Terms & Conditions for Buyers

Terms and Conditions

Interpretation
1. The definitions and rules of interpretation in this clause apply in these Conditions.

Application: the Buyer’s request for access to the Platform and the Documentation, made by completing the application process on https://trutrade.co.uk/register.
Authorised Users: those employees of the Buyer who are authorised by the Buyer to use the Platform and the Documentation.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Buyer: the person or firm, as specified in the Application, to whom Tru Trade shall provide access to the Platform and the Documentation, in order for the Buyer to obtain Job Lists and Fee Quotes, procure Goods and/or Services from Merchants and generally manage the progression, delivery and completion of its Construction Projects.
Buyer Data: the data (including but not limited to personal data) inputted by the Buyer, Authorised Users, or Tru Trade on the Buyer’s behalf for the purpose of using the Platform or facilitating the Buyer’s use of the Platform.
Buyer Default: has the meaning given to it in clause 8.7.
Buyer Kickback: an amount equal to 1% (unless otherwise agreed between Tru Trade and the Buyer in writing) of the Price actually paid by the Buyer under each Relevant Contract (as it may be renewed, extended or amended).
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.5 or clause 12.6.
Construction Project: a construction project to be undertaken by the Buyer and in respect of which it wishes to use the Platform to obtain a Fee Quote, procure Goods and/or Services and generally manage its progression, delivery and completion.
Contract: the contract between Tru Trade and the Buyer for the provision of access to the Platform and the Documentation in accordance with these Conditions.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the United Kingdom including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR), the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Documentation: the documentation made available to the Buyer by Tru Trade online via https://trutrade.co.uk/register or such other web address notified by Tru Trade to the Buyer from time to time which sets out a description of the Platform and the user instructions for the Platform.
Effective Date: the date specified in clause 2.3.
Fee Quote: an offer by a Merchant made via the Platform to provide certain Goods and/or Services to the Buyer in respect of a Job List for a Construction Project.
Goods and/or Services: the goods and/or services procured by the Buyer from a Merchant via the Platform.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Buyer or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Introduction: the provision to the Buyer of the contact details of a Merchant via the Platform, following a decision by the Buyer to elect to purchase certain Goods and/or Services from that Merchant via the Platform. Introduce, Introduces and Introduced shall be interpreted accordingly. Job List: a fully itemised and costed list produced by the Platform in respect of a Construction Project setting out:

1. 1. 1. all the Goods and/or Services that the Buyer will need to procure for that Construction Project; and
    2. all the Fee Quotes provided by various Merchants in respect of each of the Goods and/or Services that the Buyer will need to procure for that Construction Project

Job List Charges: the charges that shall be payable by the Buyer for any Job Lists it wishes to obtain in respect of a Construction Project, being £120 (exclusive of VAT) per Job List unless otherwise agreed in writing between Tru Trade and the Buyer. Merchant: any person or firm with access to the Platform, from whom the Buyer may obtain Fee Quotes and/or procure Goods and/or Services under Relevant Contracts. Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day. Permitted Recipients: the parties to the Contract, the employees of each party and any third parties engaged to perform obligations in connection with the Contract. Platform: the online Tru Trade platform (as more particularly described in the Documentation) to which Tru Trade provides access to the Buyer via Tru Trade’s website subject to these Conditions. Price: the price at which a Merchant agrees to provide Goods and/or Services to the Buyer, as confirmed under a Relevant Contract. Relevant Contract: a contract for the supply of Goods and/or Services entered into during the Contract between a Merchant and the Buyer that was Introduced to the Buyer via the Platform. Tru Trade: Tru Trade Group Limited incorporated and registered in England and Wales with company number 15642301 whose registered office is at 13 Woodcote Road, Leamington Spa, Warwickshire, United Kingdom, CV32 6PZ. Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices. Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

