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The following sets out the terms and conditions on which you “the User” may access the Trade Interchange Products.
1. Authorisation
1.1 Subject to receipt of the Fee in accordance with the Payment Terms, Trade Interchange Limited (Trade Interchange) grants the User authorisation to access and use the services comprising the Products provided via Trade Interchange’s computer and communications systems (“the System”) for the Term solely in relation to the business of the User. This authorisation includes use (where authorised by the User) by employees, agents, contractors, and consultants of the User in relation to the provision of goods or services to the User’s business, directly or through third parties.
1.2 The authorisation granted above is a right to access and use the System, not a software licence. The User undertakes not to access or attempt to access the System other than through the URL (“URL”) and username and password (“Credentials”) provided to it by Trade Interchange and acknowledges that Trade Interchange may assume that the use of the System by anyone accessing the System is authorized use by the User (and the User undertakes to be responsible for it until Trade Interchange has received notification from the User that the System has been accessed by an unauthorized person).
2. Availability
Trade Interchange will use reasonable efforts to keep the Product available during working hours (being 9am to 5pm, Monday to Friday excluding bank holidays in England), subject to maintenance downtime from time to time of which Trade Interchange will try to notify in advance. Trade Interchange does not guarantee availability or data integrity. The User is advised to back up all data which is entered into the Product (the Product has a facility to export data in Microsoft Exchange format).
3. Warranties
3.1 The parties hereby warrant and undertake to each other that they each have all requisite corporate power and authority to enter into this Agreement and to carry out the obligations in it.
3.2 Where the User uploads personal data to the System, Trade Interchange undertakes only to process such data in accordance with the instructions of the User, and further undertakes to comply with the seventh data protection principle in relation to such data. The User consents to Trade Interchange using a sub-processor to process the data, provided that such sub-processor is (1) within the European Economic Area and (2) itself complies with the seventh data protection principle. This clause 3.2 is to be interpreted by reference to the definitions in the Data Protection Act 1998.
3.3 All other warranties whether express or implied at common law or by statute are hereby excluded to the maximum extent permitted by law.
4. Use of the System
The User agrees to only use the Product for the purposes intended, and in particular to not do, nor permit any of their authorised users or other third parties to do, any of the following, either directly or via any links or hyperlinks:
(a) post or transmit any unlawful, threatening, abusive, libellous, defamatory, obscene, pornographic, or profane information of any kind: or
(b) use the System in violation of the law, or in aid of any unlawful act
(c) access (or attempt to access) the System and the data contained within it other than through the URL and using the Credentials; or
(d) interfere with the use and operation of the System.
5. Payment
5.1 The User agrees and undertakes to pay the Fee in accordance with the Payment Terms. If no Payment Terms are specified, the Fee is payable in full in advance. Trade Interchange will issue invoices accordingly. VAT will be added to the Fee at the appropriate rate.
5.2 Late payment will attract interest at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998.
5.3 Trade Interchange may, without prejudice to any other rights it may have, and without liability to the User, suspend access to the System at any time when Fees remain unpaid after becoming due.
5.4 Where the User has access to the Product on a free trial basis, the User may convert such use to full access on payment of a fee.
6. Confidentiality
Neither party shall use, copy, adapt, alter, disclose or part with possession of any business, employee or customer information or data of the other which is disclosed or otherwise comes into its possession directly or indirectly as a result of this Agreement and which is of a confidential nature including, for the avoidance of doubt, the existence and terms of this Agreement except as strictly necessary to perform its obligations or exercise its rights hereunder or with the written consent of the other party. The provisions of this clause 6 shall not apply to any information in the public domain other than by breach of this clause, information obtained from a third party who is free to divulge the same, information already in the possession of the relevant party other than as a result of breach of this clause or information required to be disclosed by law or the rules of any regulatory authority. Trade Interchange may disclose the Client’s name, logo, and the nature of the relevant project in Trade Interchange’s marketing and publicity materials.
