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Terms Of Service

These terms and conditions set out the basis upon which the Service will be made available by Qadex to the User (as hereinafter defined).

Please read these terms and conditions carefully to be sure that you understand them. Once the User has been accepted by Qadex, the User will have entered into a legally binding contract for the provision of the service.

1. Agreement and parties
1.1 The Agreement is made between QADEX and User.
1.2 The User shall procure that End Users (as hereinafter defined) comply with these Terms of Service.
1.4 The User confirms and warrants that all the information it supplied to Qadex is true, complete and accurate in all respects.
2. Definitions and interpretation
2.1

In these Terms of Service, except where the context requires otherwise:

“Agreement” means the agreement between the User and QADEX upon these Terms of Service;

“Data” means data in electronic format uploaded by the User or a supplier to the User to the Site;

“End User” means an individual who is an employee, agent or contractor of the User and who is authorised by the User to use the Service on behalf of the User;

“QADEX” means questionnaire and data exchange provided by QADEX.

“Service” means the online questionnaire and data exchange service operated by QADEX accessible from the Site;

“Site” means the web site hosted and managed by QADEX and which allows the User and its authorised End Users to upload, display and access Data on the Internet;

“User” means any person firm or company who has contracted with Qadex for the supply of the Service.

2.2
In these Terms of Service:
2.3
clause headings are inserted for ease of reference only and do not affect construction;
2.4
words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing bodies corporate, corporations, unincorporated associations and partnerships and vice-versa, words importing the singular shall be treated as importing the plural and vice-versa, and words importing whole shall be treated as including a reference to any part thereof;
2.5
references to clauses are to the clauses of these Terms of Service.
3. Provision of the service
3.1
Subject to observing and complying with the terms of the Agreement, QADEX shall provide the Service to the User.
3.2
The User acknowledges that the Service consists of the storage and management of Data provided by Users & their suppliers, and that QADEX has no knowledge of and exercises no control whatsoever over the content of Data.
3.3
The User shall observe all relevant national and international laws and regulations in the User’s use of the Service and shall not interfere with the use and enjoyment of the Service by other users of the Service.
3.4
The User acknowledges that it must provide for its own access to the internet, pay any service fees and telecommunication charges associated with such access and provide and maintain all hardware and software, including a compatible Web browser, for the User and its End Users to browse the Site and upload and download Data. The User is responsible for ensuring that the configuration of hardware and software used by the User to access the Service are compatible with the Service.
3.5 QADEX may:
3.5.1 for operational reasons, modify the technical specification of the Service, provided that any change to the technical specification does not materially adversely affect the performance of the Service;
3.5.2 suspend the Service in whole or in part for operational reasons such as maintenance or because of an emergency; and
3.53 suspend or discontinue the Service in whole or in part or remove or disable access to any Data uploaded to the Site if QADEX considers that continued provision of the Service would violate any applicable law, rule or regulation or upon QADEX obtaining actual knowledge of the fact that a court or an administrative authority has ordered such suspension, discontinuance, removal or disablement or of any allegation of unlawful activity in relation to such Data.
3.6 The User agrees that QADEX shall not be liable to the User or any third party for any such modification, suspension, discontinuance, removal or disablement.
4. Fees and Payment
4.1 The User shall pay to QADEX the applicable  fees for use of the Service as may be agreed from time to time (“Fees”).
4.2 All sums due pursuant to the Agreement are exclusive of Value Added Tax which the User shall pay to QADEX at the prevailing rate in addition and at the same time as payment of the Fees
4.3 Payment of all sums due to QADEX under the Agreement shall be made by the User in full without any set-off, deduction or withholding whatsoever.
 
