Terms of services
Buyers
Version: June 26, 2023
BUYER SERVICE-SPECIFIC ADDITIONAL TERMS AND POLICIES OF THE PLATFORMS POWERED BY TENGIVA
TENGIVA is the developer and owner of an underlying operating system that allows entirely digital database and sales transactions within the textile industry (the “System”). This System is licensed to different Platform Owner who operate and manage platforms and where Product Owners and Buyers may engage in entirely digital transactions (the “Platform”).
These terms of service (the “Terms of Service”) apply to the access and use of the Platforms by Buyers through an online account and will apply specifically to any purchase order, statement of work or other transaction document or exhibit entered into between TENGIVA and the buyer (“Buyer” or “you”) regarding the use by Buyer of the Platform and any related services (the “Schedule(s)”) .
These Terms of Service, along with the relevant Schedule(s), constitute a binding contract between TENGIVA and you (the “Agreement”).
BY ACCEPTING TENGIVA SCHEDULE(S) OR BY CLICKING ON THE ["I ACCEPT" TENGIVA AND SERVICE-SPECIFIC TERMS OF SERVICES], YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT FOR YOUR ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
1. Definitions
In addition to the terms defined directly in the Purchase Order and the General Terms of Services, the relevant sections of these Terms of Service or in Preamble:
1.1 "Authorized Users" means Buyer, Buyer's employees, consultants, contractors and agents who are authorized by Buyer to access and use the Buyer Account, the System and the Platforms, through a User Account.
1.2 “Confidential Information” means any and all information relating to or disclosed in the course of this Agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing party. Confidential Information does not include any information that the receiving party can demonstrate: (i) was publicly available at the time of disclosure to it; (ii) was published or otherwise became publicly available after disclosure to the receiving party, through no fault of its own; (iii) was in the possession of the receiving party at the time of disclosure to it from a third party who had a lawful right to such information and disclosed such information to it, without a breach of duty owed to the disclosing party; or (iv) was independently developed by the receiving party without reference to Confidential Information of the disclosing party, as proven by dated written records. Confidential Information includes for Buyer, Buyer Data and for TENGIVA, TENGIVA IP.
1.3 “Data Setup Services” has the meaning set forth in the relevant Schedules.
1.4 “Materials” means any materials provided or made available to Buyer in connection with the Services and other documentation made available by TENGIVA from time to time in connection with the Buyer Account or the Services.
1.5 "Buyer Data" means any information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Buyer or any other Authorized Users through the Buyer Account, including User Accounts information. Buyer Data also includes any Buyer trade-marks, service marks, trade dress, business and trade names, brand names, logos, corporate names and domain names, and other similar designations of sources, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, owned or licensed by the Buyer and provided to TENGIVA for the Services (specifically “Buyer Branding”).
1.6 "Platform Owners" means the platform enabled by TENGIVA's System, as defined in the Purchase Order and all problem resolutions, corrections, fixes, upgrades, updates, modifications, enhancements, improvements, versions, and releases of same, to the extent made available to Platform Owner.
1.7 "Services” means the access and use of the System and the Platforms enabled by TENGIVA to Buyer through the Buyer Account and any other related services, all services being [ further detailed on TENGIVA's website available at [URL] or as communicated shortly after the Effective Date by TENGIVA to Buyer through a specific URL] and as may be amended from time to time.
1.8 “Personal Information” means information that can be linked to an identifiable individual.
1.9 “TENGIVA Database”means the database composed of the information of merchants, including their TENGIVA platform account details and textile products information, and the information of buyers of said textiles products, including their TENGIVA platform accounts details and related sales information, on which TENGIVA has spent, continues to spend, material time and resources on the selection and arrangement of data as an intellectual creation on any website or computer system or network used in connection with the Platforms.
1.10 "TENGIVA IP" means the System, the Platform, the Platform Services, the Materials, and all intellectual property, including any Intellectual Property Rights, provided to Buyer or any other Authorized Users in connection with the foregoing. For the avoidance of doubt, TENGIVA IP also includes the Performance Statistics and any information, data, or other content derived from TENGIVA's monitoring of Buyer's access to or use of the Platform Services.
2. ACCESS TO THE PLATFORMS
2.1 Subscription and creation of account. Upon request and following the acceptance of the Agreement, TENGIVA will provide Buyer with all relevant information and access to create online account and profile dedicated to Buyer onto the TENGIVA Database and the Platform, with said account and profile being made accessible to Authorized Users through User Accounts (as further described in Section 2.6, the whole referred to as the “Buyer Account”). The Buyer Account enables you (i) access certain of the Platforms upon invitation of the relevant Platforms Owners; and (ii) to be provided with the Services offered by TENGIVA.