1. Interpretation:
  1. A reference to legislation or a legislative provision:
    1. is a reference to it as it is in force as at the Effective Date; and
    2. shall include all subordinate legislation made as at the Effective Date under that legislation or legislative provision.
  2. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  3. A reference to writing or written includes email.
Basis of Contract
1. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2. The Buyer may, at any time, make an Application, which constitutes an offer by the Buyer to obtain access to the Platform and the Documentation in accordance with these Conditions. The Buyer is responsible for ensuring that the information it provides as part of the Application is complete and accurate.
3. The Buyer’s Application shall only be deemed to be accepted by Tru Trade when Tru Trade issues written acceptance of the same, at which point and on which date the Contract shall come into existence (“Effective Date”).
4. The Buyer waives any right it might otherwise have to rely on any term endorsed upon, submitted, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
Access to the Platform
1. Tru Trade shall, during the term of the Contract, provide access to the Platform and make available the Documentation to the Buyer on and subject to the terms of these Conditions.
2. Tru Trade shall use commercially reasonable endeavours to make the Platform available 24 hours a day, seven days a week, except for:
  1. planned maintenance; and
  2. unscheduled maintenance performed outside Normal Business Hours, provided that Tru Trade has used reasonable endeavours to give the Buyer notice in advance.
Use of the Platform
1. Subject to the restrictions set out in this clause 4 and the rest of these Conditions, Tru Trade hereby grants to the Buyer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Platform and the Documentation during the term of the Contract solely for the Buyer to obtain Fee Quotes, procure Goods and/or Services from Merchants, generally manage the progression, delivery and completion of its Construction Projects and otherwise for the Buyer’s internal business operations.
2. From time to time, the Buyer may post Construction Projects to the Platform in order for the Platform to generate a Job List for the Buyer in respect of that Construction Project.
3. In order to post a Construction Project to the Platform, the Buyer shall provide Tru Trade with all Client Data that Tru Trade reasonably requests (including but not limited to drawings and plans that the Buyer has produced or had produced on its behalf). The Buyer warrants that all Client Data it provides to Tru Trade under this clause 4.3 shall be complete, accurate, truthful and up-to-date.
4. The Buyer agrees and acknowledges that the Platform is only intended to enable it to manage its Construction Projects and does not provide the Buyer with any accountancy services, financial advice or financial services or any other form of professional and/or consultancy services.
5. Once the Buyer has, via the Platform, generated a Job List in respect of a Construction Project, the Buyer will then be able to obtain and consider Fee Quotes from Merchants in respect of the Goods and/or Services that make up that Job List.
6. In respect of all Fee Quotes it receives via the Platform, the Buyer:
  1. shall familiarise itself with the information each Merchant has provided in respect of the Fee Quote for the Goods and/or Services it is offering to provide;
  2. acknowledges that the Price at which the Merchant has offered to provide the Goods and/or Services to the Buyer is an offer to enter into a Relevant Contract with the Buyer for those Goods and/or Services for that Price;
  3. shall use the Platform to elect to purchase any Goods and/or Services from a particular Merchant, in which case the Platform will Introduce the Merchant and the Buyer to each other; and
  4. shall, once it has been Introduced to a Merchant:
    1. work with the Merchant to negotiate and agree the commercial terms of the provision of the Goods and/or Services by the Merchant to the Buyer; and
    2. enter into a Relevant Contract for the provision of the Goods and/or Services by the Merchant to the Buyer for the Price.
7. The Buyer:
  1. warrants that it is procuring Job lists, Fee Quotes and Goods and/or Services for its own benefit and is not acting as agent or otherwise on behalf of any third party;
  2. must provide on the Platform (in clear intelligible language) complete and accurate information in order to assist:
    1. Tru Trade to provide the services available via the Platform to the Buyer; and
    2. the Merchant in determining whether or not to submit a Fee Quote in respect of any Goods and/or Services required by the Buyer under a Job List;
  3. must immediately notify Tru Trade if:
    1. its requirements for any Construction Project change at any time; or
    2. it wishes to amend in any way the Job List for a Construction Project at any time,

and provide all information requested by Tru Trade in order for Tru Trade to generate a new and updated Job List via the Platform and/or obtain new and updated Fee Quotes for that Job List;

