Bidder Terms and Conditions

Keelvar SaaS

These Bidder Terms and Conditions apply to you when you register as a Bidder on the Platform or when you participate as a Bidder in an Event.

Please read these Terms and Conditions carefully before registering as a Bidder to use the Platform and Services operated by Keelvar Systems Limited of Suite 2B, 6 Lapps Quay, Cork, T12 PPX3, Ireland.

By registering as a Bidder and clicking on the accept buttons relating to these Bidder Terms and Conditions and Privacy Notice, (the "Agreement") you agree to be legally bound by these Bidder Terms and Conditions, DPA and Privacy Notice as they may be modified and posted on our website from time to time.

If you do not wish to be bound by the terms of this Agreement, then you may not register as a Bidder or use the Platform or our Services.

1. Definitions

In this Agreement the following capitalized terms shall have the following meanings:

“Agreement”: means these Bidder Terms and Conditions, the DPA and the Privacy Notice and any other documents referred to in the Agreement;

“Confidential Information”: means any and all information in any form whatsoever relating to Keelvar, Customer; Users or Bidder, or the business, prospective business, finances, technical process, computer software (both source code and object code) and IPRs or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession as a result of this Agreement or access to the Platform, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;

“Consequential Loss”: means pure economic loss, special loss, losses incurred by any third party, losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, costs of procuring substitute goods, products or services or wasted management or staff time;

“Counterparty” or “Counterparties”: Customer, User or Bidder, individually or when used in the plural all three together;“Customer”: means a customer of Keelvar who authorises Users to set up Events;

“DPA”: means the Data Processing Agreement of Keelvar published at as amended from time to time;“Effective Date”: means the date the Bidder accepts these Bidder Terms and Conditions;

“Event Data”: means any Bidder Data or information that Counterparties make available within the Platform in relation to any Event, including any files uploaded or information entered into the Platform;

“Event”: means a bid process set up by a User via the Platform in which a Bidder makes offers or bids, either taking the form of a request for tender, (“eRFx Event”) or in an e-auction, (“eAuction Event”).

“Feedback”: means feedback, innovations or suggestions created by the Bidder or regarding the attributes, performance or features of the Platform or Services;

“Fees”: means the fees payable to Keelvar by a Customer;

“Force Majeure”: means anything outside the reasonable control of a party, including but not limited to acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage (including where the Keelvar ceases to be entitled to access the Internet for whatever reason, server crashes) transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency;

“Illegal Content”: means any data or content which is defamatory, or constitutes a breach of the IPR or legal rights of any third party;

“IPR”: means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;

“Keelvar”: Keelvar Systems Limited of Suite 2B, 6 Lapps Quay, Cork, T12 PPX3, Ireland;

“Platform”: means the online hosted Keelvar SaaS platform otherwise known as Sourcing Optimizer, accessed by Customers, Bidders and Users to facilitate Events between Users and Bidder to share content with each other in order for the Bidder to make bids to enter into Transactions;

“Privacy Notice”: means the Privacy Notice of Keelvar published at as amended from time to time;

“Services”: means the hosting, support and maintenance services provided by Keelvar for the Platform;

Statistical Data”: means aggregated, anonymised data derived from the Bidder’s use of the Platform which does not include any personal data;

“Bidder Data”: means all data imported into the Platform by the Bidder for the purpose of registering as a bidder on the Platform or and/or taking part in an Event;

“Bidder Terms and Conditions”: means these bidder terms and conditions;

“Term”: means the duration of this Agreement;

“Terms”: means the terms of the contract between a Customer, User or Bidder (as applicable) that govern Transactions facilitated via participation in Events on the Platform;

“Transaction Audit Trail”: means all information, including Event Data and platform interactions, that forms part of the documented history of an Event and any resulting Transactions;

Transaction”: means any bid made by a Bidder participating in an Event to provide services to the User, which is accepted by a User of the Platform;

“Users”: means employees, agents, consultants or independent contractors of the Customer who have been expressly authorised by the Customer to set up an Event using the Platform to facilitate the purchase of services from Bidders taking part in an Event.

