PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
Our Customer Terms of Service is a contract that governs our customers' use of the Eco Toreda services. It consists of the following documents:
We’ve aimed to keep these documents as readable as possible, but in some cases for legal reasons, some of the language is necessarily “legalese”. By using the Marketplace Service or receiving the Consulting Services, you are agreeing to these terms.
We update these terms from time to time. If you have an active Eco Toreda subscription, we will let you know when we update the terms via in-app notification or by email (if you subscribe to receive email updates). You can find archived versions of the General Terms, Product Specific Terms, Jurisdiction Specific Terms and DPA in our archives at https://ecotoreda.com/legal/archive
Last modified September 16, 2024
Eco Toreda allows third party sellers to sell their products in a live marketplace on the Site via our Marketplace Services. Sellers' products will be made available for sale on all of our Sites and mobile applications. Buyers and sellers must create an account to purchase or sell items on the Eco Toreda platform.
The Marketplace Services are accessible to certain sellers and buyers. Eco Toreda may provide access to certain features and tools to sellers and buyers, such as estimated local currency conversion and integrated international shipping, customs and tax tools. Sellers and buyers are responsible for complying with all laws and regulations applicable to the domestic and international sale, purchase, and shipment of items.
“Add-Ons” means additional product enhancements (including Limit increases and other add-ons) that are made available for purchase and are listed in the 'Add-Ons & Limit Increases' and the 'Technical Limits and Definitions' sections of our Products and Services Catalog.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" or “Customer Terms of Service” means these General Terms and all materials referred or linked to in here, unless otherwise stated. Throughout this Agreement, we link to knowledge base articles to help facilitate your use of our products and services and manage your Eco Toreda account; however, these knowledge base articles are for your information only, and they are not incorporated into this Agreement.
"Authorized Payment Method" means a current, valid, payment method accepted by us, as may be updated from time to time and which may include payment through your account with a third party.
"Certification Service" means the optional service offered by Eco Toreda to buyers, wherein second-hand devices are inspected for functionality, battery health, cosmetic condition, and device state to ensure they match the buyer’s order specifications. This service includes a comprehensive assessment of the device's condition, with the results of the inspection shared with the buyer in a structured format. These results may, at the buyer’s option, be provided as a Certified Pre-Owned (CPO) Report, summarizing the inspection findings to validate the product’s quality and condition.
“Confidential Information” means all confidential information disclosed by a party and its Affiliates ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party's customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
"Contact" means a single individual (other than a User) whose Contact Information is stored by you in the Marketplace Service.
"Contact Information" means the name, email address, phone number, online user name(s), and similar information uploaded by you to the Marketplace Service.
"Consulting Services" means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
"Customer Data" means all information that you submit or collect via the Marketplace Service. Customer Data does not include Eco Toreda Content.
"Customer Materials" means all materials that you provide or post, upload, input or submit for public display through the Marketplace Service.
“DPA” means the Eco Toreda Data Processing Agreement at https://ecotoreda.com/legal/dpa.
"Eco Toreda," "we," "us," or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"Eco Toreda Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Marketplace Service or Consulting Services, including Enrichment Data (as defined in the Product Specific Terms).
“Free Services” means the Marketplace Service or other products or features made available by us to you on a free basis.
“Jurisdiction-Specific Terms” means the additional terms that apply to your subscription, depending on your location. These terms form part of the Agreement and are available at http://ecotoreda.com/legal/jurisdiction-specific-terms.
"Make Me Sell" means the Eco Toreda program that enables Customers to set a 'target price' for items that they will automatically sell said items for. Customers may activate Make Me Sell for a specific quantity of specific items.
"Order" or "Order Form" means the Eco Toreda-approved form or online process by which you agree to use the Marketplace Service to purchase products, sell products or purchase Consulting Services. When you submit an order form you are subscribing to Marketplace Services for the Subscription Term which governs the products and services included in your order form.
“Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data and (ii) is protected as personal data, personal information, or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
"Privacy Policy" means the Eco Toreda Privacy Policy available at https://ecotoreda/legal/privacy, as updated by us from time to time.
“Product and Services Catalog” means Eco Toreda’s Product and Services Catalog available at http://ecotoreda.com/product-and-services-catalog, as updated by us from time-to-time.
