ONLINE TERMS AND CONDITIONS

PLEASE READ THIS AGREEMENT (“the AGREEMENT”) CAREFULLY AS IT GOVERNS YOUR USE OF THE WEBSITE WWW.TENDER3D.COM (“the WEBSITE”) THE TERMS OF WHICH ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO THIS AGREEMENT. BY TICKING THE “I AGREE TO THESE TERMS AND CONDITIONS” BOX, ACCESSING THE WEBSITE AND USING THE ONLINE TENDERING SERVICES (“the SERVICE”) YOU ARE FORMING A CONTRACT AND AGREEING TO THE TERMS AND CONDITIONS THAT APPEAR BELOW. REFERENCE TO “YOU” AND “YOUR” ARE TO YOU AS A BUSINESS USER ONLY ACTING IN THE COURSE OF YOUR BUSINESS AND YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF THAT BUSINESS AND REFERENCE TO “YOU” AND “YOUR” INCLUDE YOU AND YOUR BUSINESS.

1. Provision of the Service

1.1 
The Service is provided by Tender Flow Limited T/A Tender3D.com(Registration Number 473630) whose registered address is situate at 49 South Mall, Cork, Ireland (“the Company”).

1.2 
You acknowledge that You have provided the Company with accurate and complete registration information on subscription to the Service (“the Subscription”) and that it is Your responsibility to update the Company with any changes to that information (including your e-mail address) by e-mailing the Company at: info@tender3d.com

1.3 
On registration You will be allocated a user name and a password (“ID”). Each Subscription is for a single organisation only but You may choose to authorise Your employees (together “Users”) to use Your ID whilst carrying out the business of Your organisation. You are responsible for keeping your ID secure and safe, and for all use of the Service by all such Users and anyone else using Your ID and for preventing unauthorised use of Your ID. You must ensure that Your Users comply with the terms of this Agreement and all reasonable user terms made available on the Website.

1.4
If You believe that there has been a breach of security such as the disclosure, theft or unauthorised use of Your ID, You must notify the Company immediately by e-mailing info@tender3d.com If the Company reasonably believes that Your ID is being used in any way which is not permitted by this Agreement, the Company reserves the right to immediately suspend access rights on giving notice to You and to block access to Your ID until the issue has been resolved.

1.5 
The Company is continually seeking to improve the Service and thereby reserves the right, and at its sole discretion, and without notice or liability, to make changes to any part of the Service and/or the tendering information displayed on the Service or the functionality of the Website (“the Content”).

1.6
The Company shall have the right, but not the obligation, to monitor the Content in order to determine compliance with this Agreement and to remove and/or, refuse to post any material submitted to or posted on the Website.

1.7
The Company reserves the right to add, amend or vary the terms of this Agreement by publishing notice of such changes on the Website and the continued use of the Service will signify Your acceptance of the changes.

1.8
Following Your acceptance of this Agreement and subject to the payment of all fees due in accordance with the payment terms set out in the Website (“Fees”) [FAQs] the Company shall make the Service available to You.

2. Licence and limited rights to use the Company’s Content

2.1 
The Company grants You a non-exclusive, non-transferable, non-assignable, revocable licence to use the Content subject to the terms and conditions of this Agreement.

2.2
The Content, and all copyright, database rights, trade and service marks or names, patents, design rights and all other intellectual property rights, in each case whether registered or not, in the Content, the Service and the Website (“Intellectual Property”) belong to the Company or its licensors.

2.3
You may not (without the prior written consent of the Company):

2.3.1
redistribute any of the Content or any of the other Intellectual Property (including by using it as part of any library, archive or similar service);

2.3.2
use the Service on behalf of any other person or allow access to the Service to any other person using Your ID;

2.3.3
create a database in electronic or structured manual form by systematically downloading and storing all or any of the Content or other Intellectual Property;

2.3.4
except assignable expressly set out above, modify, reproduce or in any way commercially exploit any of the Content;

2.3.5
attempt to download any part of the Website or Service, including any underlying software which You are not expressly entitled to access under this Agreement, nor attempt to reverse engineer, alter or edit any such item, nor to store it other than as necessary in the normal use of the Service; or

2.3.6
use any of the Intellectual Property for any purpose not expressly or impliedly permitted by this Agreement.

