Terms and Conditions

Last Updated January 1st, 2026

1. Services and Software Platform

1.1 Provision of Services and Software

Subject to the terms and conditions of this Agreement and the applicable Order Form, Eva Commerce, Inc. (“Company”) shall provide Customer with a combination of software-as-a-service (SaaS) access, technology tools, and managed services (collectively, the “Services”) as described in the Order Form.

The Services may include, without limitation:

(i) access to Company’s proprietary software platform, tools, dashboards, and automation systems;
(ii) advertising management, campaign execution, and optimization;
(iii) marketplace, eCommerce, and operational support services; and
(iv) strategic, analytical, and implementation services.

Company shall use commercially reasonable efforts to provide the Services in accordance with its standard practices.

As part of accessing the Services, Customer shall designate an administrative account and maintain secure login credentials. Customer is responsible for all activities conducted through its accounts.

Company reserves the right, in its reasonable discretion, to refuse registration, suspend access, or disable credentials that it determines are inappropriate, compromised, or in violation of this Agreement.

The Company and Customer may each be referred to as a “Party” and collectively as the “Parties.”

“Initial Term,” “First Term,” and “Renewal Term” shall have the meanings set forth in the applicable Order Form.

In the event of any conflict or ambiguity between the definitions or timing of such terms in this Agreement and the Order Form, the Order Form shall control.

1.2 Nature of Services

Customer acknowledges that the Services include a combination of software access, human expertise, and ongoing operational execution, and are not limited to the provision of software alone.

The Services are delivered based on Company’s allocation of personnel, systems, and operational resources over the applicable service term.

1.3 Support Services

Subject to the terms of this Agreement, Company shall provide Customer with reasonable technical and business support services consistent with Company’s standard practices.

Support services may include onboarding, implementation assistance, troubleshooting, performance reviews, and ongoing account support.

1.4 Order Form Controls

The applicable Order Form defines the specific scope, pricing, service channels, and term of the Services.

In the event of any conflict between this Agreement and the Order Form, the terms of the Order Form shall control.

2. Use of Services, Restrictions, and Account Responsibilities

2.1 Permitted Use of Services

Customer shall use the Services solely for its internal business purposes and in accordance with this Agreement, the applicable Order Form, and all applicable laws and regulations.

Customer shall not use the Services for any unlawful, unauthorized, or improper purpose.

2.2 Software and Platform Restrictions

Customer shall not, directly or indirectly:

(i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services or any related software, systems, or documentation;
(ii) modify, translate, copy, or create derivative works based on the Services;
(iii) access or use the Services to build or support a competing product or service;
(iv) interfere with or disrupt the integrity, security, or performance of the Services; or
(v) attempt to gain unauthorized access to the Services or related systems.

2.3 Compliance with Laws and Policies

Customer represents, warrants, and covenants that it shall use the Services in compliance with all applicable laws, regulations, and Company policies in effect from time to time.

Company may monitor use of the Services and may suspend or restrict access if it reasonably believes Customer is in violation of this Agreement or applicable law.

2.4 Export Compliance

Customer shall not export, re-export, or transfer the Services or any related software, data, or technology in violation of applicable export control laws and regulations, including those of the United States.

2.5 Account Responsibility and Security

Customer is responsible for:

(i) maintaining the confidentiality and security of its account credentials;
(ii) all activities conducted under its accounts, whether authorized or not; and (iii) ensuring that only authorized personnel access and use the Services.

Customer shall promptly notify Company of any unauthorized use, security breach, or compromise of its accounts.

Company shall not be responsible for any loss or damage arising from Customer’s failure to comply with these obligations.

2.6 Non-Solicitation and Non-Circumvention

During the term of this Agreement and for a period of twelve (12) months following its termination or expiration, Customer shall not, directly or indirectly:

(i) hire, engage, solicit, or recruit; or
(ii) attempt to hire, engage, solicit, or recruit,

any employee, contractor, consultant, or representative of Company who was materially involved in the performance of the Services, without Company’s prior written consent.

Customer shall not circumvent this restriction by engaging such individuals through third parties, affiliates, or intermediaries. 

Customer shall not engage, hire, or otherwise contract with any individual who performed Services for Company within the preceding twelve (12) months, whether or not such engagement results from direct or indirect solicitation.

General employment solicitations not specifically targeted at Company personnel shall not constitute a violation of this Section.

In the event of a breach, Customer shall pay Company liquidated damages equal to the greater of:

(i) twelve (12) months of the individual’s total compensation;
(ii) one hundred thousand dollars ($100,000); or
(iii) one hundred percent (100%) of the annualized contract value attributable to the Customer engagement.

The Parties acknowledge that such damages would be difficult to determine and that the foregoing amount represents a reasonable estimate of damages and not a penalty.

Company shall be entitled to seek injunctive or equitable relief, in addition to any other remedies available under this Agreement or applicable law, without the requirement to post bond.

This restriction shall apply to the maximum extent permitted by applicable law.

