You confirm that all your Authorised Users understand the terms of the Agreement and that their use of the Services and their access to the Website is undertaken in accordance with the terms of the Agreement. Where you use the Services as an authorised representative (e.g. you are an employee of a company), you undertake to provide a copy of the Terms of Service to each principal, company officer, partner, or other person that you represent. This Agreement will bind that organisation and those people.
This Agreement does not apply to the services that illion Tenderlink provides to a Portal Owner.
In this Agreement:
“Add-Ons” is defined in clause 8.2
“Add-On Fee” is defined in clause 8.2
“Adcentre Portal” is defined in clause 2.3.
“Authorised Users” means and includes any person, including Personnel, who uses the Services or accesses the Website either directly or on your behalf in accordance with the terms of this Agreement.
“Casual Advertisers” means a person, company or other organisation or entity which advertises one-off public eNotices on the Adcentre Portal.
“DDR Service Agreement” means the Direct Debit Service Agreement between you and the payment services provider which sets out the terms of your direct debit arrangement and authorises your direct debit payment amounts to be paid from your Nominated Account or Card to us.
“eNotices” means and includes tender notices, Request for Information (“RFI”) notices, Request for Proposal (“RFP”) notices, advertisements, messages, addendums and updates in any form, including text, software, artwork, graphics, photographs, images, sounds, music, audio material, video material and audio-visual material uploaded and available on the Website. eNotices can be Private eNotices and Public eNotices.
“eNotification Portal” is defined in clause 2.3.
“illion TenderLink”, “we” or “us” or “our” means illion TenderLink Limited (Co No. 3202766) where you are accessing the Services in New Zealand and illion Australia Pty Ltd (ABN 95 006 399 677) where you are accessing the Services in Australia.
“Nominated Account” or “Card” means the bank account (which must be held with an authorised deposit taking institution (ADI)), credit card or debit card (which must be issued by an ADI) which you nominate your direct debit amounts to be paid from pursuant to the terms of your DDR Service Agreement.
“Personal Information” has the meaning given in the Privacy Act 1988 (Cth).
“Personnel” means directors, officers, employees, agents, contractors, Prime Users and Authorised Users.
“Portal Owner” means a person, company or other organisation or entity that has entered into a separate agreement with illion TenderLink for the use and management of a customised eProcurement Portal.
“Prime User” means the designated owner of and person responsible for your illion TenderLink account. The Prime User will be considered your billing and key point of contact. Each illionTenderLink account can only have one Prime User, by default this will always be the person that sets up the illion TenderLink account. You can make a request for changing the details of Prime User.
“Private eNotices” means eNotices advertised to selected users by invitation and not publicly available on the Website.
“Procurer” means a person, company or other organisation or entity that releases or advertises a request to purchase goods and/or services, including requests for tender, RFP, RFI or expressions of interest.
“Public eNotices” means eNotices other than Private eNotices which are advertised publicly on the Website and can be accessed by any user.
“Services” is defined in clause 2.3.
“Site Content” is defined in clause 6.1.
“Subscriber” means a person, company or other organisation or entity who registers for a paid Subscription Plan on the Website.
“Subscription Fees” means the fees required to be paid under a Subscription Plan
“Subscription Plan” refers to the included features, access restrictions and usage limits applicable to Subscribers on the eNotification Portal, including fees, payment and billing terms.
“Tenderer” means a person, company or other organisation or entity that is seeking to participate i.e. submit tender response or tender bid to an eNotice advertised on the Website.
“you” or “your” means any person, company or other organisation or entity who has registered to access the Website and use the Services pursuant to the terms of the Agreement and includes Authorised Users, a Tenderer, a Subscriber, a Procurer and a Casual Advertiser as the case may be. If your organisation is trading as a trust, you agree that the trustee will be deemed as the registered person who is bound by the terms of the Agreement and that the assets of the trust will be available to pay any costs for use of the Service.
“Website” means the illion TenderLink website found at https://illion.tenderlink.com, any portal hosted by illion TenderLink, including the illion TenderLink Notification Portal found at https://portal.tenderlink.com/notification, any other sub-domains of illion TenderLink, and any other webpage on which Services are provided by us including Site Content that is made available on the website and the webpages.
2.1 illion TenderLink is a collaborative eProcurement solution. The solution is designed to streamline the sourcing, tendering and supplier management processes between Procurers, Tenderers and Subscribers through the Website which are developed and provided on a software-as-a-service basis, hosted and managed by illion TenderLink. Authorised Users can access and use the Website via the internet, using a standard web browser.
