TENGIVA Product listing and Brokerage Contract
Effective from August 6th, 2019
1. CACITH Inc., doing business as Tengiva.com (“Tengiva”) has developed the Tengiva.com platform (“Platform”), which facilitates the buying and selling of textiles by merchants like Vendor to a wide array of commercial and consumer buyers.
2. Vendor desires to list some of its textile products on the Platform, thereby making them available for purchase pursuant to the Platform’s standard terms, conditions, and policies, including the Vendor’s Guide and standard Tengiva sales contract.
3. Tengiva will provide technical intermediary services, as well as certain shipping-related intermediary services described below.
4. Any sales concluded via the Platform will be concluded directly between Vendor and the buyer. Tengiva will not be a party to these sales, nor act as agent for either party.
Intending to be bound, and relying on the above background, the parties agree as follows:
1.1 Account Creation and Password. As part of the account creation process, Vendor will pay the Membership Fee and create an account on the Platform. Until Vendor creates an account, it will be impossible for Vendor to access the Platform. Vendor is responsible for maintaining the confidentiality of its log-in credentials for the Platform, and is responsible for all use of its account.
1.2 Start-up Kit. Promptly after payment of the Membership Fee, Tengiva shall send Vendor a start-up kit containing a camera lens kit with ring flash for mobile, a digital microscope, a light box, Tengiva personalized labels for packaging, and documentation regarding product presentation standards and best practices, including the Vendor Guide. Vendor shall use the start-up kit to create its product listings on the Platform in accordance with the Vendor Guide. The Free plan does not include a starter Kit and has limited access to the platform.
2.1 Product Listing. Vendor may list one or more products on the Platform by completing the new product information page. Vendor shall accurately and fully describe the products, and shall not make any inaccurate or misleading claims. Vendor shall only list products that comply with the currently applicable Tengiva policies, including policies regarding labour standards, and materials safety, and shall certify same as required. Vendor shall make reasonable efforts to comply with the product presentation standards and best practices provided to it under clause 1.2 and the Vendor’s Guide described in clause 2.3.
2.2 Product De-listing. Vendor may de-list products at any time and for any reason. However, Vendor must honour any completed Tengiva Sales Contracts concluded prior to the de-listing. Tengiva may de-list a product if it receives a credible complaint of intellectual property rights infringement, counterfeiting, or other illegalities affecting the product or the product’s listing page.
2.3 Vendor’s Guide. As a service for both buyers and Vendors on the Platform, Tengiva has produced a Vendor’s Guide. Vendor should review the Vendor’s Guide carefully, since it provides helpful information and techniques for describing and displaying products on the Platform. The Vendor’s Guide will also be used to assess whether a product conforms to the description provided on the Platform for the purpose of the return policy. The Vendor’s Guide may be updated by Tengiva from time to time, and the version that existed at the time of a sale shall be applied to determine whether the product conformed to its description. (https://tengiva.com/about/sell-v2/tengiva-vendor-guide/).
2.4 Sales Process. Vendor acknowledges that by listing a product, it is making a standing offer to sell the product to buyers under the then-current Tengiva Sale Contract (www.tengiva.com/tengiva-sales-contract). Vendor acknowledges that Vendor cannot discriminate against buyers, and must complete any order which is properly placed through the Platform. Only Vendor and buyers are party to these contracts; Tengiva is neither a party nor agent for a party to these contracts.
2.5 Order Fulfillment. Textile yardage is subject to a 5-meter minimum order quantity. Vendor shall ship products which correspond to the quantity and quality ordered by buyers. For textile yardage, Vendors may include up to 10 cm extra, but may not otherwise exceed the ordered quantity, and may never fall below the ordered quantity.
2.6 Packaging and Rolls. Packaging of swatches is under Vendor’s absolute control and discretion. For textile yardage, Vendor shall adhere to the following packaging standards.
(a) 5 to 25 meters: Must be folded and packed in a packaging that will properly protect the merchandise during transportation. Vendor will select a packaging that fits the product dimension.