“Product Specific Terms" means the additional product-related terms that apply to your use of Eco Toreda products, our Consulting Services and Third-Party Products. These terms form part of the Agreement and can be found at http://ecotoreda.com/legal/product-specific-terms.
"Marketplace Service" means the online platform provided by Eco Toreda that facilitates business-to-business (B2B) transactions between buyers and sellers. Through the Marketplace Service, sellers supply products to Eco Toreda, which temporarily takes ownership of the goods, breaks down large orders, and resells them to buyers. The service includes order processing, payment handling, and logistical support to ensure smooth and efficient transactions. Although Eco Toreda takes temporary ownership of the products, it does not assume liability for the quality, legality, or condition of the goods beyond its role as an intermediary distributor.
"Subscription Fee" means the amount you pay, if any, for the Marketplace Service.
"Subscription Term" means, collectively, the initial term of your subscription to the applicable Marketplace Service, as specified on your Order Form(s) (the "Initial Term"); and each subsequent renewal period (if any) (each a "Renewal Term"). Your "Current Term" is your then-current committed period of Marketplace Services, as either an Initial Term or Renewal Term. For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
"Target Price" means the minimum price that a Seller will automatically accept an offer to purchase.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Marketplace Service. These products and services include non-Eco Toreda apps available from, for example, our app marketplaces, directories, and links made available through the Marketplace Service and non-Eco Toreda services listed on ecotoreda.com.
"Third-Party Sites" means third-party websites linked to from within the Marketplace Service.
“Total Committed Marketplace Value” means the aggregate amount of Marketplace Fees paid or payable to us by you for all of your Eco Toreda accounts, but this amount excludes fees for import duty taxes collected on behalf of you, the value of goods purchased or sold via the Marketplace Service, transportation fees, Consulting Services and applicable taxes.
"Trade-In" means the transfer of ownership of a previously used asset by [Party A] to [Party B] in exchange for a monetary credit, discount, or other agreed consideration applied toward the purchase of a new asset from [Party B]. The value of the Trade-In shall be assessed based on the asset’s condition, age, and market demand, unless otherwise specified in this Agreement.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Marketplace Service for your benefit and have unique user identifications and passwords for the Marketplace Service.
"You," "your," or “Customer” means the person or entity using the Marketplace Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer and your Affiliates included in the scope of your purchase.
2.1 Access. During the Subscription Term, we will provide your Users access to use the Marketplace Service as described in this Agreement and the applicable Order. We may provide your Users access to use our Free Services at any time by activating them in your Eco Toreda account. We might provide some or all elements of the Marketplace Service through third party service providers.
You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement. You may provide access and use of the Marketplace Service to your Affiliate's Users or allow them to receive the Consulting Services purchased under an Order; provided that, all such access, use and receipt by your Affiliate's Users is subject to and in compliance with the Agreement and you will at all times remain liable for your Affiliates' compliance with the Agreement.
You will notify us promptly of any unauthorized use of your Users’ identifications and passwords or your account by following the instructions at: www.ecotoreda.com/membercare
2.2 Additional Features. You may subscribe to additional features of the Marketplace Service by placing an additional Order or activating the additional features from within your Eco Toreda account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Eco Toreda account.
2.3 Availability and Uptime. For details of Eco Toreda’s Service Uptime Commitment, please see the Product Specific Terms.
2.4 Limits. The limits that apply to you will be specified in your Order Form, this Agreement or in our Product and Services Catalog, and for our Free Subscriptions; these limits may also be designated only from within the product itself. For further information on the limits that apply to your subscription, please refer to the Product Specific Terms.
You must be 18 years of age or older to use the Marketplace Service.
2.5 Downgrades. Depending on your Eco Toreda product, you may be entitled to downgrade your subscription. For further information on the downgrade terms that apply to your subscription, please refer to the Product Specific Terms.
2.6 Modifications. We modify the Marketplace Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. For further information on our modification rights that apply to your subscription, please refer to the Product Specific Terms.
2.7 Customer Support. For information on the customer support terms that apply to your subscription, please refer to the Product Specific Terms.
