Terms and conditions
1 Overview
1.1 These Terms of Use (or Terms) govern access to Procure Connect, a procurement platform comprising an e-marketplace, e-catalogues, PEPPOL services, and source-to-contract system made available under the connect.procurement.govt.nz sub-domain, including as updated from time to time.
1.2 We may change these Terms from time to time. If we do this, you will be asked to accept the new Terms the next time you access Procure Connect.
1.3 Certain words and phrases used in these Terms are defined in the glossary in section 12. Wherever these appear in these Terms, they have the meanings given in the glossary.
2 Contracting parties
2.1 By accessing Procure Connect, you accept these Terms, making a contract with us.
2.2 If your Access Credentials for Procure Connect use an email address provided by an organisation that you work for or represent, as an employee or in any other capacity, or you otherwise access Procure Connect as a worker or representative of an organisation, then:
a. you accept these Terms on behalf of the organisation, and you promise you have the organisation’s authority to do so;
b. you are not personally responsible under the contract, but your organisation is responsible for anything you do or don’t do under these Terms;
c. our obligations under these Terms are to the organisation and not you personally, and we may give the organisation control of your account(s) in Procure Connect, including associated Data; and
d. in the rest of these Terms each reference to you or User is to the organisation.
3 Your use of Procure Connect
3.1 You must not use Procure Connect except as permitted by these Terms.
3.2 We can modify, suspend or discontinue all or part of Procure Connect at any time, with or without notice.
3.3 You must use Procure Connect only for the purposes for which you have been given access and in accordance with the Privacy Statement available at connect.procurement.govt.nz/privacyStatement, which is incorporated by reference.
3.4 In any case, you must not use, or authorise or assist any third party to use, Procure Connect to develop or operate an online marketplace, e-catalogue, or other procurement platform solution or service for any third party, and you must not resell or resupply any part of Procure Connect as part of any service bureau, outsourcing or professional services offering.
3.5 You must not reverse engineer, decompile, disassemble, or work around technical limitations in Procure Connect except to the extent applicable law permits it despite these Terms.
3.6 You must not sublicense any part of Procure Connect to any person. You must not make copies or adaptations of any part of Procure Connect, except to the extent essential for the normal use of Procure Connect.
3.7 You must not attempt to circumvent any access restrictions or take advantage of any security vulnerabilities in Procure Connect.
3.8 If you become aware of any security vulnerabilities in Procure Connect, or any Procure Connect access permissions that appear to have been granted in error, you must promptly notify us.
3.9 If you provide us with any suggestions for improvements to Procure Connect, you give us permission to implement those suggestions without any payment, restriction or obligation. This permission cannot be withdrawn. You promise that those suggestions are not based on any third party’s Confidential Information or intellectual property.
3.10 You must not use Procure Connect:
a. in a way prohibited by law;
b. to violate the rights of others;
c. to try to gain unauthorised access to or disrupt any service, device, data, account or network;
d. to spam or distribute malware;
e. in a way that could harm Procure Connect or impair anyone else’s use of it; or
f. to assist or encourage anyone to do any of the above.
3.11 You will keep confidential all Confidential Information that you access via Procure Connect and only use or disclose such information in accordance with obligations you have in the relevant Panel Agreement, related MoU and the RFx Documents (as applicable).
3.12 You promise that you’re not located in a sanctioned country and are not on a sanctioned persons list. You promise that your use of Procure Connect is not in violation of any export or trade embargo laws that apply to you.
3.13 Without limiting the above, you will exercise reasonable care to ensure that any Information that you post on or through Procure Connect is not untrue, incorrect, or unfounded or misleading.
3.14 You will not suggest that any Information that you post on or through Procure Connect reflects our views or will be binding on, or was posted by, us.
3.15 Nothing in these Terms of Use gives you any rights to use or distribute Documents outside Procure Connect, but these Terms also do not restrict any licences and permissions separately granted for any Documents. For example, the RFx Document templates are licensed under a Creative Commons Attribution Non-Commercial 4.0 International Licence, and these Terms do not affect any rights you have under that licence.