(b) 26 meters and up: Must be rolled.
(c) High volume and low weight textiles: Must be packed to optimize the shipment cost and reduce the amount of volume.
Where rolls are used, the following specifications apply: (i) Vendor must use 2-inch hard core tubes; (ii) tube length must be the same as fabric width; (iii) the face of the fabric must be face inside when rolled, (iv) rolls must not be stored vertically; (v) roll size diameter (with textile) maximum 25 cm (9.85 inches), except or high volume and low weight textiles (such as fleece, quilting, insulation material); (vi) the rolls must be wrapped in strong, heavy-weight plastic bags, then raphia/tarp bags must be applied over the plastic bag; (vii) each roll must be clearly identified with the following information: Vendor’s product identification number, fabric description information (construction, fiber content, weight, finishes if applicable), and Supplier’s name.
2.7 Inventory Adjustment. The Platform will automatically deduct inventory sold via the Platform, but Vendor is solely responsible for adjusting inventory to reflect non-Platform sales and other changes to product availability.
2.8 Pricing. Vendor is free to set prices for its products in its own absolute discretion. Vendor acknowledges that the final price displayed to buyers on the Platform and on invoices will be an all-inclusive price which includes all Tengiva’s commission, discounts, payment processing fees, refunds, transport costs, chargebacks, and taxes (all to the extent applicable).
2.9 Currency. All sales on the Platform will be concluded in the buyer’s local currency, and the equivalent amount converted into Vendor’s currency for distribution.
2.10 Payments to Vendor. When a product is purchased via the Platform, payment will be made by the buyer to Tengiva. Tengiva will deduct its commission and any other allowable deductions under these Terms, and credit the remaining amount to Vendor’s account on the Platform. Vendor may submit a payment request at any time, as long as the amount credited to Vendor’s account is at least is USD $150 (or local equivalent). Payment requests must to be placed through the Platform, by Vendor sending Tengiva a balance withdrawal request via their Tengiva access panel. Payment requests sent by other means (including phone or email) will not be processed for security reasons. All fees associated with the request, including wire transfer fees, banking fees, and currency conversion costs, will be deducted from the amount prior to transfer.
(a) Returns shall be available to the buyer if and only if the product sold does not conform to the description provided by Vendor on the Platform.
(b) Whether a product conforms to its description will be assessed using the Vendor’s Guide. Returns are not available in any other case.
(c) Vendor shall apply the Vendor’s Guide standard reasonably and in good faith.
(d) Buyer must provide photographic evidence of non-compliance with the Vendor’s Guide. Vendor will assess the photographs and determine whether the complaint of non-compliance is justified, and notify buyer of the decision.
(e) In the event of a disagreement between Vendor and buyer over the interpretation or application of the Vendor’s Guide, Tengiva will settle the disagreement reasonably and in good faith.
(f) If the complaint is considered justified, the buyer will return the product. Return shipping is paid by the buyer, and Vendor must reimburse the purchase cost and return shipping cost to buyer upon receiving the returned product. Returned products are eligible for a full refund, paid through the Platform.
(g) In the event it is established between the Parties that there is a case of non-conformity, the Vendor has the option of either making a full refund or sending a compliant product back to the Vendor.
(h) In any case, the buyer shall not be eligible for any return or refund of money in the event the complaint of non- compliance is made after ten days from the date of shipping receipt by the buyer.”
2.12 Shipping. Tengiva will act as shipping broker and will engage with a selected transportation services provider.
Vendor shall prepare the products ordered for shipping to buyers from Vendor’s premises via such third-party transportation services provider arranged by Tengiva. Vendor must send the products pursuant to the shipping method requested by the buyer. Vendor shall use best efforts to collaborate with the third-party transportation services provider to deliver the product to the buyer, including providing necessary shipping labels and documentation. Vendor shall provide or complete all necessary documentation and information for shipping. Shipping costs shall be paid by buyer/s via the Platform.
