tenderCentre

Terms And Conditions

v1.0

We, CADX Pty Ltd, enter into an agreement with the company paying for the use of this site (the "customer") to provide an Internet Project Management System known as tenderCentre. Upon entering into this agreement you agree:

RECITALS:

  1. CADX Pty Ltd owns and operates an Internet Tender Management system known as tenderCentre.
  2. The Customer has requested CADX Pty Ltd to provide an Internet Service to be used by the Customer or the Customer's nominees at various nominated sites.
  3. CADX Pty Ltd has agreed to provide such a service on the terms and conditions set out in this agreement.

·  Definitions and Interpretation

  1. Definitions:

In this agreement:

"Business Day" means any day, other than a Saturday, Sunday or recognised public holiday in the state in which the Customer Premises is located;

"Start Date" means the date on which the Customer elects for the subscription to become available on the Internet;

"Connection" means access by the Customer to the Internet.

"Customer Site Contact" means the person nominated and authorised by the Customer in accordance as the contact person in respect of a particular tenderCentre project site;

"Customer Equipment" means equipment at the Customer's Premises to assist the Customer in connecting to the Internet;

"Customer Network" means the Customer's own local or wide area networks, which are maintained by, and remain the responsibility of, the Customer;

"Customer's Premises" means the site location of the Customer as specified in the Application Form;

"Intellectual Property Rights" means:

(A) inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including (without limitation) developments or improvements of equipment, products technology, processes, methods or techniques;

(B) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;

(C) confidential information, trade secrets and trade and service marks (whether registered or unregistered); and

(D) proprietary rights under the Circuit Layouts Act (Cth) 1989.

"Internet" means the international network of data networks utilising the TCP/IP communications protocol;

"Internet Service" means the provision of access to the tenderCentre software and services in accordance with the terms and conditions of this agreement and includes those services described in clause 2;

"Written" or "in writing" includes printing and other means of representing or reproducing words in material form including mail, fax, email;

  1. Headings shall be ignored in construing the agreement.

2. Services to be provided by CADX Pty Ltd

  1. CADX Pty Ltd will provide the service known as tenderCentre for the duration of this agreement in accordance with the terms and conditions of this agreement
  2. This service includes:
    1. The hosting of a tenderCentre project web site
    2. Immediate access to all tenderCentre software modules, software upgrades and fixes
    3. A maximum of 1Gb online data storage
    4. A maximum of 100 Mb/week data transfer traffic
    5. CADX Pty Ltd will backup the system nightly.

3. Service Performance and Availability

  1. CADX Pty Ltd will make all reasonable efforts to ensure the availability and performance of the tenderCentre server, and its connection to the Internet.
  2. CADX Pty Ltd gives no warranty or guarantee in relation to the performance, features, and compatibility, content or otherwise of any connected Internet Service or host/computer connected to the Internet Service.
  3. It is the responsibility of the User to keep at their premises any appropriate records for the purpose of any contractual or other legal requirements

4. Fees And Payment

  1. "Subscriptions" are calculated weekly for the duration of the project.
  2. Fees are invoiced quarterly in advance. The Customer must pay the Fees within 30 days of invoice.
  3. The Subscription Fee applies only to the services of the tenderCentre server, and does not include any third party charges the customer may incur to connect to the Internet.

5. Term

  1. This agreement will commence on the Subscription Start Date. Either party may terminate this agreement by giving prior notice in writing to the other party, at any time in accordance with section 12 of this agreement. The amount of prior notice must be not less than 1 week prior to the intended termination date.

6. Maintenance and Support of Internet Service

  1. CADX Pty Ltd will use all reasonable efforts to provide to the Customer the Internet Service.
  2. CADX Pty Ltd will use all reasonable efforts to restore all faults software or hardware faults related to the tenderCentre server.
  3. CADX Pty Ltd will give the Customer a minimum of five (5) Business Days notice of any Scheduled Outages.
  4. Each Scheduled Outage will not exceed one (1) hours when performed between 7:00am and 9:00pm and will not exceed seven (7) hours when performed between 9.00pm and 7.00am.
  5. CADX Pty Ltd’s obligations as set out in 6.4 do not cover maintenance necessitated as a result of:
    1. any fault in equipment or software not forming part of the Internet Service;
    2. damage due to causes external to the Internet Service.