5. User’s undertakings
5.1 The User warrants to and undertakes with QADEX that it shall observe and perform the terms of the Agreement.
5.2 The User warrants to and undertakes with QADEX that it shall:
5.2.1 not knowingly or recklessly post, link or transmit to the Site any material:
5.2.1.1. that is unlawful, threatening, abusive, harmful, malicious, libellous, defamatory, obscene, pornographic, profane or otherwise objectionable in any way;
5.2.1.2. containing a virus, trojan horse, worm or other hostile computer program;
5.2.1.3. that may constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright or other
5.2.2. ensure that at all times the User maintains a current back-up of all Data uploaded by it to the Site and The User acknowledges that QADEX shall not be responsible for any loss or corruption of Data during or after transfer;
5.2.3. not in any way make any representation or warranty regarding the Site or the Service other than those from time to time agreed by QADEX in writing;
5.2.4. not upload to the Site any Data which is protected by copyright, or other proprietary right, unless The User is the copyright owner or right holder or has an appropriate licence from the copyright owner or right holder;
5.2.5. comply with all requirements, procedures, policies and regulations of QADEX issued from time to time in relation to the use or operation of the Site;
5.2.6. not use the Site for illegal purposes;
5.2.7. not interfere with or disrupt the Site or operation of the Service;
5.2.8. not offer in any manner, to a third party, the Service or use of or access to the Site;
5.2.9. not attempt to gain unauthorised access to any Data.
5.3 The User shall be responsible to QADEX for any act or omission on the part of any of the User’s End Users as if it was the act or omission of the User.
6. Security
6.1
The User will be allocated by QADEX an administrator username and password when it registers for the Service to enable The User to administer access to the Service by its End Users. The User shall allow access to such administrator username and password only to such of its employees, agents or contractors who have a need to know it for the proper administration of the Service.
6.2
The User will allocate usernames and passwords to its End Users. The User shall allow access to such usernames and passwords only to such of its End Users as have a need to know it for the proper use of the Service. This may include de-activating any usernames and passwords previously given to End Users where such End Users cease to be authorised to use the Service;
6.3
The User is responsible for maintaining the confidentiality of the passwords and usernames, and is fully responsible for all activities which occur under The User’s username and password.
6.4
The User is responsible for all interaction with and support to its End Users.
6.5
The User shall forthwith notify QADEX if it becomes aware of any unauthorised use of any such usernames and passwords or circumstances occur which give rise to a risk of such unauthorised use.
6.6
If QADEX has reason to believe that there has been or is likely to be a breach of security or misuse of the Service QADEX may change the User’s passwords and QADEX shall notify the User accordingly.
7. Intellectual property
7.1
All intellectual property rights in Data shall, as between User and QADEX, be and remain vested in the User.
7.2
The User warrants to QADEX that Data (and any intellectual property in it) uploaded by the User belongs to the User or the User’s licensee and that QADEX’s receipt, storage and transmission of Data in connection with the Service shall not infringe the rights of any third party.
7.3
For the purpose of providing the Service, the User grants to QADEX all necessary licence rights, including the licence to load, store and copy for archival or backup purposes Data uploaded by the User.
7.4
All intellectual property rights in software, graphics, interfaces, tools, forms, data files, manuals, methods, procedures, concepts, ideas, creations, inventions, know-how, and other intellectual property in and in relation to the Site and the Service (“QADEX IP”) are and will remain the exclusive property of QADEX.
7.5
Subject to the User’s compliance with the terms of the Agreement, QADEX grants to the User a non-exclusive, royalty-free license to use, reproduce, and display QADEX IP as required by the User for the purpose of the proper use of the Service. Except with QADEX’s prior written consent, The User may not use, reproduce, or display QADEX IP for the benefit of any party.
7.6
The trade mark QADEX shall be and remain at all times the property of QADEX and the User shall not use the same in any way without the prior written approval of QADEX (except in the performance of the Agreement) and shall not claim any right of property therein or register or cause to be registered or apply for a similar or imitation of the trade marks.
 