2.8 Acceptable Use. You will comply with our Acceptable Use Policy at http://ecotoreda.com/legal/aup ("AUP").
2.9 Prohibited and Unauthorized Use. You will not use the Marketplace Service in any way that violates the terms of the AUP or for any purpose or in any manner that is unlawful or prohibited by this Agreement. You will not (i) directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to uncover or discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Marketplace Services or any software, documentation or data related to the Marketplace Services; (ii) modify, translate, or create derivative works based on the Marketplace Services (except to the extent expressly permitted by us); (iii) or remove any proprietary notices or labels.
You may not use the Marketplace Service if you are legally prohibited from receiving or using the Marketplace Service under the laws of the country in which you are resident or from which you access or use the Marketplace Service.
You may not use the Marketplace Service in a way that would violate local or industry-specific regulations (for example, the Gramm-Leach-Bliley Act (GLBA), the Federal Information Security Management Act (FISMA), etc.).
2.10 Sensitive Data. The Eco Toreda Sensitive Data Terms available at https://ecotoreda.com/legal/sensitive-data-terms are incorporated into this Agreement if you enable the use of Sensitive Data in your Eco Toreda Account. To the extent specifically permitted under the Eco Toreda Sensitive Data Terms and subject to those additional terms, you may use the Eco Toreda Services to collect, store, manage, or otherwise process information considered sensitive information under various regulations.
2.11 Customer Responsibilities. To realize the full value of the Marketplace Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a project manager, one or more buyers or procurement specialists, an operations sponsor, an executive sponsor and a technical resource (or equivalent). Responsibilities that may be required include planning of marketing programs; setting of a promotions calendar; creating offers, managing offers including creating, modifying and disabling, requesting and responding to quote requests, downloads, emails, nurturing content, and other materials; acting as internal liaison between sales and operations; providing top level internal goals for the use of the Marketplace Service; attending regular success review meetings; and supporting the integration of the Marketplace Service with other sales and operations systems.
2.12 Free Trial. If you register for a free trial associated with a fee based service, we will make the applicable Marketplace Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Marketplace Service before the end of the free trial, all of your data in the Marketplace Service may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as well.
2.13 Legacy Products. If you have a legacy Eco Toreda product, some of the features and limits that apply to that product may be different than those that appear in these General Terms, Product Specific Terms and/or the Product and Services Catalog. If you have legacy Eco Toreda products, we may choose to move you to our then-current products at any time. If you determine that you are using a legacy product and would like to upgrade to a current-version, you must execute a new Order.
3.1 Marketplace Fees. The Subscription Fee will remain fixed during the Current Term of your subscription unless (i) you fall short of your Minimum Volume Committments or other applicable limits (see the ‘Limits’ section above), (ii) you upgrade products or base packages, (iii) you subscribe to additional features or products, including additional Services, or (iv) otherwise agreed to in your Order. We may also choose to decrease your fees upon written notice to you. You can find all the information about how your fees may be otherwise adjusted in Product Specific Terms. Please review the Product Specific Terms for information on Marketplace Marketplace Services that may have different fee structures.
3.2 Fee Adjustments at Renewal. Upon renewal, we may increase your Subscription Fees up to our then-current list price set out in our Product and Services Catalog. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next Renewal Term. If you do not agree to this increase, either party can choose to terminate your subscription at the end of your Current Term by giving the notice required in the ‘Notice of Non-Renewal’ section below. Please review the Product Specific Terms for information on Marketplace Services that have different fee adjustment notice requirements.
3.3 Payment of Fees. If you are paying by credit card, you authorize us to charge your Authorized Payment Method for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
In the event of a failed attempt to charge your Authorized Payment Method (for example, if your Authorized Payment Method has expired or is no longer valid), we reserve the right, and you authorize us, to retry billing your Authorized Payment Method. If you update your Authorized Payment Method to remedy a change in validity or expiration date, we will automatically resume billing; we may also receive updates on your Authorized Payment Method through our payment service providers and automatically resume billing. We may suspend your access in accordance with the 'Suspension' section or terminate your account in accordance with the 'Termination for Cause' section if we remain unable to successfully charge a valid Authorized Payment Method.
3.4 Payment Against Invoice. All amounts invoiced are due and payable upon delivery of the invoice, unless otherwise specified in the Order Form. If you are paying by invoice for fee based services (e.g. Consulting Services), we will invoice you no more than forty-five (45) days before the fees are payable during the Subscription Term, for example, in advance of the beginning of the next Billing Period.
