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 User Agreement 
 

RULES OF TENDERING GOVERNING USE OF

PowerGen's E-TENDERS SYSTEM 

1.         Introduction  

(a)       These Rules of Tendering between The Power Generation Company of Trinidad and Tobago Limited ("PowerGen") and the Vendor governs the access and use of the eTenders System ("the System") by the Vendor to respond to an invitation from PowerGen to participate in its procurement process

(b)       The procurement process may include an Invitation to Tender ("ITT"), a Request for Proposal ("RFP") or a Request for Quotation ("RFQ"). 

(c)        The System is operated by PowerGen. These Rules of Tendering applies to the Vendor's and any Assigned Vendor Users' access to and use of the System. The Vendor acknowledges that by an Assigned Vendor User accessing the System using the user ID and password provided by PowerGen, the Vendor and Assigned Vendor Users agree to be bound by these Rules of Tendering. 

(d)       The Vendor shall only use the System to respond to an invitation to participate in PowerGen's procurement process in accordance with these Rules of Tendering and any specific rules expressed and presented in the System. 

2.         Access

(a)       PowerGen grants to the Vendor and Assigned Vendor Users access to the System for the purpose of responding to any invitation to participate in its procurement process, subject to these Rules of Tendering. 

(b)       PowerGen may immediately deny access to the System by the Vendor and/or one or more Assigned Vendor Users by giving notice in writing to the Vendor if any of the following events occur:     

(i)            the Vendor commits a material breach of any of its obligations under these Rules of Tendering;

(ii)          the Vendor fails to remedy, or persists in, any breach of any of its obligations under these Rules of Tendering after having been notified in writing by PowerGen to remedy or desist from such breach within a period of ten (10) Working Days;

(iii)         the Vendor has been notified by PowerGen in writing that it has been suspended, de-listed or otherwise rendered inactive from PowerGen's approved list of pre-qualified contractors. 

(c)        Without prejudice to any of PowerGen's other rights, PowerGen reserves the
right to suspend access to the System for technical or legal reasons.
  

3.         Registration 

(a)       To be granted access to the System, the Vendor must register with PowerGen an assigned person which the Vendor wishes to be the Assigned Vendor User to act on its behalf for the purpose of utilizing the System, by providing the required registration data requested by PowerGen. 

(b)       The Assigned Vendor User's access will be activated by PowerGen following a check and verification of the registration data. 

(c)        Upon registration of the Vendor and/or Assigned Vendor User, PowerGen shall assign a user ID and password together with a Digital Certificate to the Vendor with a designated Digital Signature assigned to the Assigned Vendor User, which Digital Signature shall be affixed to such documents as shall be required by PowerGen when using the System. 

(d)       User ID and password are strictly personal to the Assigned Vendor User and non-transferable. The Vendor shall ensure that its Assigned Vendor User does not divulge or disclose his/her user ID or password to third parties. In the event that the Vendor or the Assigned Vendor User becomes aware that a user ID and/or password may have been divulged, disclosed or discovered by any third Party, they shall immediately notify PowerGen HelpDesk at e-mail helpdesk@digitalbusiness.com and telephone no.  636-4680/4662 ext. 4357 (help) during the hours of 8.00 am to 4.30 pm (Trinidad and Tobago time) on Mondays to Fridays, or such other designated point of contact as may be assigned by PowerGen from time to time. 

(e)       The Vendor must immediately notify PowerGen HelpDesk (to be confirmed by written communication to PowerGen) in the event that the Assigned Vendor User leaves its employment or no longer requires access to the System. In such case, the Vendor must immediately inform PowerGen HelpDesk of the new assigned vendor user to act on its behalf for the purpose of utilizing the System and shall provide additional registration data as may be required by PowerGen. PowerGen retains the right to deactivate the Assigned Vendor User's user Id and password if there has been no access for a period of ninety (90) days.  

4.         Invitation to Participate 

(a)       PowerGen shall send through the System, an invitation to participate (by way of an ITT, RFP or RFQ as the case may be) in a specific procurement process to appropriate Vendors that have registered and been activated on the System as described in these Rules of Tendering. Detailed data and information relating to a specific procurement process shall only be made available to pre-qualified Vendors. 

