SHOPTHRU LIMITED (“Shopthru”) is a company registered under company number 10295802, with its address at Severn House, Middle Street, Brighton, East Sussex, England, BN1 1AL
Shopthru operates an embedded commerce platform that enables publishers (“Publishers”) to promote products from participating advertisers (“Advertisers”) using hosted storefronts and embedded checkout tools. Publishers earn commissions on qualifying sales completed through the Shopthru platform. These Terms & Conditions govern the relationship between Shopthru and the Publisher.
The participants in the Shopthru Network include:
a) advertisers who have agreed with Shopthru to join the Shopthru Network to promote its products and/or services (“Advertisers”);
b) publishers who are operators of a website, application or service, and who have joined the Shopthru Network to market Advertisers’ products as an affiliate (“Publishers“), and
c) Shopthru itself.
Advertisers promote their products and services via Shopthru by means of partnerships (“Partner Programs”) by utilising various advertising materials, such as banners, product data, text-links, emails, and videos (“Ad Media”). Publishers integrate or display the Ad Media on their websites, web pages, or in emails (“Advertising Space”). For every successful Transaction resulting from this advertising, Shopthru will compensate the Publisher with pre-defined remuneration (“Commissions”).
These Terms and Conditions for Advertisers (“Terms & Conditions“) shall govern your participation in the Shopthru Network as an Advertiser.
Unless otherwise specified in these Terms & Conditions, capitalised terms shall have the meanings given to them in Schedule A (Definitions), and interpretation of these Terms & Conditions shall be in accordance with paragraph 1 of Schedule A (Definitions).
1. JOINING THE SHOPTHRU NETWORK AS AN ADVERTISER:
1.1. By submitting an application form (“Application Form”), or by accessing the Interface, the person named in the Application Form (the “Advertiser”) is applying to participate in the Shopthru Network in accordance with the terms of the Application Form, these Terms & Conditions, and the Data Processing Addendum (“DPA”) found at schedule B within this “Agreement”).
1.2. Acceptance of an application is at the sole discretion of Shopthru, and the proposed Advertiser will be notified of their acceptance by email.
1.3. On acceptance of an application (“Effective Date“), the Agreement will become legally binding between Shopthru and the Advertiser and shall prevail over all other terms (including any terms supplied by the Advertiser).
1.4. Any person entering into the Agreement on behalf of an Advertiser warrants that they have full power and authority to bind the Advertiser to its terms.
2. SET-UP
2.1. Promptly following the Effective Date, Shopthru will provide the Advertiser with:
2.1.1. Details on how to integrate with the Shopthru application for the purposes of selling products and onboarding instructions for setting up their Advertiser profile and participating within the Shopthru network
2.2. Shopthru may test the integration with the Advertiser by placing a test order for the purchase of Products. Shopthru will notify the Advertiser of any test order, which shall be cancelled by the Advertiser within 48 hours of such notice. The costs of Shopthru arising from uncancelled test orders, including the purchase price and any delivery charges, shall be charged to the Advertiser in accordance with clause 8.2.6.
2.3. The Advertiser must complete its bona fide launch on the Shopthru Network within 20 days of the Effective Date or alternatively agreed with Shopthru.
2.4. The Advertiser acknowledges that Shopthru’s ability to facilitate and track sales depends on successful technical integrations. Accordingly, the Advertiser agrees to:
2.4.1. implement the required integration in accordance with Shopthru’s instructions; and
2.4.2. use reasonable efforts to ensure that the integration is maintained and remains available with a high level of uptime.
2.5. If the Advertiser fails to comply, or Shopthru reasonably suspects that the Advertiser is failing to comply, with its obligations under clause 2.2, 2.4, 2.5, or 2.6, Shopthru may suspend its obligations under the Agreement, including the provision of all Services and licenses, the operation of the Program, and/or the Advertiser’s access to the Interface, until the Advertiser rectifies such failure or disproves the reasonable suspicion.
3. PROVISION AND USE OF THE SERVICE
3.1. Subject to the Advertiser’s compliance with clause 2.2, Shopthru will provide to the Advertiser:
3.1.1. access to the Interface; and
3.1.2. updates to the integrations it makes generally available.
