Customer's breach of the Agreement; the accuracy, completeness or lawfulness of Customer Data; a decision taken or not taken on the basis of an Output; a Third-Party Service, as described in clause 19; a matter for which the Customer is responsible under clause 23.3; the Customer's failure to maintain adequate backups of data held in its own systems; or use of the Services during a Trial or otherwise free of charge.
Subject to clauses 29.1 and 29.5, each party's total aggregate liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, is limited to the greater of: (a) 100% of the Fees paid or payable by the Customer under the Agreement in the 12 months immediately preceding the first event giving rise to the liability; and (b) £1,000.
The cap in clause 29.4 does not apply to, and the following are excluded from the aggregate calculated under it: (a) the Customer's obligation to pay Fees and other amounts properly due under the Agreement; (b) the Customer's liability under clause 28.1; (c) the Customer's breach of clauses 11, 12 or 13, or of clause 21 in respect of the Whipcream Technology or the Methodology; and (d) either party's liability arising from its wilful misconduct.
Whipcream's total aggregate liability for breach of clause 21 (confidentiality) or of the DPA and applicable data protection law is limited to 150% of the amount calculated under clause 29.4, and that enhanced cap is inclusive of, and not additional to, the cap in clause 29.4.
The Customer must take reasonable steps to mitigate its losses. Each party's liability is reduced to the extent that the loss is caused or contributed to by the other party.
No claim may be brought under the Agreement more than 12 months after the claimant first became aware, or ought reasonably to have become aware, of the facts giving rise to it, except for claims for non-payment of Fees and claims falling within clause 29.1.
The allocation of risk in this clause 29 is reflected in the Fees. The parties agree that these limitations are reasonable, having regard to the price of the Services, the nature of the Services as decision-support software, the Customer's control over its own data and decisions, and the availability of insurance to each party. Nothing in this clause 29 prevents an Enterprise Agreement from providing different limits.
30 Suspension
Whipcream may suspend the Customer's access to all or part of the Services, or disable a specific user, integration, API key or feature, where it reasonably considers that: (a) there is a security risk to the Services, to Whipcream, to the Customer or to another customer; (b) there is actual or suspected fraud, payment fraud or unlawful activity; (c) Fees are overdue and remain unpaid after notice under clause 8.6; (d) the Customer is in breach of clauses 11, 12, 13 or 16.2, or of the AUP; (e) the Customer's use threatens the integrity, stability or performance of the Services, or the data or rights of other customers; (f) an actual or threatened infringement or misappropriation of the Whipcream Technology is occurring; or (g) suspension is required to comply with law or with a direction from a competent authority.
Suspension will be limited in scope and duration to what is reasonably necessary to address the issue. Whipcream will give the Customer notice before suspending, and an opportunity to remedy where the issue is capable of remedy, unless doing so would risk harm, compromise security, facilitate fraud or unlawful activity, expose other customers, prejudice an investigation, or breach a legal obligation, in which case Whipcream will notify the Customer as soon as reasonably practicable after suspension.
Whipcream will restore access promptly once the grounds for suspension have been resolved.
Fees continue to accrue during a suspension made under clauses 30.1(b), (c), (d), (e) or (f). Where a suspension is made under clause 30.1(a) or (g) through no fault of the Customer and lasts more than 5 consecutive Business Days, Whipcream will, at the Customer's request, credit the Fees attributable to the period of suspension.
31 Term and termination
The Agreement begins when the Customer first accepts it under clause 1.2 and continues until all subscriptions have expired or been terminated.
Either party may terminate the Agreement, or an affected subscription, on written notice if the other party: commits a material breach which is capable of remedy and fails to remedy it within 30 days of written notice specifying the breach and requiring it to be remedied; commits a material breach which is not capable of remedy; or becomes insolvent, enters administration, liquidation, receivership or an equivalent process, makes an arrangement with creditors, or ceases or threatens to cease to carry on business, in each case to the extent permitted by applicable insolvency law.
Whipcream may terminate the Agreement immediately on written notice where: the Customer breaches clause 11, 12, 13, 21 or 35; the Customer engages in fraud, payment fraud or trial abuse under clause 7.5; the Customer's use is unlawful or exposes Whipcream to legal or regulatory risk; a suspension under clause 30 has continued for more than 30 days as a result of the Customer's failure to remedy the underlying issue; or Fees remain unpaid more than 30 days after their due date.
The Customer may cancel renewal under clause 9.2 at any time. Cancellation is not termination for breach and clause 9.4 applies.
Termination does not affect any accrued rights or liabilities, and does not relieve the Customer of the obligation to pay Fees for the remainder of the then-current Subscription Term except where the Customer terminates under clause 31.2 or clause 26.3.