2.4
The intellectual property rights in any software that may be made available for download for use with the Service belongs to the Company or its suppliers.

3. Relationship between Purchaser and Supplier and Fees

3.1
Under the terms of this Agreement, if you are a purchaser of professional services (“Purchaser”) You may:

3.1.1
Create a profile of Yourself

3.1.2
Create a request for tender (“the RequestFT”) the parameters of which are detailed on the Website [FAQs]

3.1.3
Choose a suitable Supplier (as defined below)

3.1.4
Enter into a legally binding contract with the Supplier

3.2
Under the terms of this Agreement, if you are a supplier of professional services (“Supplier“)You may:

3.2.1
Create a profile of Yourself

3.2.2
Search and then bid for RequestFTs on the Website via a response to tender (“the ResponseTT”) the parameters of which are detailed on the Website [FAQs]

3.2.3
Enter into a legally binding contract with a Purchaser

3.3
A RequestFT is an invitation to treat and not an offer – a ResponseTT is however an offer – once a Supplier responds to a RequestFT via a ResponseTT accepting all the terms of the offer the Purchaser can then confirm acceptance of that offer and it is at that stage that a legally binding agreement shall be in place between the parties whereby the Supplier agrees to supply the tender services (“Tender Services”) on the terms and subject to any conditions set out in the ResponseTT and the Purchaser agrees to purchase those Tender Services on those terms and subject to any conditions as set out there. Please see further details on this process here [FAQs] .

3.4
The duration of the agreement between the Purchaser and the Supplier shall be the duration agreed under the Tender Services albeit that payment by the Purchaser shall be via the successful completion of milestones. “Successful completion” of milestones shall mean that the Tender Services have been provided in accordance with this Agreement, the RequestFT and any other terms and conditions of sale or purchase agreed by the parties and uploaded to the Website (as may be applicable).

3.5
In the event the Parties wish to change the agreed parameters of the Tender Services then it is recommended that the Parties agree to submit another milestone detailing the agreed changes –please note that in order for a change to the Tender Services to become legally effective it must be agreed by both parties using milestone procedure only – any changes agreed outside that process run the real risk of not being enforceable in the event of a dispute.

3.6
A RequestFT or a ResponseTT may be withdrawn at any time before or after acceptance where in the sole and reasonable opinion of the Company there has been a clear (for example, typographical) error or there are other extenuating circumstances that would make it unfair for matters to proceed. In that regard, and for the avoidance of any doubt whatsoever, Users should be aware that the Company will not tolerate any form of “price-fishing” where Purchasers do not intend to honour a RequestFT and are instead seeking information on Suppliers prices and all Users should be aware they will be entering into legally binding contracts at the point where a Purchaser accepts a ResponseTT. If either party wishes to withdraw either a RequestFT or a ResponseTT then it must be done as quickly as possible and preferably before the provision of any of the Tender Services.

3.7
The period within which a ResponseTT may be provided shall be specified within the RequestFT.

3.8 
The Supplier shall have in place professional indemnity insurance of a type and amount that would be considered to be prudent and best practice within its industry and, if requested by the Purchaser or the Company, it shall produce evidence of it on demand.

3.9
Following Your acceptance of this Agreement and subject to the payment of all fees due in accordance with the payment terms set out in the Website (“the Fees”) [FAQs] the Company shall make the Service available to You.

3.10
The Website is a means of introducing Purchasers to Suppliers and in return the Company receives the Fees. You agree that will not either directly or indirectly circumvent the payment of the Fees by dealing outside the Website for a period of 12 months from the date of this Agreement. If You do circumvent the Website then You agree to pay the Company the Fees as if the transaction had been done through the Website as well as its reasonable costs (including legal fees) in dealing with the same. You also agree to promptly inform the Company in the event that a Supplier (or Purchaser, as appropriate) approaches You in order to circumvent the use of the Website as contemplated under this clause 3.10, breach of which shall entitle the Company to immediately terminate this Agreement under clause 10.1 below.