1. 1. must not seek to amend the Price once it elects to purchase Goods and/or Services from a particular Merchant in response to a Fee Quote via the Platform and must enter into a Relevant Contract with that Merchant for such Goods and/or Services for that Price;
  2. shall comply with any terms and conditions that apply to any Relevant Contract it enters into; and
  3. acknowledges that:
    1. Tru Trade is acting as an intermediary only in respect of the introduction of the Buyer and prospective Merchants in order for them to negotiate Relevant Contracts for the provision of Goods and/or Services;
    2. any Relevant Contract will be between the Buyer and a Merchant and not Tru Trade;
    3. in performing any Relevant Contract, the Buyer will bear all the responsibilities of a purchaser under applicable laws and regulations; and
    4. whilst the Buyer may raise complaints with Tru Trade regarding the conduct of other users of the Platform, the Buyer should make any claims and/or seek to enforce any rights or obligations in respect of any Relevant Contract or prospective Relevant Contract against the Merchant and not Tru Trade.
Authorised Users
1. In relation to the Authorised Users, the Buyer undertakes that:
  1. each Authorised User shall keep a secure password for their use of the Platform and Documentation and that each Authorised User shall keep their password confidential;
  2. it shall permit Tru Trade or Tru Trade’s designated auditor to audit the Platform in order to establish the name and password of each Authorised User, the quality of the Buyer’s data processing facilities and the Buyer’s compliance with the Contract. Each such audit may be conducted no more than once every three (3) months, with each party bearing its own costs in relation to such audit, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Buyer’s normal conduct of business; and
  3. if any of the audits referred to in clause 5.1.2 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Tru Trade’s other rights, the Buyer shall promptly disable such passwords and Tru Trade shall not issue any new passwords to any such individual.
2. The Buyer shall not, and shall procure that its Authorised Users shall not, seek to purchase any Goods and/or Services via the Platform and/or access, store, distribute or transmit any Viruses, or any materials during the course of its use of the Platform that:
  1. are unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
  2. facilitate illegal activity;
  3. depict sexually explicit images;
  4. promote unlawful violence;
  5. are discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
  6. are otherwise illegal or cause damage or injury to any person or property;

and Tru Trade reserves the right, without liability or prejudice to its other rights to the Buyer, to disable the Buyer’s access to the Platform as a result of its or its Authorised Users’ breach of the provisions of this clause.

1. The Buyer shall not, and shall procure that its Authorised Users shall not:
  1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
    1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Documentation (as applicable) in any form or media or by any means; or
    2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or
  2. access all or any part of the Platform and Documentation in order to build a product or service which competes with the Platform and/or the Documentation; or
  3. use the Platform and/or Documentation to obtain Job Lists, Fee Quotes and/or Goods and/or Services for the benefit of any third parties other than as permitted in the Documentation; or
  4. subject to clause 17.6, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or Documentation available to any third party except the Authorised Users, or
  5. attempt to obtain, or assist third parties in obtaining, access to the Platform and/or Documentation, other than as provided under clause 4 or clause 5; or
  6. introduce or permit the introduction of, any Virus or Vulnerability into Tru Trade’s network and information systems.
2. The Buyer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Tru Trade.
3. The rights provided under clause 4 and clause 5 are granted to the Buyer only, and shall not be considered granted to any subsidiary or holding company of the Buyer.
Data Protection
1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Legislation.
2. The parties have determined that, for the purposes of the Data Protection Legislation, Tru Trade shall act as controller of the personal data which the Buyer and/or its Authorised Users discloses to Tru Trade or makes available to Tru Trade through the use of the Platform and/or the Documentation.
3. Should the determination in clause 6.2 change, the parties shall use all reasonable endeavours make any changes that are necessary to this clause 6.
4. The Buyer acknowledges (and shall ensure that its Authorised Users are aware of) the actions that will be taken by Tru Trade in connection with the processing of personal data under the Contract (including but not limited to using data analytics to study how the Buyer and its Authorised Users use the Platform), as specified in Tru Trade’s privacy policy (”Privacy Policy”). In the event of any inconsistency or conflict between the terms of the Privacy Policy and these Conditions, the Privacy Policy will take precedence.
5. Without prejudice to clause 6.1, the Buyer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data to Tru Trade and lawful collection of the same by Tru Trade for the duration and purposes of the Contract.
6. The Buyer provides its prior, general authorisation for Tru Trade to:
  1. appoint processors to process the Buyer’s personal data, provided that Tru Trade shall:
    1. ensure that the terms on which it appoints such processors comply with Data Protection Legislation, and are consistent with the obligations imposed on Tru Trade in this clause 6; and
    2. remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Tru Trade;
  2. transfer the personal data outside of the UK as required to process the personal data in accordance with its Privacy Policy, provided that Tru Trade shall ensure that all such transfers are effected in accordance with Data Protection Legislation. For these purposes, the Buyer shall promptly comply with any reasonable request of Tru Trade, including any request to enter into standard data protection clauses adopted or adopted by the relevant supervisory authority from time to time.
Third party providers
1. The Buyer acknowledges that the Platform may enable or assist it to access the website content of and correspond with third parties (including but not limited to Merchants) via third-party websites and that it does so solely at its own risk. Tru Trade makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed and/or any contract entered into by the Buyer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Buyer and the relevant third party, and not Tru Trade. Tru Trade recommends that the Buyer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Tru Trade does not endorse or approve any third-party websites nor the content of any of the third-party websites made available via the Platform.
Tru Trade’s obligations
1. Tru Trade undertakes that the Platform will be made available and function substantially in accordance with the Documentation and with reasonable skill and care.
2. The warranty at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Platform contrary to Tru Trade’s instructions, or modification or alteration of the Platform by any party other than Tru Trade or Tru Trade’s duly authorised contractors or agents. If the Platform does not conform with the foregoing undertaking, Tru Trade will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Buyer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Buyer’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1.
3. Tru Trade:
  1. does not warrant that:
    1. the Buyer’s use of the Platform will be uninterrupted or error-free;
    2. the Platform, Documentation, Job Lists, Fee Quotes and/or any other information obtained by the Buyer through the Platform will meet the Buyer’s requirements and in any event are subject to the provisions of clause 4.7.3;
    3. the Platform will be free from Vulnerabilities or Viruses;
    4. the Platform or Documentation will comply with any Heightened Cybersecurity Requirements; or
    5. the Buyer will be able enter into:
      1. any minimum number of Relevant Contracts;
      2. Relevant Contracts for any minimum volume of Goods and/or Services; or
      3. Relevant Contracts for Goods and/or Services for a specific Price,