7. Responsibilities of Customer

  1. At the request of CADX Pty Ltd, the Customer must provide such information and assistance as are reasonably required by us in order to enable us to meet our obligations under this agreement.
  2. The Customer must comply with all reasonable directions and instructions of CADX Pty Ltd in relation to the Customer's use of the Internet Service provided prior reasonable notice is given to the Customer of any of the same, and made known to the Customer.
  3. The Customer shall take every reasonable precaution in the use of the Internet Service to prevent contamination and diffusion of any software or hardware contamination including computer "viruses", "worms" or "Trojans". CADX Pty Ltd do not assume any liability for any damages caused by the transmission of viruses.
  4. The Customer shall take every reasonable precaution to ensure that no person is able to make unauthorised use of or gain unauthorised access to the Internet Service provided to the Customer pursuant to this agreement.

8. Ownership and Confidentiality of Data

  1. CADX Pty Ltd must take all reasonable steps to the extent permitted by law to ensure that access to the Customers' data is restricted to those CADX Pty Ltd personnel (including sub-contractors and agents) who are required to have access to the same in order to enable CADX Pty Ltd to comply with its obligations under this agreement.
  2. CADX Pty Ltd grants the Customer a license to use the tenderCentre software in accordance with this agreement. The tenderCentre software remains the property of CADX Pty Ltd.
  3. Records and files in the tenderCentre Database pursuant to your project remain the property of the Author of that record or file.
  4. CADX Pty Ltd will not make records of the database available to other parties, either within or external to the project team, without the written consent of the Author.
  5. Parties may require of CADX Pty Ltd to make available to them the records or files for which they are the Author. Provision of this data will be on CD ROM in an unprocessed format, and will attract a $50 service fee per incident plus $50 per CD required.

9. Warranties

  1. CADX Pty Ltd does not warrant the integrity or accuracy of any content managed by tenderCentre.
  2. If in respect of the Internet Service or workmanship in providing same, CADX Pty Ltd breaches any non-excludable warranty or condition implied by law, CADX Pty Ltd liability for such breach shall be limited, at CADX Pty Ltd option;
    1. if the breach relates to a service, supplying the service again or the payment of the cost of having the service supplied again; and
    2. if the breach relates to a good, the repair or replacement of the good or the payment of the cost of having the goods repaired or replaced.

10. Indemnity

  1. The Customer indemnifies CADX Pty Ltd and holds CADX Pty Ltd harmless from and against any loss, cost, expense or liability arising from any claims, demands or proceedings by any person against CADX Pty Ltd whatsoever arising out of:
    1. the use or attempted use of the Internet Service by the Customer or by any person authorised by the Customer or from the use of any facility or equipment connected to the Internet Service by the Customer or any person authorised by the Customer; or
    2. any hardware or software contamination resulting from the use by the Customer or by any person authorised by the Customer of the Internet; except to the extent that such loss, cost, expense or liability arises from or is attributable to any negligent act or omission or willful misconduct on the part of CADX Pty Ltd, CADX Pty Ltd's officers, employees, contractors and agents.
  2. The Customer indemnifies CADX Pty Ltd and holds CADX Pty Ltd harmless from and against any loss, cost, expense or liability arising from any claims, demands or proceedings by any person against CADX Pty Ltd whatsoever arising:
    1. out of any action brought by any third party against CADX Pty Ltd for infringement of that third party's Intellectual Property Rights due to the Customer's use of the Internet Service provided to the Customer pursuant to this agreement, or
    2. due to the use of the Internet Service and by any person authorised by the Customer to use the Internet Service provided to the Customer or pursuant to this agreement or CADX Pty Ltd's possession of Customers' data or materials in accordance with this agreement except to the extent that such loss, cost, expense or liability arises from or is attributable to any negligent act or omission or willful misconduct on the part of CADX Pty Ltd, CADX Pty Ltd's officers, employees, contractors and agents.