2.2 Access to Platforms. During the Term, TENGIVA will (i) make the Buyer Account available to Buyer and Authorized Users; and (ii) provide access to and use of the Platforms to Buyer through the Buyer Account. This, in order for Buyer to enter into and complete digital sales transactions through such Platforms (the “Sales Transactions”). Buyer acknowledges that the Buyer Account and all information included therein will become part of TENGIVA Database and will be accessible to all Platform Owners and Product Owners. However, Buyer understands that access to some of the Platforms will be defined by the Platform Owner. TENGIVA shall provide Buyer and Authorized Users the necessary access credentials to allow Buyer and Authorized Users to access and use the Buyer Account and the Platforms.
2.3 License to Platforms and Materials. Subject to the terms of this Agreement, TENGIVA grants Buyer a limited, non-assignable non-sublicensable, and non-exclusive license during the Term for Buyer and Authorized Users to access and use the Services and the Materials for the sole purpose of entering into Sales Transactions with relevant merchants, and not for resale.
2.4 Use Restrictions. Buyer shall not, and shall not permit any Authorized Users to, use the Services or the Materials for any purposes beyond the scope of the access granted in this Agreement and as permitted in this Agreement. Buyer shall not, at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Materials, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Materials; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or Materials, in whole or in part; (iv) remove any proprietary notices from the Services or Materials; or (v) use the Services or Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other rights of any person, or that violates any applicable law. Distribution, use and publication of certain components of the Buyer Account by Buyer may, however, be included or permitted as part of the Services, in such cases all conditions related to such distribution, use and publication contained in the description of the Services shall be complied with by Buyer.
2.5 Suspension. In addition to its other rights under this Agreement, TENGIVA may temporarily suspend Buyer's and any other Authorized Users' access to or all of the Buyer Account, the User Accounts, the Platforms or Materials if: (i) TENGIVA reasonably determines that (A) there is a threat or attack on any of the TENGIVA IP; (B) Buyer's or any other Authorized Users' use of the TENGIVA IP disrupts or poses a security risk to the TENGIVA IP or to any other clients of TENGIVA; (C) Buyer or any other Authorized Users are using the TENGIVA IP for fraudulent or illegal activities; (D) subject to applicable law, Buyer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) TENGIVA's provision of any of the Services to Buyer or any other Authorized Users is prohibited by applicable law; or (ii) any vendor of TENGIVA has suspended or terminated TENGIVA's access to or use of any third-party services or products required to enable Buyer to access and use the Services. If suspended, TENGIVA will promptly restore use of the Services to Buyer as soon as the event giving rise to the suspension has been resolved to the reasonable satisfaction of TENGIVA. Where the event giving rise to the suspension has been not been resolved to the reasonable satisfaction of TENGIVA within thirty (30) days of the effective date of such suspension, TENGIVA may terminate this Agreement upon prior written notice. TENGIVA will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Buyer or any other Authorized Users may incur as a result of any suspension under this article.
2.6 User Account. Authorized Users shall access the Buyer Account by means of user accounts created and assigned to each Authorized User by Buyer (each, a “User Account”). Buyer is responsible for all activity occurring under such User Accounts. Buyer shall, and shall cause the Authorized Users, to notify TENGIVA immediately of any unauthorized use of any password or User Account or any other known or suspected breach of security. Without limitation, TENGIVA may immediately remove or suspend any User Account affected by the activities described in the foregoing. Buyer shall be responsible for entering into written agreements with each Authorized User, and such agreements shall be consistent and comply with this Agreement and Buyer shall be responsible for each Authorized User's compliance with the terms of this Agreement.
3. Buyer Obligations - Sales Transactions
3.1 Sales Transactions. Buyer acknowledges that Sales Transactions will be subject to the Terms and conditions for the sale of Products, as available under the following link [URL], when applicable, and will otherwise be subject to the requirements and conditions contained in the merchant's guide, as provided by TENGIVA to Buyer.
3.2 Price. Buyer acknowledges that the final price for all products displayed on the Platforms and on invoices will be an all-inclusive price which includes, in addition to the products price set freely by merchants, all Platform fees, including any Platform fees if any, all payment processing fees, shipping and delivery fees, and other applicable discounts and taxes.