2.7 Improper Use and Suspension Rights

Company reserves the right, in its reasonable discretion, to suspend, restrict, or terminate access to the Services if Customer:

(i) violates this Agreement;
(ii) engages in conduct that may harm the Services, other customers, or third parties; or
(iii) exposes Company to legal, financial, or reputational risk.

Any such suspension or restriction shall not relieve Customer of its payment obligations under this Agreement.

3. Confidentiality, Data, and Proprietary Rights

3.1 Confidential Information

Each Party (the “Receiving Party”) acknowledges that the other Party (the “Disclosing Party”) may disclose non-public business, technical, financial, or operational information (collectively, “Confidential Information”).

Confidential Information of Company includes, without limitation, information relating to the Services, software, systems, methodologies, algorithms, performance data, workflows, and technology.

Confidential Information of Customer includes non-public data provided by Customer in connection with the Services (“Customer Data”).

The Receiving Party agrees to:

(i) use Confidential Information solely for purposes of performing under this Agreement; and
(ii) protect such Confidential Information using reasonable care, and not disclose it to any third party except as permitted under this Agreement.

The obligations above shall not apply to information that the Receiving Party can demonstrate:

(a) is or becomes publicly available without breach of this Agreement;
(b) was lawfully known prior to disclosure;
(c) is lawfully received from a third party without restriction;
(d) is independently developed without use of Confidential Information; or
(e) is required to be disclosed by law or court order.

Confidentiality obligations shall continue during the term of this Agreement and for a period of three (3) years thereafter.

3.2 Ownership of Customer Data

Customer retains all rights, title, and interest in and to Customer Data.

Customer grants Company a non-exclusive, worldwide, royalty-free license to use, process, analyze, and store Customer Data solely for purposes of providing and improving the Services.

3.3 Company Ownership of Services and Technology

Company retains all rights, title, and interest in and to:

(i) the Services, Software, and all related systems;
(ii) any improvements, enhancements, or modifications thereto;
(iii) all methodologies, processes, frameworks, and know-how; and
(iv) all intellectual property rights associated with the foregoing.

Nothing in this Agreement transfers ownership of Company’s technology, systems, or intellectual property to Customer.

3.4 Service Intelligence and Derived Data

Company retains all rights, title, and interest in and to any analytics, insights, segmentation models, attribution frameworks, campaign logic, machine learning models, predictive outputs, automation workflows, benchmarking data, and other analytical outputs generated through the Services (collectively, “Service Intelligence”).

Service Intelligence shall be deemed Company’s proprietary intellectual property, even if derived from or based on Customer Data.

Customer is granted a limited, non-exclusive, non-transferable license to use such Service Intelligence solely as incorporated within the Services during the term of this Agreement.

Customer shall not extract, reproduce, or use Service Intelligence outside the scope of the Services.

3.5 Aggregated and Benchmark Data

Company may collect, analyze, and utilize aggregated and anonymized data derived from multiple customers to generate benchmarking insights, performance analytics, and improvements to the Services.

Such aggregated data shall not identify Customer and shall remain the exclusive property of Company.

3.6 Machine Learning and System Improvements

Customer acknowledges that the Services may utilize artificial intelligence, machine learning, and statistical models that improve over time through usage.

Company retains all rights, title, and interest in and to such models, including all improvements, training outputs, and system enhancements derived from use of the Services.

3.7 Workflows, Campaign Structures, and Operational Logic

All campaign structures, automation workflows, lifecycle marketing logic, audience segmentation frameworks, triggers, and operational configurations developed by Company in connection with the Services shall be deemed part of Company’s proprietary methodologies and Service Intelligence.

Customer is granted a limited right to use such outputs solely within the context of the Services during the term of this Agreement.

Customer shall not replicate, transfer, or reuse such structures outside the Services without Company’s prior written consent.

4. Payment of Fees

4.1 Fees

Customer shall pay all fees specified in the applicable Order Form (“Fees”).

Fees are based on the scope of Services, including access to Company’s software platform, personnel, systems, and operational resources.

Except as expressly provided in this Agreement, all Fees are non-cancellable and non-refundable.

4.2 Term, Renewal, and Invoicing

The Initial Term, First Term, and any Renewal Terms of this Agreement shall be defined exclusively in the applicable Order Form and shall control for all purposes under this Agreement.

The Agreement shall commence on the Kick-off Date specified in the Order Form and shall continue through the Initial Term and into the First Term, followed by any applicable Renewal Terms, unless terminated in accordance with this Agreement.

Invoicing shall be issued on a monthly, in-advance basis and aligned with the Company’s standard billing cycle, which runs from the 2nd day of each calendar month to the 2nd day of the following calendar month, unless otherwise specified in the Order Form.

The first invoice may include a prorated amount covering the period from the Kick-off Date through the start of the first full billing cycle.

Customer acknowledges that billing cycles and contractual Terms are distinct, and that invoicing alignment shall not affect the start, duration, or enforceability of the Initial Term, First Term, or any Renewal Term.

All Fees are due in advance of each applicable billing cycle in accordance with this Agreement and the Order Form.

4.3 Pricing Amendments

Company may propose amendments to pricing, including applicable Fees, by providing written notice to Customer.

Pricing for the then-current term shall not be modified unless expressly agreed in writing by both Parties.