2.2 Each illion TenderLink user can be set up to have different access based on the Services they wish to access. This Agreement applies to all users who use the Services and/or access the Website.
2.3 The following Services are provided by illion TenderLink (together, the “Services”):
(a) eProcurement Portal – refers to a custom branded portal developed and created by illion TenderLink for Portal Owners pursuant to a separate agreement. Access to an eProcurement Portal is available to Tenderers and Subscribers subject to registration and any additional terms dictated by the Portal Owner;
(b) eNotification Portal – refers to a centralised portal hosted and managed by illion TenderLink for the collection and publishing of public eNotices. Access to the eNotification Portal is available to Subscribers based on their selected Subscription Plan and allows Subscribers to set-up search profiles to receive daily email notifications of new eNotices that match their selected geographical regions, industry and sub-industry categories; and
(c) Adcentre Portal – refers to the portal hosted by illion TenderLink found at https://portal.tenderlink.com/adcentre that allows Casual Advertisers to advertise one-off public eNotices. Access to an Adcentre Portal is available to Casual Advertisers, Tenderers and Subscribers subject to registration.
You will be allowed access to the Services only after your registration is accepted by us. We reserve our right not to accept your registration.
2.4 When accessing our Website and/or using our Services you must:
(a) comply with the terms of this Agreement and any technical and instructional documentation we provide you from time to time;
(b) comply with any reasonable directions issued by us from time to time;
(c) promptly report any errors, defects or malfunctions to us;
(d) not do anything which is intended or reasonably likely to damage, impair, interrupt or interfere with our Services and/or the equipment on which it is installed;
(e) not alter, modify, decompile, disassemble, reverse engineer, sub-licence or change our software or integrate it with or into any other software or create a derivative work from our software by any means; and
(f) not purport to grant to a third party any right to access or use our software except as permitted by us.
2.5 We are not liable in any way for your use of the Services with an unsupported web browser. In particular, we are not liable for any functionality errors or security breaches that occur through your use of a non-supported web browser or operating system.
3 EMAIL, PASSWORD AND SECURITY
3.1 At the time of your account creation or user registration, your access to the Website will be provided to the email address that you provide to us which we will hold in our system along with the details of your Prime User. It is your responsibility to notify us of any changes to your email address, your Prime User and/or any of the users listed under your illion TenderLink services account. You must ensure that the email you provide us is accurate, up-to-date and valid as we reserve the right without liability to immediately remove or block your access to the Website and our Services if we receive bounced emails or if your email is reported as a spam.
3.2 After successful user registration, you (being your Prime User or your Authorised User) will receive an email from illion TenderLink which sets out your selected username and password for your access to the Website. You are solely responsible for maintaining the confidentiality and security of your username and password and you are fully responsible for ensuring your username and password details remain confidential at all times and that your username and password are not shared with anyone directly or indirectly who is not authorised to access the Website and/or use the Services.
3.3 Subject to clause 4.3 (b) of this Terms of Service, you understand and agree that it is your responsibility to ensure that only Authorised Users are allowed to access the Services under your account. Where you allow access to additional users, you must ensure that each additional user listed under your account fully complies with the terms of the Agreement. You are responsible and primarily liable for the actions of all the users listed on your account.
3.4 You agree that you will be wholly responsible for all actions taken and any losses, costs or claims whatsoever incurred as a result of your use of the Services.
3.5 You agree to:
(a) immediately notify us of any unauthorised (whether actual or suspected) use of your password or username, including that of your general user accounts;
(b) immediately notify us of any unauthorised users on your account (whether actual or suspected); and
(c) ensure that you properly exit the Website at the end of each session.
3.6 You understand and agree, we may as part of account management and without notice:
(a) merge duplicate accounts;
(b) archive accounts which are inactive for a period of 12 months or more; and
(c) suspend your access if you or any of the Authorised User is in breach of the terms of this Agreement or of any of the terms incorporated within this Agreement.
3.7 We will not be liable for any loss or damage whatsoever arising from your failure to comply with this clause of the Terms of Service.