4. Buyer obligations - Buyer account and marketplaces
4.1 Acceptable Use Policy. The Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as such may be described and set forth in any TENGIVA's acceptable use policy ("AUP"), as provided by TENGIVA to Buyer and as may be amended from time to time, which is incorporated herein by reference. Buyer will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be provided by TENGIVA from time to time with respect to the Services, including the AUP.
4.1 Buyer Data.
i) License. Buyer hereby grant to TENGIVA a (A) non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Buyer Data and perform all acts with respect to the Buyer Data as may be necessary for TENGIVA to provide the Services to Buyer, and a (B) non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Buyer Data incorporated within the Performance Statistics as per Section 3.2 (iii) below.
ii) Responsibility. Buyer shall ensure that the Buyer Data (including Buyer's storage or transmission of such Buyer Data) and any other data regarding Buyer's use of the Services complies with the terms of this Agreement and any and all applicable laws; and promptly handle and resolve any claims relating to the Buyer Data, including any notice sent to Buyer claiming that any Buyer Data violates any person's right.
iii) Performance Statistics. Buyer acknowledges that TENGIVA may monitor Buyer's use of the Services and may collect and compile data and information related to Buyer's use of the Services (“Performance Statistics”). Such Performance Statistics will be used by TENGIVA notably to promote the Platforms, TENGIVA products and services to other buyers, Platform Owners and Product Owners and to compile statistical and performance information related to the provision and use of the Platform Services. As between TENGIVA and Buyer, all right, title, and interest in Performance Statistics, and all intellectual property rights therein, belong to and are retained solely by TENGIVA. Buyer further acknowledges that TENGIVA may (i) make Performance Statistics publicly available in compliance with applicable law, and (ii) use Performance Statistics to the extent and in the manner permitted under applicable law; provided that such Performance Statistics do not contain any Buyer's Confidential Information, Buyer Branding or Personal Information.
iv) Violation of Laws. TENGIVA may delete any Buyer Data, or part thereof, that, in TENGIVA' reasonable opinion, violates any laws or the rights of any third party and may suspend any Authorized Users that is responsible for the same, in each case without incurring any liability to Buyer.
5. TENGIVA Services
5.1 Performance. The Services will be performed in a professional manner, by qualified personnel, in compliance with applicable laws and according to industry standard practices.
5.2 Sales transactions. Buyer acknowledges that the Platform Services have for main purpose to enable Sales Transactions. Consequently, in no event, TENGIVA is and shall be considered a party or an agent to the Sales Transactions or to any contracts or agreements between Buyer and Merchants or Buyer and Platform Owners in connection thereto, including but not limited to, exclusivity agreements. As such, any and all support requests from Authorized Users or Buyer related to Sales Transactions made through the Platforms will be the sole responsibility of the Platform Owners.
5.3 Support.Support. The Services entitle Buyer to the technical support services described on the same URL as the one provided for the description of the Services.
5.4 Payment Information and PCI Compliance.Payment Information and PCI Compliance. TENGIVA will process all payment card data entered into the Platform through a third-party Payment Card Industry Data Security Standards (PCI DSS) compliant encrypted electronic vault. For security purposes, this information is not visible or accessible for retrieval by TENGIVA. As such, TENGIVA will not be able to provide this data to the Buyer under any circumstance.
5.5 APIs. The Services may include one or more APIs. Buyer's use of the API may be subject to fees and additional terms and conditions (which shall then prevail in relation to the Buyer's use of the API). Buyer undertakes not to access or use the API in any way that could cause damage to TENGIVA and the Platform, or in breach of any applicable laws. TENGIVA may, at its sole discretion : (i) modify any APIs from time to time; (ii) place limitations around the Buyer use of any APIs; and (iii) deny access to or use of any APIs in the event of misuse by Buyer or to otherwise protect our legitimate interests. In any case, in no event shall TENGIVA be responsible for the compatibility of any APIs with any of third-parties or Buyer's applications or software products.
6. Fees
6.1 During the Term and provided Buyer complies with the terms of this Agreement, Buyer may create its account and use the Platform free of charge. TENGIVA reserves the right to modify this Agreement to incorporate one-time or recurring membership fees upon reasonable prior notice to Buyer, at which time Buyer may elect to stop using the Platform and related Services.
7. Confidential Information
7.1 Protection of Confidential Information. During the Term, each of the party, i.e., the receiving party, shall use the same care to prevent disclosing to third parties the Confidential Information of the disclosing party as it employs to avoid disclosure, publication, or dissemination of its own information of a similar nature, but in no event less than a reasonable standard of care.
