User agreement

User Agreement - Standard
1.  Introduction
1.1 This User Agreement governs access to and use of the eSourcing System (the "System") by the user of the System (the "Supplier") to respond to an invitation to participate in a sourcing exercise (an "Event") from:
(a) the State of Queensland acting through the Department of Child Safety, Youth and Women ( the "Department"); or
(b) another Queensland Government Body permitted by the Department to use the System to conduct an Event.
1.2 In this User Agreement, "Buyer" means:
(a) the Department; and
(b) where another Queensland Government Body is using the System to conduct an Event, both the Department and that other Queensland Government Body, or either of them, as the context indicates.
1.3 The Supplier agrees to this User Agreement in relation to an Event by the Supplier, or an individual representing the Supplier (a "Supplier User"), accessing the System using the user ID and password provided by, or on behalf of, the Buyer in relation to that Event.
1.4 An Event may include a request for information (RFI), invitation to offer (ITO), request for proposal (RFP), request for quotation (RFQ), an etender, or another sourcing exercise, whatever terminology is used.
1.5 The Supplier must only use the System to respond to an invitation to participate in an Event in accordance with this User Agreement and any further requirements expressed and presented in the System. In the event that there is any conflict between this User Agreement and any such further requirements, then the provisions of such further requirements shall take precedence over this User Agreement.
2.  Procurement Conditions and Trading Contracts
2.1 The Supplier's participation in the Event may be subject to separate terms and conditions (eg "invitation to offer conditions") accessible through or referred to in the materials available through the System ("Procurement Conditions").
2.2 The Supplier may enter into a contract with the Buyer or a Buyer Group member to supply the goods or services offered by the Supplier during an Event ("Trading Contract").
2.3 This User Agreement governs access to and use of the System only, and nothing in this User Agreement or the System:
(a) overrides or changes the effect of any Procurement Conditions or Trading Contract unless expressly stated in the relevant Procurement Conditions or Trading Contract; or
(b) constitutes a process contract in relation to the conduct of an Event by the Buyer.
3.  Access
3.1 The Buyer grants to the Supplier, free of charge, access to the System by Supplier Users for the purpose of responding to any invitation to participate in an Event and to provide performance and financial reporting to the Buyer, subject to this User Agreement.
3.2 The Buyer may suspend or terminate:
(a) access to the System by the Supplier and Supplier Users; and/or
(b) this User Agreement,
by notice to the Supplier:
(c) immediately, if the Buyer has reason to believe that the Supplier has breached this Agreement; or
(d) at the Buyer's discretion, on five Business Days' notice to the Supplier.
4.  Registration
4.1 To be granted access to the System, the Supplier must register each person which the Supplier wishes to be a Supplier User by providing the required registration data and specifying a user ID and password. The Buyer reserves the right to decline any application to register for access to the System or participation in an Event at its discretion.
4.2 User ID and password are strictly personal to the Supplier User and non-transferable.
4.3 The Supplier must:
(a) ensure that its Supplier Users do not divulge or disclose their user ID or password to third parties;
(b) store and safeguard user IDs and passwords with the utmost care and ensure that they are kept confidential;
(c) if the Supplier or a Supplier User becomes aware that a user ID and / or password may have been divulged, disclosed or discovered by any third party, immediately change the relevant password and notify the Helpdesk;
(d) designate an individual Supplier User to manage access to the System by other Supplier Users; and
(e) immediately inform the Helpdesk in the event that a Supplier User leaves its employment or no longer requires access to the System.
4.4 The Supplier will be responsible for all use of user IDs and passwords provided to its Supplier Users, including any unauthorised, false or fraudulent Response to any invitation to participate in an Event.
4.5 The Buyer retains the right to deactivate a Supplier User user id and password if:
(a) there has been no access for a period of one hundred and twenty (120) days; or
(b) the Buyer suspects there has been a breach of this User Agreement in connection with the user id and password, or a breach of security, or other misuse.
5.  Invitation to Participate
5.1 The Buyer may use the System to invite the Supplier and other suppliers to participate in a specific Event, and provide data and information relating to a specific Event available to the Supplier and other suppliers.