3.5 Payment Information. You will keep your business information up to date, including your company name, address, and primary contact. You will also keep your Authorized Payment Method and billing information up to date for the payment of incurred and recurring fees, including your tax information.
Changes may be made on your Billing Page within your Eco Toreda account. You authorize Eco Toreda to continue to charge your Authorized Payment Method for applicable fees during your Subscription Term and until any and all outstanding Fees have been paid in full. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are an Eco Toreda Partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.
3.6 Paying and Being Paid - We charge a platform fee for each Transaction (“Platform Fee”) to enable you to use the Marketplace Service to buy and sell. In addition, we also charge a processing fee to cover Payment Processor Fees for each submitted Transaction (“Processing Fee”).
You agree to pay the fees, including any Platform Fees and Processing Fees, that are set out in Eco Toreda’s Products and Services Catalog or other current payment schedule we provide to you, which are incorporated herein by reference. Fees shall be collected from you by Payment Processor or as otherwise indicated by us in accordance with the available documentation.
The Platform fees and Processing Fees are consumption based. This means that they are treated differently than other Marketplace Services that are subscription and renewal based. Therefore, we reserve the right to change the Platform Fees and Processing Fees at any time, and will provide you with at least thirty (30) days’ prior notice which may be given by email or through any other means we reasonably determine. If you continue to use the Marketplace Services after such thirty (30) days, then you are deemed to have accepted the change in Processing Fees and Platform Fees, as notified.
3.7 Security Interest. As security for performance of your obligations under this Agreement, you grant us a first priority lien and security interest on (i) all funds processed and deposited into all Payout Accounts (as defined in the Processor Terms) and any other bank accounts associated with your Eco Toreda Account, (ii) your Reserve (as defined below), and (iii) any funds processed using the Marketplace Service. These security interests and liens will secure payment and performance of all of your obligations under this Agreement and any other agreements now existing or later entered into between us and you, including, without limitation, your obligation to pay any amounts due and owing to us from your use of the Marketplace Services. You will execute, deliver and pay the fees for any documents we request to create, perfect, maintain, and enforce this security interest.
3.8 Our Collection Rights, To the extent permitted by law, we may collect any obligations you owe us under this Agreement, including overdue fees owed to us for your use of our products and services, including the Marketplace Services, by deducting the corresponding amounts from your Reserve (as that term is defined below) or from funds payable to you arising from the settlement of Transactions. Fees will be assessed at the time a Transaction is processed and will be first deducted from the funds you will receive for such Transaction. If these amounts are not sufficient to meet your obligations to us, we may charge any and all of the Payment Methods associated with your Eco Toreda Account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection of your delinquent Eco Toreda Account and related Chargebacks in addition to the amount owed, including, without limitation, attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
Additionally, we may require a personal guarantee from a principal of your business for funds owed under this Agreement. If we require a personal guarantee we will specifically inform you in advance.
You agree that all communication in relation to delinquent accounts may be made by mail, electronic mail, or by phone, to any contact information provided to Eco Toreda by you.
3.9 Reserves. Funds held in reserves are amounts of money set aside to cover your Chargebacks, refunds, or other payment obligations under this Agreement (the "Reserve"). If a reserve is established for your Eco Toreda Account, we will set the terms of your Reserve and notify you of such terms, which may require that a certain amount (including the full amount) of the funds received for a Transaction are held for a period of time, or that additional amounts are held in the Reserve. We, in our discretion, may elect to change the terms of the Reserve at any time, for any reason, based on your payment processing history or as requested by the Payment Processor.
We may require you to fund the Reserve by means of: (i) any funds payouts made or due to you for Transactions submitted to Eco Toreda; (ii) amounts available in your bank account associated with your Eco Toreda Account by means of ACH debit to your Eco Toreda Account; or (iii) other sources of funds associated with your Eco Toreda Account; or (iv) requesting that you provide funds to us for deposit to the Reserve.
You agree that: (i) you are not entitled to any interest or other compensation associated with the funds held in the Reserve; (ii) you have no right to direct that account; (iii) you may not assign any interest in those funds or that account; and (iv) in the event that this Agreement or your Eco Toreda Marketplace Service is terminated, we may use the funds in the Reserve to settle any outstanding Transactions and apply any remaining amounts to any outstanding balances you may owe us for your use of Eco Toreda's products and services.
