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Shopify E-commerce Development Company

1 Definitions and interpretation

  1. In this Agreement:
Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity;
Bribery Laws means the Bribery Act 2010 (BA 2010) and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010 and all other applicable United Kingdom laws, legislation, statutory instruments and regulations in relation to bribery or corruption and any similar or equivalent laws in any other relevant jurisdiction;
Business Day means a day other than a Saturday, Sunday or bank or public holiday in England;
Change means any change to this Agreement including to any of the Services;
Change Request means a request submitted by a party to effect a Change;
Commencement Date means the Commencement Date as per the Insertion Order or if there is no Insertion Order, the Commencement Date is the date where payment details have been first submitted through a payment link;
Confidential Information has the meaning given in clause 16.1;
Control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and Controls, Controlled and under common Control shall be interpreted accordingly;
Creative means various forms of content designed to promote a product, service or brand. This can include images, videos, graphics, GIFs, ad copy, playables, endcards, and other media elements used in marketing campaigns;
Customer The Customer as per the Insertion Order or if there is no Insertion Order as per the customer details on the invoice;
Customer Site means the e-commerce shop or shops for which EEG shall perform, or procure the performance of the Services;
Customer Site Data any data and information owned by the Customer or its Affiliates relating to the Services (and any modifications to that material);
Force Majeure has the meaning given in clause 23;
Further Term has the meaning given in clause 2;
Initial Term has the meaning given in clause 2;
Intellectual Property Rights means copyright, rights related to copyright such as moral rights and performers’ rights, patents, rights in inventions, rights in Confidential Information, Know-how, trade secrets, trademarks, geographical indications, service marks, trade names, design rights, rights in get-up, database rights, databases, data exclusivity rights, approvals, utility models, domain names, business names, rights in computer software, mask works, topography rights, the right to sue for infringement, unfair competition and passing off, and all similar rights of whatever nature and, in each case: whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;
Know-how means inventions, discoveries, improvements, processes, formulae, techniques, specifications, technical information, methods, the results and procedures for experiments and tests, reports, component lists, manuals, instructions, designs, sketches, drawings, information relating to customers and suppliers (whether written or in any other form and whether confidential or not);
Price means the price of any of the Services determined under clause 8;
Product means the goods or services that the Customer requests EEG to advertise or requests EEG’s Services for;
Representatives has the meaning given to it in clause 16.4.1;
Services means the services and tasks to be fulfilled for the Customer Site as detailed in the Insertion Order, or as per the description on the payment link, or the invoice. The available Services are listed under Schedule 1 of this Agreement;
Term has the meaning given to it in clause 2;
EEG Elite Ecommerce Group Limited a company incorporated in England and Wales under number 14906131 whose registered office is at 115 Millfields Road, Wolverhampton, West Midlands, United Kingdom, WV4 6JQ
EEG Personnel means all employees, directors, officers, staff, other workers, agents and consultants of EEG, its Affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time;
VAT means value added tax, as defined by the Value Added Tax Act 1994; and
  1. In this Agreement:
    1. a reference to this Agreement includes its schedules, appendices and annexes (if any);
    2. a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
    3. a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
    4. a reference to a gender includes each other gender;
    5. words in the singular include the plural and vice versa;
    6. any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
    7. the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and
    8. without prejudice to the provisions of Schedule 2, a reference to legislation is a reference to that legislation as in force as at the date of this Agreement and as amended, extended, re-enacted or consolidated from time to time.

2 Term

  1. This Agreement commences on the Commencement Date and, unless terminated earlier in accordance with clauses 14, 18.5 or 23, shall continue for a fixed period of 90 days (the Initial Term) whereupon it shall either continue in accordance with the provisions of clause 2.2 or terminate in accordance with the provisions of clause 2.3 (in each case, the Term).
  2. On the expiry of the Initial Term and any Further Term (as defined below), this Agreement shall automatically continue for further consecutive periods of 90 days (each, a Further Term), unless either party has given the other party notice in accordance with clause 2.3, or unless the Agreement is terminated sooner in accordance with clauses 14, 18.5 or 23.
  3. This Agreement shall terminate at the end of the Initial Term or at the end of the current Further Term if either party has given the other party one month’s written notice to terminate the Agreement such notice to expire either upon the end of the Initial Term or the end of the then Further Term (as the case may be).