4 YOUR OBLIGATIONS
4.1 You must:
(a) provide true, accurate, current, not misleading and complete information about your organisation (or yourself in the case of an individual user) as prompted by the registration form, or, where our sales consultant assists you with the registration, you will be asked to read and agree to terms of the Agreement before registering and/or using our Services; and
(b) maintain and promptly update your account information to keep it true, accurate, current and complete at all times. If you provide any information to us that is untrue, inaccurate, misleading, not current or incomplete, we may at our sole discretion suspend or terminate your account immediately, including any active subscriptions or registrations, and/or refuse any and all current or future use of the Services (or any portion of them);
4.2 If you have registered on behalf of a company or other entity, then you represent and warrant that you have the authority to bind such company or other entity to the terms of this Agreement.
4.3 When you access the Website and/or use the Services, you must not attempt to (directly or indirectly):
(a) resupply, resell or repackage a Service;
(b) gain unauthorised access or permit any person (other than Authorised Users) to access the Website and/or use the Services;
(c) impersonate any person or entity or misrepresent a user’s or anyone else’s affiliation with a user or anyone else;
(d) access or use the Website and/or use the Services if you are directly or indirectly involved (in any capacity) in the operations of a service that competes with any of our products or services;
(e) Copy or use the information, content or data of others available on the Services (except as expressly authorised);
(f) use any Site Content on the Website for the purpose of market research or for creating, building, improving or providing any product or service that competes with all or any part of our products or services or has similar features or functionality;
(g) use our products or services in a way that will result in complaints, disputes or claims, whether or not resulting in any financial cost or other liability to us or you;
(h) upload, post, e-mail or otherwise transmit any unsolicited or unauthorised advertising, or promotional material;
(i) use an anonymous proxy or other technique to prevent us from identifying your location or your IP address;
(j) compromise the security and integrity of the Website and/or Services;
(k) use manual or automated software, devices, scripts, robots or other means or processes to access, “scrape” “crawl” or “spider” the Website or information featured on it, or harvest information from the Website, for any purpose;
(l) scrape or copy content from user profiles or information through any means (including crawlers, browser plugins and add-ons, and any other technology or manual work);
(m) take any action which may disrupt access to, cause damage to, or interfere with the proper operation of the Website, including any action that may result in the introduction of any viruses, trojan-horse type programs, malware or any other material which is malicious or harmful;
(n) act in a manner that negatively affects the ability of illion TenderLink or its users to engage in reasonable usage of Services and/or the Website; or
(o) use any Service in an unreasonable way or in a way that is unintended or contrary to the way we intended the Service to be used or in a way that is otherwise unfair or unacceptable or illegal (which will be determined in our sole discretion, acting reasonably).
4.4 You agree to comply with our Fair Use Policy.
5 CONTINUING ACCEPTANCE OF TERMS
5.1 Use of Services provided by us is subject to the terms of this Agreement, which we may at our discretion change from time to time. Any changes to the terms of the Agreement will be notified to you in writing (e.g. via email) by sending the nominated Prime User of your account a link to the new or amended terms (“Updated Terms”). If you do not agree to the Updated Terms, you should immediately cease using the Website and terminate your Services by notifying us in writing within 10 days of our Updated Terms notice. If you do not notify us that you wish to terminate the Agreement after our Updated Terms notice, then your continued use of the Services will be considered acceptance of the Updated Terms. Unless explicitly stated otherwise, any new features that augment or enhance the Services shall be subject to the terms of this Agreement.
6 INTELLECTUAL PROPERTY RIGHTS INCLUDING COPYRIGHT
6.1 We (or our licensors) own all rights to the Website and the Services (including all logos and trademarks) and all the content available through the Services, whatsoever its nature (“Site Content”). You may not use, copy, publish or reuse in any form or by any means, any Site Content without our express prior written consent. Nothing on the Website should be interpreted as granting (by implication or otherwise) any license or right to use any of the Site Content or trademarks displayed on the Website including by linking or framing. We prohibit the use of any of our trademarks as part of a link to or from any other website or mobile app unless establishment of such a link is approved in writing by us in advance. All rights not expressly granted to you are expressly reserved by us.