32 Consequences of termination
On expiry or termination: all licences granted to the Customer end, except the licence in clause 20.2 in respect of Outputs already generated and lawfully retained; the Customer and its Authorised Users must stop accessing and using the Services; all outstanding Fees become immediately due; and each party must, at the other's request, return or destroy the other's Confidential Information in its possession, subject to clause 33 and to any legal retention obligation.
Clauses 1, 2, 3, 8 (in respect of accrued amounts), 10.4, 11.4, 12, 13, 14.2, 15.3 to 15.5, 16.3, 17.1, 18, 20, 21, 23.5, 24, 27.3 to 27.5, 28, 29, 32, 33, 35, 37, 38 and 39, and any other provision which by its nature is intended to survive, continue in force after expiry or termination.
33 Data retention and deletion
Following expiry or termination, Whipcream will retain Customer Data in a form that permits reactivation for a period of 30 days (the "Retention Period"), during which the Customer may request an export under clause 17.5 or reactivate its subscription.
After the Retention Period, Whipcream will delete or irreversibly anonymise Customer Data held in its production systems within a further 30 days, except as set out in clause 33.3.
Whipcream may retain: copies held in routine backups, which are overwritten or deleted on Whipcream's standard backup cycle and in any event within 90 days of deletion from production, and which are not restored for any purpose other than disaster recovery; security, access and audit logs, for up to 12 months, for security, abuse-prevention and legal-defence purposes; billing, tax and accounting records, for as long as required by law, including under the Companies Act 2006 and applicable tax legislation; Aggregated Data; and any data whose retention is required by law, by a legal hold, or for the establishment, exercise or defence of legal claims.
The Customer may request earlier deletion at any time by written request to info@whipcream.io. Whipcream will comply within 30 days, subject to clause 33.3, and the Customer accepts that deletion may prevent continued provision of the Services.
Where the deleted data includes Personal Data, the DPA governs deletion, return and retention obligations and prevails over this clause 33 to the extent of any conflict. Whipcream will confirm deletion in writing on request.
An Enterprise Agreement or Order Form may specify a different Retention Period, in which case it prevails.
34 Force majeure
Neither party is liable for any failure or delay in performing its obligations, other than an obligation to pay money, to the extent caused by an event beyond its reasonable control (a "Force Majeure Event"), including: act of God, flood, fire, earthquake or extreme weather; epidemic or pandemic and measures taken in response; war, armed conflict, terrorism, civil unrest or sanctions; act or omission of government or a regulator, or a change in law; nationwide or regional failure of internet, telecommunications, electricity or other utility infrastructure; a major outage or failure of a cloud, hosting, AI model or other infrastructure provider that could not reasonably have been avoided or mitigated; a large-scale cyberattack, including a distributed denial-of-service attack, that could not reasonably have been prevented by the security measures required under clause 22; or industrial action other than involving that party's own workforce.
The affected party must notify the other as soon as reasonably practicable, use reasonable endeavours to mitigate the effect of the Force Majeure Event, and resume performance as soon as reasonably possible.
If a Force Majeure Event prevents Whipcream from providing a material part of the Services for more than 30 consecutive days, either party may terminate the affected subscription on written notice, and Whipcream will refund the Fees prepaid for the period after termination.
35 Sanctions, export control and lawful use
The Customer warrants that neither it, nor any of its Affiliates, directors, officers or Authorised Users, nor any person with control over it, is a person designated under, or otherwise the target of, sanctions administered by the United Kingdom, the European Union, the United Nations or the United States, and that it is not located in, ordinarily resident in, or organised under the laws of, a territory subject to comprehensive sanctions.
The Customer must not use the Services, or permit them to be used, in breach of applicable sanctions, export control, anti-bribery, anti-money laundering or anti-corruption laws, and must not make the Services available to any person in breach of those laws.
Whipcream may suspend or terminate access immediately where it reasonably believes that continued provision would breach, or expose it to liability under, any such law.
Whipcream makes no representation that the Services are appropriate or available for use in any particular jurisdiction. The Customer is responsible for compliance with local law in the jurisdictions in which it uses the Services.
36 Changes to these Terms
Whipcream may amend these Terms and the AUP from time to time, including to reflect changes to the Services, to industry practice, or to legal or regulatory requirements.
Whipcream will publish the amended Terms with an updated version number and effective date. Where a change is material and adverse to the Customer, Whipcream will give at least 30 days' notice by email to the account contact or by prominent notice in the product, and the change takes effect at the start of the Customer's next Subscription Term following that notice.
Changes are prospective only and do not apply retrospectively to events occurring before their effective date.
