Terms of use

1. General provisions

The owner of the software underlying the Environment, and the provider and operator of the Environment, is Thorgate Digital OÜ, registry code 14376128, Mäealuse 2/1, 12618 Tallinn, Estonia (“TendoGate”).

In these Terms:

• Environment – the TendoGate procurement environment provided and operated by TendoGate, together with its functions and services.
• Customer – a legal person that has concluded a licence agreement with TendoGate for use of the Environment and runs tenders in it (the buyer).
• Supplier – a legal person or sole trader that takes part in a tender in the Environment on a buyer’s invitation or through a tender’s public link. A Supplier does not conclude a licence agreement and does not pay for use of the Environment.
• User – a natural person who uses the Environment on behalf of a Customer or a Supplier, including their employee, management board member or other authorised person.
• Tender – a tender or request run by a Customer in the Environment, through which the Customer collects bids from Suppliers.
• Bid – the price, comment and files a Supplier gives in a Tender.
• Tender documents – the documents and other information a Customer adds to a Tender.
• Licence Agreement – the agreement between TendoGate and a Customer for use of the Environment.

The Customer is responsible for ensuring that every User it authorises to use the Environment complies with the Licence Agreement and these Terms. A Supplier is responsible in the same way for the Users acting on its behalf. A User’s actions in the Environment are deemed to be those of the Customer or Supplier on whose behalf the User acts.

For the Customer, these Terms form an integral part of the Licence Agreement. If the Licence Agreement and these Terms conflict, the Licence Agreement prevails.

2. Acceptance and changes

The Customer accepts these Terms by concluding the Licence Agreement. The Customer’s Users accept them by using the Environment.

A Supplier and its Users accept these Terms by using the Environment, including by creating a user account or giving a Bid.

TendoGate may amend these Terms unilaterally for good reason, in particular a change in legislation or in the requirements of a competent authority, the development of the Environment’s functions, or the need to keep it secure. The Customer is notified of amendments in a form that can be reproduced in writing at least 30 calendar days in advance, and Suppliers and Users by email or in the Environment at least 30 calendar days in advance. The amended Terms take effect on the date stated in the notice.

If the Customer does not accept the amendments, it may terminate the Licence Agreement before they take effect. If a Supplier does not accept them, it may stop using the Environment. A Tender already in progress is governed by the Terms in force when the Tender started.

3. User accounts

The Environment may be used only on behalf of a Customer or a Supplier and with its authority. A User confirms that they are entitled to act on behalf of the Customer or Supplier for which they use the Environment.

Accounts for a Customer’s Users are created by TendoGate or by the Customer’s administrator. A buyer account cannot be registered by oneself in the Environment.

A Supplier’s User creates an account through a buyer’s invitation link or a Tender’s public link by entering their name and email address, and sets a password through a link sent by email.

A User must keep their username, password and any other means of authentication confidential and take reasonable measures to prevent them from falling into the hands of others. The Customer, Supplier or User must notify TendoGate without delay of any loss or misuse of a user account or authentication details, or any suspicion of unauthorised use.

A User must give correct information about themselves and the company they represent and keep it up to date.

4. Running tenders

The Customer itself sets the conditions of a Tender run in the Environment, its Tender documents, bid submission deadline and evaluation criteria, and decides which Bid it accepts.

Unless the Tender provides otherwise, the Customer may:

• negotiate with the Suppliers that have given a Bid;
• change or clarify the conditions of the Tender;
• end or cancel the Tender;
• accept none of the Bids given.

The Customer is not obliged to choose the lowest-priced Bid, unless the conditions of the Tender make the lowest price the only evaluation criterion.

The Customer is responsible for the accuracy and lawfulness of its Tender documents and for the Tender complying with the law that applies to the Customer. The Environment is not the public procurement register, and TendoGate does not warrant that a Tender run in the Environment meets the requirements of the Public Procurement Act.

Giving or accepting a Bid creates a legally binding obligation between the Customer and the Supplier only if and to the extent that this follows from the conditions of the Tender, an agreement between them or applicable law.

5. Giving bids

A Supplier must act in good faith when giving a Bid, and the Bid must reflect its actual content and purpose.

A Bid can be given until the bid submission deadline set in the Tender. Whether the deadline has passed is determined by the Environment’s server time; no Bid is accepted after the deadline. The Supplier bears the risk of a Bid not being given in time because of a technical fault on its own side.

Before the deadline the Supplier may change its Bid or withdraw it. The Environment keeps every earlier version of a Bid and a record of every withdrawal.

The Supplier is responsible for the accuracy, completeness and lawfulness of its Bid and the files in it.

