Terms of services
Suppliers (Merchants)
Version: June 26, 2023
PRODUCTS' OWNER SERVICE-SPECIFIC ADDITIONAL TERMS AND POLICIES ACCESS AND USE OF THE SUPPLY CHAIN MANAGEMENT SYSTEM and 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 Owners who operate and manage Platforms and where Products owners, also referred to as Merchants, and buyers may engage in digital transactions (the “Platforms”). These service-specific terms of service (the “Terms of Service”) apply to the access and use of the System and Platforms by Product Owner through an online account, and will apply specifically to any related purchase order, statement of work or other transaction document or exhibit (the “Schedule(s)”).
For the avoidance of doubt, these Terms of Service are applicable to any services, including to any Data Setup services, provided by TENGIVA to the Product Owner party listed in the applicable Schedule(s) (“Product Owner” or “Merchant” or “you”).
These Terms of Service, along with the applicable 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 Use, the relevant sections of these Terms of Service or in Preamble:
1.1 "Authorized Users" means Product Owner, Product Owner's employees, consultants, contractors and agents who are authorized by Product Owner to access and use the Product Owner 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 Product Owner, Product Owner Data and for TENGIVA, TENGIVA IP.
1.3 “Data Setup Services” has the meaning set forth in the relevant Schedules.
1.4 “Fees” has the meaning set forth in the relevant Schedules.
1.5 “Materials” mmeans any materials provided or made available to Product Owner in connection with the provision of the Services, including the Product Owner's Guide, any other user guide, playbook and other documentation made available by TENGIVA from time to time in connection with the Product Owner Account, the Systems or the provision of the Services.
1.6 “Merchant” means any and all Product Owner entering into complete digital sales transactions of its products to a Buyer through such any Platform enabled by TENGIVA.
1.7 "Product Owner 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 Product Owner or any other Authorized Users through its Product Owner Account, including User Accounts information. Product Owner Data also includes any Product Owner 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 Product Owner and provided to TENGIVA for the Services (specifically “Product Owner Branding”).
1.8 “Platform" 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.
1.9 Platform Owners means any clients of TENGIVA with a license to access, use and manage a Platform under their own name, including TENGIVA itself with respect to the System.
1.10 “Services” means the System Services, the Data Setup Services and any other services provided by TENGIVA in connection with the Product Owner Account, the Products and the Sales Transactions under this Agreement and as may be amended from time to time.
1.11 "Personal Information" means information that can be linked to an identifiable individual.
1.12 “System Services” has the meaning set forth in the relevant Schedules. For the avoidance of doubt, System Services include the access and use by Product Owner of its Product Owner Account.
1.13 "TENGIVA Database" means the database composed of the information of Product Owner, including their TENGIVA system account details and textile products information, and the information of buyers of said textiles products, including their TENGIVA system 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.
1.14 "TENGIVA IP" means the System, the Platforms, the Services, the Materials, and all intellectual property, including any Intellectual Property Rights, provided to Product Owner or any other Authorized Users in connection with the foregoing. For the avoidance of doubt, TENGIVA IP also includes the APIs, TENGIVA Database, TENGIVA Performance Statistics and any information, data, or other content derived from TENGIVA's monitoring of Product Owner's access to or use of the Services.
2. ACCESS TO THE SYSTEM
2.1 Subscription and creation of account.Upon payment of the Data Setup Fees, TENGIVA will provide Product Owner with all relevant information and access to create online account and profile dedicated to Product Owner onto the TENGIVA System, 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 “Product Owner Account”). The Product Owner 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 System During the Term and subject to the payment of all Fees by Product Owner, TENGIVA will (i) make the Product Owner Account available to Product Owner and Authorized Users; and (ii) provide access to and use of the Platforms to Product Owner through the Product Owner Account. This, in order for Product Owner to list and display its textile products on the Product Owner Account and onto Platforms (the “Products”) and be able to enter into and complete digital sales transactions through such Platforms with respect to the Products (the “Sales Transactions”). Product Owner acknowledges that the Product Owner Account and all information included therein will become part of TENGIVA Database and will be accessible to all Platform Owners and Buyers. However, Product Owner understands that access to some of the Platforms will only be available upon invitation or acceptance of the relevant Platform Owner. TENGIVA shall provide Product Owner and Authorized Users the necessary access credentials to allow Product Owner and Authorized Users to access and use the Product Owner Account and the Platforms.