6.2 In respect of eNotices, you acknowledge and understand that:
(a) all content and information associated with the eNotices is owned by or licensed to us and is protected by copyright;
(b) unauthorised copying, re-publication or use of the eNotices may violate copyright, trademark, and other laws;
(c) you are authorised by us to view, download, print and copy from our Website only such copies of the eNotices that are strictly necessary for your own use for the purposes of considering and responding to the eNotices available to you from the Website;
(d) you must not download any eNotice, with an intent to respond directly or for aggregating the eNotice content onto another media platform for the purpose of commercial gain;
(e) you must ensure all copyright and other proprietary eNotices contained in the original eNotices or any copy you make of the eNotices is retained;
(f) Except in accordance with the express provisions of this Agreement, you may not save, download, cut and paste, sell, licence, rent, lease, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, catalogue, aggregate or create derivative works from, or otherwise use in any way, the eNotices or any part thereof, without our written permission;
(g) you may request permission to use the eNotices other than in accordance with the express provisions of this Agreement by email to firstname.lastname@example.org or by post to the postal address published on the Website. We reserve the right to refuse permission or grant such permission at our sole discretion and without reason; and
(h) the publication or use of the eNotices on any website other than the Website or in a networked computer environment for any purpose other than in accordance with this clause 6 is strictly prohibited.
6.3 You agree to immediately notify us by email to email@example.com or by post to the postal address published on the Website if you become aware of:
(a) any copying, publication or use of the material on the Website by any person which would or may amount to a breach of the terms of this clause 6; and
(b) any material on the Website which infringes or may infringe your copyright or any other person’s copyright.
6.4 You acknowledge and understand that we reserve the right to take whatever legal action we deem necessary without further notice to protect and enforce our rights. This includes commencing court proceedings for any IP infringement seeking injunctive relief, seeking legal remedies including but not limited to damages, and for reimbursement of any legal costs incurred by us in taking any action pursuant to this clause.
7.2 For each visitor to our Website, our web server may record the details of your IP address. If this is recorded, it is used to research the search functions on our websites that enable us to better understand usage patterns, visitor movements to our site, search options requested etc. The IP address is not held by us in a database at any stage. In order to use our Services, you may be asked to provide your email addresses. You agree and understand that providing your email addresses is necessary to enable us to provide you with the Services.
7.3 The primary purpose for which we collect information about you is to provide you with the Services you have requested from us. We also collect information about you for the purposes outlined below:
(a) to provide you with news and information about our products and services;
(b) for purposes necessary or incidental to the provision of products and services to you;
(c) to personalise and customise your experiences;
(d) to manage and enhance our products and services;
(e) to communicate with you, including by email, mail or telephone;
(f) to verify your identity;
(g) to investigate any complaints about or made by you, or if we have reason to suspect that you are in breach of any of our terms and conditions of the Agreement or that you are or have been otherwise engaged in any unlawful activity; and/or
(h) as required or permitted by any law (including the Privacy Laws).
8 FEES AND PAYMENT (GENERAL)
This Agreement does not cover fee and payment terms for eProcurement Portals provided to Portal Owners, this is covered by a separate agreement between the Portal Owner and illion TenderLink.
Subscription Plan and Subscription Fees to be paid by Subscribers
8.1 Subscribers are required to pay Subscription Fees in accordance with their agreed Subscription Plan. Your Subscription Plan will set out your subscription details including your plan duration (“Subscription Term”), your payment method and payment terms, the number of search regions, number of users and the limits on document downloads you are allowed.
8.2 Where a Subscriber exceeds their usage or standard restrictions under their current Subscription Plan, they may make a request to sign up for additional inclusions (“Add-Ons”) at an additional agreed fee (“Add-On Fee”).
8.3 Once a Subscriber completes the sign-up process, the Prime User will receive an email to activate their subscription and to make or set up payment. The payment method(s), plan term and payment terms may vary depending on the Subscription Plan type.
8.4 For auto-extending subscription plans (i.e. plans which allow you to auto extend indefinitely at the end of the relevant Subscription Term unless otherwise terminated) the following will apply:
(a) Payment method
Payment must be made periodically by authorising automatic charges or direct debits to your credit card or bank account (“Automatic Payment”);
(b) Subscription Term
You will be able to use the Services during the Subscription Term which will run for an Initial Term i.e. the initial duration specified and agreed in your Subscription Plan. The Initial Term will run for a minimum period of one month (but may be longer) and will, always be listed in months. On expiry of the Initial Term, your Subscription Plan will automatically extend after the end-date for an additional period equal to the Initial Term (each, a “Further Term”).
(c) Payment terms
You authorise us to charge you the Subscription Fee automatically for your chosen Subscription Plan and, if relevant, any applicable Add-On Fees.
Invoices are generated on the first day of the Subscription Term and subject to any authorised Automatic Payment settings, payment of all fees is due within nine (9) days of the date of the invoice.