11. Liability

  1. Except as provided to the contrary in this agreement and to the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the provision of the Internet Service or other obligations under this agreement will be excluded. Without limiting the generality of the preceding sentence and except as expressly provided in this agreement, CADX Pty Ltd will not be under any liability (including liability as to negligence) to the Customer or to any third party in respect of any loss or damage (including consequential loss or damage), however caused, which may be suffered or incurred or which may arise directly or indirectly as a result of or in connection with the provision of the Internet Service or CADX Pty Ltd's failure to comply with CADX Pty Ltd's obligations under this agreement except as expressly provided in this agreement.
  2. Subject only to a refund of any fee paid by you for the provision of the Internet Service, CADX Pty Ltd will not be liable for loss of profits, loss of use of data, software or information (or part thereof) or any damage whatsoever suffered by you or for which you may become liable as a result of using the Internet Service.

12. Termination

  1. The Customer is entitled to terminate this agreement by notice in writing to CADX Pty Ltd at any time. The amount of prior notice must be not less than 1 week prior to the intended termination date.
  2. Upon Termination of this agreement the Customer is entitled to a refund of the pro-rata amount of the Site Usage Fee paid in advance. The Site Startup Fee is non-refundable.
  3. The termination of this agreement for whatever reason is without prejudice to any rights that have accrued to either party prior to the date of termination.
  4. CADX Pty Ltd may suspend the Internet Service to the Customer at any of the Customer Premises at any time:
    1. while payment of an account for the Internet Service provided to the Customer is overdue for a period of seven (7) days after the service of a notice which states that the Internet Service provided to the Customer will be disconnected due to overdue payment;
    2. if the Customer becomes bankrupt or insolvent or enters into a scheme of arrangement or composition with the Customer's creditors or, being a company, is placed in receivership or under official management or has a provisional liquidator appointed;
    3. if the Customer breaches any material term or condition of this agreement and fails to remedy that breach within a period of fourteen (14) days after service of a notice that states that the Internet Service provided to the Customer will be disconnected due to that breach.
  5. Where provision of the Internet Service has been suspended under clause 12.3, the reconnection of the Internet Service shall be subject to the appropriate Site Startup Fee ($500).
  6. CADX Pty Ltd may suspend the Internet Service to the Customer at any of the Customer premises at any time in the event of an emergency or whenever CADX Pty Ltd considers it necessary or reasonable in order to safeguard provision of the Internet Service to emergency and other essential services.
  7. Upon termination the Customer may request a copy on CDROM of all database records and files for which they are the Author. This will attract a $50 service fee, plus $50 per CDROM.

13. Disputes

  1. General
    1. A dispute must, as far as possible, be settled amicably between the parties.
    2. The party raising the dispute must provide to the other party written confirmation of the issue in dispute and such confirmation must include sufficient detail of the issue or issues in dispute to enable the parties to attempt to settle the dispute.
    3. If the parties cannot settle the dispute amicably, within two (2) weeks from the date the dispute is reduced to writing in accordance with clause 13.1(b), the dispute must be dealt with in the manner specified in clauses 15.3 and 13.3 of the agreement
  2. If the dispute relates to the construction or interpretation of the terms and conditions of this agreement, the dispute must be dealt with by a court.
  3. All other disputes must be dealt with by referral to an expert nominated jointly by the parties, or failing agreement, within 14 days after either party's request to the other party for such a referral, an expert nominated by the President for the time being of the Law Society of New South Wales. Such expert shall be deemed to act as an expert and not as an arbitrator and the expert's fees shall be paid by the parties in equal shares unless the expert determines that the conduct of a party is such that such party should bear all such costs.