3.2. During the Term, the Advertiser shall:
3.2.1. provide Shopthru with the Advertiser Materials;
3.2.2. promptly select and approve Publishers to act as Participating Publishers;
3.2.3. manage any changes to the integration and data interface between the Advertiser and Shopthru and communicate any changes;
3.2.4. ensure any changes to an integration meets the requirements of Shopthru
3.2.5. provide Shopthru any information, assistance, or access reasonably requested to enable the supply of the Services;
3.2.6. ensure all information it provides to Shopthru is accurate and up to date, and ensure that all Advertiser Materials are legally compliant in every respect. If the Advertiser provides marketing guidelines to Shopthru, Shopthru may approve on behalf of the Advertiser advertising content prepared by a Participating Publisher in accordance with those guidelines, provided that Shopthru shall assume no liability for material reasonably approved in compliance with those guidelines; and
3.2.7. notify Shopthru of any actual (and to the extent possible, anticipated) downtime of any of the Advertiser URLs.
4. MANAGING CAMPAIGNS AND PROGRAMS
4.1. Programs and/or Campaigns as applicable will commence as soon as practical after completion of the obligations at clause 2.
4.2. Services to be provided under additional Campaigns will be provided by Shopthru for the period, budget, and other terms set out in writing, agreed by the Advertiser and Shopthru from time to time.
4.3. The Advertiser will provide Shopthru any Advertiser Materials relevant to a Program or Campaign as applicable.
4.4. Shopthru will:
4.4.1. suggest appropriate Participating Publishers; and
4.4.2. on the Advertiser’s reasonable request:
a) only offer the option of becoming a Participating Publisher to a select Publisher(s); and
b) use reasonable efforts to procure Participating Publishers remove Advertiser Materials or Links from Publisher Websites;
4.5. The Advertiser will:
4.5.1. permit Participating Publishers to market the Advertiser and its Products;
4.5.2. inform Participating Publishers of any:
a) information relevant to the promotion of the Advertiser or any Products;
b) Advertising Standards applicable to the promotion of the Products or the Advertiser;
c) Advertiser Materials directed to children;
d) terms and conditions or other requirements applied by the Advertiser to the promotion of the Advertiser or any Products from time to time;
4.5.3. inform Shopthru of any complaints made to the Advertiser in respect of any Participating Publisher;
4.5.4. comply with any terms and conditions or other requirements applied by a Participating Publisher to its promotion of the Advertiser or any Products from time to time.
4.6. Any terms and conditions or other requirements applied by the Advertiser to the promotion of the Advertiser or any Products shall be subject to the terms of this Agreement.
4.7. The Advertiser may not reject Publishers that are permitted to promote the Advertiser on other affiliate marketing networks in the Country, or as part of an in-house or personal affiliate marketing campaign or program.
4.8. The Advertiser may delegate the day-to-day operation of Campaigns and Programs to a third party on written notice to Shopthru, provided that the Advertiser shall remain primarily liable for the acts or omissions of that third party.
5. TRACKING
5.1.Subject to clause 7, the Shopthru application will be the sole basis for recording and determining Actions and Commissions.
5.2. Shopthru will:
5.2.1. enable the Advertiser to decline Transactions; and
5.3. The Advertiser may only decline:
5.3.1. Transactions that the Advertiser can evidence to Shopthru’s reasonable satisfaction were cancelled in accordance with applicable statutory consumer rights of cancellation or terms of business; or
5.3.2. Transactions that the Advertiser can evidence to Shopthru’s reasonable satisfaction were:
a) generated in breach of any terms and conditions or other requirements applied by the Advertiser to the promotion of the Advertiser or any Products; or
b) the result of fraud committed by a Participating Publisher.
5.4. The Advertiser agrees and acknowledges that it has no right whatsoever to recover from Shopthru or any Participating Publisher any Fees or Commissions paid to Shopthru in respect of Approved Transactions (including those deemed approved under clause 5.6). The Advertiser hereby waives and releases Shopthru and any Participating Publisher from any claims the Advertiser may have for recovery of paid Fees or Commissions.