3.10 Submission of Valid Transactions. You must not submit any Transactions which: (a) have not been approved by the card or bank account holder or is known by you to be fraudulent; (b) are outside your normal course of business; or (c) are made by you (including but not limited to your personal accounts or credit cards), your family members, principals, or employees which are not for the purchase of goods or services or represent a credit for such purchases.
If we reasonably believe that a Transaction violates any of the provisions or terms of this Agreement or that a Transaction is fraudulent, we may at our sole discretion, and in addition to any other remedies we may have, (i) refuse to allow a Transaction to be processed; (ii) process the Transaction and retain the funds received from such processing until such time that we are able to ascertain the validity of the Transaction in accordance with applicable rules and regulations; (iii) suspend processing Transactions on your behalf and/or terminate this Agreement; or (iv) modify this Agreement.
3.11 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Marketplace Service and performance of Consulting Services. You will have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are located in Canada, all fees are exclusive of GST, PST and HST.
You must provide Eco Toreda a valid and current resale license for each region in which you utilize the Marketplace Service (e.g. the location of each Certification Center in which you buy or sell). Examples of resale licenses include, but are not limited to: Sales Tax Permit, Seller's Permit, Reseller Permit, Wholesale License, Vendor Permit, Sales Tax License, VAT Registration Number (VRN), Trader VAT Number, Value-Added Tax (VAT) Number, Intra-Community VAT Number (for cross-border transactions within the EU), Australian Business Number (ABN), GST Registration, Goods and Services Tax (GST) Registration, GST Registration Number, Taxpayer Identification Number (VIN), VAT Vendor Registration, Registro Federal de Contribuyentes (RFC), Inscrição Estadual (IE), Consumption Tax Registration or GST Registration.
3.12 Withholding Tax. If you are required to deduct or withhold tax from payment of your Eco Toreda invoice, you may deduct this amount from the applicable Marketplace or Consulting Fee due to the extent it is due and payable as assessed withholding tax required under laws that apply to you (the “Deduction Amount”).
You will not be required to repay the Deduction Amount to us, provided that you present us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If you do not provide this tax receipt within the specified time period, then all fees, inclusive of the Deduction Amount, will be immediately due and payable, and failure to pay these fees may result in your account being suspended or terminated for non-payment.
4.1 Term and Renewal. Your Initial Term will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the same duration as your prior term or one year.
4.2 Notice of Non-Renewal. Unless otherwise specified in your Order, to prevent renewal of your subscription, you or we must give written notice of non-renewal. The deadline for sending this notice varies depending on the Eco Toreda product and edition you have subscribed to. For more information on non-renewal notice periods, please see the Product Specific Terms.
If you decide not to renew, you may send this non-renewal notice to us by indicating that you do not want to renew by turning auto-renew off by accessing the billing details information in your Eco Toreda account, or by following the steps at this knowledge base article https://ecotoreda.com/legal/how-do-i-cancel-my-ecotoreda-account, as applicable.
4.3 Early Cancellation. You may choose to cancel your subscription early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of your Current Term. See the 'Notice of Non-Renewal' section for information on how to cancel your subscription.
4.4 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Marketplace Service: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.
We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
This Agreement may not otherwise be terminated prior to the end of your Current Term.
4.5 Suspension
4.5.1 Suspension for Prohibited Acts
We may suspend any User’s access to any or all Marketplace Services without notice for:
(i) use of the Marketplace Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement,
(ii) use of the Eco Toreda Marketplace Service to ship product to or from an Eco Toreda prohibited country, company or indiidual.
We may, without notice, review and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to prescreen, control, monitor or edit your Customer Data or Customer Materials.
You can find details about Eco Toreda and the European Union Digital Services Act of 2024 at https://ecotoreda.com/legal/digital-services-act which is not incorporated into this Agreement and provided for your information only.
4.5.2 Suspension for Non-Payment
We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Marketplace Services ten (10) days after such notice. We will not suspend the Marketplace Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Marketplace Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Marketplace Service.