(b)       PowerGen shall configure the System as appropriate for each procurement process. The selected configuration settings for a procurement process shall be displayed on the System for pre-qualified Vendors to view. The Vendor acknowledges that by one of its Assigned Vendor Users participating in a procurement process on the System, the Vendor agrees to be bound by these configuration settings. 

(c)        All data, information and material issued through the System in connection with this procurement process shall remain the property of PowerGen and shall be used only for the purpose of its procurement process.  

5.         Vendor's Obligations 

(a)       The Vendor shall ensure that all its Assigned Vendor Users comply with these Rules of Tendering. 

(b)       The Vendor shall use all reasonable care and skill in performing its obligations under these Rules of Tendering. 

(c)        The Vendor shall provide its Assigned Vendor Users with the adequate equipment and software needed to access and use the System. 

(d)       The Vendor shall provide adequate software to ensure the security of the System and use best endeavours to protect the System from viruses when being accessed and used by its Assigned Vendor Users. 

(e)       The Vendor shall use the System for lawful and proper purposes only and shall, in any event, comply with all relevant laws and regulations within Trinidad and Tobago. 

(f)        In particular, the Vendor agrees that it will not:

(i)         manipulate any information supplied on the System in a manner that would lead to inaccurate, misleading or discriminating presentation of information being displayed;

(ii)          post, transmit or disseminate any information on or via the System which is or may be harmful, obscene, defamatory or otherwise illegal, including but not limited to computer viruses, Trojans (a program used to capture unsuspecting people's log on and passwords) and worms;

(iii)         use the System in a manner which causes or may cause an infringement of the rights of others; and

(iv)         use any software, routine or device to interfere or attempt to interfere electronically or manually with the operation or functionality of the System, including uploading or making available files containing corrupt data or viruses via whatever means. 

(g)       The Vendor agrees that its Assigned Vendor Users shall act as authorised agent for and on behalf of the Vendor in submitting any response to any invitation to participate in a procurement process on the System. 

(h)       The Vendor shall be responsible for any unauthorised, false or fraudulent response to any invitation to participate in a procurement that is submitted using one of its Assigned Vendor Users' user id and password. 

(i)         The Vendor represents and warrants that:

(i)         all information it provides will be accurate and complete and shall accurately represent the Vendor's capabilities;

(ii)          it shall have the right, through actual ownership or otherwise, to provide any product or service that is the subject of any response made by it to any invitation to participate in a procurement;

(iii)         it has the ability to sell the goods/services/works at the prices offered in any response made by it to any invitation to participate in a procurement process and according to the relevant criteria specified by PowerGen in the relevant invitation to participate in a procurement process.

6.         General Provisions for the Submission of Responses 

(a)       Vendors are expected to examine all the file attachments published in the System, which indicate what information must be provided. Vendors must provide all of the items of information requested in the procurement process. Incomplete submission of the information requested including the submission of information in file attachments containing viruses that have been advised by the System shall entitle PowerGen to invalidate or reject the response to the procurement process. 

(b)       All responses to any invitation to participate in a procurement process must be submitted through the System by the closing date and time as specified in the particular procurement process. 

(c)        Responses may be submitted through the System at any time up to the closing date and time as specified on the System for the particular procurement process but Vendors are advised to desist from submitting voluminous and extensive responses too close to the closing date and time in the event of a system malfunction on the Vendor's part and/or the Vendor's server. 

(d)       Vendors are advised that no single document larger than 10 MB should be uploaded into the System at any given time. 

(e)       The Vendor agrees to keep any responses valid for a period of one hundred and twenty (120) days from the closing date and time for the submission of responses, unless any other period is specified in the terms and conditions of the particular procurement process. 

(f)        Responses will be opened by PowerGen in accordance with the opening procedures specified on the System for each procurement process. 

(g)       Should the Vendor when submitting a bid experience any technical difficulties within the System which are within the control of PowerGen, Vendors are advised to immediately communicate with PowerGen's HelpDesk.  