5.2 The Buyer may configure the System as appropriate for each Event and the selected configuration settings for an Event will be displayed on the System. The Supplier acknowledges that by one of its Supplier Users participating in an Event on the System, the Supplier agrees to be bound by these configuration settings.
6.  Supplier's Obligations
6.1 The Supplier must:
(a) ensure that all its Supplier Users comply with this User Agreement;
(b) use all reasonable care and skill in performing its obligations under this User Agreement;
(c) provide its Supplier Users with the equipment and software needed to access and use the System;
(d) provide software to ensure the security of the System and use best endeavours to protect the System from viruses when being accessed and used by its Supplier Users;
(e) treat data and information received by the Supplier in connection with each Event in accordance with Clause 12 - Confidentiality; and
(f) maintain all Responses submitted by the Supplier on the System in relation to any Event open and firm until the earlier of the following:
(i) the end of the Event;
(ii)    the Supplier enters into a relevant Trading Contract; or
(iii)   the Buyer releases the Supplier from the Response.
6.2 The Supplier must not:
(a) manipulate any information supplied on the System in a manner that would lead to inaccurate, misleading or discriminating presentation of information being displayed;
(b) post, transmit or disseminate any information on or via the System which is or may be harmful, obscene, discriminatory, defamatory, in breach of confidence, in breach of privacy or otherwise illegal;
(c) use the System in a manner which causes or may cause an infringement of the rights of any other person; or
(d) interfere with, disrupt, manipulate or jeopardise the Event or the System in any way including without limitation by placing false bids or introducing any viruses, Trojan horses, works or similar devises into the systems and/or platforms on which the Event takes place.
6.3 The Supplier:
(a) must use the System for lawful and proper purposes only and must, in any event, comply with all applicable laws, statutes, regulations and binding codes of practice within the United Kingdom and Australia;
(b) must ensure that it and its Supplier Users understand how those laws may operate in relation to the Event and/or use of the System and any subsequent relationship between the parties; and
(c) agrees that the Buyer will not be liable to the Supplier in any way in respect of losses caused due to compliance or non-compliance with any laws and regulations regulating the conduct of the Supplier and/or Supplier Users.
6.4 The Supplier acknowledges and agrees that:
(a) the System is operated by the Buyer, and provided and hosted in the United Kingdom by an independent third party, Jaggaer;
(b) the Supplier uses the System and participates in any Event at its sole risk, cost and expense;
(c) to the fullest extent permitted by applicable laws, the Buyer makes no warranty that access to the System will be uninterrupted, timely, secure, or error free or will operate as contemplated in this User Agreement, nor does the Buyer make any warranty as to the results of any use of the System or as to the accuracy or reliability of any information obtained from the System, nor that any defects, if any, in the System will be corrected;
(d) if the Supplier downloads, obtains, uses and/or relies on any material and/or data from the System, it does so at its own discretion and risk and that use of such materials and/or data will be subject to the obligations of confidentiality set out in Clause 13;
(e) the Buyer may make the Supplier's participation in any Event conditional to the prior issue by the Supplier of adequate guarantees and/or warranties relating to the relevant goods or services and the irrevocability of the relevant Responses;
(f) its Supplier Users will act as authorised agents for and on behalf of the Supplier in submitting any Response to any invitation to participate in an Event on the System;
(g) the Buyer is not liable for the accuracy, adequacy or completeness of information and data in an invitation to participate in an Event;
(h) for the entire duration of the Event, any dates and times will be those displayed on the System and any other Helpdesk recording and telecommunications equipment, and such recordings will represent a full account of the actual facts and circumstances; and
(i) the System will not allow Supplier Users to view the identity of the other suppliers in relation to an Event, and if this restriction is breached, the Supplier must notify the Buyer immediately.
