Background

TENDERTRACE is the owner or licensor of the Service and has agreed to provide the Service and Support Services to the Customer on the terms and conditions of this Agreement.

Agreed terms

1. Definitions and interpretation

1.1 Definitions

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

“Access Credentials” means the usernames and passwords issued to Customer-designated users to access the Service.

“Additional Charge” means any additional fees payable by the Customer as specified in Schedule 3.

“Agreement” means this Subscription Agreement, including all attached Schedules and referenced documents, as amended in writing by mutual agreement between the Parties.

“Annual Fee” means the amount set out in Paragraph 2 of Schedule 1, subject to any adjustment in accordance with Paragraph 3 of that Schedule.
“Anti-Bribery Laws” means all applicable anti-bribery and anti-corruption laws, including the UK Bribery Act 2010, the U.S. Foreign Corrupt Practices Act, and equivalent legislation in Australia and other relevant jurisdictions.

“Applicable Data Protection Law” means:

• where the Customer is located in the United Kingdom, the UK General Data Protection Regulation and the Data Protection Act 2018; or
• where the Customer is located in Australia, the Privacy Act 1988 (Cth); or
• any successor or replacement legislation to the foregoing.

“Business Day” means:

• where the Customer is located in the United Kingdom, any day (other than a Saturday, Sunday or public holiday) on which commercial banks are open for general business in London, United Kingdom; or
• where the Customer is located in Australia, any 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, suit, loss, action, demand, cause of action or proceeding of any kind, however arising whether threatened, actual, or contingent and whether for legal or other costs, damages, expenses, fees or losses.

“Commencement Date” means the date this Agreement commences, or the date the relevant Sales Order is signed by the Customer, whichever is earlier.

“Confidential Information” means any non-public information disclosed by one Party to the other, including but not limited to technical, commercial, financial or customer information, except where:

• it becomes publicly available through no fault of the Recipient;
• it was lawfully known by the Recipient prior to disclosure; or
• it is lawfully received from a third party not in breach of any confidentiality obligations.

“Customer Data” means all data, information, and materials provided, uploaded, submitted, or generated by the Customer or its users through use of the Service, including without limitation customer information, user access details, and any content created or stored within the Service. For the avoidance of doubt, the Customer retains all right, title and interest in and to the Customer Data, subject to the limited license granted to Tendertrace under Clause 10.2 to use Customer Data solely for the purpose of providing the Service.

“Customer Information” means the names, email addresses, and any other user access details of the Customer or its Group Members required to access the Service.

“Data” means any information processed or stored by the Service, including Customer Information and Customer Data.

“Discloser” means a Party that has disclosed Confidential Information 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’s product roadmap schedule which is released to all Tendertrace customers.

“Government Official” means any officer, employee, or representative of any government, government agency, public international organisation, political party, or any person acting in an official capacity.

“Group” means:

• where the relevant Party is subject to United Kingdom law, any parent or subsidiary undertaking of that Party, as defined in section 1162 of the Companies Act 2006; or
• where the relevant Party is subject to Australian law, each of its related bodies corporate, as defined in section 50 of the Corporations Act 2001 (Cth).

“Group Member” means any entity that forms part of a Party’s Group.

“Implementation Fee” means any amounts payable in accordance with an agreed 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:

• customer Information;
• marketing, product, and technical details;
• customer, supplier, sales and receivables information;
• the processes, mechanisms and methodologies used by the Party in its business; and
• all financial information relating to that Party.

“Infringement” means any claim or allegation of violation of Intellectual Property Rights or unauthorised use or misuse of any confidential or proprietary information.

“Initial Term” means the period beginning on the Commencement Date and ending 12 months thereafter (or such other period as specified in the Sales Order).

“Intellectual Property Rights” means patents, copyrights, design rights, database rights, trade secrets, know-how, and other similar proprietary rights (whether registered or unregistered), excluding trademarks unless expressly stated.

“Internet Site” means the internet website from which the Service is accessed by the Customer, being https://app.tendertrace.com/ or such other URL as Tendertrace may notify to the Customer from time to time.

“Insolvency Event” means, in respect of a Party:

• entering administration, liquidation, receivership, or any analogous process under applicable law;
• an inability to pay its debts when due;
• entering into an arrangement or compromise with creditors;
• ceasing or threatening to cease to carry on all or a material part of its business.

“Liability Cap” means an amount equal to the total fees paid or payable by the Customer to Tendertrace in the 12-month period immediately preceding the event giving rise to the liability.

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

“Personal Information” means information relating to an identified or identifiable individual, as defined under Applicable Data Protection Law.

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

“Renewal Term” means each successive 12-month period following the Initial Term or any prior Renewal Term, unless terminated in accordance with this Agreement.

“Sales Order” means a document provided by Tendertrace specifying the type and quantity of Services, Professional Services, and pricing, which 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 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 Internet Site, including all Updates. For the avoidance of doubt, Tendertrace retains all right, title and interest in and to the Service, including all Intellectual Property Rights therein and all modifications, enhancements, and derivative works thereof.