For any Renewal Term, Company may update pricing by providing at least thirty (30) days’ prior written notice before the start of such Renewal Term.

Customer may elect not to renew the Agreement in accordance with the termination provisions if it does not agree to such updated pricing. Failure to agree to revised pricing shall not affect the enforceability of the current term.

4.4 Billing and Payment Terms

Company shall issue invoices in accordance with the billing schedule set forth in the Order Form and Section 4.2.

Unless otherwise specified, all invoices are due upon receipt.

Late payments shall accrue interest at a rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is lower.

Customer is responsible for all applicable taxes.

Customer shall reimburse Company for all reasonable costs incurred in collecting overdue amounts, including collection agency fees, court costs, and reasonable attorneys’ fees to the extent permitted by law.

4.4.1 Payment Obligations and Service Continuity

Customer acknowledges that the Services involve the allocation of personnel, technology infrastructure, and operational resources based on the committed service term.

Customer’s payment obligations are absolute and not contingent upon performance outcomes, results, or satisfaction.

Customer shall not withhold, delay, offset, or suspend payment of any invoiced amounts based on disputes relating to performance, results, or service delivery.

Any performance-related concerns shall be addressed exclusively through the performance review and cure process set forth in this Agreement.

Payment obligations shall remain in full force and effect during any review, dispute, cure period, suspension, or interruption of Services.

Payment obligations are based on access to the Services and allocation of Company resources and shall not depend on Customer usage, implementation status, approval of deliverables, or realization of any results.

Customer acknowledges that timing of onboarding, implementation, activation, or internal delays shall not affect the enforceability of payment obligations.

4.4.2 Invoice Disputes

Customer shall review each invoice promptly upon receipt.

Invoice disputes are limited strictly to billing errors, calculation errors, or incorrect charges, and expressly exclude disputes relating to service performance, results, outcomes, or subjective dissatisfaction.

If Customer believes an invoice contains an error, Customer must submit written notice to Company within ten (10) business days of the invoice date, including:

(i) a clear description of the issue;
(ii) the exact amount in dispute; and
(iii) reasonable supporting documentation.

Failure to provide such notice within this period shall constitute Customer’s final, binding, and irrevocable acceptance of the invoice.

Customer shall pay all undisputed amounts in full and on time, and shall not withhold, delay, or offset payment of any portion of an invoice except for the specific amount properly disputed in accordance with this Section.

The Parties shall cooperate in good faith to resolve any properly submitted dispute; however, the existence of a dispute shall not suspend, delay, or otherwise affect Customer’s payment obligations for undisputed amounts.

Initiating any chargeback, payment reversal, or financial dispute without first complying with this procedure shall constitute a material breach of this Agreement.

Customer acknowledges that any such chargeback or payment dispute initiated in violation of this Section may be deemed a bad faith or improper payment dispute, and Company reserves all rights to recover the disputed amounts, associated fees, and any resulting damages, costs, and expenses to the extent permitted by applicable law.

4.4.3 Non-Payment, Suspension, and Collection

Failure to make timely payment may result in the following actions:

(a) 30 Days Past Due:
Company may suspend Services until the outstanding balance is paid in full.

(b) 60 Days Past Due:
Company may suspend all Services and decline renewal of the Agreement.

(c) 90 Days Past Due:
Company may refer the account to a third-party collection agency and pursue all available remedies.

Company may declare all unpaid Fees for the then-current committed service term immediately due and payable, to the maximum extent permitted by applicable law.

Suspension of Services shall not constitute termination of this Agreement and shall not relieve Customer of its payment obligations.

Company shall be entitled to seek injunctive or equitable relief in connection with any material breach of payment obligations, including improper chargebacks or payment interference.

Company may continue to invoice during any period of suspension.

4.4.4 Weekly Reporting and Acceptance of Services

Company may provide Customer with periodic service updates, reports, or communications, including but not limited to weekly summaries of activities performed, actions taken, and work completed in connection with the Services (“Service Reports”).

Customer acknowledges that such Service Reports constitute evidence of Services performed during the applicable reporting period.

Customer shall review each Service Report promptly upon receipt.

If Customer has any objection, concern, or dispute regarding the Services described in a Service Report, Customer must provide written notice in accordance with the Notices section to Company within seven (7) days of receipt of such Service Report, specifying the nature of the concern in reasonable detail. 

Failure to provide such notice within this period shall constitute Customer’s acceptance of the Services performed during the applicable reporting period, and Customer shall be deemed to have waived any objections relating to such Services.

Any objections or concerns raised by Customer shall not affect Customer’s payment obligations, which shall remain governed exclusively by the invoice dispute procedures set forth in Section 4.4.2.

For the avoidance of doubt, Service Reports are provided for transparency and communication purposes and do not constitute a condition precedent to invoicing or payment obligations.

4.4.5 Legal Fees

Customer shall be responsible for all reasonable legal fees, costs, and expenses incurred by Company in enforcing this Agreement, including collection actions, arbitration, or court proceedings, to the extent permitted by law.

4.5 Payment Methods

Customer shall provide and maintain valid payment methods for all Fees due under this Agreement.