6.5 The Supplier represents and warrants that:
(a) it has all right, title and authority to enter into and undertake its obligations contained in this User Agreement;
(b) all information it provides, including registration data, is accurate and complete and shall accurately represent the Supplier's capabilities and will be kept accurate and complete throughout the period from the commencement of this User Agreement to the conclusion of the Event (and any other Event to which this User Agreement relates);
(c) it is the exclusive owner of or is fully entitled to disclose and use for such purpose, all data, information and contents provided by or on behalf of the Supplier to the Buyer and use of such data, information and content by the Buyer shall not be contrary to the law of or infringe the rights of any third party, in any country in the world;
(d) it has all rights, title and abilities necessary to supply any goods or service offered in any Response at the prices in the Response and in accordance with any relevant criteria specified by the Buyer in the invitation to participate in the Event.
7.  General Provisions for Submission of Responses
7.1 The Supplier must:
(a) examine all file attachments published in the System, which indicate what information must be provided;
(b) provide all of the information requested in relation to the Event; submit all Responses through the System by the closing date and time for Responses specified on the System; and
(c) keep all Responses valid for a period of 12 months from the closing date and time for Responses, unless any other period is specified in the Procurement Conditions applicable to the Event.
7.2 The Supplier acknowledges that the Buyer may, at its discretion and without limitation:
(a) invalidate or reject any Response that is incomplete, corrupt or appears to be affected by viruses or other malicious code;
(b) if the Supplier submits more than one Response, consider the last Response submitted prior to the closing date and time in the evaluation and Award process;
(c) open Responses will in accordance with the opening procedures specified on the System for the Event;
(d) accept late Responses;
(e) suspend and re-open or cancel an Event;
(f) extend the closing date and time for Responses;
(g) not accept any Response;
(h) not provide any Award or enter into any Trading Contract;
(i) provide an Award or enter into a Trading Contract for some but not all of the requirements specified in relation to an Event;
(j) vary or amend the details of an Event, at any time prior to the closing date and time for receipt of Response by publication of a notification through the System and without incurring any liability whatsoever; and
(k) if the Buyer suspends and subsequently re-opens an Event, resume the Event on the basis of the last Response recorded by the Supplier through the System.
8.  Notification of Award and formation of Trading Contract
8.1 The Buyer or a Buyer Group member may notify the Supplier that the Supplier has been awarded the opportunity to enter into a Trading Contract following an Event (an "Award").
8.2 The Supplier agrees to participate in good faith negotiations to form a Trading Contract with the Buyer or relevant Buyer Group member from whom the Supplier receives an Award Notification.
8.3 The terms and conditions for the Trading Contract will be the terms and conditions specified by the Buyer or Buyer Group member in relation to the Event.
8.4 The Buyer or a Buyer Group member may, if the Supplier declines the Award or does not enter into such Trading Contract with the Buyer or Buyer Group member, or at the Buyer's or Buyer Group member's discretion at any time, cancel an Award to the Supplier and terminate negotiations.
8.5 Nothing in this User Agreement limits the right of the Buyer or a Buyer Group member to issue an Award to or enter into a Trading Contract with another supplier participant in the Event.
9.  Intellectual Property Rights
9.1 All Intellectual Property Rights in the System are owned by, or are under licence to, the Buyer.
9.2 The Supplier and its Supplier Users will have no Intellectual Property Rights in the System, nor will they have any rights to copy, adapt, modify or interfere with the System.
9.3 The Supplier must not, without the Buyer's specific written authorisation, download, reproduce, transmit, sell or distribute, in whole or in part, in any form or fashion, the contents and the information available on the System for any other purpose than accessing and using the System in accordance with this User Agreement.
10. Data Protection
10.1    In using and accessing the System, the Supplier must comply with all applicable laws in the jurisdiction from which the Supplier and/or Supplier Users access the System and all relevant regulations together with any codes of conduct and guidance including those issued by the Information Commissioner and it must not do or cause or permit to be done anything which may cause or otherwise result in a breach by the Buyer of the same.
10.2    The Buyer and Buyer Group members are collecting personal information from the Supplier and Supplier Users for the purpose of administering the Event, the System and any Trading Contract. Personal information may be shared with Queensland Government Bodies, non-government organisations and other governments in Australia, and may also be transferred and held overseas (including in the United Kingdom), for that purpose. Personal information may be made publicly available in accordance with the requirements of the Queensland Government’s procurement policy. An individual is able to gain access to personal information held by the customer about the individual in certain circumstances.