6. COMMISSIONS
6.1. The amount of any Commissions is as set out in the Shopthru Interface. CPAs will be determined as either:
6.1.1. a percentage of the purchase price of the Product(s) subject to the Approved Transaction; or
6.1.2. a fixed amount, irrespective of the purchase price of the Product(s) subject to the Approved Transaction.
6.2. The Advertiser may commit to pay additional Commissions, on terms set out on the Interface, at its discretion.
6.3. Shopthru will ensure that an equivalent payment to the respective Participating Publisher is made to which the Approved Transaction is attributed. This payment may be subject to the prior payment of Commission from the Advertiser.
6.4. Subject to clause 6.5, the Advertiser may vary the prospective Commission on 30 Business Days’ notice to Publishers by using the Interface or by written request to the Shopthru personnel. Commissions applicable to past actions or other historic marketing activity may not be varied.
6.5. Commission rates may be updated at any time via the Shopthru interface, and any changes will apply only to future transactions
6.6. The Advertiser will be bound to pay Commission as varied, whether such variations were made by the Advertiser or on the Advertiser’s behalf, for any or all actions made after the time of variation.
6.7. Any variations to the Commission are made by operation of this Agreement and do not constitute any amendment to this Agreement or the entry of any additional agreement.
6.8. The Advertiser agrees to offer Shopthru a commercially competitive commission rate
7. ATTRIBUTION & DISPUTE HANDLING
7.1. Shopthru operates an embedded commerce model in which all purchases are completed directly on the Shopthru platform. As such, all transactions are tracked and attributed at the point of purchase.
7.2. The Advertiser acknowledges and agrees that Shopthru’s attribution data is definitive and based on direct, first-party tracking. There is no requirement for manual approval, reconciliation, or the submission of claimed transactions by participating publishers.
7.3. Shopthru does not support a “claimed action” or “missing commission” process, as attribution is determined through onsite checkout and verified at the point of transaction.
7.4. In the unlikely event that a technical error results in attribution failure, Shopthru will investigate and resolve the issue in good faith. Shopthru is not liable for untracked transactions resulting from integration errors, unauthorised changes to tracking implementations, or failures on the part of the Advertiser without prior notice to Shopthru.
8. PAYMENTS, INVOICING
8.1. Fees and commissions
The Advertiser agrees to pay Shopthru, without deduction or set-off, the following:
8.1.1. A network fee of 2.5% on the total value of all transactions completed via the Shopthru platform; and
8.1.2. Commission fees, as applicable, on each transaction, calculated at the rate displayed within the Advertiser’s Shopthru interface.
8.1.3 Shopthru may update the Network Fee with 30 days’ notice via the portal or in writing. Continued use of the platform after such notice constitutes acceptance of the new fee.
By entering into this Agreement and using the Shopthru platform, the Advertiser agrees to the above fees and acknowledges that the applicable commission rates are made available via the portal and may be updated from time to time.
8.2. Calculation and good faith
All fees and commissions will be calculated based on transaction data recorded via the Shopthru platform. Shopthru’s tracking and reporting systems shall be deemed conclusive unless the Advertiser provides clear evidence to the contrary within a reasonable timeframe. Shopthru will act in good faith when determining all amounts payable
8.3. Late payment
Any amounts not paid by the due date shall accrue interest at a rate of 8% per annum above the UK base rate, calculated daily from the due date until payment is received in full, both before and after judgment.
9. THE ADVERTISER’S RELATIONSHIP WITH PUBLISHERS
9.1. For the duration of this Agreement, the Advertiser will not, directly or indirectly, enter or attempt to enter into any new agreement, understanding, or other form of arrangement (whether express or implied) with any current or former Participating Publishers:
9.1.1. where payments are made to current or former Participating Publishers in respect of any marketing services (including affiliate, display, programmatic, search, email, and click-to-call marketing) other than under this Agreement; or
9.1.2. which prevents or disincentivizes current or former Participating Publishers from promoting other Advertisers.
9.2. The Advertiser shall pay Shopthru on demand by way of liquidated damages an amount equal to 30% of all Commissions, Fees, or any other amounts paid or due to be paid, directly or indirectly, to current or former Participating Publishers in breach of the restrictions in clause 9.1. The parties acknowledge that such liquidated damages set out in clause 9.1 represent a genuine pre-estimation of the loss that would be suffered by Shopthru as a result of any breach of the restrictions in clause.