Vendor has 2 local business days from the moment they receive a new order (defined as the time at which the Platform provides notice of a new order to Vendor) to ship the goods to the customer unless otherwise agreed between the Parties (defined as transferring possession of the products from Vendor to the transportation service).”
Should the buyer decide to use its own transport service, the buyer will be responsible for organizing shipping with Vendor directly. If buyer selects its own transport service, neither Tengiva nor Vendor has any responsibility for any damage or problem resulting from this choice or service. Vendor must reasonably collaborate with the buyer to ensure best service and customer satisfaction.”
2.13 Customs. Any applicable customs duties will be payable by the buyer.
2.14 Taxes. With respect to all sales on the Platform, Vendor is solely responsible for compliance with all applicable sales tax and other taxation laws, and must provide all necessary information and documents to buyer or others as required.
2.15 Contact with Buyers. Vendor acknowledges that its contact information will displayed on the Platform and that buyers may contact Vendor using that contact information. Buyers’ contact information will be provided to Vendor if a sale is completed using the Platform. However, Vendor shall not contact buyers unless: (a) the buyer has contacted Vendor first, or (b) Vendor obtains permission to do so from Tengiva platform managers.
2.16 Spot Checks. Vendor acknowledges that Tengiva will perform spot checks from time to time to verify that Vendor complies with the delivery timeframe in clause 2.12 and that the products’ quality conforms to the description posted on the Platform as well as Tengiva’s Vendor’s Guide and policies, as well as all applicable laws and regulations.
3.1 Membership Fee. Vendor shall pay the membership fee for either a monthly or one-year membership on the Platform, as selected by Vendor. These fees will be charged to Vendor in the amount displayed to Vendor during account creation.
3.2 Tengiva’s Commission. Tengiva’s commission amount is based on the subscription plan selected by the Vendor. The parties acknowledge that this commission is paid in return for Tengiva’s creation and maintenance of the Platform and its role as a service provider to Vendor (notably as a transportation services broker). This commission is paid on the sale price established by Vendor, and for greater certainty, is not calculated on any shipping costs, taxes, or customs costs.
3.3 Set-off. Tengiva may set-off amounts owed to it by Vendor against any payments due to Vendor (for example, valid returns/refunds).
3.4 Sales Taxes. With respect to the membership fee and Tengiva’s commission, all charges and fees provided in this contract between Tengiva and Vendor are exclusive of any foreign or domestic taxes or charges of any kind imposed by any national, federal, state, provincial or local government on the transactions contemplated by this contract, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Vendor. Any such taxes that are applicable shall be the sole responsibility of Vendor. Should there be any applicable taxes not mentioned above, the collection and payment of those taxes shall be the sole responsibility of the Vendor.
3.5 Withholding Taxes. With respect to the membership fee and Tengiva’s commission, all amounts payable by Vendor to Tengiva must be paid free and clear of any and all deductions or withholdings relating to any taxes, duties, or levies (collectively, “Withholding Taxes”). If Vendor is compelled by law to deduct or withhold Withholding Taxes, Vendor shall separately pay to Tengiva, or shall authorize Tengiva to retain, such additional amounts that are necessary for Tengiva to receive, net of the Withholding Taxes, an amount equal to the full amount that otherwise would have been paid under this contract if no Withholding Taxes existed. Vendor shall make all required deductions or withholdings relating to Withholding Taxes and shall pay the full amount deducted or withheld to the relevant taxing authority or jurisdiction in accordance with applicable law. Vendor hereby indemnifies and holds harmless Tengiva for the full amount of Withholding Taxes, including interest, penalties and other liabilities, and for all expenses, resulting from or relating to Vendor’s failure to pay any Withholding Taxes when due to the appropriate taxing authority or jurisdiction (including, without limitation, any Withholding Taxes imposed by any taxing authority or jurisdiction on amounts payable under this clause 3.5), whether or not such Withholding Taxes were correctly or legally assessed. If Vendor wishes to benefit from an agreement or treaty that will reduce or eliminate Withholding Taxes, Tengiva shall reasonably collaborate with Vendor to provide documentation required by taxing authorities.