10.3    The Supplier agrees and consents, and will ensure that relevant Supplier Users and other third parties agree and consent, to such information being collected, transferred, held and use in accordance with Clause 10.2.
11. Limitation of Liability
11.1    Nothing in this Clause 12 excludes any conditions, guarantees or warranties implied into the User Agreement, or any remedies made available to the Supplier, by the provisions of the Australian Consumer Law or by any other Commonwealth, State or Territory laws to the extent that such implied conditions, guarantees, warranties or remedies may not be excluded by express agreement. Liability for breach of any condition, guarantee or warranty implied by such law shall to the extent permitted by such laws be limited to either supplying the services again or payment of the cost of having the services supplied again (at the Buyer's discretion).
11.2    The Buyer will not be liable to the Supplier whether in contract, tort, negligence, breach of statutory duty or otherwise for loss of profit, revenue, use, anticipated savings, goodwill, reputation or opportunity, financial or other economic loss, in each case whether direct or indirect, or any indirect or consequential loss or damage, costs or expenses whatsoever or howsoever arising out of or in connection with this User Agreement.
11.3    The Buyer will not in any circumstances whatsoever be liable to the Supplier for any direct loss, indirect loss or damages incurred by the Supplier arising from the use of the System caused by:
(a) an event of Force Majeure that affects the availability and/or performance of the System;
(b) incorrect use by Supplier and/or Supplier Users of the System;
(c) connectivity failures in respect of the equipment used by the Supplier Users;
(d) any cancellation, suspension or postponement of an Event;
(e) inability of Supplier ICT equipment to access or successfully use the System;
(f) the acts or omissions of Jaggaer or of any providers of telecommunications services or faults in or failures of their networks and/or equipment; or
(g) breakdown of the System.
11.4    The Supplier acknowledges and accepts that:
(a) the Buyer reserves the right to interrupt and/or suspend the availability of the System at any time by notice to the Supplier without incurring any liability;
(b) the Buyer does not guarantee the conclusion of any business;
(c) the Buyer provides the System on an 'as is' basis and 'as available' basis without any warranty of any kind; the Supplier therefore waives any warranty, expressed or implied (including, by way of example only, any guarantee of compatibility for a specific use or scope) and uses the System at its sole risk; and
(d) the Buyer does not guarantee that any web sites to which Users may be referred through the System are accessible, truthful, complete, or compliant with any laws or third party rights.
11.5    Subject to Clause 11.1 and without prejudice to the provisions of the Clauses above:
(a) except as expressly set out in this User Agreement, all warranties, conditions and guarantees by the Buyer relating to the Events, the System and this User Agreement whether express or implied by statute, law, custom or otherwise are, to the fullest extent permitted by law, excluded from this User Agreement; and
(b) the Supplier must indemnify, hold harmless and keep the Buyer indemnified in full against all claims, demands, actions or proceedings (including legal and other professional advisers fees) made by any third party arising out of or in relation to the Supplier's breach of its obligations under this User Agreement.
12. Confidentiality
12.1    Each party must:
(a) keep confidential all Confidential Information of the other party and safeguard it accordingly;
(b) not disclose any Confidential Information of the other party to any third party without the prior written consent of the other party, except to such persons and to such extent as may be necessary for the performance of or otherwise permitted under this User Agreement; and
(c) not use any Confidential Information otherwise than for the purposes of this User Agreement.
12.2    The Supplier must take all necessary precautions to ensure that all Confidential Information obtained from the Buyer or through the System under or in connection with this User Agreement or an Event:
(a) is given only to such employees, sub-contractors or professional advisors engaged to advise it in connection with this User Agreement as is strictly necessary for the performance of this User Agreement; and
(b) is treated as confidential and not disclosed (without prior written approval) or used by any employee, consultant, sub-contractor, professional advisor or agent otherwise than for the purposes of this User Agreement.
12.3    The Supplier will at all times be responsible for the breach of the confidentiality undertakings under this User Agreement by any of its employee, sub-contractors and/or professional advisers as though such breach were its own.