Customer authorizes Company to charge such payment methods for all amounts owed.

Failure of any payment method shall not relieve Customer of its payment obligations.

Company does not accept payment via physical checks unless otherwise agreed in writing.

4.6 Refunds

Except as expressly provided in this Agreement, all Fees are non-refundable.

Company may, at its sole discretion acting reasonably, issue credits or refunds in the event of a material failure to deliver Services.

No refunds or credits shall be provided for partially used billing periods or for Services made available but not utilized by Customer.

4.7 Upgrades

Certain service plans may include pricing adjustments based on Customer’s usage, revenue, or other agreed metrics.

Customer agrees to pay any applicable additional Fees in accordance with the pricing terms set forth in the Order Form or applicable subscription terms.

4.8 Suspension Due to External Factors

If Services are suspended due to external factors beyond the reasonable control of both Parties, such suspension may continue for up to two (2) months.

The term of the Agreement shall be extended by the duration of such suspension.

No Fees shall be invoiced during such suspension period.

4.9 Company Formation Fees

For Company Formation or similar one-time Services, Customer shall pay the applicable Fees specified in the Order Form.

Such Fees cover initial setup and do not include ongoing regulatory or renewal obligations, which remain Customer’s responsibility.

Company shall not be liable for any consequences arising from Customer’s failure to maintain compliance with applicable requirements.

5. Term and Termination

5.1 Term and Renewal

The term of this Agreement, including the Initial Term, First Term, and any Renewal Terms, shall be defined exclusively in the applicable Order Form.

The Order Form shall control with respect to all term-related matters, including start dates, end dates, renewal structure, and billing alignment.

This Agreement shall remain in effect for the duration of the applicable Term unless terminated in accordance with this Section.

5.2 Termination by Customer

Customer may terminate this Agreement by providing written notice in accordance with the Term structure and notice requirements set forth in the applicable Order Form.

The Initial Term, First Term, and any Renewal Terms, including their respective start and end dates, are defined exclusively in the Order Form and shall control for all purposes under this Agreement.

Where the applicable Order Form requires advance notice of non-renewal, Customer must comply with such notice requirement in order for termination to take effect at the end of the then-current Term. Failure to comply with such requirement shall result in automatic renewal of the Agreement in accordance with the Order Form, and termination shall take effect at the end of the subsequent Term.

Customer acknowledges that the Agreement becomes binding upon the Kick-off Date as defined in the applicable Order Form. Customer may not terminate this Agreement during the period between the Kick-off Date and the commencement of the First Term for the purpose of avoiding the Initial Term, the transition into the First Term, or any associated Fees.

Any notice of termination provided during such period shall not prevent the Agreement from continuing into the First Term and shall be governed by the Term and notice provisions set forth in the Order Form.

Suspension of Services, non-use of Services, revocation of access, or non-payment shall not constitute termination of this Agreement.

Termination shall not relieve Customer of any payment obligations incurred or committed during the applicable Term, and all Fees shall remain due and payable through the effective termination date.

Written notice of termination must be submitted in accordance with the Notices section of this Agreement.

5.3 Termination Due to Dissatisfaction

Customer may request a formal performance review only after the first sixty (60) days of the active Service Term have elapsed.

Such request must be submitted in writing in accordance with the Notices section of this Agreement.

Upon receipt of a valid request, the Parties shall schedule a performance alignment discussion within a commercially reasonable time to review performance conditions, align expectations, and define reasonable and achievable performance benchmarks based on available data, platform constraints, and the scope of Services.

The thirty (30) day cure period shall commence on the date of such meeting.

Any projections, estimates, or forecasts provided during the sales process or prior to execution of this Agreement are illustrative only and do not constitute guarantees or contractual commitments.

If no resolution is reached following the cure period, Customer may terminate the Agreement in accordance with Section 5.2.

5.4 Platform Access and Continuity of Services

Customer shall provide and maintain all access, credentials, permissions, data, and authorizations reasonably required for Company to perform the Services, including but not limited to access to marketplace, advertising, analytics, finance, and related systems such as Amazon, Walmart, Shopify, TikTok, Google, Meta, Target, and any other platforms used in connection with the Services.

Customer shall not revoke, restrict, suspend, or otherwise impair such access during the Term except for documented security or legal compliance reasons.

If Customer revokes, restricts, or impairs required access, Company shall provide written notice requesting restoration of such access. Customer shall restore such access within five (5) business days of receipt of such notice.

If Customer fails to restore access within such period, Company may suspend the affected Services in whole or in part.

During any period in which access is restricted, unavailable, or impaired due to Customer actions, Company shall be deemed ready and willing to perform the Services, and all applicable fees, retainers, minimum commitments, and service charges shall remain fully due and payable without offset, reduction, or deferral.

Company’s obligation to perform the Services shall be deemed fulfilled to the extent performance is prevented, delayed, or impaired by Customer actions, including but not limited to access limitations, delayed approvals, incomplete or inaccurate information, or failure to provide required cooperation.

Any reinstatement of access after suspension shall not relieve Customer of payment obligations accrued during the period of restricted or impaired access.