4.1 Duration and Renewal. This contract lasts for one or two years from the Effective Date, depending on the timing selected by Vendor during account creation. It renews automatically for successive one or two year periods unless one party sends a notice of non-renewal at least 90 days before the end of the then-current contract period. The applicable Membership Fee will be billed automatically on renewal, and Tengiva may suspend Vendor’s account if this amount is not paid in a timely manner.
4.2 Termination. The parties’ exhaustive termination rights are the following:
(a) Either party may terminate this contract if the other party has declared bankruptcy, sought protection from its creditors, entered liquidation, ceased carrying on business, had a receiver appointed over it, or has a bankruptcy petition pending against it for more than 30 days.
(b) Either party may terminate this contract if the other party is in material breach of its obligations by sending a notice of breach, specifying the nature of the breach and demanding that it be remedied. If the breach is not remedied within 30 days of the breaching party receiving the notice, the non-breaching party can terminate this contract.
(c) Tengiva may terminate this contract if Vendor fails to honour the return policy, or repeatedly lists products which do not comply with applicable laws (including labour standards and material safety laws) or Vendor Guide, or is the subject of repeated complaints of counterfeiting or intellectual property infringement.
(d) Vendor may terminate this contract at any time for convenience.
In any circumstance in which Tengiva could terminate this contract, it may instead, at its option, suspend Vendor’s access to the Platform.
4.3 Effects of Termination. Clauses 3.3, 4.2, 5, 6, 7, and 8 survive termination of this contract. Any payments which are owed from Tengiva to Vendor or vice versa at termination are unaffected. Vendor’s membership fee is non-refundable except if Vendor terminates this contract for material breach by Tengiva, in which case Vendor is entitled to a pro-rata refund of the membership fees covering the post-termination period. Termination of this contract has no effect on any confirmed orders on the Platform and either Party shall perform its obligations as required to complete such confirmed orders.
5.1 Retention of Title. Nothing in this contract transfers ownership of intellectual property from one party to the other. Tengiva retains ownership of all rights, including intellectual property rights, in the Platform. Vendor retains all rights, including intellectual property rights, in the products which it lists, and in any material uploaded to the Platform. Should Vendor upload material protected by Vendor’s intellectual property rights, Vendor grants Tengiva a non-exclusive licence to display and host the material, and to carry out all related technological activities.
5.2 Infringement. Vendor shall not upload materials which infringe on the rights of third parties, including intellectual property rights. Vendor acknowledges that failure to comply will result in removal of the offending product listings, and possibly termination of this contract.
5.3 Data and Suggestions. From the moment of its creation, Tengiva will own any data generated by or through the Platform, including any data generated by an analytics function. Vendor shall not own same. Tengiva shall have the right to use any suggestions, requests, recommendations, or other feedback provided by Vendor without payment of any royalty.
6.1 Definitions. “Confidential Information” means all information that is identified as confidential by a party, and also all information that by its nature would be considered confidential by a reasonable business person (including without limitation all non-public details of the Platform and pricing). However, Confidential Information does not include information: (i) that was or becomes generally available in the public domain through no fault of the Receiving Party; (ii) already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party; (iii) obtained by the Receiving Party from a third party without a breach of the third party’s confidentiality obligations.
“Disclosing Party” means the party who shares Confidential Information. “Receiving Party” means the party who is provided with Confidential Information.
6.2 Protection, Use, and Disclosure of Confidential Information. Receiving Party shall hold all Confidential Information in strict confidence, and shall take all steps reasonably necessary to protect the confidentiality and security of Disclosing Party’s Confidential Information. These steps shall be at least as strict as those which Receiving Party uses for its own Confidential Information.
Receiving Party shall not disclose Confidential Information to any third party, except as required by law. In the event that disclosure of Confidential Information is required by law, the Receiving party shall give the Disclosing Party notice, so that the Disclosing Party can intervene to protect its rights.