7.         Amendments to a procurement process

 (a)       The Vendor acknowledges that:

                        (i)         PowerGen reserves the right to:

(a)       suspend and re-open or cancel a procurement process or extend the closing date and time; and/or

(b)       vary or amend the details of a procurement process,

                       at any time prior to the closing date and time for receipt of response by publication of a notification through the System and without incurring any liability whatsoever; and

 

(b)       in the event of a suspension and subsequent re-opening of a procurement exercise, the procurement process will resume on the basis of the last response
recorded by the Vendor through the System.  

8.         Notification of Award 

Written Notification of Contract Award or bid rejection will be made by PowerGen to the Vendor subsequent to the closing date and time and following evaluation by PowerGen of the Vendor's response to the procurement process. Such Written Notification of Contract Award will be in accordance with Clause 16 hereunder. No other notification of contract award or otherwise sent by the System shall in any way represent any obligation towards the Vendor on the part of PowerGen.  

9.         Intellectual Property Rights 

(a)       All Intellectual Property Rights in the System are owned by, or are under licence to, PowerGen.
 

(b)       The Vendor and its Assigned Vendor Users shall have no Intellectual Property Rights in the System, nor shall it have any rights to copy, adapt, modify or interfere with the System.

 (c)        The System may include PowerGen's logo and/or trade mark. The Vendor acknowledges that it may not copy, use, or mask PowerGen's logo and/or trade marks which appear on the System without the prior consent of the PowerGen. 

10.       Limitation of Liability 

(a)       In no event shall PowerGen be liable to the Vendor for any direct loss, indirect loss or damages incurred by the Vendor arising from the use of the System caused by:

            (i)         An event of Force Majeure that affects the availability and/or performance of the System;

            (ii)        Incorrect use by Assigned Vendor Users of the System;

                        Connectivity failures in respect of the equipment used by the Assigned Vendor Users;

(iii)       Breakdown of the System for a period of time not exceeding 30 Working Days. 

(b)       The Vendor acknowledges and accepts that:

(i)         PowerGen reserves the right to interrupt and/or suspend the availability of the System and/or revoke access at any time by notice to the Vendor without incurring any liability;

(ii)        PowerGen provides the System on an Ďas is' basis and Ďas available' basis without any warranty of any kind;

(iii)       PowerGen does not accept any liability for any information or links on the System that may refer Assigned Vendor Users to external sources outside of PowerGen's reasonable control. 

(c)        The Vendor will indemnify PowerGen in full against all claims, demands,
actions or proceedings (including legal and other professional advisers' fees) made by any third Party arising out of or in relation to the Vendor's breach of its obligations under these Rules of Tendering. 

11.       Disclaimer

            PowerGen, its servants, agents, directors and officers:

(a)  do not accept responsibility expressed or implied for the accuracy, suitability, usefulness, and completeness or otherwise of the information and data contained on the System;

(b)  do not warrant that the information and data contained on the System or sites linked to it are free from infection by computer viruses or that it does not infringe the intellectual property rights of any person anywhere in the world;

(c)  do not authorise the infringement of any intellectual property rights contained in material in other sites linked to the System;

(d)  do not accept responsibility for any errors in transmission or downloading documentation from the System;

(e)  do not accept responsibility for non-adherence by the Vendor to the stipulated closing dates and times expressed in tender documents or otherwise amended by the relevant contracting authority;

(f)   do not accept responsibility for the accuracy, suitability, usefulness, and completeness or otherwise for material contained on other websites linked to the System;

(g)  reserve the right to amend this disclaimer as and when required without notice by updating this posting;

(h)  shall not be liable for any delays, interruptions, errors or failures in the provision of the services not within the reasonable control of PowerGen and its agents including Force Majeure, failure or fluctuation of electrical power, industrial action, industrial disputes, breakdown or other malfunctions of the Vendor technical equipment, including software.

(i)    shall not be liable, either in contract or in tort, for any direct, incidental, consequential, indirect or punitive damages or any other losses, costs, expenses or damage of any kind claimed to have arisen as a result of using the System or as a result of the non-availability, non-functioning or malfunctioning of the services or otherwise in connection therewith. 