2. Provision of the Platform and Services

(2.1) Keelvar permits the Bidder to register to use, and to access, the Platform in accordance with the terms of this Agreement from the Effective Date for the Term.

(2.2) The Platform enables Users and Bidders to access content of each other, correspond with, bidder’s make bids and offers in relation to Events in order to enter into Transactions with each other. Use of the Platform and the content provided by all users of the Platform, is provided solely at the risk of each user of the Platform.

(2.3) All Transactions made or entered into via the Platform are between the Counterparties and shall be subject to the Terms. Keelvar shall not be a party to the Terms nor to any Transaction, contract or payment between the Counterparties. The Bidder acknowledges that all bids made via the Platform during an Event form a binding legal offer by the Bidder to enter into a Transaction at the price displayed, subject to the parties agreeing the final terms of the Transaction.

(2.4) Keelvar recommends that the Bidder checks the terms and conditions and Privacy Notice of other users of the Platform before using their content, providing information, or entering into a Transaction.

(2.5) Keelvar does not endorse or approve any Platform user’s content, products or services or those of any of the third-party websites made available via the Platform.

(2.6) Keelvar reserves the right to remove or suspend the accounts of Bidders who breach the terms of this Agreement.

(2.7) Keelvar reserves the right to amend the Platform or Services if required by any applicable law or regulatory requirement.

(2.8) Keelvar is not responsible for ensuring that Counterparties comply with the Terms.

(2.9) Keelvar is not responsible for correcting any breach of the Terms by any Counterparty, and is not required to be involved in any dispute between Counterparties.

(2.10) The Counterparties acknowledge that Keelvar provides the Platform and Services to enable Counterparties to enter into Transactions. Keelvar will provide reasonable assistance to assist Counterparties where any dispute arises in connection with use of the Platform at its sole discretion, however Keelvar shall not be responsible for monitoring or regulating any Counterparty’s compliance with their own contractual obligations to each other resulting from any Transaction.

3. Licence to use the Platform and Services

(3.1) Upon registration as a Bidder, and acceptance of the terms of this Agreement, the Bidder is granted a royalty free, non-exclusive, non-transferable, worldwide licence to use the Platform and Services (including any associated IPR and Confidential Information of Keelvar) from the Effective Date for the Term for the Bidder’s internal business operations. Such licence permits the Bidder to use the Platform and Services via the Internet. Where open source software is used as part of the Platform or Services, such software use by the Bidder will be subject to the terms of the open source licences. No additional implied rights are granted beyond those specifically mentioned in this clause 3.1.

(3.2) Notwithstanding the Bidder’s statutory rights, no right to modify, adapt, or translate the Platform or Services or create derivative works from the Platform or Services is granted to the Bidder.

(3.3) Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Bidder has any right to obtain source code for the software comprised within the Platform or Services. Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Platform or Services is prohibited, as far as this is permitted by law.

(3.4) Unless otherwise specified in this Agreement, the Platform and Services are provided and may only be used in conjunction with:

(3.4.1) The Bidder’s existing systems and applications in order to facilitate Transactions via participation in Events;

(3.4.2) Providing access to the Platform and Services solely to the Bidder; and

(3.5) The Bidder may not, except as expressly permitted in this Agreement:

(3.5.1) Lease, loan, resell, assign, licence, distribute or otherwise permit access to the Platform and Services; or

(3.5.2) Use the Platform or Services to provide ancillary services related to the Platform or Services; or

(3.5.3) Permit access to or use of the Platform or Services by or on behalf of any third party.

4. Intellectual Property Rights

(4.1) All IPRs and title to the Platform and Services (save to the extent these incorporate any Bidder Data, Event Data, Bidder IPR or third party owned item) shall remain with Keelvar and/or its licensors and subcontractors. No interest or ownership in the Platform, Services, IPRs or otherwise is transferred to the Bidder under this Agreement.