7. Term and Termination
7.1 This Agreement shall commence (or be deemed to have commenced) on the Commencement Date and shall continue in force until the expiry of the Term. Where more than one product, or more than one user access to any product is purchased, each purchase will take effect as a separate contract with separate termination date unless otherwise agreed in writing between the parties.
7.2 Without prejudice to any right or remedy either party may have against the other for breach or non-performance of this Agreement, either party shall have the right by notice in writing to the other party to terminate this Agreement on or at any time after the happening of any of the following events:
(a) if the other party commits a material breach of any of the terms and conditions set out in this Agreement provided that where such breach is capable of remedy the other party has been advised in writing of the breach and has not rectified it within thirty days of receipt of such advice. For the purposes of this clause a breach shall be considered capable of remedy if time is not of the essence in performance of the obligation and if the other party can comply with the obligation within the thirty-day notice period;
(b) the passing by the other party of a resolution for its winding-up or the making by a court of competent jurisdiction of an order for the winding-up of the other party or the dissolution of the other party;
(c) the making of an administration order in relation to the other party or the appointment of a receiver or an administrative receiver over, or the taking possession or sale by an encumbrancer of, any of the other party's assets; or
(d) the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally; or
(e) if the other party’s performance during a Force Majeure event is not resumed within 90 days of its suspension under the provisions below.
7.3 On termination of this Agreement, however such termination occurs, Trade Interchange may delete the User’s data, subject to the following:
(a) If termination is for any reason other than the User’s default, the User’s data may be extracted by the User from the System using the System’s standard export facility to Microsoft Excel. The Service will remain available for 14 days following such termination for this purpose. Requests for exporting of data in other formats will be subject to fees, the amount of which will be based on a quotation provided to meet the specifications requested by the User at the time.
(b) On termination of this agreement or at any other time as requested by the User, the User’s data may be deleted by the User from the System using the System’s standard deletion function. Requests for deleting data to User determined specifications, such as multi-pass disk erasure will be subject to fees, the amount of which will be based on a quotation provided to meet the specifications requested by the User at the time.
8. Force Majeure
Neither party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its reasonable control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion, failure of internet connectivity, failure of hosting services or civil commotion. Subject to the affected party promptly notifying the other party in writing of the cause and the likely duration of the cause, the performance of the affected party's obligations, to the extent affected by the cause, shall be suspended during the period that the cause continues.
9. Limitation of Liability
9.1 The User accepts that Trade Interchange is not a party (contracting or otherwise) to any use of the Products by the User, including any online auction that takes place using the Products. Trade Interchange is therefore not responsible or liable for any loss due to any delivery, non-delivery, payment, failure to make payment or any other activity or failure pertaining to any goods and/or services traded by any person or entity using the Products.
9.2 In no event shall Trade Interchange be liable for any (1) loss of profits; loss of anticipated savings or loss of a bargain; cost or providing alternative services; loss of data or information or loss of staff time (whether direct or indirect in each case) or (2) for any special, incidental, indirect, or consequential damages whatsoever arising out the use of or inability to use the Products, or the failure to provide support services, even if Trade Interchange has been advised of the possibility of such damages.
9.3 Trade Interchange expressly disclaims any responsibility for the accuracy, content, or reliability of information about products, services, buyers or sellers using the Products.
9.4 Trade Interchange’s total aggregate liability under or in connection with this Agreement shall not exceed the sum paid by the User for the provision of the Products in the 12 months prior to the claim in question arising.
9.5 Nothing in this agreement is intended to restrict of limit either party’s liability for fraud (including fraudulent pre-contractual representation) or for death or personal injury caused by such party’s negligence.
10. General Provisions
10.1 This Agreement shall be governed by and construed in accordance with English law. Each of the parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the English courts.
10.2 Each party intends that this Agreement shall not benefit, or create any right or cause of action in or on behalf of, any person or entity other than the parties.
10.3 Subject to clause 9.4, this Agreement and the Schedules to this Agreement represent the entire agreement between the parties with respect to its subject matter, and there are no other representations, understandings or agreements between the parties relative to such subject matter.