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

“Support Services” means the customer support and service delivery obligations of Tendertrace, as set out in Schedule 2.

“System Requirements” means the minimum technical and infrastructure standards required to access the Service, as specified in the Tendertrace Technology Specification or as updated from time to time.

“Term” means the Initial Term together with any Renewal Term(s).

“Territory” means the United Kingdom and/or Australia, as applicable based on the Customer’s location or as specified in the Sales Order.

“Update” means any product update or change to the Service intended to remedy issues, upgrade functionality, include additional features, or enhance the user experience, excluding any Enhancement.

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

• the singular includes the plural and vice versa;
• words denoting any gender include all genders;
• where a word or phrase is defined, other grammatical forms of that word or phrase have a corresponding meaning;
• a reference to a Party, clause, paragraph, schedule or annex is a reference to a Party, clause, paragraph, schedule or annex to or of this Agreement;
• a reference to this Agreement includes all schedules and annexes;
• headings are for convenience only and do not affect interpretation;
• a reference to any document or agreement includes that document or agreement as amended, restated, novated, supplemented or replaced from time to time;
• a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
• references to ‘$’, ‘dollars’, ‘AUD’ or ‘A$’ are to Australian dollars, and references to ‘£’, ‘GBP’, or ‘pounds sterling’ are to the lawful currency of the United Kingdom, as applicable based on the Customer’s location or as specified in the Sales Order;
• the words ‘including’, ‘for example’, ‘such as’ or other similar expressions are not words of limitation;
• no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this Agreement or any part of it;
• where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
• a reference to writing or written includes email unless expressly stated otherwise.

2. Term and auto-renewal

2.1 Initial Term

This Agreement shall commence on the Commencement Date and shall continue for the Initial Term unless terminated earlier in accordance with the provisions of this Agreement.

2.2 Auto-Renewal

Upon expiry of the Initial Term, and thereafter upon expiry of each Renewal Term, this Agreement shall automatically renew for successive Renewal Terms unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term.

2.3 Renewal Notification

Tendertrace shall notify the Customer via email or another agreed-upon communication method at least thirty (30) days before the end of the then-current Initial Term or Renewal Term, reminding the Customer of the upcoming automatic renewal. This notification shall provide the Customer with details of the renewal, including the renewal date, the duration of the Renewal Term, and any changes to fees or terms (subject to Clause 2.4).

2.4 Renewal Pricing

Unless otherwise specified in writing by Tendertrace at least thirty (30) days prior to renewal, the subscription fees for each Renewal Term shall be the Customer’s then-current fees applicable to the Service, subject to any adjustments as set out in Schedule 1.

2.5 Opt-Out of Auto-Renewal

The Customer may opt out of auto-renewal by providing written notice to Tendertrace at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term, in accordance with Clause 20 (Notices). Upon receipt of such notice, this Agreement shall terminate at the end of the then-current term without further obligation on either Party, subject to Clause 16 (Effects of Termination).

3. Access to the service

3.1 Grant of Access

Upon full execution of this Agreement and receipt of payment of the initial Annual Fee (or the first instalment thereof), Tendertrace shall provide the Customer’s designated users with Access Credentials to access the Service via the Internet Site.

3.2 Nature of Access Rights

The Access Credentials are for the exclusive use of the Customer and its Group Members and are non-transferable. The Customer shall not permit any third party (other than its Group Members) to access or use the Service without Tendertrace’s prior written consent.

3.3 Customer Obligations Regarding Access

The Customer acknowledges and agrees that:

• its designated users shall adhere to the Service access terms and conditions set out in this Agreement, including the Acceptable Use Policy referenced in Clause 4.1;
• it is responsible for maintaining the confidentiality of the Access Credentials and for all activities that occur under those Access Credentials;
• it shall notify Tendertrace immediately upon becoming aware of any unauthorised use of the Access Credentials or any other breach of security relating to the Service;
• it shall ensure that each designated user complies with the terms of this Agreement and shall be liable for any breach by such users as if the Customer itself had committed the breach.

3.4 Group Member Access

Use of the Service by designated users of Group Members shall only be permitted for so long as they remain a Group Member of the Customer. The Customer shall promptly notify Tendertrace if any entity ceases to be a Group Member and shall immediately revoke such entity’s access to the Service.

4. Referenced policies

4.1 Incorporation of Policies

The Customer’s use of the Service is subject to the following policies, which form part of this Agreement and may be updated from time to time by Tendertrace in accordance with Clause 4.3:

• Acceptable Use Policy, which governs permitted and prohibited uses of the Service;
• Information Security Policy, which describes the security measures and responsibilities applied to protect Customer Data;
• Data Retention Policy, which explains how and for how long Customer Data is retained and deleted.