(4.2) The Bidder shall retain sole ownership of all rights, title and interest in and to Bidder Data and its pre-existing IPR and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Bidder Data. The Bidder grants Keelvar a royalty free, non-exclusive, licence to use Bidder Data, Event Data, Bidder IPRs and any third party owned item from the Effective Date for the Term to the extent required for the provision of the Platform and Services to the Bidder to enable Keelvar to store and process data Bidder has provided for the Term of this Agreement, unless otherwise deleted by Bidder.

(4.3) The Bidder is not allowed to remove any proprietary marks or copyright notices from the Platform or Services.

(4.4) The Bidder grants Keelvar a non-exclusive, non-transferable, revocable licence to display the Bidder’s name, logo and trademarks, as designated and/or amended by the Bidder from time to time and as required in the creation of correspondence, documentation and provision of the Platform and Services.

(4.5) The Bidder assigns all rights, title and interest in any Feedback to Keelvar. If for any reason such assignment is ineffective, the Bidder shall grant Keelvar a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such Feedback without restriction.

(4.6) The Bidder grants Keelvar the perpetual right to use Statistical Data and nothing in this Agreement shall be construed as prohibiting Keelvar from using the Statistical Data for business and/or operating purposes, provided that Keelvar does not share Statistical Data which reveals the identity of the Bidder or Bidder’s Confidential Information with any third party.

(4.7) Any Event Data that a Counterparty makes available within the Platform or Services shall remain the property of the party disclosing the Event Data. The Bidder acknowledges and hereby agrees to Keelvar:

(4.7.1) Storing Event Data (which may contain personal data and Confidential Information) in the Transaction Audit Trail within the Platform and Services;

(4.7.2) Permitting the Counterparties to aggregate and use Event Data in a non-anonymised way for: (a) the purposes of facilitating Events and Transactions; or (b) to comply with any applicable law or regulatory requirement;

(4.7.3) Permitting Counterparties to aggregate Event Data relating to Events and Transactions in which they have involvement for the purposes of their business development, provided that they do not share data which reveals the identity of any Bidder, or any Bidder Confidential Information with any third party. For the avoidance of doubt the Counterparties are not permitted to access or aggregate each other’s data (even in an anonymous form) which is not Event Data;

(4.7.4) Using Event Data within the benchmarking feature of the Platform to provide Counterparties with anonymous analysis and benchmarking information.

(4.8) The Bidder may take and maintain technical precautions to protect the Platform and Services from improper or unauthorised use, distribution or copying.

5. Term and Termination

(5.1) This Agreement shall commence on the Effective Date and continue until either party terminates the Agreement as set out below, or as otherwise permitted in this Agreement.

(5.2) Keelvar may terminate this Agreement, access to the Platform or the provision of any Services with immediate effect if:

(5.2.1) The Bidder has used or permitted use of the Platform and Services other than in accordance with this Agreement; or

(5.2.2) Keelvar is prohibited under applicable law, or otherwise from providing the Platform or Services.

(5.3) Either party may terminate this Agreement immediately, with cause, if the other party:

(5.3.1) Ceases or threatens to cease or carry on business; or

(5.3.2) Is unable to pay its debts or enters into compulsory insolvency or voluntary liquidation; or

(5.3.3) Convenes a meeting of its creditors or has a receiver, manager or similar official appointed in respect of its assets; or

(5.3.4) Has an administrator, receiver, manager or similar official appointed; or

(5.3.5) Is affected by a similar event under the law of any other jurisdiction; or

(5.3.6) A Force Majeure event lasts for more than 28 days.

(5.4) Either party may terminate this Agreement:

(5.4.1) For material breach of any term by giving the breaching party written notice. However, where the breach is capable of remedy, provided that the breach is specified and remedy of the breach is requested, the notice shall only be effective if the breaching party fails to remedy the breach within 10 days of receipt of the notice; or

(5.4.2) At any time without case by giving the other party 30 days notice via email.