4 Our use and sharing of Information
4.1 Unless you have agreed otherwise, you retain all your rights in Information uploaded to Procure Connect.
4.2 Where you upload Information to Procure Connect, you give us permission to process that Information, and share it with our service providers, as necessary for us to operate Procure Connect for you. We will hold that Information solely for processing on your behalf and will not use or share it for other purposes, except as stated otherwise in this section 4.
4.3 Where you upload Information to Procure Connect, you promise us that you have all necessary rights and authorisations to upload that information, and that the use, processing and sharing of that Information in accordance with these Terms will not infringe the rights of any third party.
4.4 We may use Information that is not personal information to generate and share analytics and insights relating to the usage of Procure Connect, and/or procurement activity by Government Agencies, for the purpose of fulfilling our role as Procurement System Leader. Those insights and analytics will not contain any personal information or identify, reveal or highlight any information about an individual transaction or procurement, or any information about an individual party to any transaction or procurement other than aggregate statistics about individual Government Agencies and/or Providers.
4.5 We may delete any Information that we reasonably consider to be in breach of these Terms.
5 Security and privacy law compliance
5.1 You are responsible under these Terms for all use of Procure Connect through any Access Credentials issued to or by you, except where your Access Credentials are compromised through no fault of your own.
5.2 You must have in place reasonable technical and organisational security measures for your own data and systems and must apply those measures to guard against the compromise of Access Credentials issued to or by you for Procure Connect.
5.3 You must notify us immediately if you become aware of, or suspect, any unauthorised use of any Access Credentials.
6 Suspension
6.1 We may suspend your access to Procure Connect at any time. We will do this only to the extent and for the period we reasonably consider necessary to protect ourselves or others against a meaningful risk of harm, loss or legal exposure caused or contributed to by your use of or activity in connection with Procure Connect. Unless we reasonably believe an immediate suspension is required, we will provide reasonable notice before implementing any such suspension.
7 Termination
7.1 We can terminate your access to Procure Connect at any time. We will give you at least 30 days’ notice of any such termination unless we reasonably consider more urgent termination is necessary to protect ourselves or others against a meaningful risk of harm, loss or legal exposure caused or contributed to by your use of or activity in connection with Procure Connect. Following termination, we have no obligation to you to hold or provide you with access to any Information or Documents.
8 Warnings and Disclaimers
8.1 You accept that Procure Connect is provided as is, without any warranties or representations of any kind.
8.2 To the extent permitted by law, except for the warranties and representations expressly set out in these Terms, we exclude all other express and implied warranties and representations, including warranties of merchantability or fitness for a particular purpose.
8.3 You and we agree to contract out of sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 (FTA) in connection with these Terms and your use of Procure Connect, and accordingly the you will have no claim against us under the FTA for any conduct or representations that might otherwise contravene one or more of those sections.
8.4 We will not be liable for any breach of these Terms, or any other default, interruption, error, delay or deficiency, to the extent caused or contributed to by events or circumstances beyond our reasonable control.
8.5 Without limiting any other rights and remedies available to us, we may limit your activities on Procure Connect, warn other Users of your actions, issue a warning to you, or refuse to provide Procure Connect to you if you breach these Terms, or we otherwise consider it appropriate.
8.6 You consent to us communicating information to you, including sending you automated emails through Procure Connect, where we consider it necessary or relevant.
8.7 If you are a Provider, you are responsible for ensuring that you are aware of any relevant terms and conditions contained in any Documents posted on Procure Connect.
8.8 We do not act as an agent for any Users and we are not a party to any procurement process between you and other Users.
8.9 If you are a Government Agency, you are responsible for ensuring that you are aware of any relevant terms and conditions that apply to you under the relevant Panel Agreement.