Customer acknowledges that revocation, restriction, or impairment of required access shall constitute a material breach of this Agreement and shall not be used as a basis to dispute performance, results, or payment obligations.

For Amazon Reimbursement and Vendor Recovery Services specifically, if required platform or data access is revoked or restricted such that Company cannot perform recovery activities during the Term or committed service period, Company may calculate the average monthly service value based on the preceding twelve (12) months of serviced invoices related to such recovery services. Company may then invoice Customer an amount equal to three (3) months of such average monthly service value as liquidated damages reflecting lost recovery opportunity and service disruption. Customer acknowledges that such amount represents a reasonable estimate of damages and not a penalty.

5.5 Amazon Reimbursement Clawback

An Amazon reimbursement clawback occurs when Amazon reclaims funds previously reimbursed to a seller.

If such clawback occurs, the Customer may request a refund from Eva for any related service fees within sixty (60) days of the invoice issued by Eva for the applicable reimbursement.

After sixty (60) days, Eva shall have no obligation to process or issue refunds related to such clawbacks.

5.6 Termination of 3PL and Warehouse Services

If the Customer is utilizing Eva’s third-party logistics or warehouse services, including services provided by Eva or its affiliated 3PL operator Agile Supply Chain, such services shall be governed by the 3PL Terms and Conditions available at https://eva.guru/3pl-terms-and-conditions/, which are incorporated by reference.

The Customer may terminate 3PL services by providing written notice of cancellation.

Unless otherwise specified in the applicable 3PL Terms and Conditions, termination shall become effective thirty (30) days after the cancellation request is received.

Upon receipt of a cancellation request, Eva will issue a final cancellation invoice. This invoice shall include, without limitation, all outstanding charges, applicable exit fees, handling and transfer fees, and an additional thirty (30) days of storage charges calculated from the date the cancellation request is received.

All Eva and Eva 3PL invoices, including those issued by Agile Supply Chain, must be paid in full for the termination to be completed and for any goods to be released, transferred, or shipped to another facility.

No products, inventory, or goods shall exit the warehouse prior to full settlement of the final invoice.

If the Customer fails to pay the required invoices within the timelines specified in the applicable 3PL Terms and Conditions, Eva 3PL reserves the right to dispose of, liquidate, or otherwise handle the goods in accordance with the procedures, rights, and timelines set forth in the 3PL Terms and Conditions.

5.7 Exclusive Channel Management and Third Party Interference

Customer acknowledges that the Services are delivered based on Company’s operational framework, proprietary technology systems, methodologies, and coordinated execution across channels.

Company shall serve as the exclusive service provider for the platforms, channels, and service scopes defined in the applicable Order Form during the Term.

Customer shall not authorize, engage, or permit any third-party provider, agency, consultant, contractor, or internal team to manage, operate, modify, or otherwise interfere with the same platform accounts, advertising accounts, operational workflows, or service channels assigned to Company without Company’s prior written consent.

Any such activity shall constitute material interference with the Services and a material breach of this Agreement.

Upon discovery of such interference, Company may provide written notice requesting that such activity cease. Customer shall remedy the interference within five (5) business days of receipt of such notice.

If the interference is not remedied within such period, Company may, at its discretion:

(i) suspend the affected Services in whole or in part; and/or
(ii) exercise its rights under Section 4, including acceleration of Fees to the extent permitted by applicable law.

During any period of interference or suspension caused by Customer or its third-party providers, Company shall be deemed ready and willing to perform the Services, and all applicable Fees shall remain fully due and payable without offset, reduction, or credit.

Company shall not be responsible for any performance outcomes, account disruptions, data inconsistencies, attribution changes, or operational impacts resulting from Customer actions or unauthorized third-party involvement.

If Customer continues such interference following written notice, Company may terminate the affected Services for cause and exercise its rights under Section 4, including acceleration of Fees.

5.8 Customer Cooperation and Access

Customer shall provide and maintain all access, credentials, permissions, data, and cooperation reasonably required for Company to perform the Services.

Customer shall promptly provide all requested information, documentation, approvals, and operational cooperation necessary for execution of the Services.

If Customer actions or omissions prevent, delay, or materially limit Company’s ability to perform the Services, Company shall be deemed ready and willing to perform its obligations.

Such conduct shall constitute a material breach of this Agreement.

In such event, Company may suspend the Services and exercise its rights under Section 4, including acceleration of Fees to the extent permitted by applicable law.

Company shall not be responsible for any delays, performance impacts, or missed outcomes resulting from Customer’s failure to provide required cooperation.

Customer acknowledges that its payment obligations shall remain unchanged during any such delay or limitation.

5.9 No Offset or Withholding

Customer shall pay all invoices issued under this Agreement in full without deduction, offset, withholding, or counterclaim.

Any invoice dispute must be submitted and handled strictly in accordance with the invoice dispute procedure set forth in Section 4.4.2.

Customer may not withhold, delay, or reduce payment based on any claim relating to performance, results, or service delivery.

All undisputed amounts shall remain due and payable in accordance with the payment terms of this Agreement.