4.2 Access to Policies

The policies referenced in Clause 4.1 are accessible at: https://tendertrace.com/policies or such other URL as Tendertrace may notify to the Customer from time to time.

4.3 Updates to Policies

Tendertrace may update the policies referenced in Clause 4.1 from time to time. Tendertrace shall provide the Customer with at least thirty (30) days’ prior written notice of any material changes to such policies. The Customer’s continued use of the Service following the effective date of any such change shall constitute acceptance of the updated policies. If the Customer does not agree to any material change, it may terminate this Agreement in accordance with Clause 16.2.

5. Support services

5.1 Provision of Support Services

In consideration of the Customer’s payment of the Annual Fee, Tendertrace shall provide the Support Services to the Customer during the Term on the terms and conditions set out in this Agreement and in Schedule 2.

5.2 Service Levels

Tendertrace shall use commercially reasonable efforts to provide the Support Services in accordance with the service levels described in Schedule 2.

5.3 Customer Cooperation

The Customer shall take reasonable steps to comply with all instructions, policies, and procedures provided by Tendertrace in relation to the delivery of the Support Services and shall provide Tendertrace with such information and assistance as Tendertrace may reasonably require to perform the Support Services.

6. Fees and payment

6.1 Fees Payable

The Customer agrees to pay to Tendertrace:

• the Annual Fee;
• any Implementation Fees or other professional services fees as determined in accordance with any Statement of Work; and
• any Additional Charges as specified in Schedule 3.

6.2 Enhancements

Tendertrace shall provide Enhancements to the Customer at additional cost where the Enhancement request requires an accelerated timeframe beyond the scope and schedule of Tendertrace’s standard Service product roadmap. The fees for Enhancements shall be agreed in writing between the Parties prior to commencement of any Enhancement work.

6.3 Invoicing and Payment Terms

Tendertrace shall invoice the Customer for the Annual Fee on or about the Commencement Date and on each anniversary thereof. The Customer shall pay all invoices in full within thirty (30) days of the date of invoice, unless otherwise agreed in writing. Payment shall be made in the currency specified in the Sales Order or Schedule 1.

6.4 Suspension for Non-Payment

If the Customer fails to pay any undisputed invoice within the period specified in Clause 6.3, Tendertrace may, without prejudice to any other rights or remedies:

• charge interest on the overdue amount at the rate of 4% per annum above the base lending rate of the Bank of England (for UK Customers) or the Reserve Bank of Australia (for Australian Customers) from time to time, accruing on a daily basis from the due date until payment is made in full; and
• suspend the provision of the Service if the outstanding amount remains unpaid for a further ten (10) Business Days following written notice to the Customer of Tendertrace’s intention to suspend.

6.5 Taxes

All fees and charges payable under this Agreement are exclusive of any applicable value added tax (VAT), goods and services tax (GST), sales tax, or other similar taxes or duties. The Customer shall pay any such taxes or duties as may be applicable, and Tendertrace shall provide valid tax invoices as required by applicable law.

7. Customer obligations

7.1 User Training

The Customer shall ensure that its designated users complete Tendertrace’s onboarding and training services or, if unable to attend such training, that designated users utilise the user guide available at https://docs.tendertrace.com/guide to develop their capability in the use of the Service.

7.2 System Requirements

The Customer is responsible for ensuring that its computer systems and telecommunications services meet the System Requirements necessary to access and use the Service. Tendertrace shall not be liable for any inability to access the Service resulting from the Customer’s failure to meet the System Requirements.

7.3 Compliance with Laws

The Customer shall comply with all applicable laws, regulations, and industry standards in its use of the Service and shall not use the Service for any unlawful purpose or in any manner inconsistent with this Agreement or the Acceptable Use Policy.

7.4 Data Accuracy

The Customer is responsible for the accuracy, quality, and legality of Customer Data and the means by which the Customer acquired such data. Tendertrace shall not be responsible for any errors, inaccuracies, or illegalities in Customer Data.

8. Data protection and privacy

8.1 Compliance with Data Protection Laws

Each Party shall comply with all Applicable Data Protection Laws in connection with the performance of its obligations and exercise of its rights under this Agreement.

8.2 Data Processing

To the extent that Tendertrace processes Personal Information on behalf of the Customer in providing the Service:

• the Customer is the data controller (or equivalent under applicable law) and Tendertrace is the data processor (or equivalent);
• Tendertrace shall process Personal Information only in accordance with the Customer’s documented instructions (as set out in this Agreement or as otherwise notified in writing by the Customer) and for the purpose of providing the Service;
• Tendertrace shall implement appropriate technical and organisational measures to protect Personal Information against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure, as described in the Information Security Policy;
• Tendertrace shall not transfer Personal Information outside of the Territory without the Customer’s prior written consent, unless required by applicable law or necessary for the performance of the Service, in which case Tendertrace shall implement appropriate safeguards as required by Applicable Data Protection Law.

