Terms & Conditions Tender-it BV

1. Definitions

In these terms and conditions: "Content" means any information made accessible through Tender-it Services. "Customer" means the entity or person having subscribed to or purchased the Tender-it Services under this Agreement. "Customer Data" means all Customer’s data that Customer, a Designated User or another party acting on Customer’s behalf processes, stores, generates in or submits to the Tender-it Service. The Customer Data may include personal data. "Designated Users" means those employees, sales agents or contractors of Customer or designated by Customer who are entitled to use the Tender-it Service under this Agreement the amount of which users shall be specified in the Order Form. “External sources” means the external, third party, public services databases on which the tenders and the forthcoming tender and bidding information is being published. "Intellectual Property Rights" means copyrights and other similar rights and related rights (including database and catalogue rights), patents, utility models, trademarks, trade secrets, know-how and any other form of registered or unregistered intellectual property rights as well as any applications for any of the foregoing. "Tender-it Service" means the proprietary "Tender-it" online software service as specified in the Order Form. "Order Form" means an electronically submitted form. "Party" means Customer or the Supplier (jointly the "Parties").

2. General

These Terms and Conditions shall apply to provision of the Tender-it services provided by the Dutch company Tender-it BV, Chamber of Commerce number: 60490691 (hereinafter "Supplier") to the Customer under the subscription agreement (the "Agreement") that incorporates these General Terms and Conditions as well as to any other Tender-it products or services provided by Supplier to the Customer. Any referral to "Agreement" shall include these General Terms and Conditions.

3. Free Trial

If Customer registers on Supplier’s website for a free trial, Supplier will make one or more Tender-it Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which the Customer registered to use the applicable Tender-it Service(s), or (b) the start date of any Purchased Service subscriptions ordered by the Customer for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

Any data the Customer enters into the services, and any customizations made to the services by or for the Customer, during the free trial will be permanently lost unless the Customer purchases a subscription to the same services as those covered by the trial, before the end of the trial period.

The Terms and Conditions listed in this document shall also apply to free trial subscription when applicable.

4. Services

Upon the subscription of the Tender-it Service by the Customer, Supplier grants to Customer and any Designated Users, subject to the terms and conditions of this Agreement and the payment of the fees set out in the Order Form or in Supplier’s price list in force from time-to-time, a limited, non-exclusive and nontransferable license to access and use the Tender-it Service solely for Customer’s internal use during the term of this Agreement.

Customer does not on the basis of this Agreement have any rights to modify, decompile, reverse engineer, access the source code of or transfer, assign, sub-license or distribute the Tender-it Services.

All Intellectual Property Rights in and to the Tender-it Services are and will at all times remain the sole and exclusive property of Supplier. Nothing in this Agreement shall constitute a transfer of any Intellectual Property Rights of Supplier or any third party to Customer. All rights not expressly granted to Customer will be retained by Supplier. The Customer is responsible for acquiring any and all network, internet and telecommunications connections, compatible, up-to-date browser and all technical equipment required for using the Tender-it Services.

5. Usage restrictions and usage limits

5.1. Usage Limits.

Tender-it Services and Content are subject to usage limits. Unless otherwise specified, a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users.

5.2. Usage Restrictions.

Customer will not (a) make any Tender-it Service or Content available to, or use any Tender-it Service or Content for the benefit of, anyone other than Customer or Designated Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Tender-it Service or Content, or include any Tender-it Service or Content in a service bureau or outsourcing offering, (c) use a Tender-it Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Tender-it Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Tender-it Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Tender-it Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Tender-it Service or Content in a way that circumvents a contractual usage limit, (h) copy a Tender-it Service or any part, feature, function or user interface thereof, (i) copy Tender-it Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Tender-it Service or Content, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation, (k) access any Tender-it Service or Content in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).

5.3. Removal of Content.

If Supplier is required by a third party to remove Content, or receive information that Content provided may violate applicable law or third-party rights, Supplier will promptly remove such Content without any prior notification.

6. Changes to the Tender-It Services

Supplier may, from time to time, under its sole discretion, modify and update any of the Tender-it Services or a part thereof and may cease to provide the same. If such changes of the Tender-it Services require changes to be made to the Customer’s equipment or software, the Customer is responsible for carrying out such changes to its equipment or software at its own expense.

Any additional development work of the Tender-it Services requested by Customer and any fees and prices payable thereof shall always be separately agreed upon with Supplier in writing.

7. Customer Data and Data Protection

Customer acknowledges that Supplier stores Customer Data only for a limited time determined by Supplier in its sole discretion.