(5.5) Termination of this Agreement for any reason shall not affect the accrued rights of the parties arising under this Agreement and in particular without limitation the right to recover damages against the other. Clauses 3. (Licence), 4. (Intellectual Property Rights), 5. (Term and Termination), 6. (Fees and Invoicing), 8. (Confidential Information), 9. (Data Protection) 10. (Disclaimers and Warranties), 11. (Liability), 12. (Indemnities), 14. (Assignment). 15. (Relationship between the Parties), 19. (Miscellaneous) and 20. (Governing Law and Jurisdiction) shall survive the expiry or termination of this Agreement and shall remain in force and effect.

(5.6) Upon termination of this Agreement all licences granted under the Agreement shall terminate on the effective date of termination. Keelvar shall:

(5.6.1) Cease providing the Platform and Services to the Bidder;

(5.6.2) At the option of the Bidder, following receipt of a request from the Bidder to delete or return Bidder Data stored in Keelvar’s database, the Bidder may export the data using the Platform provided that such request is made within 30 days of termination.

6. Fees and Invoicing

(6.1) The Bidder shall not be charged any Fees by Keelvar for use of the Platform or Services.

(6.2) In order to take part in an Event the Bidder needs to register on the Platform as a bidder. In order to register as a bidder the Bidder must agree to the terms of this Agreement.

7. Participation in Events

(7.1) Registration as a Bidder. In order to be informed about Events or take part in any Event when invited by a Counterparty, the Bidder must register on the Platform as a bidder. In order to register as a bidder the Bidder must agree to the terms of this Agreement.

(7.2) eRFx Event. Until the deadline for an eRFx Event is reached, Bidder may:

(7.2.1) Place bids; and

(7.2.2) Provide answers to the RFI part of an eRFx Event. The Bidder can change its submitted bids while the Event is active. The Bidder is prevented from viewing any other bidder’s bids or identities. The Bidder acknowledges that an eRFx Event, can be:

(7.2.3) Extended, stopped, cancelled or changed before the deadline is reached. The Customer may send messages to one or more of the bidders during and after the participation period of the eRFx Event.

(7.3) eAuction Event. The Bidder may submit bids continuously during the eAuction bidding period. The Customer may:

(7.3.1) Extend the eAuction bidding period;

(7.3.2) Stop or cancel any eAuction Event before the deadline is reached; and

(7.3.3) Make changes to all fields in the eAuction before or during the eAuction period.

(7.4) Completing an Event. Once the Event deadline is exceeded, it is no longer possible for the Bidder to place bids in an Event, or provide answers to the RFI part of an eRFx Event. The Customer then selects which bidder it wishes to enter into a Transaction with, or the Customer may reject all bidder bids.

(7.5) Legally Binding Effect participation in Events. All answers provided to a Customer (or its user who sets up the Event) in the RFI part of an eRFx Event as and all bids made by the Bidder in any Event are legally binding and from a Transaction.

8. Confidential Information

(8.1) Each party may use the Confidential Information of the other only for the purposes of this Agreement. Each party must keep confidential all Confidential Information disclosed to it, except where the recipient of Confidential Information is required to disclose the Confidential Information by law to any regulatory, governmental, or other authority with relevant powers to which either party is subject.

(8.2) Each party may disclose the Confidential Information of the other party to those of its employees and agents and other Counterparties who need to know the Confidential Information for the purposes of this Agreement, but only if the employee or agent or other Counterparties is bound by confidentiality undertakings equivalent to those set out in this Agreement.

(8.3) Event Data, including any Confidential Information contained in Event Data, forms part of the Transaction Audit Trail of all Counterparties. Subject to the aforesaid, both parties agree to return (or destroy) all documents, materials or data containing Confidential Information to the disclosing party without delay upon termination or expiry of this Agreement.