 12.       Confidentiality

 (a)       Each Party shall:-

              (i)          treat all Confidential Information as Confidential and safeguard it accordingly;

              (ii)         not disclose any Confidential Information to any third Party without the prior written consent of the other Party, except to such persons and to such extent as may be necessary for the performance of these Rules of Tendering: and

                      (iii)         not use any Confidential Information otherwise than for the purposes of these Rules of Tendering.

 (b)       The Vendor shall take all necessary precautions to ensure that all Confidential Information obtained from PowerGen under or in connection the System is:

                        (i)         given only to such employee, consultant, sub-contractor, professional advisor or agent engaged to advise it in connection with the specific procurement process and these Rules of Tendering as is strictly necessary for the performance of its obligations hereunder and then only to the extent necessary for each employee, consultant, sub-contractor, professional advisor or agent's activities in the performance of such obligations hereunder;

(ii)        is treated as confidential and not disclosed (without prior written approval of PowerGen) or used by any employee, consultant, sub-contractor, professional advisor or agent otherwise than for the purposes of such obligations hereunder.

 (c)        The provisions of this Clause 12 shall not apply to any information:-

            (i)         which is or becomes public knowledge (otherwise than by breach of the obligations of confidentiality under these Rules of Tendering); 

(ii)          which is in the possession of the Party concerned, without restriction as to its disclosure, before receiving it from the disclosing Party;

(iii)         which is received from a third Party who lawfully acquired it and who is under no obligation restricting its disclosure; or

(iv)         is independently developed without access to the Confidential Information. 

(d)       Nothing in these Rules of Tendering shall prevent PowerGen from:-

           (i)          disclosing any Confidential Information which is required to be disclosed by an order of court or other tribunal or required to be disclosed in accordance with any law, statute, proclamation, by-law, directive, decision, regulation, rule, order, notice, rule of court, delegated or subordinate legislation parliamentary obligation; or

            (ii)        disclosing any information for the purpose of the examination and certification of PowerGen's accounts; or

                         (iii)      disclosing any information obtained from the Vendor:-

(a)       to any other department, office or agency of the Crown; or

                      (b)         to any person engaged in providing any services to PowerGen for any purpose relating to or ancillary to these Rules of Tendering,

provided that in disclosing information under this sub-paragraph, PowerGen discloses only the information which is necessary for the purpose concerned and requires that the information is treated in confidence and that a confidentiality undertaking is given where appropriate. 

(e)       Nothing in these Rules of Tendering shall prevent either Party from using any techniques, ideas or know-how gained during the performance of these Rules of Tendering in the course of its normal business, to the extent that this does not result in a disclosure of Confidential Information or an infringement of Intellectual Property Rights. 

(f)        In the event that the Vendor fails to comply with this Clause 12, PowerGen reserves the right to terminate these Rules of Tendering by notice in writing with immediate effect.  

13.       Rights of Third Parties 

These Rules of Tendering shall not create any rights that shall be enforceable by anyone other than PowerGen and the Vendor. 

14.       Amendments to User Agreement 

(a)       Subject to Clauses 14.2 and 14.3 hereunder, the Vendor acknowledges that PowerGen reserves the right to vary or amend these Rules of Tendering by publication of a notification or message on the System or through an email or letter to the Vendor. 

(b)       The amendments shall be deemed to have been accepted by the Vendor unless PowerGen Helpdesk receives, within 15 days of the date of the notice under Clause 14.1, a written communication from the Vendor expressing refusal of the amendments. In any case, the Vendor's continued use of the System shall represent its unconditional acceptance of the amendments in its entirety. 

(c)        The Vendor shall be entitled to terminate these Rules of Tendering with immediate effect in the event that notice is given pursuant to Clause 14.1.   

15.       General Provisions 

(a)       The waiver by either Party of any breach of these Rules of Tendering shall not prevent the subsequent enforcement of that provision and shall not be deemed to be a waiver of any subsequent breach of that or any other provision. 