3 Customer obligations

  1. During the Term, EEG agrees to supply, and the Customer agrees to purchase, the Services on the terms set out in this Agreement.
  2. The Customer shall, at all times and in all respects:
    1. perform its obligations in accordance with the terms of this Agreement;
    2. pay the Price for the Services in accordance with the provisions of clause 9;
    3. co-operate with EEG in all matters arising under this Agreement or otherwise relating to the performance of the Services;
    4. make the Customer Site accessible to EEG and EEG Personnel as may be necessary for EEG to perform the Services and otherwise comply with its obligations under this Agreement;
    5. provide the Customer Site Data, Creatives and all other information, documents, materials, data or other items necessary for the provision of the Services, to EEG in a timely manner;
    6. ensure that the Customer Site and Customer Site Data and equipment, materials or other items provided to EEG for the provision of the Services are suitable for the performance of the Services, in good working order; and
    7. obtain and maintain all necessary licences, permits and consents required to enable EEG to perform the Services and otherwise comply with its obligations under this Agreement.

4 Performance of the services

  1. The Customer shall make the Customer Site fully available and accessible for EEG and EEG Personnel.
  2. The performance of the Services shall commence on the Commencement Date subject to payment of full and cleared funds in accordance with clause 9.
  3. Time of performance shall not be of the essence. EEG shall use its reasonable endeavours to perform the Services in accordance with any commencement or end dates specified for performance. Any Services which do not have specified commencement or end dates shall be performed by EEG within a reasonable period of time.
  4. EEG shall not be liable for any delay or failure in the performance of the Services caused by:
    1. the Customer’s failure to make the Customer Site available;
    2. the Customer’s failure to prepare the Customer Site as required for the performance of the Services;
    3. the Customer’s failure to provide EEG with an adequate creative brief or Creatives for the performance of the Services;
    4. the Customer’s failure to provide EEG with adequate instructions or information for the performance of the Services, including but not limited to:
      1. history of policy violations and suspensions on media or marketplace accounts similar to or needed for the performance of the Services, including but not limited to Meta, Google, TikTok, AppLovin.
      2. regulations and laws specific to the industry of the Customer.
      3. information on the benefits and features, the delivery time and potential health risks of products sold on the Customer Site.
    5. the Customer’s failure to supply the Customer Site Data in a timely manner; or
    6. Force Majeure.

5 Warranty

  1. The Customer warrants that:
    1. it has the right, power and authority to enter into this Agreement and grant to EEG the rights, consents and authorisations contemplated in this Agreement; and
    2. the Customer Site Data, Creatives and all other information, documents, materials, data or other items provided by the Customer pursuant to this Agreement do not infringe the Intellectual Property Rights of any third party.
    3. the Customer Site Data, Creatives and all other information, documents, materials, data or other items provided by the Customer pursuant to this Agreement have been and are in compliance with all applicable laws, all policies of EEG where applicable, and will not violate any legitimate rights enjoyed by any third party.
    4. It shall review any advertising claims made about the Customer Site and its products when performing the Services and indemnify EEG from all claims, damages, and expenses related to the Customer’s ad account and/or the performance of the Services, including but not limited to any misleading advertising claims buyers make.
    5. It shall indemnify, defend and hold EEG and EEG Personnel harmless from any and all third-party actions, claims, costs, liabilities, expenses (including reasonable attorney fees and costs) and damages that arise directly or indirectly out of a claim that the Customer, its advertising campaigns, Products or any content or activity related thereto, violates any applicable law, rule or regulation or infringes the rights of any third party, including but not limited to, intellectual property rights, privacy rights, publicity rights, claims of defamation, false or deceptive advertising claims and consumer fraud.
  2. If EEG receives any complaints from any third party related to the Products and the materials provided by the Customer, or is engaged or may be engaged in any investigation by any competent authority due to the Product and the materials for digital marketing provided by the Customer, EEG has the right to remove or disable access to the content relating to the Product and the materials for digital marketing provided by the Customer. EEG also has the right to disclose any information about this Agreement or the Customer to comply with any investigation by any competent authority. EEG shall not be deemed as in breach of this Agreement and the Customer shall bear all the relevant losses. EEG may not remove or disable access to or restore the content relating to the Product and the materials for digital marketing provided by the Customer due to the Customer’s statement of non-infringement or any other written notice.
  3. EEG warrants that the Services shall be performed with reasonable care and skill within the meaning of section 13 of the Supply of Goods and Services Act 1982 (SGSA 1982).
  4. EEG shall not be liable for any failure of the Services to comply with the provisions of clause 5.3 where the same arises directly or indirectly and whether in whole or in part as a result of:
    1. a breach by the Customer of any of its obligations under this Agreement;
    2. an event of Force Majeure;
    3. any design, specification or requirement of the Customer; or
    4. use of the Customer Site Data.
  5. Subject to the provisions of clause 5.6, EEG shall, at its option, remedy, re-perform or refund the Price of any Services that do not comply with clause 5.3, provided that the Customer serves a written notice on EEG that some or all of the Services do not comply with clause 5.3, and identifying in sufficient detail the nature and extent of the defects as soon as possible and within two Business Days of identifying the defect.
  6. Except as set out in this clause 5:
    1. EEG gives no warranty and makes no representations in relation to the Services;
    2. EEG shall have no liability for any non-compliance with the warranty in clause 5.3 and
    3. the conditions implied by SGSA 1982 ss 12–16 (inclusive) are expressly excluded.
  7. The Customer acknowledges that EEG is not and cannot be aware of the extent of any potential loss or damage to the Customer resulting from any failure of the Services to conform to the description of the Services or any failure by EEG to discharge its obligations under this Agreement.
  8. The Customer acknowledges that EEG expressly disclaims any representations and warranties, express or implied, including but not limited to implied warranties of title, merchantability, fitness for a particular purpose, and non-infringement. Furthermore, EEG makes no representation or warranty to the Customer that the performance of its obligations under this Agreement will produce any level of income, profits or business. Except as specified in this Agreement, EEG makes no representations that the performance of the Services will be uninterrupted or error-free, and will not be liable for the consequences of any interruptions or errors. No refund will be made due to performance of the campaign. Notwithstanding anything to the contrary under this Agreement, no payment or deposit shall be refunded to the Customer.
  9. The provisions of this clause 5 set out the Customer’s sole and exclusive remedies (howsoever arising, whether in contract, tort, negligence or otherwise) for any breach of clause 5.3 or defective performance of the Services.