2.3 License to the System and Materials. Subject to the terms of this Agreement, TENGIVA grants Product Owner a limited, non-assignable non-sublicensable, and non-exclusive license during the Term for Product Owner and Authorized Users to access and use the System Services and the Materials for the sole purpose of listing the Products and entering into Sales Transactions with relevant buyers, and not for resale or to provide services other than those related to Sales Transactions.
2.4 Use Restrictions. Product Owner shall not, and shall not permit any Authorized Users to, use the System Services or the Materials for any purposes beyond the scope of the access granted in this Agreement and as permitted in this Agreement. Product Owner 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 System Services or Materials, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the System Services or Materials; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the System Services or Materials, in whole or in part; (iv) remove any proprietary notices from the System Services or Materials; or (v) use the System 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.
2.5 Suspension. In addition to its other rights under this Agreement, TENGIVA may temporarily suspend Product Owner's and any other Authorized Users' access to or all of the Product Owner Account, including to any Product Owner Account information such as Products listing, 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) Product Owner'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) Product Owner or any other Authorized Users are using the TENGIVA IP for fraudulent or illegal activities; (D) subject to applicable law, Product Owner 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 System Services to Product Owner or any other Authorized Users is prohibited by applicable law; (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 Product Owner to access and use the System Services; or (iii) respond to any non-payment of payments due by Product Owner as set out herein (except to the extent subject to a good-faith dispute) upon prior written notice by TENGIVA. If suspended, TENGIVA will promptly restore use of the System Services to Product Owner 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 Product Owner 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 Product Owner Account by means of user accounts created and assigned to each Authorized User by Product Owner (each, a “User Account”). Product Owner is responsible for all activity occurring under such User Accounts. Product Owner 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. Product Owner shall be responsible for entering into written agreements with each Authorized User, and such agreements shall be consistent and comply with this Agreement and Product Owner shall be responsible for each Authorized User's compliance with the terms of this Agreement.
3. Product Owner Obligations - Products and Sales Transactions
3.1 Product Owner's Guide. Product Owner acknowledges that the listing of Products, the Products themselves and any Sales Transactions shall be subject to, as applicable, the Terms and conditions for the sale of Textile Products, as available under the following link [URL], (the “Terms of sale”), and will otherwise comply with any specifications, requirements and conditions contained in the product owner's guide, as provided by TENGIVA to Product Owner (the “Product Owner Guide”). The Terms of sale and the Product Owner's Guide is deemed an exhibit to this Agreement, notably with respect to the fulfillment of orders, the packaging and return of Products.
3.2 Product Listing and Collaboration. In order to list and display the Products, Product Owner shall complete TENGIVA onboarding process, as described in the Product Owner's Guide, and shall provide TENGIVA with any such information, materials, documents, samples or other information that may be requested in the Product Owner's Guide or otherwise requested by TENGIVA. More generally, Product Owner agrees to fully collaborate with TENGIVA, provide TENGIVA with all necessary information and documents and do all things necessary to enable TENGIVA to perform the Services in a satisfactory manner.
3.3 Sales Transactions. Product Owner acknowledges that any public listing of Products on the Product Owner Account constitutes a standing offer to sell the relevant Products to buyers through the Platforms (the “Buyers”). Any resulting Sales Transactions shall comply with the requirements contained in the Product Owner's Guide and the Terms of sale.