6. The sealed bid principle

Before bids are opened, neither the Customer nor its Users can access the content of a Bid through the Environment: its price, comment or files.

Before opening, the Customer may see information about participation: which Suppliers have been invited, whether an invitation has been opened, who has given a Bid and how many Bids have been given.

The Customer can open the Bids only after the bid submission deadline has passed, and only by a separate action. The opening is recorded with its time and the person who opened them, and every view of a Bid and download of its files after opening is logged.

Suppliers do not see which other Suppliers have been invited to a Tender or have given a Bid. When the Customer publishes the answer to a question to all Suppliers, the name of the person who asked is not disclosed. After the Tender is closed and the Customer sends the result, Suppliers are told their own outcome, the total number of Bids and the number of successful bidders, together with the Customer’s result announcement. TendoGate adds no names of successful bidders and no bid prices to it; it is sent as the Customer wrote it.

TendoGate’s technical administrators can technically access the data in the Environment, including the content of Bids before they are opened, through an administration interface used for support and operation. Every view of a Bid’s content there is logged. The seal is an access rule enforced by the Environment against the Customer, not encryption: TendoGate’s technical staff and its service providers (network delivery, hosting, file storage and error monitoring, listed in the privacy policy) can technically access Bid content before opening, and such access other than through the administration interface is not logged in the Environment. The time bids are opened is not confirmed with a cryptographic timestamp.

7. Prohibited use and content

The Environment may be used only for the purpose and to the extent set out in these Terms and, for the Customer, in the Licence Agreement. It is prohibited to:

• use the Environment in a way that may harm its operation, security or availability, or interfere with other Users’ ability to use it;
• attempt to gain unauthorised access to the Environment, its source code, databases or technical infrastructure, to other Users’ data, or to Bids before they are opened;
• copy, modify, adapt, reverse-engineer, decompile or otherwise process the Environment or any part of it, except where applicable law allows it;
• sell, sublicense, rent, lend, broker or otherwise make the Environment or the right to use it available to third parties;
• use the Environment for an unlawful purpose or in a way that infringes the rights of TendoGate or third parties;
• run a Tender or give a Bid for goods or services whose sale, purchase or other handling is prohibited by applicable law, including stolen, counterfeit or pirated goods, illegal weapons, explosives, and narcotic or psychotropic substances;
• knowingly enter incorrect, misleading or falsified information, give a sham Bid, or give a Bid with no real intention of entering into a transaction on its basis;
• use the Environment for an agreement with other Suppliers that restricts competition, or to influence the outcome of a Tender by other improper means.

8. Breaches and restriction of access

TendoGate may remove from the Environment, or temporarily suspend, a Tender, Bid or other content that breaches these Terms, the Licence Agreement or applicable law, or that must be removed under a binding requirement of a competent authority. TendoGate has the same right while it checks the facts, where there is a reasonable suspicion of such a breach.

In the event of a material or repeated breach, TendoGate may restrict or suspend the access of the Customer, the Supplier or a particular User to the Environment.

Where a breach threatens the security or operation of the Environment, may cause damage to TendoGate, a Customer, a Supplier or a third party, or consists of intentional misuse of the Environment, TendoGate may suspend access immediately and without notice. In other cases TendoGate gives an opportunity to remedy the breach within a reasonable time.

TendoGate discloses data of a Customer, Supplier or User to competent authorities if and to the extent that the law or a lawful request of a competent authority requires it.

9. Provisions for Customers

The Customer and its Users are entitled to user support concerning the Environment by email at [email protected] on working days from 09:00 to 17:00.

The Customer must pay the licence fee according to TendoGate’s invoices within 7 calendar days of the invoice date. In the event of late payment, TendoGate may claim a late-payment interest of 0.06% of the unpaid amount for each day of delay.

If the Customer or its User materially breaches the requirements in “Prohibited use and content”, TendoGate may claim from the Customer a contractual penalty of one tenth of the annual licence fee per breach.

Restriction or suspension of access because of a breach by the Customer or its User does not entitle the Customer to a refund of licence fees already paid.

10. TendoGate’s rights and obligations

TendoGate makes reasonable efforts to keep the Environment reliable and available around the clock. Use of the Environment may be temporarily restricted because of maintenance, development or other technical work and because of circumstances beyond TendoGate’s control.

Where possible, TendoGate notifies the Customer at least 5 calendar days in advance of planned work that may significantly affect use of the Environment. For urgent maintenance or security work the notice may be shorter or absent.