9.3. This clause 10 applies to current and former Participating Publishers, irrespective of any existing relationships between the Advertisers and such Publishers.
10. WARRANTIES
10.1. Each party warrants and undertakes to the other for the Term that:
10.1.1. it has full power and authority to enter into this Agreement;
10.1.2. it holds all licenses and approvals necessary for the performance of its obligations under this Agreement;
10.1.3. it will perform its obligations under this Agreement in accordance with all applicable laws and using reasonable skill and care; and
10.1.4. it will not make any false, misleading, or disparaging representations or statements regarding the other party.
10.1.5. The Advertiser warrants and undertakes to Shopthru for the Term that:
a) all Advertiser Materials comply with all Advertising Standards; and
b) all variations to Commissions under clause 6 will be made by authorized personnel.
11. INTELLECTUAL PROPERTY
11.1. Except as expressly agreed otherwise in this Agreement no Intellectual Property Rights of either party (or their third-party licensors) are transferred as a result of this Agreement.
11.2. The Advertiser hereby grants to Shopthru a non-exclusive, royalty-free, transferable and sub-licensable worldwide license to use the Intellectual Property Rights in the Advertiser Materials and all other documents provided to Shopthru to the extent necessary to comply with its obligation under this Agreement. For the avoidance of doubt, such use will include publishing the Advertiser Materials on the Interface and to use the Advertiser Materials to:
11.2.1. operate the Shopthru Network;
11.2.2. enable Participating Publishers to market the Advertiser and its Products;
11.2.3. market the Shopthru Network, with the Advertiser’s prior consent (such consent not to be unreasonably withheld);
11.2.4. otherwise carry on its website traffic, consumer behaviour tracking, and Transaction reporting business from time to time.
11.3. Shopthru may grant sublicenses of the license at clause 11.2 to Participating Publishers to the extent necessary to enable Participating Publishers to market the Advertiser and its Products on the Shopthru Network.
11.4. A sublicense granted to a Publisher under clause 11.3 shall be further sublicensable by the Participating Publisher to Sub-publishers on terms equivalent to clause 11.2.
11.5. A sublicense granted by a Publisher under clause 11.4 shall not be capable of further sublicense by the Sub-publisher without the Advertiser’s prior written consent.
11.6. The Shopthru Network, Interface and all Intellectual Property Rights therein together with all Intellectual Property Rights created by Shopthru in the course of providing the Network and the Services (Shopthru IPR) are and shall remain the sole and exclusive property of Shopthru (or its third-party licensor(s)). Shopthru hereby grants to the Advertiser a non-exclusive, non-sublicensable, non-transferable, royalty-free and revocable worldwide license during the Term to use the Shopthru IPR solely in accordance with this Agreement. For the avoidance of doubt, such license includes the right to use the Interface to the extent necessary for the Advertiser to participate in the Shopthru Network and perform its obligations under this Agreement.
11.7. The Advertiser will not, and will not attempt to, change, reverse engineer, or create derivative works of the Shopthru Interface. .
11.8. Each party reserves all of its right, title, and interest to any of its Intellectual Property Rights licensed under this clause 11, or which it creates under this Agreement.
11.9. The Advertiser warrants that the Advertiser Materials and all other documents, provided by the Advertiser pursuant to this Agreement do not infringe the Intellectual Property Rights of any third party, and that it has the authority to license same in accordance with clause 11.2 above.
11.10. The Advertiser will indemnify, defend, and hold harmless Shopthru and any of its Group Companies (including their directors, employees, agents, or contractors), from and against any claims, costs, damages, losses, liabilities, and expenses (including legal fees) relating to any claims, actions, suits, or proceedings by third parties against Shopthru arising out of or related in any way to Shopthru’s, or any Participating Publisher’s, use of the Advertiser Materials in accordance with this Agreement.
12. CONFIDENTIALITY
12.1. Each party will only use Confidential Information to enjoy its rights or comply with its obligations under this Agreement. Save as set out in this Agreement, neither party will disclose any Confidential Information. Confidential Information shall be kept confidential.