8. Warranty
8.1
QADEX warrants to the User that the Service will be provided by QADEX with reasonable skill and care. However, QADEX does not guarantee fault free performance of the Service and the User is entitled to the quality of performance generally provided by QADEX from time to time to all users of the Service.
8.2
In the event of any defect in the Service that is notified to QADEX in writing, QADEX’s sole responsibility shall be to use reasonable endeavours to remedy the defect.
8.3
QADEX shall use reasonable endeavours to provide continuing availability of the Service but QADEX shall not, in any event, be liable for interruptions or down time of the Service.
8.4
All conditions, terms, representations (other than fraudulent representations) and warranties relating to the Service, whether implied by law or otherwise, which are not expressly stated in the Agreement including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are excluded to the fullest extent possible by law.
8.5
QADEX will exercise reasonable care to implement the security facilities necessary to protect Data but QADEX does not warrant that its procedures will prevent the loss of, alteration of, or improper access to Data. the User is responsible for determining whether QADEX’s security facilities meet its needs.
9. Liability
9.1
QADEX shall be liable to the User as expressly provided in the Agreement but shall have no other obligation, duty or liability whatsoever in contract, tort (including negligence) or otherwise to the User.
9.2
QADEX’s total liability in respect of any one incident or series of incidents arising from a common cause in contract, tort (including negligence) or otherwise arising out of or in connection with the Agreement shall be limited to the greater of any insurance cover provided to Qadex in respect of the incident or incidents and the User’s applicable annual Fees payable by the User.
9.3
QADEX shall not in any event be liable to the User, either in contract, tort (including negligence) or otherwise for any loss of revenue, profits, goodwill, business contracts, anticipated savings or for any indirect or consequential loss or damage whatsoever from use of the Service.
9.4
QADEX shall have no liability to the User if the loss to the User is caused directly or indirectly by the User’s or End User’s default including breach of the Agreement.
9.5
Nothing in the Agreement shall exclude or restrict QADEX’s liability for:
9.5.1. death or personal injury resulting from its negligence; or
9.5.2. Fraudulent misrepresentation.
10. Indemnity
10.1
The User shall fully and promptly indemnify QADEX, its parent, subsidiaries, affiliates, officers, directors and employees, and shall hold QADEX and its parent, subsidiaries, affiliates, officers, directors and employees, harmless in respect of all actions, claims, demands, fines, proceedings, damages, costs, charges and expenses (including legal costs) whatsoever which QADEX may suffer or incur due to or arising out of the User’s use of the Service or in relation to any Data or as a result (direct or indirect) of any act, omission, default or negligence (including any breach of the Agreement) of the User, its End Users, employees, sub-contractors or agents.
11. Confidentiality
11.1 Each of the parties agrees (subject to clauses 11.2 and 11.3) not to:
11.1.1
disclose any information which it receives from the other party and which is identified as confidential or proprietary by the other party or the nature of which is clearly confidential or proprietary (“Confidential Information”); or
11.1.2.
make any use of any such Confidential Information other than for the purposes of performance of the Agreement.
11.2
Each party may disclose Confidential Information received from the other to its responsible employees, consultants, sub-contractors or suppliers who need to receive the information in the course of performance of the Agreement and who have entered into an agreement containing appropriate confidentiality provisions.
11.3
The confidentiality obligations in this clause shall not apply to any information which:
11.3.1.
is or subsequently becomes available to the general public other than through a breach by the receiving party;
11.3.2.
is already known to the receiving party before disclosure by the disclosing party;
11.3.3.
is required to be disclosed by law;
11.3.4.
is developed through the independent efforts of the receiving party; or
11.3.5.
the receiving party rightfully receives from a third party without restriction as to use.
12. Data protection
12.1.
In this clause, the terms “personal data”, “process” and “data subject” shall have the meanings given to them in the Data Protection Act 1998.
12.2.
In so far as applicable to the Service, QADEX and the User shall comply with the Data Protection Act 1998 and any other applicable data protection legislation that may be in force or come into force during the continuance of the Agreement.
12.3.
Where, in connection with the Agreement, QADEX processes personal data on behalf of the User, QADEX shall:
12.3.1
only process such personal data in accordance with instructions from the User, which may be specific instructions or standing instructions of general application in relation to the Service, whether set out in the Agreement or otherwise notified to QADEX;
12.3.2
unless otherwise agreed in writing, only process the personal data to the extent and in such manner as is necessary for the provision of the Service or as is required by law or any regulatory body;
12.3.3
implement appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. Such measures shall be appropriate to the harm that might result from unauthorized or unlawful processing or accidental loss, destruction or damage to personal data and to the nature of personal data to be protected; and
13. Suspension of service
13.1
QADEX may at its sole discretion forthwith suspend provision of the Service in whole or in part until further notice if the User is in material breach of any other warranty, undertaking or obligation under the Agreement.
13.2
Where QADEX exercises its right of suspension in respect of an event referred to in clause 13.1, the User shall reimburse QADEX for all reasonable costs and expenses incurred by the implementation of such suspension and/or the re-commencement of the provision of the Service as appropriate.
13.3
Any exercise by QADEX of its right of suspension in respect of an event referred to in clause 13.1 shall not exclude QADEX’s right subsequently to terminate the Agreement.
14. Term and termination
14.1.
The Agreement shall commence on acceptance of these Terms of Service by the User and (subject to clause 14.2) shall continue for such initial term as may be agreed in any service level agreement between the User and QADEX until terminated in accordance with this clause. The term of the contract shall renew automatically from the expiry of the initial term, and from the expiry of each subsequent term, for a term equivalent to the initial term unless and until not less than three months’ notice in writing shall be given by either party to the other prior to the expiration of the then-current term.
14.2.
Either party may, by written notice to the other, terminate the Agreement with immediate effect if any of the following events occurs:
14.2.1.
the other breaches any term of the Agreement and such breach is incapable of remedy or, if the breach is remediable, it continues for a period of 30 days after written notice requiring it to be remedied has been given to the party in breach; or
14.2.2.
the other gives notice to its creditors or any of them that it has suspended or is about to suspend payment or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or if an order shall be made or resolution passed for the winding up of the other (otherwise than for the purpose of and followed by a reconstruction or amalgamation) or if an administration order shall be made in respect of the other or if the other shall become insolvent or shall make any assignment for the benefit of creditors or has a receiver appointed of all or any part of its assets or takes or suffers any similar action in consequence of debt.
14.3. Upon termination of the Agreement for any reason:
14.3.1. The User’s right to access the Site and the use of the Service shall cease.
14.3.2. QADEX may remove any and all Data uploaded to the Site save that QADEX shall retain a copy of the Data for archival purposes for a period of 6 years following termination;
14.3.3. The User shall not be entitled to any return or rebate of any of the fees or charges paid under the Agreement.
14.4. Termination shall be in addition to, rather than a waiver of, any remedy at law or equity under the Agreement
14.5. The provisions of clauses 9 (“Liability”), 10 (“Indemnity”), 11 (“Confidentiality”) shall survive termination of the Agreement for any reason.
15. Modification of the Terms of the Agreement
15.1. If QADEX proposes to the User a modification of any of the provisions of the Agreement, then in the absence of any written acceptance or rejection of it by the User, any subsequent use of the Service shall constitute the User’s acceptance of QADEX’s proposal.
16. Publicity
16.1. Either party may issue any news release, public announcement, advertisement or other form of publicity concerning the Agreement or the Service without the prior approval of the other party.
17. Government Approvals
17.1.
The parties acknowledge that the Service may be subject to regulation in any country where the Service is accessed. If any applicable present or future regulation or law requires a modification or waiver of any term of the Agreement, the parties will promptly and in good faith undertake negotiations concerning the actions required by such regulation or law.
18. Assignment
18.1.
The User shall not assign (in whole or in part) or otherwise transfer the Agreement or any of its rights and obligations under the Agreement without the prior written consent of Qadex.
18.2.
QADEX may assign or sub-contract the performance of any of its obligations under the Agreement to any third party.
19. Force Majeure
19.1.
Notwithstanding anything contained in the Agreement QADEX shall not be liable if it fails, interrupts, or delays in performing any of its obligations under the Agreement because of any cause beyond its reasonable control (including but not limited to (a) decision of any court or other judicial body of competent jurisdiction, (b) unavailability of equipment, power or other commodity, (c) failure or non-availability of Internet or telecommunications facilities, computer hardware or software, (d) act of God, war, riot, terrorist attack, civil commotion, malicious damage, fires, flood or storm (e) strikes or other industrial disputes (whether involving QADEX’s workforce or of any other party) or (e) acts of government or other prevailing authorities or default of suppliers, sub-contractors or other third parties).
 