via the Platform.

1. 1. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Buyer acknowledges that the Platform and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
2. The Contract shall not prevent Tru Trade from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Conditions.
3. Tru Trade warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Conditions.
4. Tru Trade shall follow its archiving procedures for Buyer Data, a summary of which Tru Trade shall provide to the Buyer upon request. In the event of any loss or damage to Buyer Data, the Buyer’s sole and exclusive remedy against Tru Trade shall be for Tru Trade to use reasonable commercial endeavours to restore the lost or damaged Buyer Data from the latest back-up of such Buyer Data maintained by Tru Trade in accordance with its archiving procedures. Tru Trade shall not be responsible for any loss, destruction, alteration or disclosure of Buyer Data caused by any third party (except those third parties sub-contracted by Tru Trade to perform services related to Buyer Data maintenance and back-up for which it shall remain fully liable).
5. If Tru Trade’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Buyer (and/or any of its Authorised Users) (“Buyer Default”) Tru Trade shall:
  1. not be in breach of the Contract;
  2. not be responsible for any injury, loss, damage, cost or expense suffered by the Buyer and/or any Authorised User if and to the extent that it is caused by such Buyer Default;
  3. be entitled to an extension of any affected time for performance of its relevant obligations under the Contract; and
  4. be entitled to charge for any additional charges, expenses and costs arising from such Buyer Default and the Buyer shall compensate Tru Trade for the same.
Buyer’s obligations
1. The Buyer shall:
  1. once it has been Introduced to a Merchant, be solely responsible for negotiating and agreeing the commercial terms for procuring the Goods and/or Services;
  2. be solely responsible for taking any independent and/or expert advice about any Job Lists and Fee Quotes provided and/or Goods and/or Services offered to the Buyer via the Platform;
  3. provide Tru Trade with:
    1. all necessary co-operation in relation to the Contract; and
    2. all necessary access to such information as may be required by Tru Trade;

in order to provide access to the Platform, including but not limited to Buyer Data, security access information and configuration services;