Failure to dispute an invoice in accordance with Section 4.4.2 shall constitute Customer’s final and irrevocable acceptance of such invoice.

5.10 Client Delay and Dependency Clause

Customer shall provide all materials, information, approvals, data, platform access, and operational cooperation reasonably required for Company to perform the Services.

If Customer fails to provide such cooperation, approvals, or information in a timely manner:

(i) Company shall not be deemed in breach of this Agreement for any resulting delay, performance impact, or missed timeline;
(ii) any implementation timelines, campaign launches, project schedules, performance reviews, or service milestones may be extended by a period equal to the duration of the Customer delay; and
(iii) Company shall be deemed ready and willing to perform the Services.

Customer acknowledges that delays, disruptions, or limitations caused by Customer shall not affect the enforceability of this Agreement, the timing of the Service Term, or the validity of any Fees invoiced.

Customer further acknowledges that its payment obligations shall remain fully due and payable during any such delay without offset, reduction, or deferral.

Where such delay materially prevents Company from performing the Services, such conduct may constitute a material breach of this Agreement, and Company may exercise its rights under Section 4, including suspension of Services and acceleration of Fees, to the extent permitted by applicable law.

6. Warranty and Disclaimer

6.1 Limited Service Warranty

Company shall use commercially reasonable efforts, consistent with prevailing industry standards, to provide the Services in a professional and workmanlike manner and to maintain the Services in a manner that minimizes material errors and interruptions.

Services may be temporarily unavailable due to scheduled maintenance, emergency maintenance, third-party service disruptions, or events beyond Company’s reasonable control.

Company shall use reasonable efforts to provide advance notice of scheduled service interruptions where practicable.

6.2 Disclaimer of Warranties

Except as expressly set forth in this Agreement, the Services are provided on an “as is” and “as available” basis.

Company does not warrant that the Services will be uninterrupted, error-free, or operate without delays.

Company expressly disclaims all other warranties, whether express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

6.3 No Guarantee of Results

Customer acknowledges that Company does not guarantee any specific results or outcomes from the Services.

This includes, without limitation, revenue, profitability, advertising performance, return on ad spend (ROAS), ranking improvements, traffic, conversions, or marketplace performance.

6.4 Service Performance Dependencies

Customer acknowledges that the effectiveness and performance of the Services depend on multiple factors outside Company’s control, including but not limited to:

(i) product quality and competitiveness;
(ii) pricing strategy;
(iii) inventory availability and fulfillment capability;
(iv) advertising budgets and allocation decisions;
(v) market competition and consumer demand;
(vi) third-party platform algorithms, policies, and enforcement actions; and
(vii) Customer’s operational decisions and business strategy.

6.5 Customer Cooperation and Inputs

Customer acknowledges that Company’s ability to perform the Services depends on timely cooperation, approvals, access, and accurate information provided by Customer.

Company shall not be responsible for any performance impacts, delays, or deficiencies resulting from:

(i) Customer actions or omissions;
(ii) delayed or withheld approvals;
(iii) incomplete or inaccurate information;
(iv) insufficient budgets or resources; or
(v) restrictions imposed by Customer or third-party platforms.

6.6 Alignment with Payment Obligations

Customer acknowledges that fees under this Agreement are based on access to Company’s systems, personnel, and operational resources and are not contingent upon achieving specific performance outcomes.

Performance-related concerns shall be addressed exclusively through the performance review and cure process set forth in this Agreement and shall not constitute a basis for withholding, delaying, or disputing payment obligations.

7. Indemnity for Breach of Terms of Use

7.1 Customer Indemnification

Customer shall defend, indemnify, and hold harmless Company and its officers, directors, employees, contractors, affiliates, and agents from and against any and all third-party claims, demands, damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to:

(i) Customer’s use of the Services;
(ii) Customer’s breach of this Agreement;
(iii) Customer’s violation of any applicable law or regulation;
(iv) Customer’s products, services, content, listings, advertising materials, or business operations;
(v) Customer’s failure to comply with policies or requirements of third-party platforms, including but not limited to Amazon, Shopify, TikTok, Walmart, Google, and Meta; or
(vi) any data, information, or materials provided by Customer.

7.2 Company Indemnification

Company shall defend, indemnify, and hold harmless Customer from and against any third-party claims to the extent arising from Company’s willful misconduct or violation of applicable law in the performance of the Services.

7.3 Indemnification Procedure

The indemnified party shall:

(i) promptly notify the indemnifying party of any claim (provided that failure to do so shall not relieve the indemnifying party of its obligations except to the extent materially prejudiced);
(ii) allow the indemnifying party to control the defense and settlement of the claim; and
(iii) provide reasonable cooperation at the indemnifying party’s expense.

The indemnifying party shall not settle any claim in a manner that imposes liability or obligations on the indemnified party without prior written consent, which shall not be unreasonably withheld.