8.3 Data Breach Notification

Tendertrace shall notify the Customer without undue delay upon becoming aware of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Information processed under this Agreement. Such notification shall include:

• a description of the nature of the breach;
• the categories and approximate number of data subjects and Personal Information records concerned;
• the likely consequences of the breach; and
• the measures taken or proposed to be taken to address the breach and mitigate its possible adverse effects.

8.4 Data Subject Rights

Tendertrace shall, to the extent reasonably practicable and taking into account the nature of the processing, assist the Customer in responding to requests from data subjects seeking to exercise their rights under Applicable Data Protection Law.

8.5 Data Retention and Deletion

Tendertrace shall retain and delete Customer Data in accordance with the Data Retention Policy. Upon termination or expiry of this Agreement, Tendertrace shall (at the Customer’s option) return or securely delete all Customer Data within thirty (30) days, subject to any legal or regulatory requirements to retain certain data.

9. Acceptable use

9.1 Permitted Use

The Customer shall use the Service solely for its internal business purposes and in accordance with this Agreement and the Acceptable Use Policy.

9.2 Prohibited Activities

Without limiting the generality of the Acceptable Use Policy, the Customer shall not:

• use the Service in any manner that violates any applicable law or regulation;
• attempt to gain unauthorized access to the Service or any related systems or networks;
• introduce or permit the introduction of any virus, worm, Trojan horse, or other malicious code into the Service;
• copy, modify, adapt, reverse engineer, decompile, or disassemble any portion of the Service;
• use the Service to provide services to third parties or for any commercial purpose other than the Customer’s internal business use;
• remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) contained in or displayed through the Service;
• use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party’s use of the Service.

9.3 Monitoring and Enforcement

Tendertrace reserves the right to monitor the Customer’s use of the Service to ensure compliance with this Agreement and to protect the integrity and security of the Service. If Tendertrace reasonably believes that the Customer has breached this Clause 9, Tendertrace may suspend the Customer’s access to the Service pending investigation and resolution of the breach.

10. Artificial intelligence and machine learning

10.1 Prohibition on AI Training with Customer Data

Tendertrace shall not use, and shall not permit any third party (including any AI model provider, subcontractor, or affiliate) to use, Customer Data or Personal Information to train, develop, improve, or enhance any artificial intelligence model, machine learning algorithm, large language model, or other automated decision-making system (collectively, “AI Systems”), except as expressly permitted under Clause 10.5.

10.2 AI Features in the Service

Where the Service incorporates AI Systems or AI-powered features (“AI Features”), Tendertrace shall:

• clearly disclose the existence and functionality of such AI Features in the Service documentation or user interface;
• provide the Customer with the ability to disable or opt-out of AI Features where technically feasible, without materially degrading the core functionality of the Service;
• ensure that any AI Features comply with all applicable laws and regulations, including but not limited to the EU Artificial Intelligence Act, UK AI regulation framework, and Australian AI Ethics Framework;
• implement appropriate technical and organizational measures to ensure the accuracy, reliability, and security of AI-generated outputs.

10.3 AI-Generated Content

To the extent that the Service generates content, insights, analysis, or recommendations through the use of AI Systems (“AI-Generated Content”):

• the Customer acknowledges that AI-Generated Content is provided on an ‘as-is’ basis and may contain errors, inaccuracies, or biases;
• the Customer shall be solely responsible for reviewing, verifying, and validating any AI-Generated Content before relying upon it for any business decision or purpose;
• subject to Clause 12.1 (Service Intellectual Property), the Customer shall own all right, title, and interest in AI-Generated Content that is specifically created in response to the Customer’s inputs or prompts, provided that such AI-Generated Content does not infringe any third-party rights;
• Tendertrace makes no warranty that AI-Generated Content is accurate, complete, reliable, current, or error-free, or that it will meet the Customer’s requirements or expectations.

10.4 Transparency and Disclosure

Upon the Customer’s reasonable request, Tendertrace shall provide information regarding:

• the types of AI Systems used in the Service;
• the purpose and functionality of each AI Feature;
• the categories of data used to train or operate AI Systems (excluding proprietary technical details);
• any known limitations, risks, or biases associated with AI Features.

Tendertrace shall not be required to disclose proprietary information, trade secrets, or technical specifications that would compromise the security or competitive position of the Service.

10.5 Opt-In for AI Training (Aggregated Data Only)

Notwithstanding Clause 10.1, the Customer may elect to permit Tendertrace to use aggregated, anonymized, and de-identified data derived from the Customer’s use of the Service to train or improve AI Systems, provided that:

• the Customer provides express written consent (opt-in) for such use;
• all data is processed in accordance with Applicable Data Protection Law and is aggregated and anonymized such that it cannot reasonably be used to identify the Customer, any individual, or any Personal Information;
• the Customer may withdraw consent at any time by providing written notice to Tendertrace, whereupon Tendertrace shall cease using such data for AI training purposes (except to the extent already incorporated into deployed models);
• Tendertrace shall not use any identifiable Customer Data or Personal Information for AI training under any circumstances, even with consent.