7.2 Use and Return of Confidential Information. Except as contemplated by this Agreement (including for the purpose of providing the Services) no receiving party shall make any use of the disclosing party's Confidential Information or refuse to promptly return, provide a copy of, or destroy the other party's Confidential Information upon request of the other party (provided that TENGIVA shall be excused from its performance hereunder to the extent that such Confidential Information was required for such performance).
7.3 Disclosure of Confidential Information. Each receiving party shall only share the disclosing party's Confidential Information with its employees on a “need to know” basis in connection with performance of the party's obligations under this Agreement. If the receiving party is served with a court order compelling disclosure of any Confidential Information of the disclosing party, it will, to the extent allowed under law, provide the disclosing party with prompt notice thereof, provide the disclosing party with a reasonable opportunity to oppose disclosure, and reasonably cooperate in good faith with the disclosing party in the event the disclosing party opposes disclosure. The parties acknowledge and agree that any disclosure of Confidential Information resulting from a data or security breach of the Services shall not be a breach of this Section 7.
8. PERSONAL INFORMATION.
8.1 Privacy Policy.Privacy Policy. When collecting, processing and using Personal Information, TENGIVA complies with its privacy policy available at https://tengiva.com/privacy-policy ("Privacy Policy"), in providing the Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing Personal Information to or through the Services, Buyer acknowledges that Buyer has reviewed and accepted the Privacy Policy, and Buyer consents to all actions taken by TENGIVA with respect to Buyer Data or any other information in compliance with the then-current version of TENGIVA Privacy Policy, when applicable.
8.2 Use of Personal Information. TENGIVA will not use the Personal Information in the Buyer Data except: (i) as provided in the Privacy Policy; (ii) as necessary to perform its obligations under this Agreement; and (iii) as permitted or required by applicable laws.
8.3 Compliance with laws relating to Personal Information. Buyer, in collecting and using Personal Information, including through the Platform Services, shall comply with all applicable laws with respect to Personal Information, including by obtaining the consent of Authorized Users to collect, use, and disclose the Personal Information of Authorized Users in connection with the Platform Services.
8.4 Warranty. Buyer represents and warrants that it has complied with all applicable laws, including applicable data protection and privacy laws, and obtained all required consents for with respect to the Buyer Data and Personal Information of Authorized Users.
9. SERVICES
9.1 Ownership of TENGIVA. Notwithstanding anything to the contrary in this Agreement, Buyer acknowledges that, as between Buyer and TENGIVA, all rights, title and, interest, including any and all ownership rights and Intellectual Property Rights, in and to the Services (including the Materials, the APIs and TENGIVA Database), and all software, systems and processes used in the delivery of the Services, including any derivative, enhancement, or modification thereof, are the exclusive property of TENGIVA.
9.2 Buyer Data. TENGIVA acknowledges that Buyer retains all Intellectual Property Rights Buyer already holds in Buyer Data.
9.3 Feedback. If Buyer or any of its employees or contractors sends or transmits any communications or materials to TENGIVA by mail, email, telephone, or otherwise, suggesting or recommending changes to the TENGIVA IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), TENGIVA is free to use without any attribution or compensation to any party, such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
10. Limited Warranty and Warranty Disclaimer.
10.1 TENGIVA warrants that it provides Services using a commercially reasonable level of care and skill.
10.2 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10.1, THE SERVICES ARE PROVIDED "AS IS" AND TENGIVA SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TENGIVA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TENGIVA MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10.3 Third-Party Services. “Third-Party Services” are products, applications, services, software, networks, systems, directories, websites, databases and information from third parties that the Platforms may link to, or which Buyer may connect to or enable in conjunction with the Services. Buyer may decide to enable, access or use any Third-Party Services. Buyer agrees that access and use of such Third-Party Services shall be governed solely by the terms and conditions of such Third-Party Services, and that TENGIVA is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third-Party Services, including, without limitation, their content or data practices (including with regards to Personal Information protection) or as to any interaction between Buyer and the provider of such Third-Party Services. Any use by Buyer of Third-Party Services shall be solely between Buyer and the applicable third-party provider. Buyer irrevocably waives any claim against TENGIVA with respect to such Third-Party Services. TENGIVA is not liable for any damage or loss caused or alleged to be caused by or in connection with Buyer's enablement, access or use of any such Third-Party Services, or Buyer's reliance on the privacy practices, data security processes or other policies of such Third-Party Services.