(8.4) The obligations of confidentiality under this Agreement do not extend to information that:

(8.4.1) Was in the other party’s lawful possession before the negotiations leading to this Agreement; or

(8.4.2) Is, or after the Effective Date, becomes publicly known other than through any act or omission of the receiving party; or

(8.4.3) Is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(8.4.4) Is independently developed by the receiving party, which independent development can be shown by written evidence; or

(8.4.5) Is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

(8.5) If either party is required to disclose any Confidential Information pursuant to clause 8.4.5 such party shall, where lawfully permitted to do so:

(8.5.1) Promptly consult with and take into account any comments from the other party prior to making any disclosure; and

(8.5.2) Work with the other party to ensure that any exemptions or other legitimate means of preventing disclosure or limiting disclosure are used to the fullest extent possible.

(8.6) The parties acknowledge and agree that without prejudice to the general confidentiality provisions in this clause 8 and without limitation, all information falling within the definition of Confidential Information as set out in clause 1 of this Agreement and any information which is supplied by the disclosing party to the receiving party pursuant to this Agreement or the negotiation thereof is:

(8.6.1) Confidential Information the disclosure of which by the receiving party would be an actionable breach of confidence; or

(8.6.2) A trade secret of the disclosing party; and

(8.6.3) Information, the disclosure of which would be likely to prejudice the commercial interests of the disclosing party or of any other person.

9. Data Protection

(9.1) Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles, and agreements.

(9.2) To the extent that personal data is processed by Keelvar when the Bidder uses the Platform or Services to take part in Events, the parties acknowledge that Keelvar is a data processor and the Bidder is a data controller of Bidder Data and the parties shall comply with their respective obligations under applicable data protection law and the terms of the DPA.

(9.3) When Event Data is collected and processed when the Bidder takes part in any Event, the parties acknowledge that they are each independent data controllers of all Event Data and neither party is acting as a data processor of the other party in respect of Event Data.

(9.4) Where Keelvar collects and processes Bidder Data that includes personal data of the Bidder, as a data controller, when providing the Platform and Services to the Bidder, such collection and processing shall be in accordance with the Privacy Notice.

(9.5) Where Bidder participates in a particular category or type of Event on the Platform, the parties agreed that the Platform can recommend the Bidder to Customers running Events of a similar nature for the purpose of Bidder being invited to participate in such Event.

(9.6) If a third party alleges infringement of its data protection rights, Keelvar shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.

10. Disclaimers and Warranties

(10.1) No warranty is made regarding the results the Bidder can achieve from using the Services or Platform or that the Services or Platform will operate uninterrupted or error free.

(10.2) No warranty is made that any information provided on or via the Platform or Services or in an Event is accurate or complete or current and Keelvar makes no commitment to update such information and expressly disclaims all liability for errors or omissions in such information. It is the Bidder’s responsibility to verify any information before relying on it. All content or information provided on or via the Platform or Services or in any event, is provided “as is”. Keelvar:

(10.2.1) Provides no warranties in relation to such content or information;

(10.2.2) Has no commitment to update such content or information; and

(10.2.3) Shall have no liability whatsoever to the Bidder for its use or reliance upon such content or information.

(10.3) Keelvar solely provides the Customer (and its users) with an opportunity to hold an Event and the Bidder an opportunity to place bids or provide answers to the RFI part of an eRFx Event for the purpose of the purchase or sale of services/products directly between the Customer (or its Users) and the Bidder. Keelvar is not in any circumstances a Customer (or their User), a Bidder, dealer, agent or department of any of the aforesaid, unless Keelvar is instructed by the Customer to run a managed service Event on behalf of the Customer. Keelvar cannot bind or be bound by the actions of a Bidder or Customer and its Users who organise or participate in an Event. All agreements relating to an Event are made directly and exclusively between the Customer (or its Users) and the Bidder. Keelvar has no responsibility for any third party data or contracts relating to any Event which is a matter strictly between the Customer and its selected bidder. Any Event and any associated materials in respect of Events are provided on the instruction of the Customer and are not and do not include representations, actions, or statements of Keelvar and are not binding on Keelvar. Keelvar is not an agent of the Customer and acts exclusively as a facilitator of Events, the Bidder to prepare financial proposals and purchasers to evaluate outcomes.