12.2. The obligations of confidentiality in this Agreement will not apply to Confidential Information to the extent it:
12.2.1. is in the public domain (other than as a result of a breach of this Agreement);
12.2.2. can be demonstrated as having been independently developed by the receiving party;
12.2.3. is published on the Interface in the receipt or provision of the Services in accordance with this Agreement;
12.2.4. is required to be disclosed by law or a court order.
12.3. Shopthru may disclose Confidential Information to Group Companies.
12.4. This clause will survive termination for five years.
13. DATA PROTECTION AND COOKIES
13.1. Shopthru and the Advertiser will comply with their respective obligations under Data Regulation. Each party will provide the other party any cooperation reasonably requested to enable the other party’s compliance with this clause 13.1.
13.2. Where Shopthru processes Personal Data on behalf of the Advertiser under this Agreement, the parties agree to comply with the Data Processing Addendum set out in Schedule B, which forms part of and is incorporated into these Terms & Conditions. By accepting these Terms & Conditions, the Advertiser also agrees to the terms of the Data Processing Addendum.
13.3. The Advertiser shall not use any reports generated by the use of the Interface to create Visitor profiles, as defined under the GDPR where applicable.
13.4. The Advertiser will not do or omit to do any act which may cause Shopthru to be in breach of any of its obligations under the Data Regulations.
13.5. The Advertiser will, on behalf of Shopthru, to comply with ePrivacy obtain the prior, freely given, specific, informed, unambiguous, and revocable consent of Visitors and other users of Advertiser URLs to cookies or other tracking technologies of Shopthru served under this Agreement.
14. LIMITATION OF LIABILITY
14.1. This clause 14 sets out the entire liability of Shopthru and its Group Companies under or in connection with the Agreement.
14.2. Shopthru shall not be liable for any losses of the Advertiser if Shopthru’s compliance with the Agreement is prevented by the acts or omissions of the Advertiser.
14.3. Shopthru shall not be liable to the Advertiser for: losses of profits, business, goodwill, anticipated savings, goods, contract, use, or data; losses arising from the acts or omissions of a Publisher; or for any special, indirect, consequential, or pure economic loss, costs, damages, charges, or expenses.
14.4. The total liability of Shopthru in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, or otherwise arising in connection with the Agreement will be limited to the amount of the total Network Fee and Commission actually received by Shopthru from the Advertiser in the 12-month period preceding the date on which the claim arose.
14.5. Legal claims for defects in Shopthru’s Services against Shopthru shall expire 12 months after the delivery of the respective Services.
14.6. Except as expressly stated otherwise in this Agreement, all warranties, conditions, and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
14.7. The Shopthru Network, the Interface, the Services, their use, and the results of such use are provided “as is” to the fullest extent permitted by law. Shopthru disclaims all express or implied warranties, including warranties of satisfactory quality and fitness for a particular purpose, which may be implied in respect of the Shopthru Network, the Interface, the Services, their use, and the results of such use. The performance of the Network and the Interface relies on third parties beyond Shopthru’s control. Shopthru specifically disclaims any warranty:
14.7.1. that the use or operation of the Shopthru Network or the Interface will be uninterrupted or error-free;
14.7.2. that defects will be corrected;
14.7.3. that the Shopthru Network, the Interface are free of viruses or malicious code;
14.7.4. that any security methods employed will be sufficient;
14.7.5. in respect of any Publisher or its technology; and
14.7.6. regarding correctness, accuracy, or reliability.
14.8. Nothing in this Agreement shall limit or exclude the liability of Shopthru or any of its Group Companies, or any representatives or vicarious agents of Shopthru, for death, personal injury, fraud, fraudulent misrepresentation, or fraudulent misstatement.
15. TERMINATION
15.1. This Agreement will start on the Effective Date and continue for the Initial Term. After the Initial Term, this Agreement will automatically continue until terminated by either party in accordance with this clause 16.
15.2. After the Initial Term, either party may terminate this Agreement for any reason by providing the other party at least fourteen (14) days’ written notice.