Customer is solely responsible for the legality, accuracy and non-infringing nature of its Customer Data and of the means by which it acquired the personal data included in its Customer Data. When submitting personal data to the Tender-it Service, Customer acts as data controller under applicable data protection laws.

Supplier shall implement appropriate technical and organizational measures in order to protect, secure and safeguard the personal data which is processed by Supplier on behalf of the Customer. Such security measures must at least reach a level of security equivalent of what is prescribed by applicable law. The Supplier shall inform Customer of any threats to the security of the personal data processed under this Agreement as soon as reasonably possible.

Customer retains the title and all Intellectual Property Rights in and to the Customer Data. Customer grants Supplier a nonexclusive, sublicensable, transferable, worldwide, royalty-free license and permission to use, copy, process, store, modify and otherwise exploit (i) Customer Data for the purpose of providing the Tender-it Services to Customer; and (ii) generalized and anonymised Customer Data for the purposes of, and subject to restrictions set by applicable data protection laws, developing the Tender-it Services. The license granted to Supplier herein shall survive the expiry or any termination of this Agreement.

8. General Rights and Responsibilities of Customer

The person signing or otherwise accepting the Agreement represents that it has the authority to bind the organization indicated on the Order Form.

Customer must maintain confidential and secure all identifying codes, passwords and any other confidential information relating to the Tender-it Services and the provision thereof and ensure that all Designated Users comply with the obligations set out herein. Customer must immediately inform Supplier regarding any threats or suspected threats against the security of Tender-it Services and of any unauthorized disclosure of confidential information or personal data related to Tender-it Services.

9. Fees and Payment

9.1. Fees.

In return for the use of the Tender-it Services under this Agreement, Customer pays Supplier the fees set forth in Supplier’s price list in force from time-to-time.

9.2. Payment methods.

Customer provides Supplier or Supplier’s payment operator with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Supplier. If Customer provides credit card information to Supplier, Customer authorizes Supplier to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Supplier will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Supplier and notifying Supplier of any changes to such information.

9.3.Late payment interest.

Late payment interest for due but unpaid amounts will be calculated in accordance with the statutory rate of commercial interest article in Dutch law (ex. art. 6:119a BW).

9.4.Taxes and levies.

All fees and prices set out in this Agreement are exclusive of any value-added taxes, sales or use taxes and any other taxes or levies. Customer shall be liable for any taxes and levies that may be imposed on the use or purchase of the Tender-it Services.

9.5.Refund or Payment upon Termination.

If this Agreement is terminated by Customer in accordance with Clause "Term and Termination", Supplier will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Supplier, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to Supplier for the period prior to the effective date of termination.

10. No Warranty

The Tender-it Services provided by Supplier to Customer shall be provided on an “as is” basis. Supplier makes no representations, warranties or guarantees regarding the Tender-it Services and disclaims all implied and express warranties and representations, including without limitation warranties of merchantability, fitness for a particular purpose and non-infringement.

Supplier plays an intermediary role, whose sole objective is to inform Customers about Public tender and bidding information. Given the limited nature of the mediation of Supplier it does not offer warranties regarding the dissemination of obsolete, incomplete or late information of the public tender sources it uses. Moreover Supplier also makes no warranty as to the results that may be obtained through the use of the information service, website or other Supplier services, or concerning the accuracy or reliability of any information available on the Tender-it service, or obtained by third party sources and displayed trough the Tender-it service.

Supplier does not warrant that the Tender-it Services meets or fulfils Customer’s requirements, expectations or purposes of use, or that the Tender-it Services are free of defects or errors or interruptions.

11. Limitation of Liability

Supplier is not liable for any indirect, special or consequential damages resulting from this Agreement, including but not limited to loss of profits or business or damage or loss caused as a result of interruptions in business.

Supplier is not liable for the correctness and completeness of the provided tender and bidding information, as it only acts as a pure mere conduit provider, giving its Customer access to the tender information on basis of external (third party) sources. The sole liability of the correctness and completeness of the provided information lies with the external sources, which are used to provide the Tender-It service.

Supplier is not liable for the destruction or loss of Customer Data, nor for any damages and expenses incurred to the Customer as a result. Supplier is not in any way liable for the Customer’s own use of the Tender-it Services or any damages or losses resulting thereof.

Supplier accepts no liability whatsoever for any problems caused by network connections or electricity supply, or any other problems relating to any service or product provided by any third party service provider.