Notwithstanding the above and to the extent that the same price is offered to all Buyers of the same products, Product Owner is free to set the relevant prices for the sale of the Products through the Platforms. Product Owner, however, acknowledges that:
i) the final price for the Products displayed to Buyers on the Platforms and on invoices will be an all-inclusive price which includes TENGIVA's Operating Fee (as defined in the Schedules), any fees set out by the Platform Owner to access and use its Platform, and any discounts, payment processing fees, refunds, transport costs, chargebacks, and taxes (all to the extent applicable);
ii) with respect to Sales Transactions, Product Owner is solely responsible for compliance with all applicable sales tax and other taxation laws, and shall provide all necessary information and documents to Buyers or other third parties such as shipping companies, governmental tax authorities or customs, as required.
3.4 Non-solicitation of Buyers. Product Owner acknowledges that Platform Owners and Buyers may contact Product Owner and Authorized Users directly using the information available on the Product Owner Account. Product Owner, however, shall not use the System Services and/or the Platforms to solicit the Buyers directly and shall not contact Buyers except (i) for the purposes of completing Sales Transactions as initiated by Buyers; (ii) the Buyers have contacted the Product Owner directly; or (iii) Product Owner obtains the prior consent of TENGIVA in order to do so.
3.5 Spot Checks. Product Owner acknowledges that TENGIVA will perform spot checks from time to time to verify Product Owner's compliance with this Agreement and the Product Owner's Guide, as well as with applicable laws and regulations.
4. Product Owner obligations - Product Owner account and Systems
4.1 Acceptable Use Policy. The System 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 Product Owner and as may be amended from time to time, which is incorporated herein by reference. Product Owner 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 System Services, including the AUP.
4.2 Product Owner data.
i) License. Product Owner hereby grant to TENGIVA a (A) non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Product Owner Data and perform all acts with respect to the Product Owner Data as may be necessary for TENGIVA to provide the Services to Product Owner, and a (B) non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Product Owner Data incorporated within the Performance Statistics as per Section 3.2 (iii) below.
ii) Responsibility. Product Owner shall ensure that the Product Owner Data (including Product Owner's storage or transmission of such Product Owner Data) and any other data regarding Product Owner's use of the System Services complies with the terms of this Agreement and any and all applicable laws; and promptly handle and resolve any claims relating to the Product Owner Data, including any notice sent to Product Owner claiming that any Product Owner Data violates any person's right.
iii) Performance Statistics. Product Owner acknowledges that TENGIVA may monitor Product Owner's use of the System Services and may collect and compile data and information related to Product Owner's use of the System Services (“Performance Statistics”). Such Performance Statistics will be used by TENGIVA notably to promote the Platforms, TENGIVA products and services to other Product Owners, Platform Owners and Buyers and to compile statistical and performance information related to the provision and use of the System Services. As between TENGIVA and Product Owner, all right, title, and interest in Performance Statistics, and all intellectual property rights therein, belong to and are retained solely by TENGIVA. Product Owner 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 Product Owner's Confidential Information, Product Owner Branding or Personal Information.
iv) Violation of Laws. TENGIVA may delete any Product Owner 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 Product Owner.
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. Product Owner acknowledges that the System Services have for main purpose to enable Sales Transactions between Product Owners and Platform Owners or Buyers, as the case may be. 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 Product Owner and Buyers or Product Owner and Platform Owners in connection thereto or in connection with the Product Owner' Products, including but not limited to, exclusivity agreements. As such, any and all support requests from Authorized Users or Buyers related to Sales Transactions made through the Platforms will be the sole responsibility of the Platform Owners.
5.3 Support. The System Services entitle Product Owner 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. TENGIVA will process all payment card data entered into the System 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 Product Owner under any circumstance.