3.11
This is a monthly agreement, unless the Company receives written notice from You at least 5 working days prior to the end of each month the Subscription will renew automatically for an additional month (and at the new Subscription Fee if applicable).

3.12
Without prejudice to any other right it may have, the Company reserves the right to charge interest on overdue payments at the rate of 4% per year above the base rate of the Bank of Ireland from time to time, calculated from the date when payment becomes due, up to and including the date of actual payment, whether before or after judgment.

4. Support

4.1
During the continuance of this Agreement, the Company shall provide You with either or both of the following support services with respect to the Website:

4.1.1
telephone support: if You have an urgent problem in using the Website, You may telephone the Company on the number designated on the Website within Working Hours only (as defined below). An urgent problem is degradation or failure of the Service. Problems which do not delay or inhibit the Service’s operation may only be reported to and dealt with by the Company’s on-line support.

4.1.2
on-line support: if You have any problem with the Website (whether urgent or otherwise), You may report the problem within Working Hours to the Company via the Company’s on-line support service which may be accessed at info@tender3d.com or skype username: tender3dsupport.

4.2
The Company shall use its reasonable endeavours to investigate urgent problems on the same day as notification of the problem, and investigate non-urgent problems within 24 working hours of notification of the problem. “Working Hours” are 9am to 5pm GMT, Monday to Friday excluding public holidays.

4.3
In no event will the Company be required to correct a problem reported and the Company reserves the right to abandon attempts to fix a problem where the costs are likely to be excessive or the general benefits to You (in our sole and reasonable opinion) are likely to be negligible.

5. Warranties, Data Protection, Direct Marketing, Indemnity and Intellectual Property

5.1 
The Company warrants that it will use all reasonable skill and care in making the Service available to You and in ensuring its availability during Your Subscription.

5.2
You agree that Your Content, if stated to be for the exclusive use of the Purchaser, will be automatically assigned over to the Purchaser upon the final payment of the fees due under the milestone payments. If there is any intellectual property contained within Your Content that cannot be assigned over to the Purchaser either due to licensing restrictions or due to the fact that the intellectual property is intrinsic to the business of the Supplier (and the Purchaser should be advised in advance of this in Your RequestTT), then the Supplier shall grant the Purchaser a non-exclusive, perpetual, royalty free, sub licensable right to use the same. You agree to fully indemnify the Purchaser against all claims, liabilities, costs and expenses (including but not limited to all reasonable legal fees) arising out of or related to any breach of clause 5.5 or this clause 5.6.

5.3 
The Company makes no warranty that the Website is free from viruses or anything else that has contaminating and/or destructive properties. It is Your responsibility to adopt appropriate back-up, firewall and other precautionary security measures.

5.4 
All other express or implied warranties and any representations are excluded from this Agreement to the extent that they may be fully excluded as a matter of applicable law.

5.5
You warrant and represent that You are the owner or licensee of any content that You upload, record or otherwise transmit through the Services, including but not limited to photographs, caricatures, illustrations (3d and otherwise), designs, icons, text or video clips, as applicable (collectively, “Your Content”). You warrant and represent that You shall not publish, post, upload, record or otherwise transmit Your Content that: (i) infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violates any law or statute, (iii) is defamatory, unlawfully threatening or unlawfully harassing; (iv) is profane, indecent, obscene, harmful to minors or pornographic; (v) contains any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or property of another; or (vi) is materially false, misleading or inaccurate.

5.6 
You agree that Your Content, if stated to be for the exclusive use of the Purchaser, will be automatically assigned over to the Purchaser upon the final payment of the fees due under the milestone payments as more particularly set out under the Website [FAQs]. If there is any intellectual property contained within Your Content that cannot be assigned over to the Purchaser either due to licensing restrictions or due to the fact that the intellectual property is intrinsic to the business of the Supplier (and the Purchaser should be advised in advance of this in Your RequestTT), then the Supplier shall grant the Purchaser a non-exclusive, perpetual, royalty free, sub licensable right to use the same. You agree to fully indemnify the Purchaser against all claims, liabilities, costs and expenses (including but not limited to all reasonable legal fees) arising out of or related to any breach of clause 5.5 or this clause 5.6.