10.6 Third-Party AI Providers

Where Tendertrace uses third-party AI Systems or AI service providers in connection with the Service:

• Tendertrace shall ensure that such third-party providers are contractually bound by data protection and confidentiality obligations no less protective than those set out in this Agreement;
• Tendertrace shall prohibit third-party AI providers from using Customer Data or Personal Information to train, improve, or develop their own AI models or systems;
• Tendertrace shall disclose the identity of material third-party AI providers upon the Customer’s reasonable request;
• Tendertrace shall remain fully responsible and liable for any acts or omissions of third-party AI providers as if they were Tendertrace’s own acts or omissions.

10.7 Human Oversight and Review

Where AI Systems are used to make decisions that have legal or similarly significant effects concerning individuals, or where required by applicable law:

• Tendertrace shall implement appropriate human oversight and review mechanisms;
• affected individuals shall have the right to request human review of AI-generated decisions;
• Tendertrace shall maintain logs and audit trails of AI-generated decisions for a period of at least twelve (12) months or as required by applicable law.

10.8 AI Compliance and Updates

Tendertrace shall:

• monitor developments in AI regulation and best practices in the jurisdictions where the Service is provided;
• update AI Features and policies as necessary to maintain compliance with applicable AI laws and regulations;
• notify the Customer of any material changes to AI Features or AI-related practices that may affect the Customer’s use of the Service, providing at least thirty (30) days’ prior written notice where reasonably practicable.

10.9 AI Indemnity

In addition to the indemnity provided in Clause 16.2, Tendertrace shall indemnify, defend, and hold harmless the Customer against any Claims arising from:

• any breach by Tendertrace of Clause 10.1 (prohibition on using Customer Data for AI training);
• any violation of applicable AI laws or regulations by Tendertrace’s AI Systems or AI Features;
• any claim that Tendertrace’s use of AI Systems in the Service infringes third-party Intellectual Property Rights.

This indemnity is subject to the same conditions and exclusions set out in Clause 16.2 and does not apply to the extent that any Claim arises from the Customer’s misuse of AI Features or failure to follow Tendertrace’s documented instructions for use of AI-powered functionality.

11. Intellectual property rights

11.1 Service Intellectual Property

Tendertrace and its licensors own all right, title, and interest in and to the Service, including all Intellectual Property Rights therein. This Agreement does not transfer or assign to the Customer any Intellectual Property Rights in the Service. All rights not expressly granted to the Customer in this Agreement are reserved by Tendertrace.

11.2 Customer Data Ownership and License

The Customer retains all right, title, and interest in and to the Customer Data, including all Intellectual Property Rights therein. The Customer hereby grants to Tendertrace a non-exclusive, royalty-free, worldwide license to use, copy, store, transmit, and display Customer Data solely to the extent necessary to provide the Service and Support Services to the Customer in accordance with this Agreement.

11.3 Enhancements and Modifications

Tendertrace shall own all right, title, and interest in and to any modifications, enhancements, derivative works, or improvements to the Service, whether developed by Tendertrace independently or based on Customer feedback or suggestions.

11.4 Aggregated and Anonymised Data

Notwithstanding Clause 11.2, Tendertrace may collect, use, and analyze aggregated and anonymised data derived from the Customer’s use of the Service for purposes of improving and enhancing the Service, conducting research and analytics, and developing new products and services, provided that such data does not identify the Customer or any individual.

11.5 Infringement Claims

The Customer shall promptly notify Tendertrace in writing of any actual or suspected infringement of Tendertrace’s Intellectual Property Rights in the Service that comes to the Customer’s attention.

12. Confidentiality

12.1 Confidentiality Obligations

Each Party (the “Recipient“) shall:

• keep confidential all Confidential Information of the other Party (the “Discloser“);
• not use the Discloser’s Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement;
• not disclose the Discloser’s Confidential Information to any third party without the Discloser’s prior written consent, except to the Recipient’s employees, officers, advisers, and subcontractors who need to know such information for purposes of this Agreement and who are bound by confidentiality obligations no less protective than those set out in this Clause 12.

12.2 Exceptions

The obligations in Clause 12.1 shall not apply to Confidential Information that:

• is or becomes publicly available through no fault of the Recipient;
• was lawfully in the Recipient’s possession prior to disclosure by the Discloser;
• is lawfully received by the Recipient from a third party without breach of any confidentiality obligation;
• is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.

12.3 Compelled Disclosure

If the Recipient is required by law, court order, or regulatory authority to disclose any of the Discloser’s Confidential Information, the Recipient shall, to the extent legally permitted, promptly notify the Discloser of such requirement and cooperate with the Discloser in seeking protective arrangements or limitations on disclosure.