(b)       If at any time any part of these Rules of Tendering is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from these Rules of Tendering and the validity and/or enforceability of the remaining provisions of these Rules of Tendering shall not in any way be affected or impaired as a result of that omission. 

(c)        Nothing contained either inside or outside these Rules of Tendering shall be taken as constituting:

                     (i)            a contract, including any collateral contract, or any contractual term between PowerGen and any other Party as to the procurement of any goods, services or works, including any potential service provider; or

                      (ii)          any representation by or on behalf of PowerGen. 

(d)        PowerGen shall not be committed to any course of action as a result of:

(i)         issuing any invitation to participate in a procurement process;

(ii)        an invitation to submit any proposal in respect of a procurement process;

(iii)       communicating with a Vendor in respect of this procurement process; or

(v)          any other communication between PowerGen and any other party.  

(e)       The Vendor accepts and acknowledges that:

(i)         whilst every care has been taken to ensure that the data and information contained within an invitation to participate in a procurement process is valid, PowerGen shall not accept liability for the accuracy, adequacy or completeness of such information and data; and

                       (ii)         that by issuing an invitation to participate in a procurement process, PowerGen shall not be bound to accept any response and it reserves the right to award a contract for some but not all of the requirements specified or not to award any contract at all;

                       (iii)        PowerGen shall not accept any liability for any costs or expenses incurred by a Vendor responding to any invitation to participate in a procurement process. 

(f)        PowerGen and the Vendor acknowledge that for the entire duration of the procurement process, any dates and times shall be those displayed on or logged by the System and any other Helpdesk recording and telecommunications equipment, and such recordings shall represent a full account of the actual facts and circumstances. 

(g)       The Vendor acknowledges that the System will not allow it to view the identity of the other Vendors during a procurement process and before closing .
 

(h)       The waiver by either Party of any breach of these Rules of Tendering shall not prevent the subsequent enforcement of that provision and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
 

(i)         The terms and expressions set out in Clause 20 shall have the meanings ascribed therein.
 

(j)         While all reasonable security precautions have been taken by PowerGen and its agents, including the provision of a secure and robust operating environment, the nature of communication by the Internet is such that PowerGen cannot absolutely guarantee the privacy or confidentiality of communications transmitted via the Internet from interference by third parties.
 

(k)        Vendors are advised that documents submitted electronically through the System in response to a particular procurement process will be archived on a periodic basis by PowerGen and may not be immediately accessible on the System for viewing.  

16.       Notices 

(a)       All communications given under these Rules of Tendering shall be in writing and shall be:

(i)         served to the Vendor, via e-mail, to the e-mail address the Vendor has given upon registration or through the messaging facility available on the System; or

                       (ii)         served on PowerGen, via e-mail to PowerGen HelpDesk as aforementioned or through the messaging facility available on the System; and

                       (iii)        deemed to be received by the addressee on the same day as the addressor sending such e-mail, subject to the

(a)       addressor using the addressee's correct e-

mail address; and

(b)       addressee, on receipt of such an e-mail, e-mailing an acknowledgement of receipt to the addressor as soon as is practicable and in any event not later than 16:00 hrs of the following Working Day after the addressee received such e-mail. If the addressor fails to receive such acknowledgement by 16:00 hrs of the next Working Day after the addressee received the e-mail, the addressor may also serve the communication by first class registered post to (i) the Vendor, to the postal address the Vendor has given upon registration; or (ii) PowerGen, to the postal address in Trinidad and Tobago PowerGen has given in the procurement process,   and shall be deemed to be received by the addressee two working days after posting.. 

(b)       Either Party to these Rules of Tendering may change its postal address for notification purposes by giving the other reasonable prior written notice of the new information and its effective date pursuant to this Clause 16.  

17.       Law and Jurisdiction 

These Rules of Tendering and any dispute or claim arising out of or in connection with them shall be governed by, and construed in accordance with, the laws of Trinidad and Tobago.

18.       Interpretations 

(a)       The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of these Rules of Tendering. 

(b)       Words imparting the singular shall include the plural and vice versa. Words imparting a gender include every gender and references to persons include an individual, company, corporation, firm or partnership. 

(c)        The words and phrases "other", "including" and "in particular" shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible. 