If the payment fails on the due date, the system will automatically re-attempt payment after 72hrs. If we are unable to collect the Subscription Fee, or the applicable Add-On Fees for any reason, including, without limitation, expiration or insufficient funds, you remain responsible for any uncollected amounts and we may suspend or cancel your use of the Services until full payment has been received and cleared, at which time our Services will be reinstated for the remainder of your Subscription Term.
8.5 For auto-renewal subscription plans (plans which auto rollover to a new plan at the end of the Subscription Term unless otherwise terminated) the following will apply:
(a) Payment method
Payment must be made in full for the Subscription Term by:
i. credit card (one-off transaction); or
ii. direct credit to our nominated bank account (“Bank Transfer”), subject to approval.
Details of the payment options, including our bank account details, are shown on all invoices.
(b) Subscription Term
Your use of the Services is available for the Subscription Term which will run for an Initial Term i.e. the initial duration specified and agreed in your Subscription Plan. The Initial Term will run for a minimum of one month (but may be longer) and will, always be listed in months. On expiry of the Initial Term, your Subscription Plan will automatically roll-over onto a renewed Subscription Plan including any applicable Add-Ons. The Prime User will receive an email notification detailing the renewed Subscription Plan prior to the expiry of the Initial Term.
(c) Payment terms
When you activate your Subscription Plan you authorise us to charge you the Subscription Fee for your chosen Subscription Plan and, if relevant, any applicable Add-On Fees.
Invoices are generated on the first day of the Subscription Plan (usage on a Pre-Paid basis) and payment of all fees is due within nine (9) days of the date of the invoice.
If payment is not received for any invoice by seven (7) days after the due date, we may suspend or cancel your use of the Services until full payment has been received and cleared, at which time our Services will be reinstated for the remainder of your Subscription Term.
8.6 Account invoices and statements are system generated and can be viewed at any time by logging into the eNotification Portal.
8.7 Cancellations, Refunds and Transfers
(a) By authorising a Subscription Plan you acknowledge that:
i. the Subscription Fee, including any agreed Add-On Fees, is not refundable and that the subscription is not transferrable by you; and
ii. the Services provided will automatically continue in accordance with your Subscription Plan type, unless either you or illion TenderLink give prior written notice to cancel.
(b) You may cancel your Subscription Plan, and/or any relevant Add-Ons, at any time by calling or emailing your Account Manager at least 5 working days before the end date of your Subscription Plan.
(c) Cancellation will be effective from the end date of the Subscription Plan and you will remain responsible for payment of all Subscription Fees incurred before the end of the current billing cycle.
8.8 Changes to Subscription Plan
(a) You may at any time choose to change your Subscription Plan, including upgrading to a higher-value plan, by calling or emailing your Account Manager.
(b) You must pay any outstanding Fees due for your previous Subscription Plan we may, at our discretion, allow credit for any unused portion of your current Subscription Plan towards your new Subscription Plan.
We reserve our right to review and change the Subscription Fees, including Add-On Fees. Any changes to the Subscription Fees and Add-On Fees, will be notified to you in writing (e.g. via email) to the nominated Prime User of your account with at least 30 days’ notice, except where such changes are required by law or any regulatory authority (in which case we will give you reasonable notice).
8.10 If you are using a debit or credit card to set up payments under a Subscription Plan you represent and warrant that you are authorised to use the card, and that any and all charges may be billed to that card and won’t be rejected. If we are unable to process your card order, we will try to contact you by email and may suspend your account until your payment can be processed. We reserve the right to retry the card details you have provided to us and of which is stored in our system, in the instance of a failed payment.
8.11 Where you agree to make payments using direct debit, you agree that amounts owing by you under this Agreement will constitute amounts owing by you under the DDR Service Agreement and you authorise us to arrange through our contracted service provider (Fat Zebra Pty (CAN 154 014 785)) to debit such amounts from your account or card. If you elect to pay us by direct debit, then you hereby request and authorise us to debit and charge the nominated bank account to pay the relevant amount, and on the terms of the Direct Debit Request Service Agreement.
Fees to be paid by Tenderers
8.12 Access to the Website is free. However, where a Tenderer wishes to register or participate on a specific eProcurement Portal, then such access will be subject to additional charges that may be levied by the Portal Owner including charges for registration and document download. Portal Owners will specify where additional fees apply.
8.13 Invoices are generated monthly and payment of all fees is due within nine (9) days of the date of the invoice (“Due Date”). If payment has not been received for any invoice by seven (7) days after the Due Date, we may suspend or cancel your use of the Services until full payment has been received and cleared, at which time your use of our Services will be reinstated.