5.7
You agree not to: (1) post any RequestFT or ResponseTT that are fake or posted without intention of award or complete the specific project in order to receive pricing information unless specifically set out within the RequestFT; (2) job advertisements or other employment related advertisements; (3) projects related to adult content; (4) projects related to or in connection with chain letters, junk mail, surveys, contests, pyramid schemes, spamming or any duplicative or unsolicited messages, or any use of distribution lists to any person who has not given specific permission to be included in such a process; (5) harvest or otherwise collect information about others, including e-mail addresses, without their consent; (6) use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity that is not a user of the Services any directory of other users or usage information or any portion thereof other than in the context of Your use of the Services; (7) knowingly interfere with or disrupt networks connected to the Services or violate the regulations, policies or procedures of such networks; (5) attempt to gain unauthorised access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means; or (8) use the Services for any illegal purposes whatsoever.

5.8
Some areas of the Website may allow Users to post feedback and/or comments on the Tender Services and You are solely responsible for the same and that the Company provides this facility to assist in the high quality of the Users on the Website. The Company urges all Users to be sensible and circumspect in their postings and to not post anything that is either untruthful or in any way defamatory.

5.9
We respect your right to privacy. Where personal information is submitted it will be used for the stated purpose and any reasonable incidental purposes such as marketing, administration and statistical purposes only. You agree to the use, storage and processing of such information for these purposes.

5.10 
You agree to fully indemnify the Company against all claims, liabilities, costs and expenses (including but not limited to all reasonable legal fees) arising out of or related to any breach of this Agreement.

6. Limitation of liability between Company and You and between Purchaser and Supplier

6.1
The Company is a facilitator of the Content only and is never involved in the actual transaction between the Supplier and/or Purchaser and as such has no control over the content or the delivery of the RFTs or the RTTs or any links to third party sites. Consequently, the Company makes no representations about the accuracy of the same or the results to be obtained from using the Services or that the Purchaser can pay or the Supplier supply the Tender Services or that the transaction itself will be satisfactorily completed and therefore the use of the Website is at Your own risk. It is therefore entirely Your responsibility to establish the accuracy of any RequestFT, ResponseTT or of any Content provided (including but not limited to the the Tender Services) as a result of using the Services and You should seek the advice of professionals as appropriate and fully perform whatever additional due diligence (such as the taking of third party references or undertaking company searches or credit reference agencies or the provision of a full CV) You consider appropriate regarding the evaluation of any information provided by any Supplier or Purchaser.

6.2
Not withstanding the above, You agree that Your exclusive remedy (whether based on tort (including negligence) or contract or otherwise) shall be limited to a refund of an amount equivalent to the Subscription Fee paid in respect of the Services provided.

6.3
It is agreed that between the Purchaser and the Supplier (excepting clauses 5.5 and 5.6) their exclusive remedy (whether based on tort (including negligence) or contract or otherwise) shall be limited to the amount of the Tender Services.

6.3.1
any indirect, consequential or special loss or damage whatsoever;

6.3.2
any loss of profit, loss of anticipated savings, loss of business, loss of goodwill, loss of data or other such financial or business loss or damage; or

6.3.3
any other loss or damage in an amount exceeding the Subscription Fee paid by You preceding the date on which such liability arose.

6.3
The Company’s liability will not be limited in the case of fraud or for death or personal injury caused by the Company’s negligence.

6.4
Neither the Company nor the Purchaser or the Supplier shall be liable in any case whether in contract, tort (including negligence) or otherwise, for:

6.4.1
any indirect, consequential or special loss or damage whatsoever;

6.4.2
any loss of profit, loss of anticipated savings, loss of business, loss of goodwill, loss of data or other such financial or business loss or damage; or

6.4.3
any other loss or damage in an amount exceeding the Subscription Fee paid by You preceding the date on which such liability arose.

