Referral terms
Version: January, 2025
These referral terms (“Referral Terms” together with the Referral Letter in the cover pages hereof, any attachments, exhibits, or amendments hereto, as amended from time to time, collectively the “Agreement”), form an agreement between the Parties as of the Effective Date as defined and set out below between CACITH Inc. (d.b.a. TENGIVA) (“TENGIVA”, “Marketplace Administrator”, “us”, “our” or “we”) and Referring Party. TENGIVA and Referring Party will be referred to together as the “Parties” and each a “Party”. The term “Referring Party” includes you in your capacity as Buyer Partner, Listing Partner, Trust Partner, Sourcing Partner or Verified Advertiser, as each such term is defined in the Partner Letter in the cover pages hereof. These Referral Terms may be amended as provided herein.
Term:
This Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue to be in effect for a period of 12 month (the “Initial Term”). This Agreement will automatically renew for successive periods of one year (each, a “Renewal Term”) unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term. For the purposes of this Agreement, “Term” means the Initial Term and any Renewal Term.
Termination; Effect of Termination:
Either Party may terminate this Agreement upon 30 days’ written notice to the other Party or any reason. Either Party may also terminate this Agreement by giving to the other Party written notice of termination if the other Party breaches or defaults on any of the material terms or conditions of this Agreement and fails to cure such breach or default within 30 days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately. Upon expiration or earlier termination of this Agreement: (i) Referring Party will immediately discontinue all promotion and marketing of the Marketplace, any of our marketplaces powered by TENGIVA’s underlying proprietary platform, and any associated services provided by the Marketplace Administrator (together with the Marketplace, the “Offering”) and cease using the Promotional Materials (as defined below) and any other of our Confidential Information (as defined below); (ii) we will cease using the Referring Party’s Brand; (iii) each Party will return or destroy the other Party’s Confidential Information; (iv) upon request of a Party, the other Party will certify in writing that it has complied with this Section; and (v) our payment obligations under this Agreement, if there are any, will immediately cease. Sections of these Terms which by their nature survives termination or expiration, or which contemplates the performance or observance subsequent to termination or expiration of this Agreement, will survive the expiration or termination of this Agreement for any reason.
Referring Party’s Branding:
During the Term, Referring Party hereby grants to us and any third party administrator(s) of the Marketplace, designated by the Marketplace Administrator as the case may be, a worldwide, non-transferable (except as otherwise permitted in this Agreement), royalty free, fully paid up, sublicensable, non-exclusive license, to display the Referring Party’s Brand on the Marketplace, and more generally on the Offering as described in the Referral Letter and for the purpose of performing its obligations under this Agreement. We will use the Referring Party’s Brand only as expressly permitted in this Agreement and in accordance with any other usage guidelines provided by Referring Party from time to time. All use of the Referring Party’s Brand will inure to the benefit of Referring Party. We shall have no claim or right in any elements of the Referring Party’s Brand and we shall not make any claim or contest the use of any such elements authorized by Referring Party. If we are prevented from using the Referring Party’s Brand by a court, administrative tribunal or other governmental or regulatory authority, we will be excused from performing any and all of its obligations under this Agreement and no liability will arise for us as a result of such non-performance. For the purpose of this Agreement, “Referring Party’s Brand” means all trademarks, service marks, trade names, logos, domain names, and any other brand features or identifiers that are owned by, or licensed to, the Referring Party (including any subsidiaries or affiliates) and which the Referring Party has authorized us to use in connection with this Agreement and as outlined in this Agreement.
Referring Party Responsibilities:
During the Term and in addition to any undertakings, covenants and responsibilities that are applicable to Referring Party as contained in the Referral Letter, Referring Party will: (i) on a non-exclusive basis, market and promote the Offering to potential customers and refer any such potential customers to us in accordance with the process set out in this Section; and (ii) use any advertising or promotional materials (including trademarks, service marks, trade names, brand names, and logos) provided by us or the relevant Marketplace administrator as the case may be, to Referring Party from time to time, (collectively, the “Promotional Materials”) to market and promote the Offering and ensure any material used to market and promote the Offering complies with our guidelines and other written instructions. With respect to the Marketplace, a potential customer, without regards to its status in the Marketplace (buyers or sellers referred to us by Referring Party will qualify as a “Referred Customer” if such potential customer: (i) uses the referral code or subscription link provided by us to Referring Party; or is referred directly in writing by Referring Party to us; and (ii) within 1 year following the date that the potential customer is referred to us by Referring Party, executes an agreement with Marketplace Administrator for the subscription of the Marketplace (the “Customer Agreement”), which Customer Agreement will be in the form determined by Marketplace Administrator.