Fees to be paid by Casual Advertisers
8.14 Casual Advertisers are required to pay an advertising fee in order to advertise a public notice on the Website which is usually published on the Adcentre Portal.
8.15 Payment of the advertising fee is due at the time of publishing. If payment is not received, the eNotice will not be published on the Website and information entered during the creation of the eNotice will be lost.
8.16 Advertisement fees are non-refundable and must be made in full by credit card (one-off transaction).
Other terms applicable for all Website users
8.17 You understand that at any time we may forward your Personal Information to our agent for the purpose of undertaking a credit check. The outcome of the credit check may result in altered payment terms or discontinuation of service. You understand and agree that:
(a) Our agent will give us your Personal Information for the purpose of a credit check.
(b) We will give your Personal Information to our agent who will hold such information on their systems and use it to provide their credit reporting service.
(c) Our agent may give your Personal Information to our other credit reporting service customers.
(d) We may use our agent’s credit reporting services in the future for purposes related to the provision of credit to you. This may include using our agent’s monitoring services to receive updates of any changes in your Personal Information.
(e) If you default in your payment obligations to us, information about that default may be given to our agent, who may then give information about your default to other customers.
8.18 We may, at our sole discretion, engage a collection agency to collect any overdue payments on our behalf. In jurisdictions where the costs of engaging a third party to collect outstanding payments can be passed to the customer, you will be responsible for the costs associated with the recovery of your debt. Should your debt be referred to a collection agency, a default may be lodged on your credit report on our behalf.
9 SUBSCRIPTION PLANS
9.1 Your subscription is not transferrable.
9.2 Subscriber may sign up to one of the available plans on the Website, or negotiate a plan based on their current requirements. Subscription allows you and your users:
(a) unlimited access to the Website;
(b) unlimited access to the eNotification Portal;
(c) product training and support; and
(d) discounted pricing for our tender bid workshops.
9.3 Subscribers may at any time during the term of this Agreement, request and sign up for additional inclusions by paying applicable Add-On Fee including a request to add:
(a) additional users;
(b) additional search profile(s) per user;
(c) additional region(s); and
(d) additional document downloads;
9.4 In accordance with Clause 8.7, if you wish to cancel your Subscription Plan, you can do so by calling or emailing your Account Manager. Once cancelled you acknowledge:
(a) all use of the Services provided under your Subscription Plan will cease;
(b) your Subscription Plan will be deactivated and you will no longer be able to log into our eNotification Portal and/or have any access to the Services provided under your subscription, except to make payments;
(c) You may still be able to access the Website and portals on which you are registered and which are not related to the cancelled subscription.
10.1 As a Tenderer and/or Subscriber responding to eNotices advertised, you agree and understand that it is your responsibility to ensure that:
(a) any response or submission (“Submission”) made by you is in accordance with the terms and conditions of a relevant eNotice to which it relates to;
(b) you have access to the updated eNotice including amendment if any;
(c) you have paid all necessary fees required in respect of such Submission if applicable;
(d) submission to an eNotice is lodged with the Procurer before the closing date and time; and
(e) submissions are provided in the manner requested by the Procurer.
10.2 You agree and acknowledge that while we facilitate and provide platform for Tenderers, Subscribers, Casual Advertisers and Portal Owners to work together, we do not control the content and process of the engagement and cannot and will not act in any capacity (including, but not limited to, your agent or intermediary) with respect to influencing or amending the rules, practices or procedures of the Procurer including, but not limited to, deadlines, information required or the format of your bid.
10.3 We will, to the best of our ability, ensure that closing dates and times are correct, however we accept no responsibility for incorrect closing dates and times for tender responses to be submitted which are provided by the Procurer. You should check the closing dates and times directly with the Procurer if in any doubt. We will not be liable in any way for your failure for any reason to comply with the terms of eNotices or for delayed Submissions.
10.4 You understand and agree that not all eNotices published on the Website can be responded to electronically or via the TenderLink Website. For some eNotices, including eNotices re-published by illion TenderLink, you may be required to make submissions manually (mail/fax/email) or via an application which is provided by a third party (“Third Party Application”). In respect of such eNotices:
(a) We take no responsibility for the use, availability or appropriateness of these Third Party Applications, including Submissions made to the relevant eNotices;
(b) You should always check the relevant eNotice to ensure that you are aware of the Submission method(s) available as requested by the Procurer;
(c) Only where Submission is acceptable electronically via the TenderLink Website, an Electronic Tender Box or online Evaluation Form will be available.