15.3. Shopthru may terminate this Agreement immediately on written notice to the Advertiser if the Advertiser fails:
15.3.1. to comply with its obligations under clauses 2.2.1 or 3.2 of this Agreement;
15.3.2. to provide assistance reasonably requested by Shopthru; or
15.3.3. through no fault of Shopthru, to commence bona fide participation in the Shopthru Network within 90 days of the Effective Date.
15.4. Shopthru may suspend this Agreement for the period of the Advertiser’s non-compliance with clauses 3, 5.3 – 5.5, 6.10, 8.2 or 11 of this Agreement.
15.5. The notice period in 15.2 shall be extended to the minimum extent necessary to enable the completion of any ongoing Campaigns.
15.6. Without prejudice to its other rights or remedies, a party may terminate the Agreement immediately on written notice to the other party if:
15.6.1. the other party materially breaches this Agreement and (if remediable) fails to remedy that breach within two (2) days of a written request to do so;
15.6.2.the other party materially breaches any data processing agreement or arrangement entered into in connection with Personal Data published under this Agreement;
15.6.3.the other party is deemed unable to pay its debts; steps are made to wind up, or appoint an administrator over, the other party; a third party becomes entitled to appoint a receiver over the assets of the other party; the other party negotiates with all or a class of its creditors, or proposes or enters a compromise with such creditors; or any similar or analogous event occurs.
16. CONSEQUENCES OF TERMINATION
16.1. Termination of this Agreement will not affect any existing rights or remedies. Clauses 1, 5, 6, 7, 8, 10, 11, 12, 13, 14, 16, 17, 18, and 19 will survive termination.
16.2. On termination of the Agreement:
16.2.1. all licenses will terminate;
16.2.2. each party will return or, at the other party’s option, destroy all Confidential Information in its possession within five Business Days; and
16.2.3. the Advertiser will immediately pay all outstanding Fees and Commissions due to Shopthru.
17. NOTICES
17.1. Notices given under this Agreement will be in writing and:
17.1.1. delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its notice address set out in the Interface (or such other address as may have been notified); or
17.1.2. sent by email to the other party’s notice email address set out in the Interface.
17.2. A notice delivered by hand will be deemed to have been received when delivered (or if delivered outside business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received two Business Days after posting. A notice sent by email will be deemed to have been received at the time of transmission as shown by the sender’s records (or if sent outside business hours, at 9 am on the first Business Day following dispatch).
18. SEVERANCE
18.1. If any part of this Agreement (including as a result of any amendment) is wholly or partially unenforceable or void, or if this Agreement appears to contain omissions, the remainder of the Agreement shall remain in full force and effect, and it is the express intention of the parties that the remainder of the Agreement shall so remain, notwithstanding any legal or statutory presumptions to the contrary.
18.2. In the event of any voidance, unenforceability, or absence, as set out in clause 19.1 above, the parties shall negotiate in good faith a replacement provision that, to the greatest extent possible, achieves the intended legal and commercial result of the original provision, having regard to the spirit and purpose of the Agreement at the time it was originally entered and being as close as permissible to any specifications (including timeframes and quantities) set out in the original provision.
18.3. This Agreement shall automatically and immediately terminate if compliance with its terms (in whole or in part) were to cause one or both parties an unacceptable hardship as a result of a failure to reach agreement on a replacement provision following negotiations under clause 18.2.
19. GENERAL
19.1. If the Advertiser has instructed an Agent to represent the Advertiser, the Advertiser warrants to Shopthru that the Agent has full authority to bind the Advertiser. The Advertiser remains liable for all acts, representations, and agreements of the agent, including the payment of all monies due to under this Agreement.
19.2. This Agreement will survive any termination of the appointment of the Agent (if any).
19.3. Shopthru may set off any liability of the Advertiser against any liability of Shopthru or any monies held by Shopthru to the Advertiser’s account.
19.4. Time for performance of clause 2.2 and payment of invoices are of the essence of this Agreement.
19.5. No party will be liable for any breach of this Agreement arising from circumstances beyond its reasonable control (a “Force Majeure Event”). If a Force Majeure Event continues for six months, the unaffected party may terminate this Agreement by giving 30 days’ written notice to the other party.