6 Change control procedure

  1. Where the Customer or EEG sees a need to change this Agreement (or any of the provisions therein, including the Services), whether in order to include an additional service, function or responsibility to be performed by EEG for the Customer under this Agreement, to amend the Services or the service levels as set out in the Services, EEG may at any time request, and the Customer may at any time recommend, such Change. Such Change shall be agreed by the parties.
  2. Until such Change is made in accordance with clause 6.1, the Customer and EEG shall, unless otherwise agreed in writing, continue to perform this Agreement in compliance with its terms prior to such Change.
  3. Any discussions which may take place between the Customer and EEG in connection with a request or recommendation before the authorisation of a resultant Change shall be without prejudice to the rights of either party.
  4. Any Services or other work required by the Customer which have not been agreed in accordance with the provisions of clause 6 shall be undertaken entirely at the expense and liability of the Customer.

7 Suspension of services

  1. If EEG is prevented or delayed in performing the Services by any cause attributable to the Customer, EEG (without prejudice to its other rights):
    1. may suspend performance of the Services until the Customer remedies its default;
    2. shall not be liable for any costs or losses sustained by the Customer as a result of such suspension; and
    3. may charge the Customer (and the Customer shall pay under this Agreement) costs or losses incurred by EEG arising from the Customer’s default, subject to clause 11.

8 Price

  1. The Prices payable by the Customer in respect of the Services are defined in the Insertion Order or if there I no Insertion Order, the Prices payable are defined in the payment link and/or invoice and may be increased by EEG under clauses Error! Reference source not found. and 8.7.
  2. The Prices are exclusive of VAT (or equivalent sales tax).
  3. The Customer shall pay any applicable VAT (or equivalent sales tax) to EEG on receipt of a valid VAT invoice.
  4. The Customer shall be responsible for any government tax, including but not limited to VAT, sales taxes, use taxes, withholding taxes, departure taxes and any other similar tax imposed by any governmental entity on the transactions under this Agreement, excluding taxes based solely upon EEG’s income.
  5. EEG shall be entitled to be reimbursed by the Customer for all out-of-pocket expenses incurred by EEG and EEG Personnel in the proper provision of the Services, subject to the production of such receipts or other evidence as the Customer may reasonably require and will include any such expenses on invoices rendered.
  6. EEG may increase the Prices at any time by giving the Customer not less than 3 Business Days’ notice in writing.
  7. Notwithstanding clause Error! Reference source not found., EEG may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to EEG of supplying the relevant Services and which is due to any factor beyond the control of EEG.