11 ADCENTRE PORTALS
11.1 Provisions under this clause only apply to Casual Advertisers who may or may not be existing Tenderers, Subscribers or users accessing the Services provided by us.
11.2 Casual Advertisers may sign up and register either through self-registering, or by calling or emailing an illion TenderLink representative.
11.3 As a Casual Advertiser you understand and agree that when you register your suppliers or invite them to the eNotices by providing the necessary information of your suppliers (the “Customer Data”), you represent and warrant that:
(a) you hold all necessary legal rights, title, consents and authority to provide that Customer Data to us;
(b) the Customer Data is accurate, up to date and complete at the time it is provided; and
(c) you will supply us with all relevant information to correct or update Customer Data.
11.4 You must supply us with such Customer Data, being particulars of individuals or organisations, required to supply or maintain the Services as we may reasonably specify from time to time.
11.5 You grant us (and our Related Bodies Corporate) a non-exclusive, perpetual, irrevocable, royalty-free licence to use that Customer Data to fulfil our obligations under this Agreement to validate and/or enhance our products and for any other purpose permitted by law.
12 TERMINATION & SUSPENSION
12.1 We reserve the right to limit, deny or suspend your access to the Website or use of the Services at any time, for any reason whatsoever (including any breach of the terms of this Agreement), at our absolute discretion. Where it is relevant and possible for us to contact you directly, we will notify you of any restriction, suspension or termination and the reasons for it.
12.2 On termination of this Agreement: (a) each licence granted by us in respect of the Services also terminates; (b) you must immediately cease using the Services; (c) you must immediately destroy any copies (in hard copy or electronic form) that you have made or caused to be made; and (c) we will remove and discard any material, information or data (including Submissions) you provide to us.
12.3 You agree that any termination of your use of the Services under any provision of this Agreement by us may be affected without prior notice, and you acknowledge and agree that we may immediately deactivate or delete your account and related information and files in your account and/or bar any further access to such files or the Services.
12.4 Further, you agree that we shall not be liable to you or any third party for any termination of your access to the Services.
13 DISCLAIMER & LIABILITY
13.1 While we endeavour to provide the Services (including all information forming part of the Services) accurately, you acknowledge the following (to the extent permitted by law and subject to clause 13.2):
(a) the Services are provided strictly on an “as is” and “as available” basis without warranty of any kind, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title or non-infringement.
(b) we do not warrant:
(i) the accuracy, completeness, reliability or timeliness of any of the data and/or information available at this Website.
(ii) that the availability and/or your use of the Website or Services will be free of any interference;
(iii) that the features and functionalities of the Website or Services are suitable for your use;
(iii) any defects on the Website or in the Services will be corrected; or
(iv) that the operation of the Services will be error-free;
(c) we exclude all liability to you for:
(i) the Services being inaccurate, incomplete or unsuitable;
(ii) any delay or unavailability of the Services, or the Services being out-of-date;
(iii) any data loss or corruption, or any viruses or other harmful components associated with Services;
(iv) any use of the Services (or any information available on the Website or portal through the Services) by you, including any decision or action taken by you or anyone else in reliance on the information provided on the Website through the Services.
(v) any fraudulent or unauthorised registration or use of your account, including any fraudulent or unauthorised use of your login credentials;
(d) we are not liable to you (whether in contract, tort, negligence or otherwise) for any loss of profit, revenue, anticipated savings, goodwill, reputation or opportunity, or for any indirect incidental, special, consequential or exemplary loss whatsoever;
(e) to the extent we have any liability to you in relation to the Services or under this Agreement our liability is limited to resupply of the Services and in cases of any losses not otherwise excluded by a term of this Agreement, our total liability (whether in contract, tort, including negligence, or otherwise) under or in connection with this Agreement, or based on any claim for indemnity or contribution will not exceed the total of the most recent notification Subscription Fee paid by you to us.
13.2 Without in any way limiting clause 13.1, the following disclaimers also apply (to the extent permitted by law):
(a) Portal Owners, Subscribers, Tenderers and Casual Advertisers – We do not underwrite the identity or performance of any Tenderers, Subscribers, Casual Advertise and Portal Owners or other organisations and users of the Website and Services and you acknowledge that:
(i) We rely on information provided by Portal Owners, Casual Advertisers, Subscribers, Tenderers and Third Party Applications as the case may be;
(ii) We have no responsibility or liability for any information, transaction, transmission, submission, correspondence, storage, identification, screening, compliance issues, issues of digital identification, and unlawful transactions by other persons in connection with or arising out of any tender exercise.