TendoGate makes reasonable efforts to keep the data it manages in the Environment up to date. TendoGate is not responsible for the accuracy, completeness or timeliness of data entered into the Environment by a Customer, Supplier, User or third party.

TendoGate may develop and change the Environment’s functions, provided this does not materially reduce the service the Licence Agreement entitles the Customer to.

11. Liability

TendoGate provides the Environment as a technical platform for running Tenders, giving Bids and exchanging information about a Tender. TendoGate is not a party to any transaction between a Customer and a Supplier and does not act as their representative, broker or agent, unless the parties have agreed otherwise in writing.

The Customer and the Supplier are responsible for the accuracy, completeness and lawfulness of the data, documents, Bids and other information they enter into the Environment. TendoGate does not generally verify such information and does not warrant that it is complete, current or reliable. Anyone making decisions based on information obtained from the Environment must assess its suitability and reliability independently.

TendoGate is not liable for the performance, non-performance or improper performance of contracts concluded between a Customer and a Supplier. The contracting parties settle claims arising from their transaction between themselves.

TendoGate is not liable for disruptions or interruptions in the Environment, or for loss or alteration of data, to the extent they are caused by circumstances beyond TendoGate’s control, by the actions of a Customer, Supplier or User, by the actions of a third party or by force majeure.

Actions taken through a Customer’s or Supplier’s user accounts are deemed to have been taken by that Customer or Supplier or with its authority, unless the account was used as a result of a security breach attributable to TendoGate.

TendoGate is liable towards the Customer on the grounds and to the extent set out in applicable law, the Licence Agreement and these Terms, and towards a Supplier on the grounds and to the extent set out in applicable law and these Terms. TendoGate is not liable for loss of profit or indirect damage. This limitation does not apply to damage caused intentionally or through gross negligence.

12. Intellectual property

The Environment, its underlying software, source code, structure, design and functions and other materials created by TendoGate are protected by copyright and other intellectual property rights, which belong to TendoGate or to the relevant rights holder. Neither these Terms nor the Licence Agreement give the Customer, a Supplier or a User ownership of any of them.

While the Licence Agreement is in force, TendoGate grants the Customer a limited, non-exclusive and non-transferable right to use the Environment for the purpose, to the extent and in the manner set out in the Licence Agreement and these Terms. A Supplier and its Users may use the Environment free of charge to take part in Tenders.

The rights in Tender documents remain with the Customer and the rights in Bids with the Supplier. Unless the conditions of the Tender provide otherwise, a Supplier may use Tender documents only to prepare its Bid, and the Customer may use Bids only to conduct the Tender and to conclude and perform the resulting contract.

The Customer and the Supplier grant TendoGate the right to store, process and display the content entered into the Environment to the extent necessary to provide the Environment, and to keep it in accordance with the privacy policy.

13. Personal data and confidentiality

TendoGate processes personal data relating to use of the Environment in accordance with applicable law and TendoGate’s privacy policy, published in the Environment.

TendoGate processes the data a Customer enters about its Tenders, and the Bids given to it, on the Customer’s behalf and on its instructions.

TendoGate does not disclose the content of Tenders or Bids to third parties, except where this is necessary to provide the Environment, where the law or a lawful request of a competent authority requires it, or where the party concerned has consented.

14. Ending use

The Licence Agreement is concluded for the term stated in it. The Customer may terminate it before the end of the term by giving TendoGate at least 60 calendar days’ notice in a form that can be reproduced in writing. Termination does not release the Customer from obligations that arose before the agreement ended.

TendoGate may terminate the Licence Agreement extraordinarily if the Customer materially breaches the Licence Agreement or these Terms and does not remedy the breach within a reasonable time, and without granting additional time if the breach cannot be remedied or poses a significant threat to the security or operation of the Environment, to TendoGate or to third parties.

A Supplier may stop using the Environment at any time and ask for its User’s account to be closed. A closed account is deactivated; Bids already given and the records relating to them are kept as the record of the Tender, in accordance with the privacy policy.

TendoGate may close a Supplier’s or User’s account in the event of a material or repeated breach of these Terms.

15. Governing law and disputes

These Terms and the Licence Agreement are governed by the law of the Republic of Estonia.

Disagreements and disputes arising from or relating to these Terms or the Licence Agreement are settled primarily by negotiation. If a dispute cannot be settled by negotiation, it is resolved by Harju County Court (Harju Maakohus).

The Estonian text of these Terms is the original. If a translation differs from the Estonian text, the Estonian text prevails.

16. Contact details

Thorgate Digital OÜ, registry code 14376128, Mäealuse 2/1, 12618 Tallinn, Estonia. Email: [email protected].