9 Payment

  1. The Customer shall pay all invoices:
    1. in full in cleared funds on the due date on the invoice; or
    2. if there is no due date on the invoice, within 7 days of the date of each invoice; and
    3. to the bank account nominated by EEG.
  2. Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date:
    1. EEG may, without limiting its other rights, charge interest on such sums at 5 percentage points a year above the base rate of the Bank of England’s base rate from time to time in force provided that the interest rate chargeable shall be 5% if the base rate is at zero; and
    2. interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.
    3. EEG is entitled to suspend or terminate performance of the Services, including but not limited to the continuation of any ongoing campaign, without prior notice.
  3. The Customer has the choice to maintain a deposit to EEG in order to cover the advertising spends of marketing campaigns (“Prepay“). The advertising spend shall refer to the data measured by EEG and will be deducted from the deposit until the deposit is exhausted. The Customer understands that EEG reserves the right to deduct any costs payable to EEG from the deposit as they are incurred.
  4. If the Customer does not opt for Prepay, the Customer is required to cooperate with EEG to either set up a direct debit on the Customer’s bank account or put the Customer’s credit card details on file with EEG’s payment system. The Customer acknowledges that EEG reserves the right to charge the Customer’s saved payment method any outstanding amounts payable under this Agreement as they are incurred.
  5. Any dispute in connection with deductions from the deposit, charges on the Customer’s credit card or direct debits shall be raised by the Customer within 3 business days of receiving the receipt or invoice, by submitting sufficient written evidence(s) (“Dispute Period”). If the Customer fails to dispute the invoice or receipt within the Dispute Period, the invoice or receipt provided by EEG shall be deemed accepted by the Customer.

10 Intellectual property rights

  1. In consideration of the Price payable under this Agreement (the receipt and sufficiency of which EEG hereby acknowledges) and the parties’ mutual obligations under this Agreement EEG grants to the Customer a non- exclusive licence to use for the purposes of this Agreement the Intellectual Property Rights in the Services and all other materials created by EEG pursuant to this Agreement.
  2. For any Creatives produced by EEG for free based on material, information, documents or Creatives
  3. For any Creatives produced by EEG for free based on material, information, documents or Creatives the Customer has provided, the Customer acknowledges that the Intellectual Property Rights for such Creatives belong exclusively to EEG. EEG hereby grants the Customer a limited, royalty free, nontransferable, nonexclusive right to use such creatives in advertising campaigns under this Agreement. EEG is entitled to use such creatives and any related performance data for any purposes, including but not limited to purposes of data analysis, promoting EEG’s or any of EEG’s subsidiaries’ brands, products or services.
  4. Solely for the purpose of this Agreement, the Customer hereby grants EEG a limited, royalty free, nontransferable, nonexclusive right to use the Customer’s trademark, trade name, service mark and domain name, and any visual representations thereof, including logos, designs, symbols, word marks, images, colors and color combinations, trade dress and characters, and any other publicity rights or indicia of ownership owned or used by the Customer or its Affiliates (hereinafter the “Customer Material”).
  5. EEG is entitled to disclose the cooperative relationship between both Parties and use the Customer Material in publicity, advertising or other marketing activities and to use the Customer’s name and logo in customer listings and marketing materials. In addition, the Customer expressly allows EEG to use the Customer’s experimentation data or Ad Campaign performance information in an aggregated form in EEG’s marketing material. The Customer can restrict EEG’s rights under this clause 10.4 at any time in writing.
  6. Except as expressly agreed in this Clause 10, no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
  7. Subject to the foregoing, EEG shall be entitled to use in any way it deems fit any skills, techniques or Know- how acquired or developed or used in connection with this Agreement. The Customer acknowledges that the Intellectual Property Rights for such skills, techniques or Know-how belong exclusively to EEG.

11 Limitation of liability

  1. The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.
  2. Subject to clause 11.5, the total liability of EEG shall not exceed a sum equivalent to the Price paid to EEG for Services during the preceding 3 months from the date on which the liability arose. This excludes any Prices paid to EEG for Services which have been declared as “Ad Budget”, “Media Spend”, “Budget” or any other term which refers to the amount transferred to EEG to be used as advertising budget for marketing campaigns.
  3. Subject to clause 11.5, neither party shall be liable for consequential, indirect or special losses.
  4. Subject to clause 11.5, neither party shall be liable for any of the following (whether direct or indirect) loss of profit, loss of or corruption to data, loss of use, loss of production, loss of contract, loss of opportunity, loss of savings, discount or rebate (whether actual or anticipated), harm to reputation or loss of goodwill.
  5. Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:
    1. death or personal injury caused by negligence;
    2. fraud or fraudulent misrepresentation; or
    3. any other losses which cannot be excluded or limited by applicable law.