1. 1. without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
  2. carry out all other Buyer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Buyer’s provision of such assistance as agreed by the parties, Tru Trade may adjust any agreed timetable or delivery schedule as reasonably necessary;
  3. ensure that the Authorised Users use the Platform and the Documentation in accordance with the Contract and shall be responsible for any Authorised User’s breach of the Contract;
  4. obtain and shall maintain all necessary licences, consents, and permissions necessary for Tru Trade, its contractors and agents to perform their obligations under the Contract, including without limitation the provision of access to the Platform;
  5. ensure that its network and systems comply with the relevant specifications provided by Tru Trade from time to time; and
  6. be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Tru Trade’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Buyer’s network connections or telecommunications links or caused by the internet.
2. The Buyer shall own all right, title and interest in and to all of the Buyer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Buyer Data.
Buyer Kickbacks and Job List Charges
1. The Buyer acknowledges and agrees that all Buyer Kickbacks and Job List Charges:
  1. shall be payable in pounds sterling;
  2. are exclusive of value added tax or other applicable sales tax, which shall be added to the sum in question;
  3. shall be paid in full without any deductions (including deductions in respect of items such as income, corporation, or other taxes, charges and/or duties) except where a party is required by law to deduct withholding tax from sums payable to the other party. If a party is required by law to deduct withholding tax, then the parties shall co-operate in all respects and take all reasonable steps necessary to:
    1. lawfully avoid making any such deductions; or
    2. enable the relevant party to obtain a tax credit in respect of the amount withheld.
2. If the Buyer fails to pay any amount due to Tru Trade under this Contract by the due date for payment, then, without limiting Tru Trade’s remedies under clause 15:
  1. Tru Trade reserves the right to charge the Buyer interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount;
  2. where the Buyer has failed to pay such amount within seven (7) days of the due date for payment, Tru Trade may, without liability to the Buyer, disable the Buyer’s password, account and access to all or part of the Platform and Tru Trade shall be under no obligation to provide access to any or all of the Platform while the amounts concerned remain unpaid.
3. If any dispute arises as to the Job List Charges and/or the amount of Buyer Kickback payable, the dispute shall be referred to Tru Trade’s auditors for settlement and their decision, save in the case of material error, shall be final and binding on both parties.
4. For the avoidance of doubt, payments in respect of Goods and/or Services under Relevant Contracts entered into via the Platform shall be made by the Buyer directly to the relevant Merchant in accordance with the terms of the Relevant Contract.
5. The Buyer shall regularly (and in any event no less frequently than on a monthly basis) use the Platform to accurately update and record and shall also separately report to Tru Trade in writing on:
  1. the progression of its active Construction Projects;
  2. when it has paid the Price for any Goods and/or Services;
  3. the Buyer Kickback it considers is payable under any Relevant Contract; and
  4. how such Buyer Kickback has been calculated.
6. Once Tru Trade has invoiced the relevant Merchant for any applicable Buyer Kickback and received payment of the same in full and in cleared funds, Tru Trade warrants to the Buyer that it shall promptly pay the Buyer Kickback to the Buyer.
7. The Buyer shall:
  1. keep separate records of all Relevant Contracts it enters into, all payments it makes under the same and details of how it has calculated the Buyer Kickback it considers that it is owed; and
  2. permit Tru Trade or its duly appointed representatives at all reasonable times to inspect all such accounts and records and to take copies of them.
8. Tru Trade shall invoice the Buyer for the Job List Charges upon the Buyer requesting the generation of that Job List.
9. The Buyer shall pay each invoice for the Job List Charges submitted to it by Tru Trade in full and in cleared funds within thirty (30) days of the date of such invoice to a bank account nominated in writing by Tru Trade from time to time.
10. For the avoidance of doubt, Tru Trade shall not be obliged to generate any Job List in respect of which the Buyer has not yet paid the applicable Job List Charges in accordance with clause 10.9 above.
11. Following the Buyer purchasing Goods and/or Services under a Relevant Contract entered into via the Platform, Tru Trade shall promptly reimburse to the Buyer all Job Charges previously paid by the Buyer under clause 10.9 above which have not previously been reimbursed to the Buyer under this clause 10.11.
Proprietary rights
1. The Buyer acknowledges and agrees that Tru Trade and/or its licensors own all Intellectual Property Rights in the Platform and the Documentation. Except as expressly stated herein, the Contract does not grant the Buyer any rights to, under or in, any Intellectual Property Rights or any other rights or licences in respect of the Platform or the Documentation.
2. Tru Trade confirms that it has all the rights in relation to the Platform and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
Confidentiality
1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party’s Confidential Information shall not be deemed to include:
  1. information that:
    1. is or becomes publicly known other than through any act or omission of the receiving party;
    2. was in the other party’s lawful possession before the disclosure;
    3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
    4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