Prohibited Acts:
Notwithstanding anything to the contrary in this Agreement, Referring Party will not, directly or indirectly, and will cause its personnel to not, directly or indirectly: (i) make any representations, warranties, guarantees, indemnities or other commitments with respect to the Offering or any part thereof that are deceptive, misleading or otherwise inconsistent with the Promotional Materials or any other materials that are made publicly available or provided to Referring Party by us; (ii) represent to any third party that it is an agent of Marketplace Administrator or any other third-party administrator of the Marketplace or has the power to bind Marketplace Administrator in any way; (iii) engage in any unfair, anti-competitive, misleading, or deceptive practices respecting the Offering or any part thereof, including any product disparagement; (iv) engage in any action that disparages, dilutes the value of, or reflects negatively on the Offering, any part thereof or Marketplace Administrator; (v) do anything that suggests the Offering or any part thereof belongs to Referring Party or anyone other than Marketplace Administrator; (vii) offer any gifts, incentives, or benefits to a potential or actual Referred Customer which are contrary to such Referred Customer’s corporate policies or any applicable laws; (viii) breach the warranties set out in the Warranty Section below.
Referral Fees:
Referring Party and Marketplace Administrator agree that, where set out in the Referral Letter, no fees or other amounts will be payable under this Agreement in exchange for the access rights and licenses granted under this Agreement.
Where applicable and if set out in the Referral Letter, during the Term on a quarterly basis, we will pay Referring Party the referral fees corresponding to the program applicable to the Referring Party as listed in the Referral Letter (the “Referral Fees”) in the immediately preceding quarter from all valid and binding Customer Agreements between Marketplace Administrator and a Referred Customer, where:
“Recommended Listing Fees” means, in each case, the aggregate fees paid to Marketplace Administrator by a Referred Customer to list its products on the Marketplace under valid and binding Customer Agreements with Referred Customers during the applicable Contract Year; excluding any: (A) discounts, returns and refunds; and (B) any taxes collected with the fees paid to Marketplace Administrator by a Referred Customer; (C) any setup fees or services and fees paid for additional subscriptions and add-ons after the effective date of the Customer Agreements.
“Contract Year” means, initially, the period commencing on the effective date set out in the applicable Customer Agreement and ending 12 months following such date provided that the Contract Year will end on the last day of the term of the applicable Customer Agreement or the effective date of the expiration or termination of this Agreement, whichever is earlier.
“Marketplace Revenues” means in each case, the actual amount of revenue from the service fees (as set by us or the third party administrator of the Marketplace) portion associated with the sales transactions of textile products conducted through the Marketplace by Referring Party’s Referred Customers, whether as buyers, sellers or both, after deductions of the seller’s established products’ cost, taxes, refunds, chargebacks and any other adjustments, during the applicable calendar year.
Any adjustments to the Referral Fees (such as refunds or charge back) reducing its total amount will be taken into account when calculating the Referral Fees for the following quarter. Any Referral Fees will be paid in United States dollars. Any fees or charges incurred by Marketplace Administrator to transfer Referral Fees to Referring Party will be deducted from the Referral Fees. The Parties acknowledge that the Referral Fees (and any part thereof) paid or payable by Marketplace Administrator to Referring Party are inclusive (unless specified otherwise) of all applicable goods and services tax, harmonized sales tax, or other sales or value-added taxes (“Taxes”). Referring Party will be responsible for remitting all Taxes to the applicable governmental or regulatory authority.