8.10 From time to time Procure Connect may include links to other sites, portals, platforms, webpages, forums, or similar, including any public version of Procure Connect that is not affiliated with us (Sites). Unless otherwise stated, we do not control or endorse those Sites and are in no way responsible for those links or information available on linked websites, including their reliability, usefulness, security or otherwise. We reserve the right to disable any unauthorised links from Procure Connect. When you leave Procure Connect to access those Sites, you may also be required to agree to additional terms. For example, if you access the Consolidated Tenders Platform, including through Procure Connect, the Consolidated Tenders Terms of Use available at consolidatedtenders.com/terms will apply.
9 Limitations and exclusions of liability
9.1 We are not liable for any losses or costs you may suffer or incur as a result of using or relying on Procure Connect, whether due to our fault or otherwise. It is up to you to take any precautions necessary to ensure you do not incur losses or costs in the event that Procure Connect is affected by an interruption or error or any loss or corruption of Information, including by keeping your own copies of any Documents and Information outside of Procure Connect.
9.2 Neither you nor we will be liable in connection with these Terms or Procure Connect for any punitive damages, or any loss of profits, revenue, anticipated savings, business opportunity, reputation or goodwill.
9.3 Our maximum aggregate liability to you, and your maximum aggregate liability to us, in connection with these Terms and Procure Connect, for all the events that occur in any rolling 12-month period, will not in any circumstances exceed NZ$1,000.
9.4 Our maximum aggregate liability in connection with these Terms and Procure Connect, to all claimants combined, for all the events that occur in any rolling 12-month period, will not in any circumstances exceed NZ$100,000. If for any rolling 12-month period there are multiple claimants and our total liability for that period would otherwise exceed the amount allowed by this limitation, claims will be prioritised in the order in which they are notified to us.
9.5 The limitations and exclusions in this section 9 do not apply to:
a. your liability for fees charged in accordance with these Terms or under or in connection with any Panel Agreement;
b. any liability that cannot lawfully be limited or excluded by contract;
c. any liability for conduct that amounts to a criminal offence;
d. any liability for breach of these Terms as a result of deliberate conduct that the breaching party either knows is a breach or is reckless as to whether that is the case;
e. any non-contractual liability you or we may have for infringement of the other party’s intellectual property; and/or
f. any liability you may have under or in connection with another contract or agreement (including a Panel Agreement) with, as the context requires, a Government Agency or Provider, even if the activities under that contract or agreement involve the use of Procure Connect.
9.6 Otherwise, the limitations and exclusions in this section 9 apply to all liability arising under or in connection with these Terms or Procure Connect, whether in contract, tort (including negligence), equity or under any other law or legal theory.
10 Notices
10.1 A notice, approval, consent or similar communication under these Terms (notice) will be binding only if given in writing, in English, and sent in accordance with this section.
10.2 A notice to us must be sent to [email protected].
10.3 A notice to you must be sent to one or more of your email addresses stored in Procure Connect. Notices will be deemed delivered at the time of transmission to the recipient’s email system, unless a delivery error is received by the sender within 24 hours of sending.
11 Other matters
11.1 These Terms are governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
11.2 In the event of any dispute or claim arising under or in connection with these Terms or Procure Connect, including any question concerning the validity, breach or termination of these Terms, either you or we may give notice to the other outlining the nature of the dispute or claim and requesting discussions under this section. In that case you and we must meet as soon as reasonably practicable to discuss the dispute or claim in good faith. Except to seek interim relief (including injunctive or other equitable relief), neither you nor we will initiate any legal proceedings unless it has given notice under this section and the dispute or claim remains unresolved at the end of 20 days following that notice.
11.3 We can assign or novate our rights and obligations under these Terms to any New Zealand public sector entity that takes over the operation of Procure Connect from us, and if requested you agree to sign any documents reasonably required for that purpose. Otherwise, neither you nor we can assign any rights under these Terms, except with the other’s prior consent, not to be unreasonably withheld.
11.4 These Terms are the entire agreement concerning their subject matter and supersede any prior or concurrent communications.