Supplier’s aggregate maximum liability for any damages arising out of or related to this Agreement shall not exceed fifty (50) per cent of the fees actually paid by Customer to Supplier for the Tender-it Services during the last two (2) months preceding the receipt of the claim for damages.

12. Confidentiality

The Parties each undertake and agree to keep secret the other Party’s confidential information including but not limited to technical, financial and commercial information (hereinafter referred to as Confidential Information”), unless such Confidential Information is required to be disclosed in order to comply with the obligations set out in this Agreement. The Parties are also liable to ensure that those of its employees and subcontractors who have access to the information, are bound by a similar confidentiality obligation.

The obligations set forth herein regarding Confidential Information shall not apply to information which is:

  1. (i) In the public domain other than by a breach of this Agreement on the part of the receiving Party;
  2. (ii) Rightfully received from a third party not bound by any obligation of confidentiality;
  3. (iii) Rightfully known to the receiving Party, as shown by the records of the receiving Party;
  4. (iv) Required to be disclosed by law or an authority decision or by a court of competent jurisdiction.

Supplier has the right to use Customer’s company name and logo to promote its Services. This usage can be related to but is not limited to Supplier’s marketing or commercial efforts.

13. Term and Termination

Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

Term of Purchased Subscriptions. The term of each subscription is as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 1 month before the end of the relevant subscription term.

The per unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless Supplier has given Customer a written notice of a pricing increase at least one (1) month before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.

Termination. A party may terminate this Agreement for cause (i) upon one (1) month’s written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

A Party may terminate this Agreement with immediate effect if the other Party substantially breaches the provisions of this Agreement and fails to correct the breach within fourteen (14) days of having received written notice of the breach. The Customer acknowledges that a failure by the Customer to pay the fees set forth in in this Agreement shall constitute a material breach of this Agreement and the Customer acknowledges that Supplier may cease to provide the Tender-it Services to Customer due to such failure by the Customer without prior notice.

Supplier may terminate this Agreement with immediate effect, in whole or in part, if Customer becomes bankrupt, liquidated or insolvent or enters any proceedings in this regard which can reasonably be considered to weaken its ability to make payments.

The provisions of this Agreement which by their nature reasonably should survive the termination or other expiration of this Agreement shall survive any expiration or termination of this Agreement.

14. Miscellaneous

14.1. Governing Law and Dispute Resolution.

This Agreement shall be governed by and construed in accordance with the laws of the Netherlands, without reference to its conflict of laws or private international law provisions. Any dispute, controversy or claim arising out of or in connection with this Agreement or the breach, termination or invalidity thereof, shall exclusively be resolved by the competent Dutch court in Amsterdam, the Netherlands and shall be conducted in the Dutch or English language.

14.2. Subcontractors.

Each Party has the right to subcontract its obligations under this Agreement. Each Party ensures that his subcontractor shall comply with the provisions of this Agreement. Each Party will be liable for the actions of its subcontractors as for its own.

14.3. Force Majeure.

A Party shall not be deemed to be in breach of this Agreement as long as its failure to perform any of its obligations hereunder is caused solely by labour disturbance, fire, act of war or nature, information network or telecommunication network malfunction, government order or any other, similar cause beyond the Party’s reasonable control. If such event persists for over one (1) month, a Party may terminate this Agreement immediately upon written notice to the other Party.

14.4. Assignment.

Unless expressly agreed otherwise herein, neither this Agreement, nor any interest hereunder shall be assignable by Customer without the prior written consent of the Supplier. Supplier is entitled to assign and transfer this Agreement to an affiliate or third party or as a part of a sale of its business operations pertaining to this Agreement or a part thereof.

14.5. Amendments.

Supplier is entitled to amend the Agreement and any appendices including without limitation the fees charged for the Tender-it Service by providing the Customer with a one (1) month prior written notice to the Customer’s address or email address indicated on the Order Form. If the Customer does not accept the change made by Supplier to this Agreement or its appendices, the Customer has the right to terminate the Agreement by notifying Supplier thereof in writing at least two (2) weeks prior to the effective date of such change.

14.6. No waiver.

A failure by any Party at any time or times to require performance of any provisions of this Agreement shall in no manner affect its right to enforce the same, and the waiver by any Party of any breach of any provision of this Agreement shall not be construed to be a waiver by such Party of any succeeding breach of such provision or waiver by such Party of any breach of any other provision hereof.

14.7. Severability.

If any term or provision of this Agreement is held to be illegal or unenforceable, the validity of the remainder of this Agreement shall not be affected.