Ownership; Reservation of Rights:
All right, title and interest, including intellectual property rights, in and to the Offering, Marketplace Administrator’s Confidential Information, the Dashboards, Promotional Materials, and any updates, adaptations, translations, customizations, modifications, enhancements or derivative works thereof (collectively “TENGIVA Property”), will remain exclusively with Marketplace Administrator or Marketplace Administrator’s third-party suppliers and licensors, if applicable. All rights not expressly granted by Marketplace Administrator to Referring Party under this Agreement are reserved. This Agreement will in no way limit Marketplace Administrator’s right to sell, market, advertise or promote the Offering or any part thereof directly or indirectly through third parties, including other referral partners to any current or potential customers or any other person. To the extent that Partner submits ideas, suggestions, documents, or proposals regarding the Offering, Marketplace Administrator’s business practices, other existing Marketplace Administrator products or other additional features (“Feedback”), Referring Party acknowledges and agrees that: (i) the Feedback does not contain confidential or proprietary information and Marketplace Administrator is not any obligation of confidentiality with respect to the Feedback; and (ii) Marketplace Administrator will be entitled to use, commercialize or disclose (or choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to Partner for such use.
Access to the Offering; Dashboard:
The access to and use of the Offering or any part thereof will not be governed by this Agreement; but separately by the applicable Terms of Service, available here: https://tengiva.com/terms-of-service. Subject to the terms of this Agreement and payment of relevant fees (as the case may be), we will provide Referring Party with access to the applicable Dashboard by providing a hyperlink directing to such Dashboard. Referring Party will not provide or otherwise input any information about an identifiable individual (“Personal Information”) nor any confidential and proprietary business information about other companies in a manner that could identify them individually into the Dashboards. The Dashboards will only include non-personal, aggregated, and anonymized information about other companies on the Marketplace. Marketplace Administrator grants Referring Party a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the applicable Dashboard and the data provided therein solely for the purpose of analyzing the benefits of the partner programs described in the Referral Letter and making informed business decisions related to such partner programs. This access right is limited to Referring Party's internal business use and does not extend to sublicensing, distribution, or resale of the Dashboard or the data. Further, Referring Party will not itself, and will not permit others to: (i) copy, modify, adapt, or create derivative works of the Dashboard or any part thereof, except as explicitly permitted under this Agreement; (ii) distribute, transfer, or make the Dashboard or any part of the data available to third parties, except as expressly authorized in writing by Marketplace Administrator; (iii) access or use the Dashboard or any other TENGIVA Property for the purpose of building a similar or competitive product or service; (iv) use any TENGIVA Property in any manner that could harm Marketplace Administrator's business interests; and (v) reverse-engineer, decompile, or disassemble any part of the TENGIVA Property. “Dashboard” means the dashboard(s) provided to Referring Party by Marketplace Administrator depending on the partner program chosen by Referring Party in accordance with the Referral Letter and may include: the Buyers’ Dashboard, the Suppliers’ Dashboard, the Traffic Dashboard; and the Advertiser Dashboard.
Warranty; Indemnity:
Referring Party represents and warrants to and covenants with Marketplace Administrator that: (i) any information the Referring Party provides to Marketplace Administrator will not contain any Personal Information and any data or information provided by Referring Party under this Agreement will only contain information in respect of which Referring Party has obtained and provided, and will continue to obtain and provide, all necessary consents, rights and notices, and otherwise has and continues to have all necessary authority to permit Marketplace Administrator to contact each potential customer in order to assess its suitability as a Referred Customer and enter into a Customer Agreement, and will inform Marketplace Administrator immediately if any such consents or authority are withdrawn or can no longer be relied upon; and (ii) the Referring Party will carry out its rights and obligations under this Agreement in full compliance with all applicable laws, including, all applicable laws relating to anti-spam legislation, anti-bribery and anti-corruption. Referring Party will indemnify, defend and hold harmless Marketplace Administrator, its affiliates, subsidiaries and each of their respective directors, officers, employees, subcontractors, third party licensees, and other representatives (each a “TENGIVA Indemnitee”) from and against any and all any and all losses, damages, claims, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers incurred by a TENGIVA Indemnitee arising out of or relating to any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand (each, a “Claim”) by a third party that arise from or relate to any breach by Referring Party of any of its obligations under the “Prohibited Acts” Section and this “Warranty; Indemnity” Section.