19.6. The Advertiser may not assign or subcontract its rights or obligations under this Agreement without Shopthru’s prior written consent. Shopthru may assign or subcontract its rights or obligations under this Agreement.
19.7. Nothing in this Agreement constitutes a partnership or joint venture between the parties, nor constitutes a party the agent of the other. No party has authority to bind the other.
19.8. A person who is not a party to this Agreement will not have any statutory rights under or in connection with it.
19.9. A counterpart of this Agreement executed and/or transmitted electronically shall be treated as fully binding and with full legal force and effect.
19.10. No variation of this Agreement shall be effective unless it is in writing and signed or otherwise agreed electronically by use of the Interface by the parties (or their authorized representatives).
19.11. Shopthru may change the terms of this Agreement on 14 days’ notice to the Advertiser.
19.12. This Agreement constitutes the entire agreement between the parties relating to its subject matter, to the exclusion of the United Nations Convention on Contracts for International Sale of Goods. This Agreement is governed by the laws of the United Kingdom without regard to its conflicts of laws principles, and the courts of the United Kingdom, have exclusive jurisdiction over any and all disputes arising out of or related to this Agreement.
Schedule A
DEFINITIONS
The following definitions and rules of interpretation apply in this Agreement:
“Action” means a Transaction, or other event (if agreed by parties) on which Commissions may be based under this Agreement;
“Advertiser Materials” means any trade marks, advertising content, images, text, video, data, or other material provided by or on behalf of the Advertiser to Shopthru, a Participating Publisher, or a Sub-publisher;
“Advertiser URLs” means, from time to time, any websites, apps, or services of the Advertiser which are (i) set out in the Application Form or (ii) made subject to this Agreement in accordance with the Tracking Policy;
“Advertising Standards” means any applicable advertising law, regulations or standards, data laws relating to advertising (including the Children’s Online Privacy Protection Act), any generally accepted self-regulatory codes of practice, and any related guidance or best practice advice;
“Approved Transaction” means a Transaction approved by the Advertiser in accordance with clause 5.
“Business Day” means a day other than a Saturday, Sunday, or national public holiday in the United Kingdom;
“Campaign” means a designated period for the provision of the Services during the Term;
“Commission” means a fee payable to the Publisher, calculated as a percentage of an Approved Transaction as set out in the Application Form;
“Confidential Information” means any information disclosed by or relating to a party, including: information arising during the term of this Agreement; information about a party’s business affairs; any reports generated by use of the Interface, information about a party’s operations, products, or trade secrets; information about a party’s technology (including any know-how and source code) and any derivatives of any part of any of them and which (i) is marked or identified as confidential; or (ii) would be regarded as confidential by a reasonable business person;
“Country” is the country set out in the Application Form in respect of which this Agreement is entered into;
“CPA” means a Commission charged per Approved Transaction;
“Date Live” means the actual date of the Advertiser’s bona fide commercial launch on the Shopthru Network (whether under this or a previous agreement between Shopthru and the Advertiser or its predecessors or assignors);
“Data Regulation” means any data protection, privacy or similar laws that apply to Personal Data Processed in connection with this Agreement, including without limitation, any regulations or restrictions under (i) the Electronic Communications Privacy Act (ECPA), (ii) the Children’s Online Privacy Protection Act of 1998 (COPPA), (iii) the GDPR, (iv) ePrivacy,
“ePrivacy” means the Privacy and Electronic Communications Directive 2002/58 (including any replacing or superseding legislation);
“Fees” means the Network Fee, and any other fees that may be agreed between the parties from time to time;
“GDPR” means the EU General Data Protection Regulation 2016/679;
“Group Company” means any holding company or subsidiary of a party or any of its holding companies. A company is a “subsidiary” of another company, its “holding company”, if that other company (i) holds a majority of the voting rights in it, or (ii) is a member of it and has the right to appoint or remove a majority of its board of directors, (iii) or is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it;
“Initial Term” means a three-month period starting on the Date Live;