(10.4) Keelvar has no liability whatsoever:

(10.4.1) In connection with any relationship between the Bidder and Customer formed as a result of an Event or Transaction;

(10.4.2) For any damages resulting from misprints on the Customer (or its User’s) homepage, third party information, erroneous information or errors in specifications, invitations etc., and problems in the functionality of the Platform or appear in the Customer’s homepage as a result of technical errors, computer viruses or availability issues;

(10.4.3) To Customers, Users, the Bidder, bidders, third party or public authorities resulting from any use of Events, including claims for damages as a result of concluded or not concluded Transactions;

(10.4.4) To Customers, Users or the Bidder, for any claims made against the Customer (or its users) or the Bidder by public authorities, including taxes and duties, or as a result of failure to observe legislation regarding public procurement or competition laws.

(10.5) The Bidder warrants that: it rightfully owns, has and maintains the necessary user rights, licences, permits, copyrights and ancillary copyrights and consents required for it to fulfil its obligations under this Agreement.

(10.6) The Bidder warrants that it has all necessary licences in all relevant jurisdictions to conduct the business it performs via the Platform and Services, and that the use of the Platform and Services will abide by the requirements, standards and terms of such licences.

(10.7) The Bidder acknowledges and agrees that the Bidder is solely responsible to its own customers and for complying with the terms of the agreements it enters into with them. Keelvar shall not be a party to such agreements. Keelvar shall have no liability whatsoever to the Bidder or any customer of the Bidder for the failure of the Bidder or its customer to comply with their obligations under the terms of such agreements, nor for any error or omission made by the Bidder or its customers in relation to such agreements.

(10.8) The Bidder warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services and Platform granted under this Agreement is limited as set out under this Agreement. In particular the Bidder shall treat any identification, password or username or other security device for use of the Services and Platform with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. Any breach of the above shall be immediately notified to Keelvar in writing. The Bidder shall be liable for any breach of this Agreement by its own users.

(10.9) The Bidder warrants and represents that it shall ensure that its network and systems comply with the relevant specification provided by Keelvar from time to time and that it is solely responsible for procuring and maintaining its network connections and telecommunications links from the Bidder’s systems to Keelvar’s data centres and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Bidder’s network connections or telecommunications links or caused by the Internet.

(10.10) Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law.

11. Liability

(11.1) Neither party excludes or limits its liability to the other for fraud, death or personal injury caused by their negligent act or omission or wilful misconduct.

(11.2) Neither party shall be liable for any Consequential Loss arising out of or related to this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, even if the party was advised of the possibility of such damages.

(11.3) Neither party shall be liable for any loss of profits (whether categorised as direct or indirect) arising out of or related to this Agreement, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages.

(11.4) Subject to clauses 11.1 to 11.3 inclusive the total liability of Keelvar to the Bidder in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising under this Agreement or based upon any claim for indemnity or contribution shall be limited to the total Fees (excluding all taxes) paid by the Bidder to Keelvar during the 12 month period prior to the date on which any such claim arose. If the duration of the Agreement has been less than 12 months, such shorter period shall apply.

(11.5) The Bidder shall not raise any claim under this Agreement more than 1 year after:

(11.5.1) The discovery of the circumstances giving rise to a claim; or

(11.5.2) The effective date of termination or expiry of this Agreement.

(11.6) The parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents.