12.4 Return or Destruction

Upon termination or expiry of this Agreement, or upon the Discloser’s request, the Recipient shall promptly return or securely destroy all Confidential Information of the Discloser in its possession or control, except to the extent that the Recipient is required by law or professional regulations to retain such information.

13. Warranties

13.1 Tendertrace Warranties

Tendertrace warrants that:

• it has the expertise and resources to provide the Service and Support Services;
• it will provide the Service and Support Services in a professional and workmanlike manner in accordance with industry standards and in material conformity with this Agreement;
• the Service will perform substantially in accordance with the documentation provided by Tendertrace.

14.2 Customer Warranties

The Customer warrants that:

• it has full power and authority to enter into and perform its obligations under this Agreement;
• its use of the Service will comply with all applicable laws and regulations;
• it owns or has the necessary rights to provide Customer Data to Tendertrace and to grant the license set out in Clause 10.2.

13.3 Exclusion of Other Warranties

Except as expressly set out in this Agreement, all warranties, conditions, and other terms implied by statute, common law, or otherwise (including without limitation warranties of merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement) are, to the fullest extent permitted by law, excluded from this Agreement. Nothing in this Clause 13.3 shall exclude or limit any warranty, condition, or other term which may not lawfully be excluded or limited under applicable consumer protection legislation.

14. Indemnities

14.1 Customer Indemnity

The Customer shall indemnify, defend, and hold harmless Tendertrace, its officers, directors, employees, and agents against all Claims arising directly from:

• the Customer’s or its Group Members’ breach of this Agreement;
• any unauthorised or unlawful use of the Service by the Customer or its Group Members;
• any claim that Customer Data infringes the Intellectual Property Rights or other rights of any third party;
• the Customer’s violation of any applicable law or regulation.

This indemnity does not apply to the extent that any Claim arises from Tendertrace’s breach of this Agreement, negligence, or wilful misconduct.

14.2 Tendertrace Indemnity

Tendertrace shall indemnify, defend, and hold harmless the Customer, its officers, directors, employees, and agents against all Claims arising from any allegation that the Customer’s use of the Service in accordance with this Agreement infringes the Intellectual Property Rights of any third party, provided that:

• the Customer promptly notifies Tendertrace in writing of any such Claim;
• the Customer grants Tendertrace sole control of the defence and settlement of the Claim; and
• the Customer provides reasonable assistance to Tendertrace in the defence of the Claim.

This indemnity does not apply to the extent that any Claim arises from:

• modifications to the Service made by the Customer or at the Customer’s direction;
• use of the Service in combination with third-party products or services not approved by Tendertrace;
• the Customer’s breach of this Agreement or use of the Service in violation of applicable law.

14.3 Remedies for Infringement Claims

If the Service or any part thereof becomes, or in Tendertrace’s opinion is likely to become, the subject of an infringement claim, Tendertrace may, at its option and expense:

• procure for the Customer the right to continue using the Service;
• modify the Service so that it is no longer infringing; or
• replace the Service with a non-infringing functionally equivalent service.

15. Limitation of liability

15.1 Excluded Liabilities

Nothing in this Agreement shall exclude or limit either Party’s liability for:

• death or personal injury caused by negligence;
• fraud or fraudulent misrepresentation;
• breach of any obligations as to title or quiet possession implied by statute;
• a Party’s indemnification obligations under Clause 14;
• any other liability which cannot be excluded or limited by applicable law.

15.2 Exclusion of Consequential Loss

Subject to Clause 16.1, neither Party shall be liable to the other Party for any indirect, special, incidental, punitive, or consequential loss or damage, or for any loss of profits, revenue, business, contracts, anticipated savings, goodwill, or data, whether arising in contract, tort (including negligence), breach of statutory duty, or otherwise, even if that Party has been advised of the possibility of such loss or damage.

15.3 Total Liability Cap

Subject to Clauses 15.1 and 15.2, the total aggregate liability of either Party to the other Party under or in connection with this Agreement, whether arising in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the Liability Cap.

15.4 Statutory Rights

Where any legislation implies into this Agreement any warranty, condition, or other term which cannot be lawfully excluded but which may be limited, Tendertrace’s liability for breach of such term shall, to the extent permitted by law, be limited (at Tendertrace’s option) to:

• the resupply of the Service or Support Services; or
• the payment of the cost of having the Service or Support Services resupplied.

16. Termination

16.1 Termination for Convenience

Either Party may terminate this Agreement for convenience by giving the other Party at least thirty (30) days’ prior written notice, provided that such termination shall only take effect at the end of the then-current Initial Term or Renewal Term. No refund of prepaid fees shall be due for early termination under this Clause 16.1.

16.2 Termination for Material Policy Changes

The Customer may terminate this Agreement by giving Tendertrace written notice within thirty (30) days of receiving notification of a material change to the policies referenced in Clause 4.1, provided that the Customer does not agree to such change. In such case, termination shall take effect on the effective date of the relevant policy change, and Tendertrace shall refund to the Customer any prepaid fees for the portion of the Term remaining after the effective date of termination.