11. Indemnification
11.1 TENGIVA Indemnification.
i) TENGIVA shall indemnify, defend, and hold harmless Buyer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees ("Losses"), incurred by Buyer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights/ patents, copyrights, or trade secrets, provided that Buyer promptly notifies TENGIVA in writing of the Third-Party Claim, cooperates with TENGIVA, and allows TENGIVA sole authority to control the defence and settlement of such Third-Party Claim.
ii) If such a Third-Party Claim is made or TENGIVA anticipates such a Third-Party Claim will be made, Buyer agrees to permit TENGIVA, at TENGIVA's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Buyer to continue use. If TENGIVA determines that neither alternative is reasonably available, TENGIVA may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Buyer. This Section 11.1(ii) sets forth Buyer's sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
iii) This Section 11.1 will not apply to the extent that any such Third-Party Claim arises from Buyer Data.
11.2 Buyer Indemnification. Buyer shall indemnify, hold harmless, and, at TENGIVA's option, defend TENGIVA and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Buyer Data, or any use of the Buyer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights; or (ii) based on Buyer's or any Authorized Users' negligence or wilful misconduct or use of the Services in a manner not authorized by this Agreement; provided that Buyer may not settle any Third-Party Claim against TENGIVA unless TENGIVA consents to such settlement, and further provided that TENGIVA will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defence thereof by counsel of its own choice.
12. LIMITATIONS OF LIABILITY.
12.1 IN NO EVENT WILL TENGIVA BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER TENGIVA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL TENGIVA'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE AMOUNT OF $[XXXX].
13. Term and Termination.
13.1 Term. This Agreement shall be effective as of the Effective Date and shall remain in force during the provision of the Services by TENGIVA and as long as TENGIVA provides Services to Buyer, including access to Buyer Account, unless terminated earlier in accordance with the sections below.
13.2 Early Termination.
i) For convenience. TENGIVA may terminate this Agreement, for any reason upon sixty (60) days' advance notice to Buyer. For clarity purposes, by virtue of this section, the Parties irrevocably waive the application of Articles 2125 to 2129 (included) of the Civil Code of Quebec.
ii) Due to breach. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or
iii) For cause. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
13.3 Effect of Expiration or Termination. Upon termination (including termination by expiration) of this Agreement for any reason:
i) any amounts owed to TENGIVA under this Agreement before such termination will be immediately due and payable;
ii) TENGIVA will terminate the access to the Buyer Account, including access to any associated User Accounts;
iii) for greater certainty, the license granted to Buyer under Section 3 shall terminate, and Buyer shall immediately cease any and all use of the Buyer Account and the User Accounts, and destroy (or return as applicable) all copies of Materials and so certify to TENGIVA in writing. Buyer agrees that TENGIVA shall not be liable to Buyer, any Authorized Users or any other third party for any cessation of access to the Buyer Account following such termination, including for any damages arising out of any party's reliance on the continued availability of the Buyer Account; and
iv) each party will return to the other party the Confidential Information, in whatever form it may exist, and all copies thereof, of the other party that it obtained during the course of this Agreement, or, as directed by the other party, destroy such Confidential Information; and if so requested, must certify in writing to the other party that it has done so.
13.4 Survival. This Section 13.4 and the Sections 10, 11 and 12 and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
14. GENERAL
14.1 Modifications. Buyer acknowledges and agrees that TENGIVA has the right, in its sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. Buyer will be notified of modifications through [notifications or posts on [URL]/direct email communication from TENGIVA]. Buyer is responsible for reviewing and becoming familiar with any such modifications. Buyer continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. TENGIVA will provide at least sixty (60) days' advance notice of changes to any services that TENGIVA reasonably anticipated may result in a material reduction in quality or services.
14.2 Governing Law. This Agreement and all matters arising out of or relating to this Agreement, are governed by, and construed exclusively in accordance with, the laws of the Province of Quebec and the federal laws of Canada applicable therein.
14.3 Dispute Resolution. Any dispute arising from or related to this Agreement shall be submitted to the exclusive jurisdiction of the Province of Quebec.
14.4 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
14.5 Any notices to TENGIVA must be sent to our corporate headquarters address available at [URL] and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by TENGIVA. Notwithstanding the foregoing, Buyer hereby consent to receiving electronic communications from TENGIVA. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. Buyer agrees that any notices, agreements, disclosures, or other communications that TENGIVA sends to Buyer electronically will satisfy any legal communication requirements, including that such communications be in writing.
14.6 Severability. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.
14.7 Waiver. Any failure to act by TENGIVA with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches.
14.8 Assignment. This Agreement is personal to Buyer and may not be assigned or transferred for any reason whatsoever without TENGIVA prior written consent and any action or conduct in violation of the foregoing will be void and without effect. TENGIVA expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.