20. General
20.1.
Save as expressly provided in the Agreement, the Agreement shall operate to the entire exclusion of any other agreement or understanding of any kind between the parties hereto preceding the date of the Agreement and in anyway relating to the subject matter of the Agreement.
20.2. The Agreement constitutes the whole agreement and understanding of the parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein..
20.3. Subject to clause 15.1, any amendment to the Agreement shall be in writing, signed by the parties and expressed to be for the purpose of such amendment.
20.4. Each party acknowledges that in entering into the Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly set out in these Terms of Service.
20.5. All rights, remedies and powers conferred upon the parties are cumulative and shall not be deemed or construed to be exclusive of any other rights, remedies or powers now or hereafter conferred upon the parties by law or otherwise and any failure at any time to insist upon or enforce any such right, remedy or power shall not be construed as a waiver thereof
20.6. If any clause or part thereof of the Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other clause or part thereof all of which shall remain in full force and effect.
20.7. Any notice to be given under the Agreement may be delivered or be sent by prepaid registered post sent first class addressed to the registered office or principal place of business for the time being of the party to be served or may be transmitted by fax or email to the fax number or email address for the party to be served last known to the party giving the notice. Notice served by post shall be deemed served on the second business day after the date of posting. Notice served by fax or email shall be deemed served on the next business day after the date of transmission. For this purpose, “business day” means any day other than a Saturday, Sunday or a day which is a public holiday in the place both of despatch and of address of the notice. This clause shall not preclude the giving of notice by other methods of communication.
20.8. The Agreement shall be governed by and construed in accordance with English Law. It is agreed that legal action relating to the Agreement may only be dealt with by the Courts of England and Wales, save that QADEX may seek to enforce the Agreement (and for that purpose issue proceedings against the User)  in any country where the User may have a place of business.
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