Disclaimers:
THE TENGIVA PROPERTY PROVIDED BY MARKETPLACE ADMINISTRATOR TO REFERRING PARTY ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, MARKETPLACE ADMINISTRATOR HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, TITLE, QUIET ENJOYMENT OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, MARKETPLACE ADMINISTRATOR EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT INFORMATION PROVIDED TO REFERRING PARTY IN CONNECTION WITH REFERRING PARTY’S USE OR REFERRAL OF THE TENGIVA PROPERTY (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY REFERRING PARTY FOR ANY PURPOSE WHATSOEVER.
Limitation of Liability:
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) AMOUNT. SUBJECT TO SECTION (c) BELOW, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL MARKETPLACE ADMINISTRATOR’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH OR UNDER THIS AGREEMENT, EXCEED THE SUM OF ALL REFERRAL FEES PAID OR PAYABLE BY MARKETPLACE ADMINISTRATOR TO REFERRING PARTY IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
(B) TYPE. SUBJECT TO SECTION(C) BELOW, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL MARKETPLACE ADMINISTRATOR BE LIABLE TO REFERRING PARTY FOR ANY CONSEQUENTIAL DAMAGES SUCH AS: (I) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) REVENUE, (D) DATA, (E) USE, OR (F) CUSTOMERS; (II) BUSINESS INTERRUPTION; (III) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; OR (IV) PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
Confidentiality:
Each Party understands that the other Party has disclosed or may disclose business, technical, or financial relating to the Disclosing Party’s business (“Confidential Information”). Confidential Information of Marketplace Administrator includes non-public information regarding features, functionality, and performance of the Offering and any part thereof, the Dashboards and any date contained therein and includes all other TENGIVA Property. During the Term and thereafter, the Party receiving Confidential Information agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use any such Confidential Information except to carry out its obligations and exercise its rights under this Agreement. Except with respect to information about an identifiable individual, Confidential Information will not include any information that the Party receiving Confidential Information can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Party disclosing Confidential Information, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Party disclosing Confidential Information. Notwithstanding the foregoing, a Party receiving Confidential Information may disclose Confidential Information of the other Party to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Party receiving Confidential Information promptly notifies the other Party in writing of such required disclosure and cooperates with the other Party to seek an appropriate protective order, and we may disclose Confidential Information to potential assignees, acquirers or successors of Marketplace Administrator if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Marketplace Administrator.
Miscellaneous:
Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions. This Agreement and any Claim related thereto will be governed by and construed in accordance with the laws of the Province of Québec and the applicable federal laws of Canada, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Montréal, Québec, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, we may seek remedies with respect to a violation of Marketplace Administrator’s intellectual property rights or the Section “Confidential Information” in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Referring Party will not assign or transfer this Agreement, or transfer or subcontract any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Marketplace Administrator. Any purported assignment or delegation by the Referring Party to any third party in violation of this Section will be null and void. We may assign any of its rights or delegate any of its obligations under this Agreement to any third party without the consent of Referring Party. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns. Referring Party is, and will at all times remain, an independent contractor with Marketplace Administrator, and Referring Party is not and will not represent itself to be the mandatary, agent, joint venturer, co-employer, fiduciary trustee, franchisee, Referring Party, or employee of Marketplace Administrator, or to be related to Marketplace Administrator other than as an independent referrer of the Offering. Referring Party will not make any representations or take any acts which could establish any apparent or actual agency, trust, joint venture, franchise, partnership, or employment, and we will not be bound in any manner whatsoever by any agreements, warranties, representations, or undertakings made by Referring Party to any other person nor with respect to any other action of Referring Party. This Agreement constitutes the entire agreement between the Parties and sets out all the covenants, promises, warranties, representations, conditions, and agreements between the Parties in connection with the subject matter of this Agreement and supersede all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement may be executed and delivered by electronic means and may be validly executed in any number of counterparts, all of which taken together shall constitute one and the same agreement and each of which shall constitute an original. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation”. The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of a Party in this Agreement, mean the right of such Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.