8. Limitation of Liability and Disclaimers

8.1 Limitation of Liability

Except for liability arising from (i) bodily injury, (ii) breaches of confidentiality obligations, (iii) violations of intellectual property rights, (iv) Customer’s payment obligations, or (v) willful misconduct, neither Party, nor its officers, directors, employees, contractors, affiliates, or suppliers, shall be liable under any theory of law, including contract, negligence, strict liability, or otherwise, for:

(a) any loss of profits, revenue, business opportunity, or anticipated savings;
(b) any loss, corruption, or inaccuracy of data;
(c) any interruption of use or cost of procurement of substitute goods or services;
(d) any indirect, incidental, special, exemplary, or consequential damages; or
(e) any matters beyond the reasonable control of the Party claiming limitation of liability.

In no event shall either Party’s total aggregate liability arising out of or relating to this Agreement exceed the total fees paid or payable by Customer to Company for the Services during the three (3) months preceding the event giving rise to the claim.

For clarity, the foregoing limitations of liability shall not apply to Customer’s payment obligations, including but not limited to unpaid fees, chargebacks, payment reversals, or collection-related claims, all of which shall remain fully recoverable by Company.

Customer further agrees that it shall not assert any claim for indirect, incidental, consequential, or speculative damages, including alleged lost profits or business losses, in connection with any dispute relating to payment obligations, invoices, or Service fees.

8.2 Disclaimer of Warranties

The Services are provided on an “as is” and “as available” basis.

Company makes no warranties, express or implied, except as expressly set forth in this Agreement, and expressly disclaims all other warranties, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

Company does not warrant that the Services will be uninterrupted, error-free, or operate without delays.

8.3 Results Not Guaranteed

Customer acknowledges that Company does not guarantee any specific results or outcomes from the Services.

This includes, without limitation, any expectations relating to revenue, profitability, advertising performance, return on ad spend (ROAS), ranking improvements, traffic, conversions, or marketplace performance.

Customer further acknowledges that performance is dependent on multiple factors outside Company’s control, including but not limited to pricing, product quality, inventory availability, competition, platform algorithms, and Customer’s operational decisions.

8.4 Third-Party Services and Platforms

The Services may involve or rely upon third-party platforms and services, including but not limited to Amazon, Shopify, TikTok, Walmart, Google, Meta, and other marketplaces or advertising systems.

Company does not own, operate, or control such third-party platforms and shall not be responsible for their availability, functionality, policies, algorithm changes, account actions, or performance impacts.

Customer assumes all risks associated with the use of such third-party platforms, including account suspensions, listing removals, advertising restrictions, or changes in platform behavior.

8.5 Data Backup and System Responsibility

Customer is solely responsible for maintaining independent backups of its data, account configurations, advertising records, and business information.

Company shall not be responsible for any loss, corruption, deletion, or inaccessibility of data resulting from third-party platforms, Customer actions, system failures beyond Company’s control, or any external factors.

8.6 No Consequential Damages for Payment Disputes

Customer shall not assert or recover any indirect, incidental, consequential, or speculative damages, including alleged lost profits or business losses, in connection with any dispute relating to payment obligations, invoices, Service fees, or enforcement of this Agreement.

9. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

This Agreement is not assignable, transferable, or sublicensable by Customer except with Company’s prior written consent. The Company may transfer and assign any of its rights and obligations under this Agreement without consent.

This Agreement, the Order Form, and any other documents incorporated by reference therein constitute the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement.

All waivers and modifications must be in writing and signed by both Parties except as otherwise provided herein.

Company may maintain records of Services performed, communications, and system activity logs, which may be used as evidence of performance and compliance under this Agreement.

Independent Contractor Relationship

The Parties are independent contractors and nothing in this Agreement shall be deemed to create any partnership, joint venture, employment, or agency relationship.

Customer acknowledges that the Company does not control Customer’s business operations, marketplace accounts, advertising accounts, inventory, pricing decisions, or marketing strategies.

Customer retains sole responsibility for its marketplace accounts, advertising accounts, compliance obligations, and overall business operations.

Nothing in this Agreement authorizes Customer to bind the Company in any respect whatsoever.

Platform Risk and Third Party Services Disclaimer

Customer acknowledges that the Services may involve the use of third party platforms including but not limited to Amazon, Walmart, Shopify, TikTok, Google, Meta, Target, and other online marketplaces or advertising platforms.

Company does not own, control, or operate these platforms and shall not be responsible for their policies, algorithm changes, platform restrictions, account suspensions, listing removals, advertising restrictions, or other enforcement actions taken by such platforms.

Customer acknowledges that performance results, advertising outcomes, listing visibility, and marketplace activity may be affected by changes to third party platform policies or systems that are outside the Company’s control.

Company shall not be liable for disruptions, suspensions, or performance impacts caused by third party platforms.

No Reliance on Statements Outside Agreement

Customer acknowledges that it has not relied on any representations, guarantees, projections, forecasts, or statements not expressly set forth in this Agreement or the applicable Order Form.

Any prior discussions, sales materials, presentations, or communications are superseded by this Agreement.

Notices

All notices, requests, demands, and communications under this Agreement shall be in writing and shall be deemed duly given when sent by email to the designated addresses set forth below.