(d)       References to any statute or statutory provision shall include (i) any subordinate legislation made under it, (ii) any provision which it has modified or re-enacted (whether with or without modification), and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification). 

(e)       All references in these Rules of Tendering to Clauses are to the clauses to these Rules of Tendering and references to Sections are to sections of these Rules of Tendering unless otherwise stated.  

19.       Products

PowerGen is providing a service in the System which may facilitate the transfer of data prepared for products not provided by PowerGen. The provision of this service does not:

(a)  imply approval of such products by PowerGen;

(b)  imply a preference of such products over any other similar product which does not provide the functionality to upload data to the site;

(c)  imply any liability on PowerGen's part for the accuracy, veracity and completeness of data prepared by these products and for any errors arising from the use of these products and for any damage arising from the use of these products.

20.       Definitions 

"Confidential Information" means secret, confidential, commercial, financial, marketing, technical or other information, know-how, trade secrets and other information in any form or medium whether disclosed orally or in writing before or after the date of these Rules of Tendering, together with any reproductions of such information in any form or medium or any parties of this information. "Confidential" means that the information, either in its entirety or in the precise configuration or assembly of its components, is not publicly available. 

"Digital Certificate" indicates the ownership of a public key by an individual or other entity.  It allows verification of the claim that a given public key does in fact belong to a given individual.  Certificates help prevent someone from using a phoney key to impersonate someone else.  In their simplest form digital certificates contain a public key and a name.  More sophisticated versions also contain an expiration date, the name of the certifying authority that issues the certificate, a serial number, and the digital signature of the certificate issuer.  The most widely accepted format for certificates is defined by the X.509 international standard.  Therefore certificates can be read or written by any application complying with X.509. 

"Digital Signature" verifies the contents of a message and the identity of the signatory.  It also provides a way of ensuring that a document was in fact sent by a particular sender.  This feature is known as non-repudiation.  So long as a secure cryptographic hash function is used to generate the digital signature, there is no way to extract someone's digital signature from one document and attach it to another, nor is it possible to alter a signed message in any way.  The slightest change in a signed document will cause the digital signature verification process to fail. 

"Force Majeure" means any cause affecting the performance by either PowerGen or the Vendor of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including (but without limiting the generality thereof) governmental regulations, fire, flood, or any disaster or an industrial dispute affecting a third party for which a substitute third party is not reasonably available, any Act of God or similar causes beyond the control of the party relying on the Force Majeure event. Any act, event, omission, happening or non-happening will only be considered Force Majeure if it is not attributable to the willful act, neglect or failure to take reasonable precautions of the affected Party, its agents or employees or the failure of either the PowerGen or the Vendor to perform its obligations under these Rules of Tendering. 

"PowerGen Helpdesk" means the facility provided by PowerGen to handle support queries and issues raised by Assigned Vendor Users and can be contacted at e-mail helpdesk@digitalbusiness.com and telephone no. 636-4680/4662 ext. 4357 (help) during the hours of 8.00 am to 4.30 pm (Trinidad and Tobago time) on Mondays to Fridays. 

"Intellectual Property" means any patent, copyright, database right, moral right, design right (whether registered or unregistered), trade mark, service mark, domain name, know-how, utility model, unregistered design or, where relevant, any application for any such right, or other industrial or intellectual property right. 

"Vendor" means a pre-qualified contractor that has indicated its acceptance to be bound by these Rules of Tendering

"Assigned Vendor User" means an individual duly authorized to represent the Vendor who has been registered and been provided with access to the System. 

"System" means the eTenders System provided for Vendors to participate in PowerGen's procurement process. 

"Working Days" means 08:00-16:00 Monday to Friday in Trinidad and Tobago and excluding public holidays and weekends. 

"Written Notification of Contract Award" means the PowerGen's standard contract award process identified for each procurement process that shall be expressly initiated by PowerGen and may entail a preliminary e-mail advising the Vendor of the formal contract award process followed by a formal letter to the Vendor and may set out conditions of contract award.

Transmitted: 4/28/2017 3:44:13 PM

 
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