If the Customer does not accept a material change, it may cancel renewal under clause
before the change takes effect. Continued use of the Services after the effective date constitutes acceptance of the amended Terms.
Where an Enterprise Agreement is in force, these Terms may be amended in respect of that Customer only as provided in that Enterprise Agreement.
37 Governing law and jurisdiction
The Agreement, and any dispute or claim arising out of or in connection with it, its subject matter or its formation, including non-contractual disputes and claims, is governed by and construed in accordance with the laws of England and Wales.
The courts of England and Wales have exclusive jurisdiction to settle any such dispute or claim.
Clause 37.2 does not prevent either party from applying to any court of competent jurisdiction for interim or protective relief, including injunctive relief, to protect its confidential information or intellectual property or to prevent an ongoing breach.
The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
The Customer acknowledges that mandatory laws of its own jurisdiction may apply to it despite clauses 37.1 and 37.2. Nothing in the Agreement is intended to displace a mandatory rule of law that applies irrespective of the parties' choice of law or forum, and each party remains responsible for its own compliance with the laws applicable to it.
Before commencing proceedings, other than for interim relief or for recovery of unpaid Fees, each party will use reasonable endeavours to resolve the dispute through escalation to senior representatives of each party for a period of 30 days.
38 General provisions
Assignment. The Customer may not assign, transfer, charge, subcontract or otherwise deal in the Agreement or any of its rights or obligations without Whipcream's prior written consent, not to be unreasonably withheld. Whipcream may assign or transfer the Agreement, in whole or in part, to an Affiliate, or in connection with a merger, acquisition, corporate reorganisation or sale of all or substantially all of its assets or business to which the Agreement relates, and may subcontract performance provided it remains responsible for the acts and omissions of its subcontractors.
Entire agreement. The Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior agreements, representations and understandings. Each party acknowledges that it has not relied on any statement, representation, assurance or warranty that is not set out in the Agreement, and its only remedies for any statement that is set out in the Agreement are for breach of contract. Nothing in this clause 38.2 limits or excludes liability for fraud or fraudulent misrepresentation.
Severability. If any provision of the Agreement is or becomes invalid, illegal or unenforceable, it is deemed modified to the minimum extent necessary to make it valid, legal and enforceable while preserving the parties' original commercial intent. If such modification is not possible, the provision is deemed deleted, and the remainder of the Agreement continues in full force.
Waiver. No failure or delay in exercising a right or remedy is a waiver of it, and no single or partial exercise prevents further exercise. A waiver is effective only if given in writing and applies only to the circumstances for which it is given.
Notices. Legal notices to Whipcream, including notices of breach, termination or claim, must be sent by email to info@whipcream.io and, where the notice relates to termination or a claim, also by post to the registered office in clause 39. Legal notices to the Customer will be sent to the administrative or billing contact email on the account and, where provided, to any notice address in the Order Form. Notice by email is deemed given at the time of transmission, or, if transmitted after 17:00 on a Business Day or on a non-Business Day, at 09:00 on the next Business Day. Operational, service, security, billing and product notices may be given by email or by notice within the product, and it is the Customer's responsibility to keep its contact details current and to ensure that messages from Whipcream are not blocked or filtered.
No partnership. Nothing in the Agreement creates a partnership, joint venture, agency or employment relationship between the parties, and neither party has authority to bind the other.
Third-party rights. Except for Whipcream's Affiliates and the persons indemnified under clause 28.1, who may enforce the provisions benefiting them, a person who is not a party to the Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. The parties may vary or rescind the Agreement without the consent of any third party.
Electronic contracting. The Agreement may be accepted by clicking to accept, by creating an account, by starting a Trial, by purchasing a subscription, or by signing an Order Form electronically, and any of these constitutes a binding signature. The parties agree that electronic records of acceptance, including timestamps, IP addresses and account records maintained by Whipcream, are admissible evidence of acceptance. Neither party will contest the validity or enforceability of the Agreement on the ground that it was made electronically.
Language. The Agreement is made in English. Any translation is provided for convenience only, and the English version prevails.
Counterparts. An Order Form or Enterprise Agreement may be executed in counterparts, each of which is an original and which together constitute one agreement.
39 Contact and company information
The Services are supplied by Whipcream Ltd, a private limited company incorporated in England and Wales, company number 16958944, registered office Covent Garden, London, WC2H 9JQ, United Kingdom, trading as Whipcream.
Contact points: general and legal notices, info@whipcream.io; support, support@whipcream.io; Whip Ultra support, ultrasupport@whipcream.io; website, whipcream.io.
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WHIPCREAM LTD 71-75 Shelton Street Covent Garden London WC2H 9JQ United Kingdom
Company No. 16958944
info@whipcream.io