12. Indemnities

(12.1) The Bidder shall defend, indemnify and hold Keelvar and its employees, sub-contractors or agents harmless from and against any costs, losses, fines, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from:

(12.1.1) Any claim made against a Counterparty by another Counterparty or a Counterparty’s customers or a regulatory authority in any jurisdiction relating to or resulting from use of the Platform, Services or Event; or

(12.1.2) Any claimed infringement or breach by the Bidder of any IPRs with respect to use of the  Services, Platform or an Event outside of the scope of this Agreement; or

(12.1.3) Use by Keelvar of any Bidder Data, in particular storage or publication on the Internet of any Illegal Content; or

(12.1.4) Any access to or use of the Services or Platform by an Authorised User or a third party;

(12.1.5) Breaches of data protection law or regulations or the terms of the DPA by the Bidder;

and Keelvar shall be entitled to take reasonable measures in order to prevent Illegal Content from being published on the Internet or breaches of third party rights from continuing.

13. Security

(13.1) The Bidder and Authorised Users must ensure that each password is only used by the Bidder. The Bidder is responsible for any and all activities that occur under the Bidder’s account and via the Bidder’s passwords. The Bidder will immediately notify Keelvar if the Bidder becomes aware of any unauthorised use of the Bidder’s account, the Bidder’s passwords or breach of security known to the Bidder. Keelvar shall have no liability for any loss or damage arising from the Bidder’s failure to comply with these requirements.

(13.2) Keelvar may suspend access to the Services and Platform, or portion thereof, at any time, if in Keelvar’s sole reasonable discretion, the integrity or security of the Services  or Platform is in danger of being compromised by acts of the Bidder.

14. Assignment

(14.1) No party may assign or transfer its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however Keelvar shall be entitled to assign the Agreement to:

(14.1.1) Any company in its group of companies; or

(14.1.2) Any entity that purchases the shares or assets of Keelvar as the result of a merger, takeover or similar event.

15. Relationship between the Parties

(15.1) Keelvar and the Bidder are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.

16. Links to Other Websites

(16.1) The fact that the Platform provides links to other websites is not an endorsement, authorisation, sponsorship or affiliation by Keelvar of such website, its owners or its providers. Such links are provided as a convenience to the Bidder. Keelvar has not tested any information, software or products found on linked websites and excludes all liability for use of such websites.

17. Fee Disclosure

(17.1) Keelvar receives Fees from Customers for Events entered into via the Customer’s use of the Platform.

18. Miscellaneous

(18.1) Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.

(18.2) If a party is wholly or partially unable to comply with its obligations under this Agreement due to Force Majeure, then that party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Agreement.

(18.3) In the event of any inconsistency between the content of these Bidder Terms and Conditions, the DPA and the Privacy Notice, the Bidder Terms and Conditions shall prevail followed by the DPA and then the Privacy Notice.

(18.4) This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.

(18.5) Amendments to, or notices to be sent under this Agreement, shall be in writing and shall be deemed to have been duly given if sent by registered post or email to a party at the address given for that party in this Agreement. Notices to Keelvar, shall be sent to and to the Bidder to the email address used by the Bidder to login to the Platform. Notwithstanding the aforesaid, Keelvar may change or modify the terms of this Agreement upon giving the Bidder 30 days notice via email. All changes shall be deemed to have been accepted by the Bidder unless the Bidder terminates the Agreement prior to the expiry of the 30 day period.

(18.6) Failure to exercise, or any delay in exercising, any right or remedy under this Agreement, or at law or equity, shall not be a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.

(18.7) Neither party shall make any public statement, press release or other announcement relating to the terms or existence of this Agreement, or the business relationship of the parties, without the prior written consent of the other party. Notwithstanding the aforesaid Keelvar may use the Bidder’s name and trademarks (logo only) to list the Bidder as a client of Keelvar on its website and in other marketing materials and information.

(18.8) Nothing contained in this Agreement is intended to be enforceable pursuant to any third party’s statutory rights or any similar legislation in any applicable jurisdiction.

19. Governing Law and Jurisdiction

(19.1) This Agreement shall be governed by the laws of Ireland. The courts of Dublin shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.

Effective as of March 31st, 2022.

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