1.1 Shopbox hereby grants the Customer from the Commencement Date, a limited, non-exclusive, non-transferable, non-assignable, license to access and use the Shopbox Online Services (the “Licensed Services”) for the applicable Subscription Period. The applicable period is from the Commencement Date until the End of Term or Termination (Clause 6).
1.2 As between Shopbox and the Customer, Shopbox shall retain all right, title, and interest in and to its Intellectual Property Rights in the Licensed Services, including any Improvements to the Shopbox Platform and related documentation. Except for the licenses expressly set forth in this Agreement, this Agreement does not convey to the Customer any ownership or other proprietary rights to the Platform.
1.3 Shopbox shall not have any liability of any kind whatsoever to the Customer in connection with: (i) the contents or accuracy of data and information displayed to Consumers; or (ii) the efforts or failure of Consumers to solicit or accept Product Purchases.
1.4 By signing this Agreement, the Customer agrees to ensure that it is in compliance with the Minimum Requirements during Integration and the Subscription Period.
1.5 Any failure or delay by the Customer to provide the deliverables or assistance reasonably required by Shopbox shall, to the extent that any such failure or delay reasonably results in Shopbox failing to meet its obligations under this Agreement, relieve Shopbox of any liability to the Customer in respect of any such failure or delay.
1.6 Licenced Usage
1.6.1 will be calculated per month;
1.6.2 is based on average monthly usage over the Subscription Term
1.6.3 should not exceed the total aggregate allowable in the Subscription period
1.6.4 is subject to inflation rate increases each year
2.1 The Parties shall jointly work together and use all reasonable endeavours to develop the Integration as soon as reasonably possible.
2.2 From the Commencement Date, Shopbox shall provide the Support Services to the Customer.
3.1 The Customer shall:
3.1.1 ensure that the services made available through the Shopbox Platform are available to Consumers ;
3.1.2 provide all reasonable IT assistance to Shopbox during Integration;
3.1.3 ensure third parties required for the correct functioning of Shopbox provide reasonable assistance during integration and for any subsequent work required;
3.1.4 be responsible for all costs whether internal or from third parties to integrate to the Shopbox platform.
3.1.5 ensure data feeds required for the correct functioning of the Shopbox platform are fit for purpose.
3.1.6 ensure data accuracy and timeliness of all data feeds.
3.2 The Customer agrees that it:
3.2.1 shall use the Licensed Services in accordance with the terms and conditions of this Agreement;
3.2.2 shall provide Shopbox with (i) all necessary co-operation in relation to this Agreement; and (ii) all necessary access to such information as may be required by Shopbox, in order to provide the Services, including but not limited to access to eCommerce systems, security access information and configuration services;
3.2.3 shall obtain and shall maintain all necessary licences, consents, and permissions necessary for Shopbox, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
3.2.4 shall be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Shopbox platform and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet; and
3.2.5 shall pay, for broadening the scope of the License granted under this Agreement to cover the unauthorised use, an amount equal to the fees which Shopbox would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
3.3 The Customer may not use any information provided by Shopbox to create any software whose expression is substantially similar to that of the Shopbox Platform nor use such information in any manner which would be restricted by any copyright subsisting in it.
3.4 The Customer will not disclose, lease, sell, export, distribute, copy, transfer or assign the Licence, in whole or in part, to any third party, and doing so would be a material breach of this Agreement and considered cause for immediate termination of this Agreement by Shopbox.
4.1 Shopbox retains exclusive ownership of the Intellectual Property Rights in the Shopbox Platform and any documentation included with the Shopbox Platform, including any derivative work, modification, update, enhancement or suggestion or proposal by or on behalf of the Customer. All rights in and to the Shopbox Platform and any documentation included with the Shopbox Platform not expressly granted to Customer in this Agreement are expressly reserved by Shopbox. The Customer acknowledges that nothing in this Agreement gives Customer the right to use any trade mark, trade name or service mark of Shopbox.
4.2 The Customer shall not remove or alter any copyright notices which may be provided through the Shopbox Platform.
5.1 From the Commencement Date, the Customer shall pay the Subscription Fees to Shopbox in accordance with this Clause and the Term Sheet.
5.2 If Shopbox has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Shopbox:
5.2.1 Shopbox may, without liability to the Customer, disable the Customer's access to all or part of the Shopbox Platform and Shopbox shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
5.2.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to the greater of 4% or 4% over the then current base lending rate of Bank of Ireland from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
5.3 All amounts due under this Agreement shall be paid by the Customer to Shopbox in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If any such withholding or deduction is required, the Customer shall, when making the payment to which the withholding or deduction relates, pay to Shopbox such additional amount as will ensure that Shopbox receives the same total amount that it would have received if no such withholding or deduction had been required.