16.3 Termination for Cause

Either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:

• the other Party commits a material breach of this Agreement which, if capable of remedy, is not remedied within thirty (30) days of receiving written notice specifying the breach and requiring its remedy; or
• an Insolvency Event occurs in relation to the other Party.

16.4 Termination for Suspension

If Tendertrace suspends the provision of the Service pursuant to Clause 6.4 or Clause 9.3, and the circumstances giving rise to the suspension are not remedied within thirty (30) days of the suspension, Tendertrace may terminate this Agreement by giving written notice to the Customer.

17. Effects of termination

17.1 Immediate Effects

Upon termination or expiry of this Agreement for any reason:

• all rights and licenses granted to the Customer under this Agreement shall immediately cease;
• the Customer shall immediately cease all use of the Service and shall not attempt to access the Service;
• each Party shall return or destroy all Confidential Information of the other Party in accordance with Clause 11.4;
• Tendertrace shall return or delete Customer Data in accordance with Clause 8.5.

17.2 Payment Obligations

Termination or expiry of this Agreement shall not affect any accrued rights or liabilities of either Party. The Customer shall pay to Tendertrace all fees and charges payable under this Agreement up to and including the effective date of termination or expiry.

17.3 Survival

The following provisions shall survive termination or expiry of this Agreement: Clauses 1 (Definitions and Interpretation), 8.5 (Data Retention and Deletion), 11 (Intellectual Property Rights), 12 (Confidentiality), 14 (Indemnities), 15 (Limitation of Liability), 17 (Effects of Termination), 20 (Notices), 22 (General Provisions), and 23 (Governing Law and Jurisdiction).

18. Publicity

18.1 Use of Customer Name

Subject to Clause 18.2, Tendertrace may use the Customer’s name and logo for publicity purposes, including on Tendertrace’s website, in marketing materials, and in case studies, to indicate that the Customer is a customer of Tendertrace.

18.2 Restrictions

The Customer may request that Tendertrace cease using the Customer’s name and logo for publicity purposes by giving written notice to Tendertrace. Tendertrace shall comply with such request within thirty (30) days of receipt. Any use of the Customer’s name or logo shall not imply any endorsement, sponsorship, or affiliation of Tendertrace by the Customer unless such relationship has been expressly established in a separate written agreement.

19. Tax

19.1 Exclusive of Tax

All product and services payable under this Agreement are exclusive of any applicable value added tax (VAT), goods and services tax (GST), sales tax, or other similar taxes or duties imposed by any tax authority.

19.2 GST (Australia)

Where the Customer is located in Australia:

• if GST is or will be payable in respect of any supply under this Agreement, the consideration payable for that supply shall be increased by an amount equal to the GST payable, and the Customer shall pay that increased amount at the same time as the consideration is otherwise payable;
• the Customer shall provide Tendertrace with its Australian Business Number (ABN) to enable Tendertrace to issue valid tax invoices.

19.3 VAT (United Kingdom)

Where the Customer is located in the United Kingdom, all fees and charges shall be subject to VAT at the prevailing rate. Tendertrace shall issue valid VAT invoices as required by applicable law.

20. Notices

20.1 Form of Notices

Any notice required to be given under this Agreement shall be in writing and may be delivered by:

• email to the address specified below or such other address as has been notified in writing by the intended recipient;
• hand delivery to the address of the intended recipient;
• pre-paid recorded delivery, registered post, or international courier.

20.2 Deemed Receipt

A notice shall be deemed to have been received:

• if sent by email, twenty-four (24) hours after the time the email was sent, provided that no delivery failure notification has been received by the sender;
• if delivered by hand, at the time of delivery if delivered during normal business hours (9:00 AM to 5:00 PM local time on a Business Day), or at 9:00 AM on the next Business Day if delivered outside those hours;
• if sent by pre-paid recorded delivery, registered post, or courier, at the time delivery is recorded by the delivery service, or if undelivered, five (5) Business Days after posting (or ten (10) Business Days if sent internationally).

20.3 Contact Details

The contact details for notices under this Agreement are:

For Tendertrace:
Email: hello@tendertrace.com
Corporate Office: 526/368 Sussex St, Sydney NSW 2000

For Customer:
As specified in the Sales Order

20.4 Changes to Contact Details

Either Party may update its contact details for notices by giving written notice to the other Party in accordance with this Clause 20.

21. Assignment and subcontracting

21.1 Customer Restrictions

The Customer shall not assign, transfer, novate, subcontract, or otherwise deal with any of its rights or obligations under this Agreement, in whole or in part, without the prior written consent of Tendertrace, such consent not to be unreasonably withheld or delayed.