Service-Related Matters

For all service-related matters, including but not limited to performance concerns, escalation of issues, dissatisfaction, termination requests, and operational communications, Customer shall provide notice to: ecommercesolutions@eva.guru , and the assigned Company account representative (including the Omnichannel Brand Manager and/or Escalation Manager, where applicable).

Billing and Payment Matters

For all billing, invoicing, payment-related matters, and invoice disputes, Customer shall provide notice to:

finance@eva.guru, and may copy ecommercesolutions@eva.guru 

Customer acknowledges and agrees that notice provided solely to individual Company personnel, including but not limited to account managers, team members, or other representatives, without including the applicable designated email address(es) above, shall not constitute valid notice under this Agreement.

Email communications shall constitute valid written notice for all purposes under this Agreement.

Customer is responsible for ensuring that notices are properly addressed and delivered in accordance with this Section. Company shall have no obligation to act upon or respond to communications that do not comply with the notice requirements set forth herein.

Notices shall be deemed received on the date sent, unless a delivery failure notice is received.

Attorneys’ Fees

In any action, arbitration, or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, court costs, arbitration fees, and other reasonable expenses incurred in connection with such action.

Governing Law and Venue

This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.

Each Party consents to the exclusive jurisdiction and venue of the state and federal courts located in San Diego County, California for any permitted court actions under this Agreement.

Arbitration and Dispute Resolution

Any dispute, claim, or controversy arising out of or relating to this Agreement or the Services shall first be addressed through good faith negotiations between the Parties. Either Party may initiate such discussions by providing written notice describing the nature of the dispute.

If the dispute is not resolved through negotiation within thirty (30) days after such notice, the dispute shall be resolved by binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules then in effect.

The arbitration shall be conducted by a single arbitrator and shall take place in San Diego County, California. The arbitrator shall have authority to grant any relief that would otherwise be available in a court of competent jurisdiction and shall have authority to award attorneys’ fees and costs to the prevailing party to the extent permitted under this Agreement.

Judgment upon the arbitration award may be entered in any court having jurisdiction.

Notwithstanding the foregoing, the Company may pursue claims relating to unpaid invoices, collection of fees, enforcement of payment obligations, or other monetary amounts due under this Agreement in any court of competent jurisdiction, including California Limited Civil Court or Small Claims Court.

Waiver of Jury Trial

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR THE RELATIONSHIP BETWEEN THE PARTIES.

THIS WAIVER APPLIES TO ANY CLAIM, COUNTERCLAIM, OR CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, STATUTE, OR OTHERWISE, INCLUDING ANY CLAIM FOR DAMAGES.

EACH PARTY ACKNOWLEDGES THAT IT HAS BEEN ADVISED OF THE POSSIBILITY OF A TRIAL BY JURY AND HAS KNOWINGLY AND VOLUNTARILY ELECTED TO WAIVE SUCH RIGHT.

Injunctive Relief

Customer acknowledges that a breach of the provisions relating to intellectual property, confidentiality, software restrictions, non solicitation, or misuse of Company technology may cause irreparable harm to the Company for which monetary damages alone would not be an adequate remedy.

Accordingly, the Company shall be entitled to seek injunctive relief or equitable relief in any court of competent jurisdiction without the necessity of posting a bond or proving actual damages.

Such remedies shall be in addition to any other remedies available under this Agreement or applicable law.

Waiver

No waiver by Company of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by Company.

No failure by Company to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates as a waiver thereof.

No single or partial exercise by Company of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

Force Majeure

No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by events beyond the reasonable control of the affected Party including acts of God, fire, flood, earthquake, pandemic, war, terrorism, labor disputes, telecommunications failures, power outages, or government actions.

The affected Party shall notify the other Party within seven (7) days of such event and shall use reasonable efforts to resume performance as soon as practicable.

Payment obligations are not excused by Force Majeure.

Contract Interpretation

Headings in this Agreement are for convenience only and shall not affect the interpretation of any provision. Any ambiguity in this Agreement shall not be construed against the drafting Party.

Right to Suspend Services

Company reserves the right to suspend access to the Services or temporarily halt performance of Services if Company reasonably believes that:

(a) Customer is in material breach of this Agreement,
(b) Customer’s activities may violate applicable law or third party platform policies,
(c) continued operation may expose Company to legal, financial, or reputational risk, or
(d) Customer has failed to make payment when due.

Company shall use commercially reasonable efforts to notify Customer of such suspension.

Suspension of Services under this Section shall not relieve Customer of its payment obligations under this Agreement.

Survival Clause

The following provisions shall survive termination or expiration of this Agreement:

(i) Confidentiality;
(ii) Intellectual Property Rights;
(iii) Payment Obligations, including without limitation all unpaid Fees, accelerated amounts, disputed amounts, and all collection-related costs, fees, and expenses;
(iv) Limitation of Liability;
(v) Indemnification;
(vi) Dispute Resolution; and
(vii) any other provisions which by their nature are intended to survive termination or expiration of this Agreement.

10. 3PL – Warehousing

If Customer utilizes Eva’s third party logistics or warehouse services, the additional 3PL Terms and Conditions available at:

https://eva.guru/3pl-terms-and-conditions/

shall apply and are incorporated by reference into this Agreement.