“Intellectual Property Rights” means all copyright and related rights, patents rights to inventions, utility models trade marks, 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 rights (including any database rights in the Shopthru Network), 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. For the avoidance of doubt, reference to Shopthru in these Terms & Conditions shall include reference to its Group Companies;
“Interface” means the intranet and software platform provided by Shopthru as part of the Services in the Country and any functionality accessed or made available through such platform;
“Link” means a hyperlink from a Publisher Website to an Advertiser URL;
“Monthly Platform Offer Fee” means the fee for the Shopthru Access Platform Offer payable to Shopthru per Programme per month, as specified in the Application Form;
“Participating Publisher” means any Publisher marketing the Advertiser or any Products under this Agreement;
“Product” means a product, service or equivalent offered for sale by the Advertiser on any Advertiser URL;
“Program” means the ongoing provision of the Services in respect of an Advertiser URL for the Term;
“Publisher” means (i) the operator of a website, application or service, which has joined the Shopthru Network to to promote Advertisers or their Products using Shopthru-hosted storefronts and tools
“Publisher Website” means a website, application or service operated by a Publisher to market Advertisers or their Products;
“Sales Revenue” means the sale amount of all Transactions that are approved in accordance with the Agreement;
“Services” means the services or assistance provided by Shopthru under this Agreement;
“Sub-publisher” means the operator of a website, application or service, which has agreed with the Publisher to market Advertisers or their Products;
“Term” means the term of this Agreement from the Effective Date until its termination or expiry in accordance with clause 16 or 20.5;
“Transaction” means the agreed purchase of a Product by a Visitor
“Visitor” means any person who interacts with embedded commerce or views publisher content
SCHEDULE B – DATA PROCESSING ADDENDUM
This Data Processing Addendum (“DPA”) forms part of the Shopthru Advertiser Terms & Conditions (“Agreement”) between Shopthru Ltd and the Advertiser, and applies where Shopthru processes Personal Data on behalf of the Advertiser in the course of providing services under the Agreement.
1. Definitions
1.1 The terms “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Processing” and “Personal Data Breach” shall have the meanings given in the UK GDPR.
1.2 “UK GDPR” means the retained EU law version of the General Data Protection Regulation (EU) 2016/679.
2. Roles and Scope
2.1 The Advertiser is the Data Controller and Shopthru is the Data Processor, to the extent that Shopthru processes Personal Data on behalf of the Advertiser in connection with the Agreement.
2.2 This DPA governs such processing and outlines Shopthru’s obligations as Processor.
3. Nature and Purpose of Processing
3.1 Purpose: To facilitate the sale, checkout, and fulfilment of products via the Shopthru platform.
3.2 Types of Personal Data: May include name, email address, order details, IP address, transaction records, and other customer contact or behavioural data
3.3 Data Subjects: End customers of the Advertiser and authorised users of the Shopthru platform.
4. Processor Obligations
Shopthru shall:
4.1 Process Personal Data only on documented instructions from the Advertiser and for the purposes set out in this DPA.
4.2 Implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
4.3 Ensure persons authorised to process the Personal Data are subject to confidentiality obligations.
4.4 Assist the Advertiser in responding to data subject requests, Personal Data Breaches, and data protection impact assessments.
4.5 Notify the Advertiser without undue delay upon becoming aware of a Personal Data Breach.
4.6 Upon termination of the Agreement, delete or return all Personal Data unless retention is required by law.
5. Sub-processors
5.1 The Advertiser authorises Shopthru to engage sub-processors to process Personal Data, provided that Shopthru ensures:
- Sub-processors are subject to equivalent data protection obligations; and
- Shopthru remains fully liable for the actions of such sub-processors.
5.2 A current list of sub-processors is available upon request and may be updated from time to time.
6. International Transfers
Shopthru shall not transfer Personal Data outside the UK or EEA unless:
- The destination country has been deemed to provide adequate protection; or
- Shopthru ensures appropriate safeguards (e.g., Standard Contractual Clauses).
7. Audit Rights
The Advertiser may, no more than once per year (or more frequently if required by law), audit Shopthru’s compliance with this DPA upon reasonable written notice and during normal business hours.
8. Liability
Liability under this DPA is subject to the limitations of liability set out in the Agreement.
9. Governing Law
This DPA shall be governed by and construed in accordance with the laws of England and Wales.