4.5.3 Suspension for Present Harm
If your business, or use of, the Marketplace Service:
(i) is being subjected to denial of service attacks or other disruptive activity,
(ii) is being used to engage in denial of service attacks or other disruptive activity,
(iii) is creating a security vulnerability for the Marketplace Service or others,
(iv) is consuming excessive bandwidth or storage, or
(v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Marketplace Service.
We will make commercially reasonable efforts to limit the suspension to the affected portion of the Marketplace Service, and each party will make reasonable efforts to promptly resolve the issues causing the suspension of the Marketplace Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
4.5.4 Suspension and Termination of Free Services
We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
4.6 Effect of Termination or Expiration. If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this may not be the case if your Agreement was terminated for cause.
You will continue to be subject to this Agreement for as long as you have access to an Eco Toreda account.
Upon termination or expiration of this Agreement, you will stop all use of the Marketplace Service and Eco Toreda Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Marketplace Service after termination. For the avoidance of doubt, this refund does not include any fees owed from your use of Eco Toreda Payments, which is separately governed under the Eco Toreda Payments Terms of Use. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due. Fees are otherwise non-refundable.
5.1 Customer’s Proprietary Rights. You own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Marketpalce Service and Consulting Services to you and as otherwise permitted by this Agreement. If you are using the Marketplace Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.2 Limits on Eco Toreda. We will not use Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Marketplace Service and Consulting Services to you and only as permitted by applicable law and this Agreement.
5.3 Data Practices and Machine Learning.
5.3.1 Usage Data.
We may collect information about you and your Users when you interact with the Marketplace Service as permitted by the Agreement.
5.3.2 Machine Learning.
We may use Customer Data for machine learning to support and develop features and functionality within the Marketplace Service and similar products and services. You instruct us to use Customer Data for such purposes. You may opt-out of having your Customer Data used for machine learning by emailing privacy@ecotoreda.com.
For more information about our machine learning and our AI Products, visit our AI Product FAQ at https://ecotoreda.com/ai-faq, which is provided for information purposes only and not incorporated into the legal terms of this agreement.
5.3.3 Privacy Policy.
For more information on these practices, please see our Privacy Policy.
5.4 Protection of Customer Data. The terms of the DPA are hereby incorporated by reference and will apply to the extent any Customer Data includes Personal Data. The DPA sets out how we will process Personal Data on your behalf in connection with the Marketplace Services provided to you under this Agreement. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA, including our Security Measures in Annex 2 of our DPA.
5.5 Regional Data Hosting. We will store your Customer Data in a specific location or geographical region (e.g. North America or Europe) as part of your subscription subject to the terms of this Agreement and our Regional Data Hosting Policy.
5.6 Customer Data Transfers. We and our Affiliates may transfer Customer Data (including Personal Data) to the United States in connection with the Marketplace Service. To the extent we process Personal Data that is subject to the protection of European Data Protection Laws (as defined in the DPA) in the United States, we will process such Personal Data in accordance with the EU-U.S. Data Privacy Framework, the UK Extension to the EU-U.S. Data Privacy Framework, and the Swiss-U.S. Data Privacy Framework (collectively, the "Data Privacy Framework") as set out in our DPA. For more information about the Data Privacy Framework, please see our Privacy Policy.
5.7 Retention, Deletion and Retrieval of Customer Data. For information regarding the retention and deletion of Customer Data, please see the ‘Eco Toreda Obligations’ section of our DPA. You can learn more about your right to retrieve Customer Data from your Eco Toreda account in the ‘Retrieval of Customer Data’ sections as specified in our Product Specific Terms.
6.1 This is an agreement for access to and use of the Marketplace Service, and you are not granted a license to any software by this Agreement. We retain all intellectual property rights to the Eco Toreda Content, the Marketplace Service, the Consulting Services, and any other products or services provided under this Agreement. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Eco Toreda Content, the Marketplace Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks include, but aren’t limited to, those listed on our trademarks page at http://ecotoreda.com/legal/trademarks (which we may update at any time without notice to you), and you may not use any of these without our prior written permission.
6.2 We encourage all customers to comment on the Marketplace Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Marketplace Service or Consulting Services, without payment or attribution to you.
7.1 The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Marketplace Service or Consulting Services and Eco Toreda Solutions Partners bound by confidentiality obligations), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.2 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure, including in circumstances where the Disclosing Party refuses to provide their consent or fails to respond to the Receiving Party’s inquiries in connection with the request to disclose the Confidential Information..