6.5
Neither the Company, the Purchaser or the Supplier’s liability shall be limited in the case of fraud or for death or personal injury caused that party’s negligence.

6.6
You are prohibited from using the Service as a consumer – accordingly, whilst consumers’ statutory rights are not excluded, the Company does not accept liability towards any such person.

7. Confidentiality

You agree not to disclose to any other person, or use other than for the performance of this Agreement, any confidential information in any media, of the other party or the confidential information of the Purchaser or Supplier (as applicable). This clause shall not apply to the extent that the other party’s confidential information is in the public domain or is required to be disclosed by law or a competent authority.

8. Notices

All notices shall be given to the Company via e-mail at info@tender3d.com or by post to the Company’s address as set out in clause 1.1 of this Agreement; or to You at either the e-mail or postal address You provide in Your registration information.

9. Dispute Resolution Service

9.1
Should there be any dispute between the Users and the Company arising out of this Agreement the parties shall, on the written request of any party, refer it to an independent mediator, the identity of whom shall be agreed between the parties. In the event the mediator cannot be agreed by the parties within 14 days of one party’s written request to appoint a mediator, the Dublin office of the International Centre for Dispute (“ICDR”) Resolution shall appoint a single independent mediator in accordance with the rules of the ICDR. The costs of the mediation shall be shared equally and the place of conduct of the mediation shall be Dublin, Ireland. In the event that within a period of 60 days of the appointment of a mediator, the mediator is unable to resolve the dispute, the parties may submit the matter to the exclusive jurisdiction of the Irish Courts.

9.2 
In the event of a dispute arising between the Purchasers and the Supplier it shall in the first instance be directed to the Company which shall use all reasonable endeavours to resolve the same using the dispute resolution procedure provided under the Website. However, if that intervention fails then the parties agree to use the dispute resolution process set out under clause 9.1 above.

10. Termination

10.1
This Agreement and Your access to the Service may be terminated by the Company by written notice at any time for and for any reason on 30 days notice, or, if (in the sole and reasonable opinion of the Company) You are in material breach of this Agreement and the breach is not remedied within the period of 7 days after written notice of the breach has been given to You. If the Company reasonably believes that You are in breach of clause 2 it may suspend Your access to the Service immediately and without notice.

10.2
Either party may terminate this Agreement by giving to the other 30 days written notice if the other suffers an event of insolvency, including, but not limited to an inability to pay its debts as they fall due, bankruptcy, administration, receivership, liquidation, winding up, creditors’ arrangement or ceasing to do business, or any similar or analogous event in any jurisdiction.

11. General

11.1
The Company may transfer and/or assign its rights and/or obligations under this Agreement – this will not affect Your rights under this Agreement.

11.2 
No failure or delay on the part of the Company relating to the exercise of any right, power, privilege or remedy provided under this Agreement shall operate as a waiver of such right, power, privilege or remedy or as a waiver of any proceeding or succeeding breach by the other party to this Agreement.

11.3
If any provision of this Agreement shall be prohibited by or adjudged by a court to be unlawful, void or unenforceable, such provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect the validity or enforcement of the remainder of this Agreement.

11.4 
The Company shall be under no liability to You in respect of anything, which notwithstanding this provision, may constitute a breach of this Agreement, arising by reason of force majeure which includes third party telecommunications failures.

11.5
This Agreement contains the full and complete understanding between the parties and supersedes and replaces all prior arrangements, terms, representations and understandings whether written or oral relating to the subject matter of this Agreement.

11.6
In the event of any inconsistency between the terms of this Agreement, the Website, and/or the Tender Services the terms of this Agreement shall prevail.

11.7
The relationship beween the Purchaser and the Supplier is that of independent contractors and nothing in this Agreement shall create a partnership, joint venture, agency or employer/employee relationship between them or between the Company and them.

11.8
This Agreement, and any disputes arising out of it, shall be governed by and construed in accordance with the laws of Ireland and be subject to the exclusive jurisdiction of the Irish courts.