Receiving Party shall not use Confidential Information for any purpose except as strictly necessary to perform this contract.
6.3 Destruction of Confidential Information. All Confidential Information shall remain the property Disclosing Party. Upon termination or non-renewal of this contract, Receiving Party shall destroy or return all copies of the Confidential Information in its possession, and certify that return/destruction upon request.
7.1 Limitation of Liability. The aggregate liability of either party to the other for damages arising from or related to this contract, its breach, the Platform, or the transactions contemplated in this contract shall be limited to the total payments received by Tengiva from Vendor up to the date of that breach. This amount shall not be increased by the occurrence of multiple breaches or alleged breaches. This limitation of liability applies to all damages, whether arising in contract, tort (including negligence), strict liability, statute, equity, intellectual property infringement, privacy, lost profits, or otherwise.
7.2 Vendor’s Warranties. Vendor represents and warrants that the products which it lists on the Platform: are genuine; conform to the description which Vendor provides for those products; comply with all applicable laws, regulations, and policies in places to which it is shipped; do not infringe the rights of others, including intellectual property rights; are owned by Vendor; and are unencumbered by any lien, trust, security interest, hypothec, or other encumbrance.
7.3 Exclusion of Other Warranties. All other representations, conditions, and warranties by Vendor or Tengiva are hereby excluded, regardless of source, whether express, implied, statutory, or by trade usage.
7.4 Indemnification. Each party shall defend, indemnify, and hold harmless the other party and its successors, assigns, licensees, agents, employees, officers, directors, and corporate affiliates from any lawsuits, claims, damages, costs, losses, fees (including reasonable legal fees and disbursements) arising from the breach of that party’s representations and warranties
8.1 Governing Law. This contract is governed by the domestic laws of Ontario, and the federal laws of Canada applicable therein. The International Sale of Goods Act does not apply to this contract, nor to the negotiations leading up to it, nor to any renewals.
8.2 Dispute Resolution. Any dispute arising from or related to this contract or the Platform shall be submitted to the exclusive jurisdiction of the courts of Ontario. Trial shall be by judge alone, and any right to a jury trial is hereby waived.
8.3 Relationship. The parties agree that the relationship between them is one of independent contractors. Nothing in this contract creates any relationship of employment, partnership, agency, trust, franchise, or joint venture. Vendor specifically agrees that Tengiva is not acting as Vendor’s agent for any transactions relating to or arising from the Platform.
8.4 Assignment. Neither party may assign its rights under this contract (including the right to receive payments arising from performance or breach) without the prior written consent of the other party. Any purported assignment which does not comply with this clause is void.
8.5 Technological Neutrality. Both parties acknowledge that the goals of this contact may be accomplished through various technological means, and that a change to the Platform or sales process which achieves the same practical results via different technological means shall not result in a breach of this contract by Tengiva.
8.6 Entire Agreement. This Tengiva Product Listing and Brokerage Contract constitutes the parties’ entire agreement with respect to the Platform. It replaces all previous, collateral, or contemporaneous agreements, contracts, understandings, representations, conditions, or warranties regarding the Platform.
8.7 Amendments. This contract can be amended by Tengiva from time to time by the posting of an updated version to its website. Tengiva will provide Vendor with email notice of any updates, and it is Vendor’s responsibility to review the updated contract. Should Vendor wish to discontinue its use of the Platform as a result of an update, it may do so within 30 days of the update’s positing by closing its account and providing written notice of termination to Tengiva. Any unclaimed funds credited to Vendor’s account will be forfeited and no amounts paid to Tengiva will be refunded.
8.8 Force Majeure. Neither party shall be responsible for delayed performance or non-performance caused by natural disasters, government action, acts of war, terrorism, legal or illegal strikes, terrorism, cyberterrorism, and other acts beyond the reasonable foreseeability or control of a party (a “force majeure event”). However, if a party’s performance of its obligations is delayed by more than consecutive 30 days by a force majeure event, the other party may at its option terminate this contract without penalty.