12 General Limitations

  1. The Customer acknowledges and accepts that EEG shall provide the Services under the Customer’s instruction and therefore EEG cannot and will not be responsible nor liable for:
    1. The actions of the Customer or its employees, officers, staff, other workers, agents and consultants and/or sub-contractors;
    2. The success or performance of the Customer Site and/or the Customer’s business generally;
    3. The repute of the Customer and/or the Customer Site;
    4. Any suspension or termination or the prevention of access to the Customer Site by a third party; or
    5. Any loss, damages, claims, expenses due to an event or circumstance which is outside EEG’s control.

13 Insurance

  1. The Customer shall put in place and maintain appropriate insurances to cover its obligations under this Agreement for the duration of this Agreement.

14 Termination

  1. This Agreement may be terminated at any time by EEG giving not less than one month’s notice in writing to the Customer.
  2. Either party may terminate this Agreement at any time by giving notice in writing to the other party if:
    1. the other party commits a material breach of this Agreement and such breach is not remediable;
    2. the other party commits a material breach of this Agreement which is not remedied within 14 days of receiving written notice of such breach;
    3. any consent, licence or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under this Agreement or receive any benefit to which it is entitled.
  3. Without prejudice to any other rights that it may have, EEG may terminate this Agreement immediately on written notice to the Customer, if the Customer has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid ten Business Days after the Customer has received a written notification from EEG that the payment is overdue.
  4. Either party may terminate this Agreement at any time by giving notice in writing to the other party if that other party:
    1. stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
    2. is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) or if the non-defaulting party reasonably believes that to be the case;
    3. becomes the subject of a company voluntary arrangement under IA 1986;
    4. becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
    5. becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
    6. becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
    7. has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
    8. has a resolution passed for its winding up;
    9. has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
    10. is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
    11. has a freezing order made against it;
    12. is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
    13. is subject to any events or circumstances analogous to those in clauses 14.4.1 to 14.4.12 in any jurisdiction;
  5. The right of a party to terminate the Agreement pursuant to clause 14.4 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to this Agreement.
  6. EEG may terminate this Agreement at any time by giving not less than one month’s notice in writing to the Customer if the Customer undergoes a change of Control or if the Customer has announced that it shall undergo a change of Control within two months.
  7. On termination of this Agreement for any reason:
    1. the Customer shall immediately pay all outstanding invoices of EEG;
    2. EEG shall promptly invoice the Customer for all Services performed but not yet invoiced and payment for such invoices shall be due immediately on receipt by the Customer; and
    3. the accrued rights and liabilities of the parties (including any rights in relation to breaches of contract) shall not be affected.
  8. The following clauses of this Agreement shall survive termination, howsoever caused:
    1. clause 11 (limitation of liability);
    2. clause 15 (data protection);
    3. clause 14.7 (termination);
    4. clause 16 (confidential information);
    5. clause 19 (dispute resolution);
    6. clause 21 (notices);
    7. clause 34 (third party rights);
    8. clauses 35 and 36 (governing law and jurisdiction); and
    9. Schedule 2 (data protection)

together with any other provision of this Agreement which expressly or by implication is intended to survive termination.

15 Data protection

  1. Each party shall comply with its respective obligations, and may exercise its respective rights and remedies, set out in Schedule 2.

16 Confidential information

  1. Each party undertakes that it shall keep any information that is confidential in nature concerning the other party and its Affiliates including any details of its business, affairs, customers, the Customer, suppliers, plans or strategy (Confidential Information) confidential and that it shall not use or disclose the other party’s Confidential Information to any person, except as permitted by clause 16.4.
  2. All written and oral information and materials disclosed or provided by EEG to the Customer under this Agreement constitute Confidential Information regardless of whether such information was provided before or after the date of this Agreement or how it was provided to the Customer.
  3. Confidential Information will not include the following information:
    1. Information that is generally known in the industry of EEG;
    2. Information that is now or subsequently becomes generally available to the public through no wrongful act of the Customer;
    3. Information rightly in the possession of the Customer prior to the disclosure to the Customer by EEG;
    4. Information that is independently created by the Customer without direct or indirect use of the Confidential Information; or
    5. Information that the Customer rightfully obtains from a third party who has the right to transfer or disclose it.
  4. A party may:
    1. subject to clause 16.7, disclose any Confidential Information to any of its employees, workers, officers, subcontractors, representatives or advisers (Representatives) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that such party must ensure that each of its Representatives to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause 16 as if it were a party;
    2. disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
    3. subject to clause 16.7, use Confidential Information only to perform any obligations under this Agreement.
  5. Each party recognises that any breach or threatened breach of this clause 16 may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
  6. This clause 16 shall bind the parties during the Term and for a period of three years following termination of this Agreement.
  7. To the extent any Confidential Information is Protected Data, such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any of Schedule 2.

17 Non-Solicitation

  1. Any attempt on the part of the Customer to induce others to leave EEG employ, or any effort by the Customer to interfere with EEG’s relationship with its other employees would be harmful and damaging to EEG. The Customer agrees that from the date of this Agreement onwards, the Customer will not in any way, directly or indirectly:
    1. Induce or attempt to induce any employee or Customer of EEG to quit their employment or retainer with EEG
    2. Otherwise interfere with or disrupt EEG relationship with its employees or Customers
    3. discuss employment opportunities or provide information about competitive employment to any of EEG’s employees or Customers; or
    4. solicit, entice, or hire away any employee or Customer of EEG.
  2. This clause 18 shall bind the parties during the Term and for a period of three years following termination of this Agreement.
  3. In the event of failure by the Customer to follow this clause 18, the Customer shall be liable to pay EEG a penalty of £10,000. This penalty shall be a minimum and does not preclude EEG from seeking further damages, costs, or losses incurred as a result of the breach. EEG reserves the right to pursue additional legal remedies as necessary.

18 Anti-bribery

  1. For the purposes of this clause 189, the expressions adequate procedures and associated with shall be construed in accordance with BA 2010 and guidance published under it.
  2. The Customer shall ensure that it and each person referred to in clauses 18.2.1 to 18.2.3 (inclusive) does not, by any act or omission, place EEG in breach of any Bribery Laws. The Customer shall comply with all applicable Bribery Laws in connection with the performance of the Services and this Agreement and ensure that it has in place adequate procedures to prevent any breach of this clause 189 and ensure that:
    1. all of the Customer’s personnel and all direct and indirect sub-contractors, suppliers, agents and other intermediaries of the Customer;
    2. all others associated with the Customer; and
    3. each person employed by or acting for or on behalf of any of those persons referred to in clauses 18.2.1 and/or 18.2.2,

involved in performance of obligations under this Agreement so comply.

  1. Without limitation to clause 18.2, the Customer shall not in connection with the performance of this Agreement make or receive any bribe (which term shall be construed in accordance with BA 2010) or other improper payment or advantage, or allow any such bribe or improper payment or advantage to be made or received on its behalf, either in the United Kingdom or elsewhere, and will implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.
  2. The Customer shall immediately notify EEG as soon as it becomes aware of a breach or any of the requirements in this clause 189.
  3. Any breach of this clause 189 by the Customer shall be deemed a material breach of this Agreement that is not remediable and shall entitle EEG to immediately terminate this Agreement by notice under clause 14.2.

19 Dispute resolution

  1. Any dispute arising between the parties out of or in connection with this Agreement shall be dealt with in accordance with the provisions of this clause 19.
  2. The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
  3. The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
    1. Within seven days of service of the notice, the contract managers of the parties shall meet to discuss the dispute and attempt to resolve it.
    2. If the dispute has not been resolved within seven days of the first meeting of the contract managers*, then the matter shall be referred to the directors (or persons of equivalent seniority). The directors (or equivalent) shall meet within *seven* days to discuss the dispute and attempt to resolve it.
  4. The specific format for the resolution of the dispute under clause 19.3.1 and, if necessary, clause 19.3.2 shall be left to the reasonable discretion of the parties, but may include the preparation and submission of statements of fact or of position.
  5. If the dispute has not been resolved within *14* days of the first meeting of the directors (or equivalent) under clause 19.3.2, then the matter may be referred to mediation in accordance with the London Court of International Arbitration Mediation Rules.
  6. Until the parties have completed the steps referred to in clauses 19.3 and 19.5, and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration except that either party may at any time seek urgent interim relief from the courts or emergency arbitrator relief.

20 Entire agreement

  1. This Agreement and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
  2. Each party acknowledges that it has not entered into this Agreement or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.
  3. Nothing in this Agreement purports to limit or exclude any liability for fraud.