12.4    Nothing in this User Agreement will prevent either party from disclosing any Confidential Information:
(a) to the extent it is required to be disclosed by law; or
(b) to the party's professional legal or financial advisors.
12.5    The Buyer may:
(a) use any information obtained from the Supplier for the purposes of conducting the Event; and
(b) disclose any information obtained from the Supplier:
(i) to its personnel and any other Queensland Government Body; or
(ii)    to any person engaged in providing any services to the Buyer for any purpose relating to or ancillary to this User Agreement,
provided that, in disclosing any Confidential Information of the Supplier, the Buyer discloses only the information which is necessary for the purpose concerned and requires that the information is treated in confidence.
12.6    Nothing in this User Agreement will prevent either party from using any techniques, ideas or know-how gained during the performance of this User Agreement in the course of its normal business, to the extent that this does not result in a disclosure of the other party's Confidential Information or an infringement of its Intellectual Property Rights.
12.7    The Supplier acknowledges that the Buyer and Buyer Group members may be subject to the requirements of:
(a) the Information Privacy Act 2009 (Qld) and the Right to Information Act 2009 (Qld); and
(b) the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth),
and must assist and cooperate with the Buyer and Buyer Group members in meeting their obligations thereunder in relation to . The Supplier must use all reasonable endeavours to ensure the observance of the provisions of this Clause 12 by its sub-contractors.
12.8    The Buyer and Buyer Group members may publish information about the Event and any resulting Trading Contract on the Queensland Contracts Directory, where required or recommended by Queensland Procurement Policy.
12.9    The obligations of this Clause 12 will survive the expiry of this User Agreement.
13. Rights of Third Parties
13.1    Any member of the Buyer Group may enforce this User Agreement. Except for the members of the Buyer Group, no person who is not a party to this User Agreement (including, without limitation, any employee, officer, agent, representative or sub-contractor of either party) will have the right to enforce any term of the User Agreement which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties expressly referring to this clause.
14. Amendments to User Agreement
14.1    Subject to Clauses 14.2 and 14.3, the Supplier acknowledges that the Buyer reserves the right to vary or amend this User Agreement by publication of a notification or message on the System or through an email or letter to the Supplier, using the email address or postal address provided by the Supplier.
14.2    The Supplier will be deemed to have been accepted the amendments unless the Helpdesk receives, within 10 Business Days of the date of the notice under Clause 15.1, a written communication from the Supplier expressing refusal of the amendments. In any case, the Supplier's continued use of the System will constitute its unconditional acceptance of the amendments in their entirety.
14.3    The Supplier will be entitled to terminate this User Agreement with immediate effect in the event that notice is given pursuant to Clause 14.1.
15. General
15.1    Clauses and rights in this User Agreement can only be waived in writing signed by the waiving party. Failure or delay of a party in exercising a right under this User Agreement does not waive the party’s rights. A waiver will only waive the particular rights in the particular circumstances and will not waive any other rights, or the same rights in other circumstances..
15.2    If any part of this User Agreement is invalid, unlawful or unenforceable, the invalid, unlawful or unenforceable part of the User Agreement (and any parts of the User Agreement which are dependent on those parts) will not apply but the other parts of the User Agreement will not be affected..
15.3    The Buyer will not be committed to any course of action as a result of:
(a) issuing any invitation to participate in an Event;
(b) an invitation to submit any proposal in respect of an Event;
(c) communicating with the Supplier in respect of this Event; or
(d) any other communication between the Buyer and any other party.
15.4    The following clauses survive the termination or expiration of this User Agreement for any reason:
12, 4.4, 6.5, 6.4, 9, 10.2, 10.3, 11, 12, 15, 17, 18 and 19.
16. Notices
16.1    All communications given under this User Agreement must be in writing and must be:
(a) served to the Supplier, either via surface mail or via e-mail, to the e-mail address the Supplier has given upon registration or through the messaging facility available on the System; or
(b) served to the Buyer, via e-mail to the e-mail address the Buyer has given in relation to the Event, or through the messaging facility available on the System,
and will be deemed to be received by the addressee on the same day as the addressor sending such e-mail or message. If that day is not a Business Day, the communication will be deemed to be received on the next Business Day.