6.1 This Agreement shall commence on the Commencement Date. Unless terminated earlier in accordance with Clause 11 or this Clause, this Agreement shall continue for the Subscription Term, which shall begin on the Commencement Date, and shall automatically extend for the Renewal Term at the end of the Initial Subscription Term and at the end of each Renewal Term.
6.2 Subject to Clause 6.4, either Party may give written notice to the other Party, to terminate this Agreement at the end of the Initial Subscription Term or the relevant Renewal Term, as the case may be.
6.3 Shopbox may terminate this Agreement immediately should the Licensed Products become, or in Shopbox’s opinion is likely to become, the subject of a claim of infringement of an intellectual
property right, or should Customer breach any of the use restrictions as detailed in Clause 3 or should the Customer materially breach any of the provisions of this Agreement, other than Clause 3 or should the Customer fail to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment. The rights enumerated herein are in addition to any other rights Shopbox may have at law or in equity, and Shopbox, affirmatively reserves any such additional rights
6.4 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
6.4.1 the other Party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
6.4.2 being a partnership, the other Party is terminated, declared bankrupt, dissolved or if the other Party commits an act of bankruptcy;
6.4.3 the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
6.4.4 the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or
more other companies or the solvent reconstruction of that other Party;
6.4.5 petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
6.4.6 an application is made to court, or an order is made, for the appointment of an examiner, or if a notice of intention to appoint an examiner is given, over the other Party;
6.4.7 holder of a qualifying floating charge over the assets of that other Party has become entitled to appoint or has appointed an administrative receiver;
6.4.8 person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;
6.4.9 creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party's assets and such attachment or process is not discharged within 14 days;
6.4.10 any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 6.4.2 to Clause 6.4.9 (inclusive); or
6.4.11 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
6.4.12 On termination for any reason:
6.4.13 all rights granted to the Customer under this Agreement shall cease;
6.4.14 the Customer shall cease all activities authorised by this Agreement; and
6.4.15 the Customer shall immediately pay to Shopbox any sums due to Shopbox under this Agreement.
7.1 Each Party shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including the terms of this Agreement, trade secrets and information of commercial value) which may become known to such Party from the other Party and which relates to the other Party, unless that information is public knowledge or already known to such Party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such Party from a third party. Each Party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
7.2 Neither Party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
8.1 Except as otherwise explicitly stated in this Agreement, the Shopbox Platform is provided "as is" and on an as available basis without any warranty whatsoever. The Customer recognises that this Clause 8.1 is an important part of the basis of this Agreement, without which Shopbox would not have agreed to enter into this agreement. Shopbox hereby disclaims all warranties, express, implied, or statutory, regarding the Shopbox Platform, including without limitation any warranties of design, merchantability, fitness for a particular purpose, title, and non-infringement. No representation or other affirmation of fact regarding the Shopbox Platform will be deemed a warranty for any purpose or give rise to any liability of Shopbox whatsoever. The Customer acknowledges that it has relied on no warranties.
8.2 The Customer warrants that if it is entering into this Agreement on behalf of a company or other legal entity, that it represents that it has the authority to bind such entity to this Agreement, in which case the term “Customer” shall refer to such entity.
9.1 Subject to Clause 9.4, in no event will Shopbox be liable for any lost revenues or profits, loss of data, loss of use, economic loss, special, indirect, incidental or consequential damages arising with respect to the Shopbox Platform or otherwise arising out of this Agreement, even if advised of the possibility of such damages.
9.2 Subject to Clause 9.4, under no circumstances will Shopbox’s aggregate cumulative liability hereunder, whether in contract, tort or otherwise, exceed the fees paid by the Customer to Shopbox in the six months prior to the occurrence of the breach.
9.3 This Clause allocates the risks between Customer and Shopbox, and Customer and Shopbox agree that neither Party would have entered into this Agreement without the limitations on its liability contained herein.
9.4 Nothing contained in this Agreement limits Shopbox’s liability to Customers for fraud, death, personal injury or any other liability to the extent that it cannot be excluded or limited as a matter of law.