5.5 APIs. The Services may include one or more APIs. Product Owner's use of the API may be subject to additional fees and additional terms and conditions (which shall then prevail in relation to the Product Owner's use of the API). Product Owner undertakes not to access or use the API in any way that could cause damage to TENGIVA and the System, 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 Product Owner use of any APIs; and (iii) deny access to or use of any APIs in the event of misuse by Product Owner 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 Product Owner's applications or software products.
6. Fees
6.1 Fees. Product Owner agrees to pay all Fees under the Schedules as per the payment terms contained therein.
6.2 Proceed of Sales Transactions. The payment of all Sales Transactions occurring on any of the Platforms by Buyers will be made directly to TENGIVA. TENGIVA will process the payments made, collect any relevant fees associated with the payment, including without limitation shipping fees, wire transfer fees, banking fees, currency conversion costs, and credit the corresponding amount directly to the Product Owner Account as further described in the Product Owner's Guide.
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 System Services shall not be a breach of this Section 7.
8. PERSONAL INFORMATION
8.1 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, Product Owner acknowledges that Product Owner has reviewed and accepted the Privacy Policy, and Product Owner consents to all actions taken by TENGIVA with respect to Product Owner 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 Product Owner 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. Product Owner, in collecting and using Personal Information, including through the System 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 System Services.
8.4 Warranty. Product Owner 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 Product Owner Data and Personal Information of Authorized Users.
9. Intellectual Property
9.1 Ownership of TENGIVA. Notwithstanding anything to the contrary in this Agreement, Product Owner acknowledges that, as between Product Owner 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 System Services and any Services, including any derivative, enhancement, or modification thereof, are the exclusive property of TENGIVA.
9.2 Merchant Data. TENGIVA acknowledges that Product Owner retains all Intellectual Property Rights Product Owner already holds in Product Owner Data.
9.3 Feedback. If Product Owner 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 Product Owner may connect to or enable in conjunction with the System Services. Product Owner may decide to enable, access or use any Third-Party Services. Product Owner 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 Product Owner and the provider of such Third-Party Services. Any use by Product Owner of Third-Party Services shall be solely between Product Owner and the applicable third-party provider. Product Owner 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 Product Owner's enablement, access or use of any such Third-Party Services, or Product Owner'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 Product Owner 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 Product Owner resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the System Services, or any use of the System Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights/ patents, copyrights, or trade secrets, provided that Product Owner 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, Product Owner agrees to permit TENGIVA, at TENGIVA's sole discretion, to (A) modify or replace the System Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Product Owner 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 Product Owner. This Section 11.1(ii) sets forth Product Owner's sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the System 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 Product Owner Data.
11.2 Product Owner Indemnification. Product Owner 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 Product Owner Data, or any use of the Product Owner Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights; or (ii) based on Product Owner's or any Authorized Users' negligence or wilful misconduct or use of the Services in a manner not authorized by this Agreement; provided that Product Owner 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 TOTAL AMOUNTS OF FEES PAID TO TENGIVA UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
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 Product Owner, 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 Product Owner. 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 Product Owner Account, including access to any associated User Accounts;
iii) for greater certainty, the license granted to Product Owner under Section 3 shall terminate, and Product Owner shall immediately cease any and all use of the Product Owner Account and the User Accounts, and destroy (or return as applicable) all copies of Materials and so certify to TENGIVA in writing. Product Owner agrees that TENGIVA shall not be liable to Product Owner, any Authorized Users or any other third party for any cessation of access to the Product Owner Account following such termination, including for any damages arising out of any party's reliance on the continued availability of the Product Owner 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. Product Owner 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. Product Owner will be notified of modifications through [notifications or posts on [URL]/direct email communication from TENGIVA]. Product Owner is responsible for reviewing and becoming familiar with any such modifications. Product Owner 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: 5524 Saint-Patrick street #110, Montreal, Quebec, Canada, H4E 1A8, 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, Product Owner 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. Product Owner agrees that any notices, agreements, disclosures, or other communications that TENGIVA sends to Product Owner 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 Product Owner 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.