17. Law and Jurisdiction
17.1    This User Agreement and any dispute or claim arising out of or in connection with them will be governed by, and construed in accordance with, the laws of the state of Queensland, Australia, and each party submits to the nonexclusive jurisdiction of the Courts of the state of Queensland.
18. Interpretations
18.1    The headings to Clauses are inserted for convenience only and do not affect the interpretation or construction of this User Agreement.
18.2    Words imparting the singular include the plural and vice versa. Words imparting a gender include every gender and references to persons include an individual, company, corporation, firm, partnership or Queensland Government Body.
18.3    The words "include" and "including" must be read as if followed by the words "without limitation".
18.4    References to any statute or statutory provision will include (a) any subordinate legislation made under it, (b) any provision which it has modified or re-enacted (whether with or without modification), and (c) any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
18.5    All references in this User Agreement to Clauses are to the clauses to this User Agreement and references to Sections are to sections of this User Agreement unless otherwise stated.
19. Definitions
The following definitions apply to this User Agreement:
"Australian Consumer Law" means the law set out in schedule 2 of the Competition and Consumer Act 2010 (Cth).
"Award" has the meaning given by clause 9.1.
"Business Day" means between 9.00am and 5.00pm on a day other than a Saturday, Sunday or public holiday in Brisbane, Australia.
"Buyer Group" means the Buyer and any other Queensland Government Body permitted by the Buyer to use the System to conduct Events or to order goods or services in accordance with a Response.
"Confidential Information" of a party means secret, confidential, commercial, financial, marketing, technical or other information, know-how, trade secrets and other information of that party in any form or medium whether disclosed orally or in writing before or after the date of this User Agreement, together with any reproductions of such information in any form or medium, but does not include any information which:
(a) is or becomes public, except through breach of a confidentiality obligation;
(b) the recipient can demonstrate was already in its possession or was independently developed by the recipient; or
(c) the recipient receives on a non-confidential basis from a third party who lawfully acquired it and is under no obligation restricting its disclosure.
"Event" means a sourcing exercise conducted on the System by the Buyer.
"Force Majeure" means any cause affecting the performance by the Buyer of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including (but without limiting the generality thereof) governmental regulations, fire, flood, or any disaster or an industrial dispute affecting a third party for which a substitute third party is not reasonably available. Any act, event, omission, happening or non-happening will only be considered Force Majeure if it is not attributable to the wilful act, neglect or failure to take reasonable precautions of the affected party, its agents or employees or the failure of the Buyer to perform its obligations under this User Agreement.
"Helpdesk" means the facility provided by Jaggaer to handle support queries and issues raised by Supplier Users, which may be contacted by [#Insert method(s) or where methods can be found].
"Information Commissioner" means the Queensland Information Commissioner, the Australian Information Commissioner or a person with a comparable position in the jurisdiction from which Supplier and/or Supplier Users access the System.
"Intellectual Property" means any patent, copyright, database right, moral right, design right (whether registered or unregistered), trade mark, service mark, domain name, know-how, utility model, unregistered design or, where relevant, any application for any such right, or other industrial or intellectual property right.
"Jaggaer" means Jaggaer Advantage Ltd.
"Procurement Conditions" has the meaning given by Clause 2.1.
"Queensland Government Body" means any of:
(a) a body corporate or an unincorporated body established or constituted for a public purpose by the State of Queensland legislation, or an instrument made under that legislation (including a local authority);
(b) a body established by the State of Queensland through the Governor or a Minister; or
(c) an incorporated or unincorporated body over which the State of Queensland exercises control.
"Response" means a quotation, offer or other response submitted by the Supplier on the System in relation to any Event.
"Supplier" means a user of the System to respond to an invitation to participate in an Event.
"Supplier User" means an individual representing the Supplier that has registered and been provided with access to the System.
"System" means the eSourcing System provided and hosted by Jaggaer for Suppliers to participate in sourcing exercise conducted by the Buyer.
"Trading Contract" has the meaning given by Clause 2.2.