11.5 Except for updates that we make under section 1.3, no amendment to these Terms will be effective unless in writing and signed by both you and us.
11.6 If a party fails to exercise, or delays or holds off exercising, a power or right under these Terms, that is not a waiver of the power or right. A single or partial exercise of such a power or right does not preclude further exercises of that power or right or any other.
11.7 A determination that any provision of these Terms is illegal, void or unenforceable will not affect any other part of these Terms.
11.8 If there is any conflict or inconsistency between these Terms and the terms that govern the use of the procurement.govt.nz website, these Terms will prevail.
12 Glossary
In these Terms:
Access Credentials means a User account providing access to Procure Connect.
Confidential Information means information that:
a. is by its nature confidential;
b. is marked by either party as ‘confidential’, ‘in confidence’, ‘restricted’ or ‘commercial in confidence’;
c. is provided by either party or a third party ‘in confidence’;
d. either party, including any User, ought to reasonably know is confidential;
e. is of a sensitive nature or commercially sensitive to either party; and
f. includes any other information defined as Confidential Information in a Panel Agreement, MoU or RFx Documents (as applicable).
Documents means any documents made available through Procure Connect, including RFx Documents, Panel Agreements, Orders and/or Responses. Each reference to Documents also includes information posted or made available in response to or in connection with those Documents.
Government Agency means:
a. each department and departmental agency, as defined in section 5 of the Public Services Act 2020;
b. the New Zealand Defence Force, the New Zealand Police, the New Zealand Security Intelligence Service, the Parliamentary Counsel Office, the Office of the Clerk of the House of Representatives and the Parliamentary Service;
c. each Crown Entity, as defined in section 7 of the Crown Entities Act 2004;
d. each organisation listed in the fourth schedule to the Public Finance Act 1989;
e. the Reserve Bank of New Zealand;
f. the Office of the Controller and Auditor-General, the Office of the Ombudsmen, and the Office of the Parliamentary Commissioner for the Environment;
g. each corporation listed in the first schedule to the State Owned Enterprises Act 1986;
h. each local authority, as defined in section 5 of the Local Government Act 2002; and
i. any other organisation, agency or person that does not fall within the above categories but which we determine should be treated as a Government Agency for the purposes of these Terms.
Information means data and information uploaded to Procure Connect. Each reference to Information also includes a reference to any documents generated by Procure Connect from that Information.
MoU means the memorandum of understanding between the lead agency of a Panel Agreement and a Government Agency relating to the Government Agency’s use of the Panel Agreement.
Panel Agreement means all and each of the following: an All-of-Government contract; a Syndicated contract; and/or a Common Capability contract (as those terms are defined in the Government Procurement Rules found on the procurement.govt.nz website).
Order means a services order, statement of work, purchase order or similar for the supply of goods, services or works.
Procure Connect means the platform identified in section 1.1 of these Terms.
Provider means a provider of goods, services or works under a Panel Agreement.
Response means a Provider’s response to any RFx Document made available through Procure Connect by a Government Agency under a Panel Agreement.
RFx Document means any request to a Provider made available through Procure Connect by a Government Agency (for example, request for quotes, request for proposals or similar).
Us or We means the Sovereign in right of New Zealand acting by and through New Zealand Government Procurement, a branch within the Ministry of Business, Innovation and Employment.
User or You means, as the context requires, the Government Agency, Provider or individual user having access to or use of Procure Connect.
13 Interpretation
In these Terms, unless the context requires otherwise:
13.1 a requirement not to do something includes a requirement not to encourage, authorise or cause that thing to be done;
13.2 the fact that we have written these Terms does not mean that ambiguity will automatically be interpreted against us;
13.3 a reference to a party to these Terms or any other document includes that party’s personal representatives/successors and permitted assigns; and
13.4 a reference to an enactment or any regulations is a reference to that enactment or those regulations as amended, or to any enactment or regulations substituted for that enactment or those regulations.