10.1 Customer will defend, indemnify and hold harmless Shopbox and its affiliates and their respective officers, directors, agents and employees against all third-party claims, costs, fines and expenses, including attorneys' fees, resulting from
10.1.1 use by the Customer of the Shopbox Platform;
10.1.2 the operation of the Customer's business;
10.1.3 use of the Customer Data; or
10.1.4 the Customer's breach of this Agreement.
11.1 Neither Party will be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Agreement that is caused by an event outside its reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond a Party's reasonable control and includes in particular (without limitation) strikes, lock-outs or other industrial action; civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; impossibility of the use of public or private telecommunications networks; or the acts, decrees, legislation, regulations or restrictions of any government.
11.2 Either Party shall be entitled to terminate this Agreement in the event that the Force Majeure Event causes a period of delay or non-performance of duties by the other Party for a period of 2 weeks.
12.1 The following definitions apply to this Clause 12:
12.1.1 the terms "data controller", "data processor", "data subject", "personal data" and "processing" bear the respective meanings given them in the Data Protection Act 1988, 2003 and 2018.
12.1.2 data includes personal data; and
12.1.3 Customer Personal Data means any personal data in the Customer Data.
12.2 Shopbox shall:
12.2.1 not accept Customer Personal Data from the Customer;
12.2.2 destroy any Customer Personal Data received, once detected and notify the Customer, this has been carried out
12.2.3 implement appropriate technical and organisational measures to protect any data against unauthorised or unlawful processing and accidental loss or damage; and
12.2.4 only transfer data to countries outside the European Economic Area that ensure an adequate level of protection for the rights of the data subject.
12.3 Shopbox shall notify the Customer in writing of any notices in connection with the processing of any Customer Data, including subject access requests, and provide such information and assistance as the Customer may reasonably require.
12.4 The Customer acknowledges that Shopbox will be acting as a data processor, rather than as a data controller, in respect of all such data processing activities which Shopbox carries out under this agreement.
12.5 Shopbox shall only accept Consumer Data that does not contain personally identifiable information.
12.6 Shopbox shall have the ability to use anonymised Consumer Data for the purposes of carrying out data analytics or to improve the Shopbox Platform.
12.7 Except as expressly provided otherwise, this Agreement does not transfer ownership of, or create any licences (implied or otherwise), in any Intellectual Property Rights in any (nonpersonal) data.
13.1 Any notice given by one Party to another Party under or in connection with this Agreement shall be in writing and shall be served by email to the email listed in the Term Sheet. A notice shall be deemed to have been received if sent by email on the next business day after transmission
14.1 This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes, as of the Commencement Date, any prior agreements and understandings, whether oral or written, between the parties, or any predecessor(s) thereto, relating to the same subject matter.
14.2 This Agreement may only be modified by agreement in writing signed by an authorised officer of Shopbox.
14.3 The waiver by any Party hereto of any requirement or obligation arising hereunder will not operate or be construed as a subsequent waiver thereof.
14.4 Subject to Clause 14.9, this Agreement will be binding upon and will inure to the benefit of the parties, their legal representatives, successors and assigns.
14.5 Subject to any terms set out in the Term Sheet, this Agreement is not exclusive and each Party is free to enter into similar agreements with any other party.
14.6 At Shopbox’s sole discretion, affiliates, subcontractors or vendors of Shopbox may perform any task required by Shopbox under this Agreement.
14.7 Any provision of this Agreement which may be determined by a court or other competent governmental authority to be prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability, without invalidating the remaining provisions thereof, unless said prohibition or unenforceability materially alters the rights or obligations of either Party.
14.8 Shopbox and the Customer are not joint venturers’, partners, or agents of each other, and neither will have the power to bind the other or make any promises of representations on behalf of the other to third parties.
14.9 The Customer shall not without the written consent of Shopbox assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any manner with all or any of its rights or obligations under this Agreement.
14.10 Shopbox may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement.
14.11 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
15.1 This Agreement, its subject matter or its formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the laws of Ireland.
15.2 Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force, and:
15.2.1 the appointing authority shall be the International Chamber of Commerce;
15.2.2 the number of arbitrators shall be one;
15.2.3 the place of arbitration shall be Dublin, Ireland; and
15.2.4 the language(s) to be used in the arbitral proceedings shall be English.
15.3 Nothing in this Agreement shall prevent either Party from seeking injunctive or other relief in a court of law to protect or enforce its legal rights, including, without limitation the right of either Party to apply to a court of competent jurisdiction for injunctive relief against another party to protect its intellectual property rights or confidential information.