You grant us the right to add your name and company logo to our customer list and website. You can opt-out of this use by filling out the Publicity Opt-Out form at https://ecotoreda.com/publicity-opt-out.
You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and Affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of
(a) unauthorized or illegal use of the Marketplace Service by you or your Affiliates,
(b) your or your Affiliates' noncompliance with or breach of this Agreement,
(c) your or your Affiliates' use of Third-Party Products, or
(d) the unauthorized use of the Marketplace Service by any other person using your User information.
We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
10.1 Performance Warranty. We warrant that: (i) the Marketplace Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Marketplace Service; provided however, this warranty will not apply to you if you only use the Free Services.
In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused fees covering use of the Marketplace Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.
We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Marketplace Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Marketplace Service by anyone other than us, or modification of the Marketplace Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Marketplace Service in violation of or outside the scope of this Agreement.
THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.
10.2 Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE ‘PERFORMANCE WARRANTY’ SECTION AND WITHOUT LIMITING OUR OBLIGATIONS IN THE 'PROTECTION OF CUSTOMER DATA' SECTION OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE MARKETPLACE SERVICE, DATA SYNCHED TO OR MADE AVAILABLE FROM THE MARKETPLACE SERVICE, ECO TOREDA CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE MARKETPLACE SERVICE, ECO TOREDA CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE MARKETPLACE SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
10.3 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, PROVIDED THAT, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
10.4 Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE MARKETPLACE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
10.5 Third Party Products. WE AND OUR AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
10.6 Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE MARKETPLACE SERVICE TO YOU.
10.7 Additional Coverage Terms. If your Total Committed Subscription Value exceeds thirty-five thousand U.S. dollars (USD$35,000), then the Eco Toreda Additional Coverage Terms available at Appendix 1 to these General Terms will apply. If these terms apply to you, then they are incorporated into the Agreement.
11.1 Amendment; No Waiver.
We may modify any part or all of the Agreement by posting a revised version at https://ecotoreda.com/en-legal. The revised version will become effective and binding the next business day after it is posted. We will provide you notice of this revision by email or in-app notification. If you would like to receive an email notification when we update the Agreement, complete the form found at https://ecotoreda.co.com/subscribe-tos-updates.
If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the terms posted at https://ecotoreda.com/en-legal will apply. However, if we can no longer reasonably provide the subscription to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Marketplace Services will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Marketplace Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
11.2 Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; pandemic; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.3 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
11.4 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
11.5 Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Marketplace Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
We will comply with our Code of Business Conduct and Ethics (a/k/a our Code of Use Good Judgment) which can be found on our Secuirty page ecotoreda.com/en-compliance; the Code of Use Good Judgment is incorporated into this Agreement, but any other linked materials are for information purposes only and not incorporated into these terms. You will comply with all applicable laws in your use of the Marketplace Service and Consulting Services, including any applicable export laws.
You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in your use and receipt of the Marketplace Service and Consulting Services.
You will not directly or indirectly export, re-export, or transfer the Marketplace Service or Consulting Services to prohibited countries or individuals or permit use of the Marketplace Service or Consulting Services by prohibited countries or individuals.
11.6 Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
11.7 Notices. To Eco Toreda: Notice will be sent to the contact address set forth in the Jurisdiction Specific Terms, and will be deemed delivered as of the date of actual receipt.
To you: your address as provided in our Eco Toreda Subscription account information for you. We may give electronic notices by general notice via the Marketplace Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Marketplace Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
11.8 Entire Agreement. This Agreement (including each Order), along with our Privacy Policy is the entire agreement between us for the Marketplace Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance, supplier portal, or website. Our obligations are not contingent on the delivery of any future functionality or features of the Marketplace Service or dependent on any oral or written comments made by us regarding future functionality or features of the Marketplace Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
11.9 Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any Eco Toreda Affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
11.10 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.11 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, will not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.
11.12 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.