21 Notices

  1. Any notice or other communication given by a party under this Agreement shall be:
    1. in writing and in English;
    2. signed by, or on behalf of, the party giving it (except for notices sent by email); and
    3. sent to the relevant party at the address set out in clause 21.3.
  2. Notices may be given, and are deemed received:
    1. by hand: on receipt of a signature at the time of delivery;
    2. by *Royal Mail Recorded Signed For* post: at *9.00 am* on the *second* Business Day after posting;
    3. by Royal Mail International Tracked & Signed post: at *9.00 am* on the *fourth* Business Day after posting; and
    4. by email provided confirmation is sent by first class post at 9.00am the second business day after sending.
  3. Notices and other communications shall be sent to:
    1. Elite Ecommerce Group Limited for the attention of Neil Kettleborough at:

115 Millfields Road, Wolverhampton, England, WV4 6JQ neil@eegroup.global

  1. Customer:

As stated on purchase invoice and provided by Customer

  1. Any change to the contact details of a party as set out in clause 21.3 shall be notified to the other party in accordance with clause 21.1 and shall be effective:
    1. on the date specified in the notice as being the date of such change; or
    2. if no date is so specified, 7 Business Days after the notice is deemed to be received.
  2. All references to time are to the local time at the place of deemed receipt.
  3. This clause does not apply to notices given in legal proceedings or arbitration.

22 Announcements

  1. Subject to clause 22.2, no announcement or other public disclosure concerning this Agreement or any of the matters contained in it shall be made by, or on behalf of, a party without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
  2. If a party is required to make an announcement or other public disclosure concerning this Agreement or any of the matters contained in it by law, any court, any governmental, regulatory or supervisory authority (including any recognised investment exchange) or any other authority of competent jurisdiction, it may do so. Such a party shall:
    1. notify the other party as soon as is reasonably practicable upon becoming aware of such requirement to the extent it is permitted to do so by law, by the court or by the authority requiring the relevant announcement or public disclosure;
    2. make the relevant announcement or public disclosure after consultation with the other party so far as is reasonably practicable; and
    3. make the relevant announcement or public disclosure after taking into account all reasonable requirements of the other party as to its form and content and the manner of its release, so far as is reasonably practicable.

23 Force majeure

  1. In this clause, Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement. Inability to pay is not Force Majeure.
  2. A party shall not be liable if delayed in or prevented from performing its obligations under this Agreement due to Force Majeure, provided that it:
    1. promptly notifies the other of the Force Majeure event and its expected duration; and
    2. uses reasonable endeavours to minimise the effects of that event.
  3. If, due to Force Majeure, a party:
    1. is or is likely to be unable to perform a material obligation; or
    2. is or is likely to be delayed in or prevented from performing its obligations for a continuous period of more than 60 Business Days;

either party may terminate this Agreement on not less than [four] weeks’ written notice.

24 Further assurance

Each party shall at the request of the other party, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to this Agreement.

25 Variation

No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.

26 Assignment and sub-contracting

  1. EEG may at any time assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, provided that it gives prior written notice to the Customer.
  2. The Customer shall not assign, sub-contract,
  3. The Customer shall not assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, in whole or in part, without EEG’s prior written consent.

27 Set off

The Customer shall pay all sums that it owes to EEG under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

28 No partnership or agency

The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.

29 Severance

  1. If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
  2. If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

30 Waiver

  1. No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
  2. No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
  3. A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.

31 Compliance with law

Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under this Agreement, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach of this clause 31 to the extent that such breach is directly caused or contributed to by any breach of this Agreement by the other party (or its employees, agents and representatives).

32 Conflicts within agreement

  1. In the event of any conflict or inconsistency between different parts of this Agreement, the following descending order of priority applies:
    1. the terms and conditions in the main body of this Agreement and Schedule 2;
    2. the other Schedules.
  2. Subject to the above order of priority between documents, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.

33 Costs and expenses

Each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).

34 Third party rights

  1. Except as expressly provided for in clause 34.2, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
  2. The Affiliates of EEG shall have the right to enforce the provisions of this Agreement.

35 Governing law

This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

36 Jurisdiction

Subject to clause 19, the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).

SCHEDULE 1 SERVICES

  • Programmatic Advertising:
    • Display
    • Video
    • In-App
    • Native
    • Connected TV (CTV)
    • Digital-Out-Of-Home
  • Creative Services

SCHEDULE 2 DATA PROTECTION

Definitions

  1. In this Schedule:
Controller has the meaning given in applicable Data Protection Laws from time to time;
Data Protection Laws means, as binding on either party or the Services:
(a) the GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement any such laws; and
Data Subject (d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
has the meaning given in applicable Data Protection Laws from time to time;
GDPR means the General Data Protection Regulation, Regulation (EU) 2016/679;
International Organisation has the meaning given in applicable Data Protection Laws from time to time;
Personal Data has the meaning given in applicable Data Protection Laws from time to time;
Personal Data Breach has the meaning given in applicable Data Protection Laws from time to time;
processing has the meaning given in applicable Data Protection Laws from time to time (and related expressions, including process, processed and processes shall be construed accordingly);
Processor has the meaning given in applicable Data Protection Laws from time to time;
Protected Data means Personal Data received from or on behalf of the Customer in connection with the performance of EEG’s obligations under this Agreement; and
Sub-Processor means any agent, sub-contractor or other third party (excluding its employees) engaged by EEG for carrying out any processing activities on behalf of the Customer in respect of the Protected Data.