15.4 Each Party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising pursuant to Clause 15.3.
16.1 The definitions and rules of interpretation in this Clause apply in this Agreement:
16.1.1 Definitions:
16.1.2
“Active Consumers”, the individual consumers (members of the public) using the Customer’s online shop, defined by the Shopbox system as a single unique identifier associated with a specific device.
"Agreement", these Terms together with the Term Sheet;
“Active Users”, means individuals who are employees or contractors of the Customer who has been authorized to use the Services. A User may be provisioned directly in the Product or indirectly in another system, with privileges or privileged access to the Product.
"Commencement Date", the date on which the Agreement commences, as specified in the Term Sheet;
"Customer", the licensee who is being provided with access to the Shopbox Platform, as specified in the Term Sheet;
"Customer Data", means any data provided by the Customer to Shopbox, pursuant to this Agreement;
“Consumer” means the prospects and clients of the Customer i.e. member of the public;
“Improvement”, means any further development to or improvement upon Shopbox’s Intellectual Property Rights that are referenced in this Agreement, the exercise of which, in the absence of a license of the underlying Intellectual Property Rights would constitute an infringement of such Intellectual Property Rights;
"Initial Subscription Term", the initial term for the Licence granted under this Agreement, as specified in the Term Sheet;
“Intellectual Property Rights”, means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Integration”, means the implementation or modifications and/or additions to the Shopbox products and services, to enable access and use of the Shopbox Platform and to enable interoperability and communication between Shopbox’s products and services and the Customer's platforms.
“Shopbox Platform”, means the products and services as specified in the Term Sheet, related APIs and any related software developed and licensed by Shopbox under this Agreement, that allows Shopbox’s services to integrate with the Customer’s platforms or Interact directly with Consumers.
"Minimum Requirements", means the minimum requirements of the Customer Platform, as set out in the Term Sheet;
"Renewal Term", the renewal period following expiration of the Initial Subscription Term, as detailed in the Term Sheet;
“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; "Services", means any products / service provided by Shopbox pursuant to this Agreement, including any services set out in the Term Sheet;
“Platform”, refers to the Shopbox Platform
"Services", means any products and service provided by Shopbox pursuant to this Agreement, including any services set out in the Term Sheet;
"Subscription Fees", means the licence fee and commission payable to Shopbox by the Customer, as set out in the Terms Sheet;
"Support Services", the ancillary support services to be provided by Shopbox, as specified in Schedule 1, and as may be amended by Shopbox from time to time;
"Term Sheet", the term sheet to which these Terms are appended to;
"Terms", these Terms and Conditions.
16.2 All references to the Customer within this Agreement shall include any of the Customer's employees, officers, agents, or contractors.
16.3 (a) The headings in this Agreement are inserted for convenience only and shall not affect its construction. (b) A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. (c) Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. (d) Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular. (e) Any Term Sheet to this Agreement forms part of (and is incorporated into) this Agreement. (f) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. (g) If there any inconsistency between
1. Provision of necessary infrastructure to support end customers via Shopbox’s preferred Infrastructure Provider and in accordance with the support provided to Shopbox by the Infrastructure Provider.
2. Shopbox shall make available support resources for the Licensed Platform and the Integration during business hours (9.00am - 5.00pm Irish Time, Mon to Fri) excluding Irish Public Holidays.
3. Shopbox shall use reasonable endeavours to make the Licensed Platform available 24 hours a day, seven days a week, in terms of site / platform monitoring, except for:
3.1 planned maintenance which in the reasonable opinion of Shopbox necessitates downtime of the Licensed Platform, notice of such downtime having been provided to the Customer with reasonable notice and as agreed by the Parties in advance; and
3.2 unscheduled maintenance, provided that Shopbox has used reasonable endeavours to give the Customer notice in advance, except in circumstances where, in Shopbox’s reasonable opinion emergency unscheduled maintenance is necessary.
4. Each Party shall provide up-to-date contact information to the other Party for notices related to scheduled or emergency maintenance, modifications or updates and may update such contact information from time to time on written notice to the other Party.
5. Provide the Company technical documentation on how the Shopbox Platform should be used and implemented on the Company Website Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by its Terms. Customer further agrees that this Agreement is the complete and exclusive statement of the agreement between Customer and Shopbox and that it supersedes any proposal or prior agreement, oral or written, and any other communications between Customer and Shopbox, or any predecessor(s) thereto, relating to the subject matter of this Agreement.
Awarded by