21.2 Tendertrace Rights

Tendertrace may assign, transfer, or novate its rights and obligations under this Agreement to:

• a Group Member, affiliate, or successor in connection with a merger, acquisition, or corporate restructuring; or
• a third-party purchaser of all or substantially all of its business, provided that such party agrees in writing to assume Tendertrace’s obligations under this Agreement.

21.3 Subcontracting

Tendertrace may subcontract the performance of any of its obligations under this Agreement to qualified third-party service providers, provided that Tendertrace remains responsible for the acts and omissions of its subcontractors as if they were its own.

21.4 No Third-Party Rights

Where applicable law permits, this Agreement does not confer any rights on any third party to enforce any term of this Agreement. For the avoidance of doubt, where the Customer is located in the United Kingdom, the Parties expressly exclude the application of the Contracts (Rights of Third Parties) Act 1999.

22. General provisions

22.1 Severability

If any provision of this Agreement is held by a court or tribunal of competent jurisdiction to be invalid, illegal, or unenforceable, that provision shall, to the minimum extent necessary, be deemed deleted, and the validity and enforceability of the remaining provisions shall not be affected.

22.2 Waiver

No waiver of any right or remedy under this Agreement shall be effective unless given in writing and signed by or on behalf of the waiving Party. A waiver shall only apply to the specific instance and purpose for which it is given and shall not constitute a continuing waiver. Any delay, neglect, or forbearance by a Party in enforcing any provision of this Agreement shall not be construed as a waiver or prejudice any rights that Party may have.

22.3 Entire Agreement

This Agreement (including all Schedules and referenced policies) constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior discussions, agreements, representations, and understandings, whether oral or written. To the fullest extent permitted by law, each Party confirms that it has not relied on any statement, representation, warranty, or understanding not expressly set out in this Agreement.

22.4 Survival

Any provision of this Agreement which expressly or by implication is intended to survive termination or expiry of this Agreement shall remain in full force and effect, as specified in Clause 17.3.

22.5 Counterparts

This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. A counterpart may be signed electronically and shall be treated as valid.

22.6 Amendments

Tendertrace may, with the Customer’s prior written consent (such consent not to be unreasonably withheld or delayed), update Schedule 2 on any anniversary of the Commencement Date to reflect its then-current standard support service terms, provided the changes do not materially reduce the level of support. Except as expressly provided in this Clause 22.6 or Clause 4.3, this Agreement may only be amended in writing signed by duly authorised representatives of both Parties.

22.7 Successors and Assigns

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, permitted assigns, and (where applicable) legal representatives.

22.8 Further Assurances

Each Party shall, at its own cost, promptly execute and deliver such documents and perform such acts as may be reasonably required to give full effect to this Agreement and the transactions contemplated by it.

23. Governing law and jurisdiction

23.1 Governing Law

This Agreement shall be governed by and construed in accordance with:

• where the Customer is located in the United Kingdom, the laws of England and Wales; or
• where the Customer is located in Australia, the laws of New South Wales, Australia.

23.2 Jurisdiction

The Parties irrevocably agree that:

• where the Customer is located in the United Kingdom, the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation; or
• where the Customer is located in Australia, the courts of New South Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement, and each Party waives any claim or objection based on absence of jurisdiction or inconvenient forum.

24. Anti-bribery and corruption

24.1 Compliance with Anti-Bribery Laws

Each Party shall comply with all Anti-Bribery Laws applicable to it in connection with the performance of this Agreement. Each Party warrants that it has not, and will not, in connection with the performance of this Agreement, engage in any activity, practice, or conduct that would constitute an offence under any Anti-Bribery Laws.

24.2 Gifts and Conflicts of Interest

Except as permitted under written internal policies, neither Party (nor its employees, consultants, agents, or Group Members) shall:

• offer, give, solicit, or accept any gift, hospitality, fee, reward, or other benefit of more than nominal value in connection with this Agreement that could be perceived as intended to influence a business decision;
• enter into any private business or financial arrangement with any employee or agent of the other Party that might conflict with that person’s duties or the interests of their employer, without the other Party’s prior written consent.

24.3 Improper Payments

Neither Party, nor its personnel or affiliates, shall:

• offer, promise, give, or authorise any payment or benefit (whether directly or indirectly) to any Government Official, political party, party official, or candidate for political office for the purpose of securing any improper business advantage, favourable treatment, or influencing any act or decision;
• knowingly allow any third party to do so on its behalf.

24.4 Internal Controls and Reporting

Each Party shall:

• maintain adequate procedures designed to prevent bribery and corruption;
• promptly notify the other Party in writing of any suspected or actual breach of this Clause 24;
• cooperate in good faith with any investigation related to a suspected breach of this Clause 24.

24.5 Right to Terminate

Any breach of this Clause 24 shall be deemed a material breach of this Agreement, entitling the non-breaching Party to terminate this Agreement immediately by written notice, without prejudice to any other rights or remedies available to it.