Customer’s compliance with data protection laws

The parties agree that the Customer is a Controller and that EEG is a Processor for the purposes of processing Protected Data pursuant to this Agreement. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to EEG in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws. Nothing in this Agreement relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.

The Customer is aware that neither EEG nor EEG’s traffic providers have established a direct link with the Data Subject with respect to the Personal Data transmitted to EEG by the the Customer and third-party platforms entrusted by the Customer (including, but not limited to, attribution platforms). Accordingly, the Customer warrants that by using other lawful and valid consent mechanisms, it provides appropriate notice to and obtains valid consent from users on behalf of EEG prior to transmitting data to EEG to ensure that EEG may, in accordance with the EEG Privacy Policy, process their Personal Data for purposes, including, but not limited to, (a) for the performance of the Services; (b) for the transmission of Personal Data to third parties for the foregoing purposes, including to EEG’s affiliates, EEG’s traffic providers and EEG’s other business partners and for cross-border transfers (collectively, the “EEG Purposes”). This includes but is not limited to the usage and installation of EEG’s pixel, app or other integrations.

If the Customer has a purpose for processing Personal Data other than for EEG Purposes, (hereinafter referred to as “The Customer Purposes”), it shall ensure that it has obtained the valid consent of the users in accordance with the requirements of applicable data protection laws.

The Customer warrants that it has provided appropriate notice to and obtained valid consent from its employees who are in direct contact with EEG’s business representatives or who have accessed the EEG’s platform/website to make sure that EEG and/or its affiliates may, in accordance with EEG’s Privacy Policy store Personal Data of the the Customer’s employees, to send direct marketing emails about products or services to the Customer itself or the the Customer’s employees via email.

EEG’s compliance with data protection laws

EEG shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.

Indemnity

The Customer shall indemnify and keep indemnified EEG against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under this Schedule.

Instructions

  1. EEG shall only process (and shall ensure EEG Personnel only process) the Protected Data in accordance with this Agreement except to the extent:
    1. that alternative processing instructions are agreed between the parties in writing; or
    2. otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest).
  2. If EEG believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.

Security

Taking into account the state of technical development and the nature of processing, EEG shall implement and maintain technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

Sub-processing and personnel

  1. EEG shall:
    1. prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this Schedule (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by EEG and ensure each such Sub-Processor complies with all such obligations;
    2. remain fully liable to the Customer under this Agreement for all the acts and omissions of each Sub-Processor as if they were its own; and
    3. ensure that all persons authorised by EEG or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.

List of authorised sub-processors

The Customer authorises the appointment of the Sub-Processors subject to clause 1.4.1 above.

Assistance

  1. EEG shall (at the Customer’s cost) assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to EEG.
  2. EEG shall (at the Customer’s cost) taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.

International transfers

The Customer accepts that EEG may transfer data outside of the UK for the provision of the Services but shall do so in accordance with Data protection Laws.

Audits and processing

EEG shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate EEG’s compliance with the obligations placed on it under this Schedule and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28 of the GDPR), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of [one] audit request in any 12 month period under this paragraph [0](#audits-and-processing)).

Deletion/return and survival

On the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, EEG shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires EEG to store such Protected Data. This Schedule shall survive termination or expiry of this Agreement.

Part B

Data processing and security details

Section 1—Data processing details

Processing of the Protected Data by EEG under this Agreement shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in this Part B.

Subject-matter of processing:

Personal data of the Customer and the Customer’s own end user customers.

Duration of the processing:

Duration of this Agreement

Nature and purpose of the processing:

For the performance of the Customer’s contract of provision of goods to it’s own end user customers.

Type of Personal Data:

Names, addresses, payment method, payment details, account details, IP addresses, cookies information and any other personal information contained in an end user order to the Customer.

Categories of Data Subjects:

Customer staff, end user customer information and order information.

Section 2—Minimum technical and organisational security measures

  1. EEG shall implement and maintain the following technical and organisational security measures to protect the Protected Data:
    1. In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with this Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, EEG shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the GDPR.