11.13 Insurance. During the term of this Agreement, we will, at our own cost and expense, obtain and maintain in full force and effect, with reputable insurers having A.M. best ratings of at least A (VII) or better, liability insurance with coverage and minimum limits of liability as follows: (i) Commercial General Liability Insurance (Primary & Umbrella) or equivalent, with minimum limits of $1,000,000 Each Occurrence and $2,000,000 Aggregate; (ii) Workers' Compensation & Employers Liability Insurance (as required by the state), with minimum limits of $500,000 Each Accident, $500,000 Disease-Policy Limit and $500,000 Disease-Each Employee; (iii) Professional Liability (cyber/errors and omissions liability insurance), with a limit of $5,000,000; and (iv) Umbrella/Excess Liability Insurance, with a minimum limit of $2,000,000.
11.14 U.S. Government Entities not allowed. These Marketplace Services were not designed nor are applicable for U.S. Government Entities.
11.15 Survival. The following sections will survive the expiration or termination of this Agreement: ‘Definitions,’ ‘Fees,’ ‘Prohibited and Unauthorized Use,’ ‘Early Cancellation,’ ‘Termination for Cause,’ ‘Suspension for Prohibited Acts,’ ‘Suspension for Non-Payment,’ ‘Suspension for Present Harm,’ ‘Suspension and Termination of Free Services,’ ‘Effect of Termination or Expiration,’ ‘Intellectual Property,’ ‘Customer’s Proprietary Rights,’ ‘Confidentiality,’ ‘Publicity,’ ‘Indemnification,’ ‘Disclaimers; Limitations of Liability,’ ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law.’ Additionally, the ‘Retrieval of Customer Data’ sections, and the ‘Beta Services’ section of the Product Specific Terms page will survive expiration or termination of this Agreement.
11.16 Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.
ADDITIONAL COVERAGE TERMS
If your Total Committed Subscription Value exceeds thirty-five thousand U.S. dollars (USD$35,000), then these Additional Coverage Terms apply; if your Total Committed Subscription Value is below this amount, then these terms will not apply. We may update or change these terms in the same way as we can update or change our Agreement, as we describe in the ‘Amendment; No Waiver’ section of the General Terms.
1. Eco Toreda Indemnification
We will indemnify, defend and hold you harmless, at our expense, against any Action brought against you (and your officers, directors, employees, agents, service providers, licensors, and Affiliates) by a third party not affiliated with you to the extent that such Action is based upon or arises out of (1) an allegation that the Marketplace Service infringes a valid patent in a member state of the Patent Cooperation Treaty, registered trademark, or registered copyright (“IP Indemnification”), or (2) our breach of our confidentiality obligations or our use of Customer Data in violation of this Agreement (“Confidentiality and Data Misuse Indemnification”).
You will: notify us in writing within thirty (30) days of you becoming aware of any such claim; give us sole control of the defense or settlement of such a claim; and provide us (at our expense) with any and all information and assistance reasonably requested by us to handle the defense or settlement of the claim. We will not accept any settlement that (i) imposes an obligation on you; (ii) requires you to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on you without your prior written consent.
We will not have any obligation or liability under this section if the alleged claim is caused by or based on: (i) any combination of the Marketplace Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Marketplace Service by anyone other than us, or modification of the Marketplace Service by us in accordance with specifications or instructions that you provided, (iii) use of the Marketplace Service in violation of or outside the scope of this Agreement, (iv) an allegation that the Marketplace Service consists of a function, system or method traditionally utilized in procurement, sales or retail software that is not commercially unique to the Marketplace Service, and the commercially unique aspects of the Marketplace Service are not identified in the allegation giving rise to the claim, or (v) user interface or related user design elements not provided by us.
Notwithstanding the foregoing, in the event of such a claim, or if we believe that such a claim is likely, we may, at our sole option and expense: (a) modify the Marketplace Service or provide you with substitute Marketplace Service that is non-infringing; or (b) obtain a license or permission for you to continue to use the Marketplace Service, at no additional cost to you; or (c) if neither (a) nor (b) is, in our judgment, commercially practicable, terminate your access to the Marketplace Service (or to a portion of the Marketplace Service as necessary to resolve the claimed infringement) and refund any prepaid but unused fees covering use of the Marketplace Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement. THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.
2. Limitation of Liability
The 'Limitation of Liability' sub-section in the ‘Disclaimers; Limitations of Liability’ section of the General Terms is revised to read as follows:
"EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, OUR LIABILITY ARISING FROM OUR IP INDEMNIFICATION OBLIGATIONS UNDER THE ECO TOREDA INDEMNIFICATION’ SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE MARKETPLACE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM"