Terms and Conditions

1.1 Definitions

When used in this Agreement, the following terms shall have the following meanings unless the subject or the context otherwise requires:

“Access Credentials” refers to usernames and passwords for Customer designated users.

“Additional Charge” means an additional charge specified in Schedule 3, payable by the Customer.

“Agreement” means this Subscription Agreement as amended from time to time, as agreed in writing between the Parties.

“Annual Fee” means the amount set out in Paragraph 2 of Schedule 1 as adjusted in accordance with Paragraph 3 of Schedule 1.

“Business Day” means a day on which banks are open for general banking business in Melbourne or Sydney, excluding Saturdays, Sundays and public holidays.

“Claim” means any claim, cost, damages, debt, expense, liability, loss, suit, action, demand, cause of action or proceeding of any kind, howsoever arising, whether threatened, actual or contingent and whether or not it is in respect of legal or other costs, damages, expenses, fees or losses.

“Commencement Date” means the date upon which this Agreement will commence or the date Sales Order is signed by Customer

“Confidential Information” means all of the Information, other than that which:

1. 1. is or becomes generally available to the public other than as a result of a breach of confidence by the Recipient;
   2. was known to the Recipient or any of its officers, representatives, employees or advisers on a non‑confidential basis before the Recipient received the Information; or
   3. became available to the Recipient or any of its officers, representatives, employees or advisers on a non‑confidential basis from another source not in breach of an obligation of confidence owed by that source to the Discloser (of which the Recipient was aware or ought to have been aware).

“Customer Information” means Customer or its Group Members designated users names and email addresses for accessing the Service

“Data” means any Information provided by the Service, and includes information relating to the Customer’s designated users name and email address, which is added to the Service by Tendertrace or it employees, agents, contractors or other persons authorised to provide access to the Service;

“Discloser” means a Party that has disclosed Confidential Information of that Party to the other Party.

“Enhancement” means a Customer-driven enhancement where the Customer requests additional or further development of an existing feature or capability of the Service within a specified and accelerated timeframe outside Tendertrace product roadmap schedule which is released to all Tendertrace customers

“Group”, in relation to a Party, means each of its related bodies corporate, as defined in s50 of the Corporations Act 2001 (Cth).

“Group Member” means each body corporate in the Group.

“Implementation Fee” means the amount(s) set out or determined in accordance with a Statement of Work.

“Information” means all information in any way relating to a Party or a Party’s Group Member or the business of that Party or that Party’s Group Member including without limitation:

1. 1. Customer Information;
   2. marketing and technical information;
   3. customer, supplier, sales and receivables information;
   4. the processes, mechanisms and methodologies used by the Party in its business; and
   5. all financial information relating to that Party.

“Infringement” means any Claim of infringement of any Intellectual Property Rights or unauthorised use or misuse of any confidential or proprietary information.

“Initial Term” means the period commencing on the Commencement Date and ending on the anniversary of the Commencement Date.

“Intellectual Property Rights” means patents, copyright and design but excluding trademarks.

“Internet Site” means the internet website from which the Service is accessed by the Customer which is https://app.Tendertrace.com/

“Insolvency Event” in relation to a person, means the occurrence of any of the following events in relation to that person:

1. 1. the person enters into bankruptcy, liquidation, administration or other type of insolvency;
   2. the person is wound up, dissolved or the person suspends payment of its debts; or
   3. the person ceases or threatens to cease to carry on all or a material part of its business or becomes unable to pays its debts when they fall due.

“Personal information” has the meaning ascribed to it under the Privacy Act 1988 (Cth).

“Parties” means Tendertrace and the Customer and “Party” means either of them.

“Recipient” means a Party that has received Confidential Information of the other Party from the other Party.

“Sales Order” refers to a document provided by Tendertrace on the type and quantity of Services, Profession Services, the price and upon acceptance by the Customer constitutes a binding agreement for the purchase and sale of the Services under the terms and conditions set forth in the Sales Order Form and this Agreement.

“Service” means the online public sector data and market intelligence platform service referred to as “Tendertrace Market Insights” provided by Tendertrace through the Service application Internet Site.

“Statement of Work” a statement of work pursuant to this Agreement signed by the Parties in relation to the [configuration/implementation] of the Service to suit the agreed requirements of the Customer as set out therein.

“Subsequent Term” means the 12-month period commencing on the expiration of the Initial Term or a previous Subsequent Term;

“Support Services” means the support services to be provided by TENDERTRACE to the Customer as set out in Schedule 2.

“System Requirements” means the minimum performance requirements and specification of the Customers computer system and telecommunications service required to use and access the Service as set out in the GRC Manager Technology Fact Sheet, as amended from time to time.

“Term” means the Initial Term and Renewal Term and any Subsequent Term.

“Territory” means Australia.

“Update” means Product Update or any change to the Service intended to remedy Issues, upgrade the version, include add-on features, enhance all TENDERTRACE customers use and experience of the Service and may exclude any change to the Software encompassed by the term “Customer-Driven Enhancement”.

1.2 Interpretation

In this document, unless the context requires otherwise:

1. the singular includes the plural and vice versa;
2. words denoting any gender include all genders;
3. where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
4. a reference to a Party, clause, paragraph, schedule or annexure is a reference to a Party, clause, paragraph, schedule or annexure to or of this document;
5. a reference to this document includes any schedules or annexures;
6. headings are for convenience and do not affect interpretation;
7. a reference to any document or agreement includes a reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time;
8. a reference to “$”, “A$” or “dollar” is a reference to Australian currency;
9. time is a reference to Australian Eastern Standard Time;
10. a reference to writing includes any method of representing words, figures or a reference to a symbols in a permanent and visible form;
11. words and expressions denoting natural persons include bodies corporate, partnerships, associations, firms, governments and governmental authorities and agencies and vice versa;
12. a reference to any legislation or to any provision of any legislation includes:
    1. any modification or re‑enactment of the legislation;
    2. any legislative provision substituted for, and all legislation, statutory instruments and regulations issued under, the legislation or provision; and
    3. where relevant, corresponding legislation in any Australian State or territory;
13. no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this document or any part of it; and
14. the words “including”, “for example”, “such as” or other similar expressions (in any form) are not words of limitation.