14. General

  1. Assignment
    1. The Customer must not assign any of the Customer's rights under this agreement without the prior written consent of CADX Pty Ltd.
    2. CADX Pty Ltd may assign any of its rights under this agreement without the prior written consent of the Customer and CADX Pty Ltd must notify the Customer in the event that CADX Pty Ltd exercises this power.
  2. Severance
    1. A provision of, or the application of a provision of, this agreement that is prohibited in any jurisdiction, is in that jurisdiction, ineffective only to the extent of that prohibition.
    2. A provision of, or the application of a provision of, this agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
    3. If a provision of this agreement is void, illegal or unenforceable, it may be severed without affecting the validity, legality or enforceability of the other provisions of this agreement.
  3. Waiver
    1. Waiver of a breach of this agreement, or of any rights created by, or arising upon default, under this agreement, must be in writing and signed by the party granting the waiver.
    2. A breach of this agreement is not waived by a failure to exercise, a delay in exercising, or a partial exercise of, any remedy available under this agreement or in law or equity.
    3. A right created by, or arising upon, default under this agreement, is not waived by a failure exercise, a delay in exercising, or a partial exercise of, that right.
  4. Entire Agreement
    1. This agreement is the entire agreement between the parties in respect of its subject matter. CADX Pty Ltd may amend these terms and conditions at its discretion provided that CADX Pty Ltd will give the Customer twenty (20) Business Days notice of any changes to these terms and conditions.
    2. Upon receipt of notice of any amendment to the terms and conditions of this agreement, the Customer may elect to terminate this agreement by giving not less than one (1) weeks' written notice to CADX Pty Ltd at any time.
  5. Conflict of Terms


In the event of a conflict between the terms of the Schedule to this agreement and the terms of the agreement, the terms of the agreement shall prevail to the extent of the inconsistency.

  1. Force Majeure
    1. If a party is prevented from performing an obligation under this agreement because of events or circumstances beyond the reasonable control of, and not reasonably foreseeable by, the party, the party will be granted a reasonable extension of time to perform the obligation if:
    2. the party notifies the other party as soon as is reasonably practicable of the events or circumstances and of the period that the party expects to be prevented from performing the obligation; and
    3. the party takes all reasonable steps to avoid or limit the effects of the events or circumstances or to render to the reasonable satisfaction of the other party the equivalent of performance of the obligation.
    4. If a party is, or is reasonably likely to be, prevented from performing a material obligation for a period greater than 3 months, the other party may terminate this agreement immediately by giving notice in writing to the first mentioned party.
    5. The events and circumstances contemplated under clause 14.6 include (but are not limited to) acts of God, war, flood, legislation and strikes.
  2. No Partnership


Nothing in this agreement will constitute or be deemed to constitute a partnership between the parties or constitute or be deemed to constitute the Customer as agent for CADX Pty Ltd for any purpose and neither party has the authority or power to bind the other or contract in the name of the other in any way or for any purpose other than as specifically contemplated by this agreement.

  1. Sub-Contracting


CADX Pty Ltd may sub-contract for the performance of this agreement or any part thereof.

  1. Notices


(A) Any notice given under or pursuant to this agreement must be in writing and will be deemed duly given or made if delivered or sent by registered mail, hand delivery, facsimile transmission or electronic mail to the address of the relevant party specified in this agreement and marked to the attention of the person nominated in this agreement.
Any notice, demand or other communication will be deemed, in the absence of proof to the contrary, to have been received by the person to whom it was sent:

1.       in the case of hand delivery, upon delivery;

2.       in the case of registered mail, 3 days after the date of dispatch;

3.       in the case of facsimile transmission, on the next business day following successful transmission as evidenced by the sender's facsimile machine statement

4.       in the case of electronic mail, upon delivery.

  1. Governing Law


This agreement is governed by and will be construed in accordance with the laws of the State of New South Wales, Australia.