(iii) We do not make any representations or warrant any of the information made available by a Casual Advertiser or by a Portal Owner on their eProcurement Portal.
(iv)We will not be held liable for any losses, costs or claims whatsoever arising out of any fraudulent or mistaken identity assumed by any party or any unauthorised use of any digital certification issued thereunder.
(b) Content on Website You will be responsible for the content of any material you enter on the Website. We have no responsibility for the content of any messages or information posted by users, or for the content of information of third parties on the Internet, even if accessed through the Website. However, we retain the right, which we may or may not exercise in our sole discretion, to review, edit or delete any material that:
(i) we deem to be illegal, offensive, defamatory or otherwise inappropriate;
(ii) that we reasonably believe is inaccurate, out-of-date or is incomplete; or
(iii) if directed by a regulator, government agency, law enforcement agency or court.
(c) Countries – Use of our Services is strictly limited to residents of New Zealand and Australia. We make no representation or warranty that our Service is appropriate or available for use in all countries or that the content satisfies the laws of all countries. If you use our Services when you are travelling, you are responsible for ensuring that your use of the Service is not illegal or prohibited in the relevant country.
(d) Links – The Website or Services may contain links to other websites including the websites of Portal Owners, Casual Advertisers or other Organisations (“Third Party Sites”). Links to Third Party Sites are provided for convenience only. We do not control and are not responsible for the availability of such Third Party Sites and do not endorse or make any representations about these sites or their content. If you access any of the Third Party Sites linked to our Services or Website you do so entirely at your own risk.
(e) Testimonials – The Website or Services may contain testimonials provided by the Portal Owners, Casual Advertisers, Subscribers and Tenderers. The content of testimonials is provided to us by these users and we do not control nor independently verify the testimonial content.
13.3 Nothing in this clause excludes our liability for personal injury or death caused through the negligence of our employees, servants or agents, neither does it seek to exclude liability for fraudulent misrepresentation by us.
13.4 You confirm your use of the Services are for business purposes and where you are accessing Services in NZ, you agree that the provisions of the Consumer Guarantees Act 1993 (NZ) does not apply.
You agree to indemnify and hold us and our subsidiaries, related entities, affiliates, officers, directors, agents, and employees, harmless from any claim or demand (including legal expenses and the expenses of other professionals) made by you or a third party owing to, or arising out of, your use of the Services provided by us or your breach of this Agreement or the documents it incorporates by reference (including, without limitation, use of digital certification for an unauthorised purpose), or your violation of any law or the rights of a third party.
15 COMPLIANCE WITH LAWS
You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Services and your participation or access to the Website, will comply with all applicable laws regarding the transmission of technical data exported from the country in which you reside or any other relevant jurisdiction.
16 NO AGENCY
No agency, partnership, joint venture employee-employer or franchiser-franchisee relationship is intended or created between you, illion TenderLink or other users by reason of this Agreement or your use of the Services.
Except where explicitly stated otherwise, all notices, requests, demands and other communications under this Agreement shall be delivered by email to the email address you provide during registration, or such other address as the party shall specify. Notices shall be deemed given after twenty-four (24) hours from when the email is sent, unless the sending party is notified that the email address is invalid.
18 FORCE MAJEURE
We shall not be liable to you for delays and failures in performance resulting from any causes beyond our reasonable control, including, but not limited to, acts of God, labour disputes, disturbances, material shortages, or rationing, riots, acts of war, government regulations, communication or utility failures, or casualties.
We may assign this Agreement without your consent.
20.1 This Agreement shall be governed by:
(a) where the Customers registers on an Australian-based eProcurement Portal – the laws of New South Wales; and
(b) where the Customers registers on a New Zealand-based eProcurement Portal – the laws of New Zealand,
and in either case the parties submit to the exclusive jurisdiction of the courts exercising jurisdiction in the relevant place.
20.2 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck out and the remaining provisions shall be enforced.
20.3 Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
20.4 Headings are for convenience only and in no way define, limit, construe or describe the scope or extent of such section.
20.5 References to the singular shall include the plural and vice versa.
20.6 The meaning of general words is not limited by specific examples introduced by including or, for example, or similar expressions.
20.7 If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
20.8 A reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this Agreement or the other agreement or document.
20.9 A reference to a party to this Agreement or another agreement or document includes the party’s successors and permitted assigns.