  2. Buyer Data which the Buyer chooses to disclose and/or make available to Tru Trade and/or Merchants via the Platform.
2. Subject to clause 12.4 and clause 12.6, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Contract.
3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Contract.
4. A party may disclose Confidential Information:
  1. to its employees, officers, representatives, subcontractors or advisers who need to know that information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 12;
  2. to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure; and
  3. in respect of Tru Trade, Tru Trade may disclose certain Buyer Confidential Information in order to make Introductions to Merchants via the Platform.
5. The Buyer acknowledges that details of the Platform, and the results of any performance tests of the Platform, constitute Tru Trade’s Confidential Information.
6. The parties acknowledge that, subject to clause 12.1.2, the Buyer Data is the Confidential Information of the Buyer, provided that Tru Trade may use Buyer Data for its own internal purposes to better understand use of the Platform.
7. The parties agree and acknowledge that Tru Trade shall be permitted to:
  1. make public announcements concerning the Contract;
  2. refer to the Buyer as a client of Tru Trade in its promotional and marketing material and on its website; and/or
  3. use the Buyer’s trademarks and/or logos in its promotional and marketing material and on its website in order to refer to the Buyer as a client of Tru Trade.
8. The above provisions of this clause 12 shall survive termination of the Contract, however arising.
Indemnity
1. The Buyer shall defend, indemnify and hold harmless Tru Trade against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Buyer’s use of the Platform and/or Documentation, provided that:
  1. the Buyer is given prompt notice of any such claim;
  2. Tru Trade provides reasonable co-operation to the Buyer in the defence and settlement of such claim, at the Buyer’s expense; and
  3. the Buyer is given sole authority to defend or settle the claim.
2. Tru Trade shall defend the Buyer, its officers, directors and employees against any claim that the Buyer’s use of the Platform or Documentation in accordance with the Contract infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Buyer for any amounts awarded against the Buyer in judgment or settlement of such claims, provided that:
  1. Tru Trade is given prompt notice of any such claim;
  2. the Buyer provides reasonable co-operation to Tru Trade in the defence and settlement of such claim, at Tru Trade’s expense; and
  3. Tru Trade is given sole authority to defend or settle the claim.
3. In the defence or settlement of any claim, Tru Trade may procure the right for the Buyer to continue using the Platform, replace or modify the Platform so that it becomes non-infringing or, if such remedies are not reasonably available, terminate the Contract on written notice to the Buyer without any additional liability or obligation to pay liquidated damages or other additional costs to the Buyer.
4. In no event shall Tru Trade, its employees, agents and sub-contractors be liable to the Buyer to the extent that the alleged infringement is based on:
  1. a modification of the Platform or Documentation by anyone other than Tru Trade; or
  2. the Buyer’s use of the Platform or Documentation in a manner contrary to the instructions given to the Buyer by Tru Trade; or
  3. the Buyer’s use of the Platform or Documentation after notice of the alleged or actual infringement from Tru Trade or any appropriate authority.
5. The foregoing and clause 14.3.2 state the Buyer’s sole and exclusive rights and remedies, and Tru Trade’s (including Tru Trade’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Limitation of liability
1. Except as expressly and specifically provided in the Contract:
  1. the Buyer assumes sole responsibility for Relevant Contracts entered into by the Buyer via the Platform and all Goods and/or Services purchased by the Buyer under such Relevant Contracts, information obtained from the use of the Platform and the Documentation by the Buyer, and for conclusions drawn from such use. Tru Trade shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Tru Trade by the Buyer in connection with the Platform, or any actions taken by Tru Trade at the Buyer’s direction;
  2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
  3. the Platform and the Documentation are provided to the Buyer on an “as is” basis.
2. Nothing in the Contract excludes the liability of either party:
  1. for death or personal injury caused by its negligence; or
  2. for fraud or fraudulent misrepresentation; or
  3. any other matter in respect of which it would be unlawful to exclude or restrict liability.
3. Subject to clause 14.1 and clause 14.2:
  1. Tru Trade shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
  2. Tru Trade’s total annual aggregate liability in contract (including in respect of the indemnity at clause 13.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to an amount equal to the total amount of Job List Charges paid or payable by the Buyer in the twelve (12) months immediately prior to the events giving rise to such liability.
Term and Termination
1. The Contract shall commence on the Effective Date and, unless otherwise terminated as provided in this clause 15 or otherwise under these Conditions, continue indefinitely until either party gives thirty (30) days’ prior written notice to the other party to terminate the Contract.
2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
  1. the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than two (2) days after being notified in writing to make such payment;
  2. the other party commits a material breach of any other term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;
  3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
  4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  5. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
  6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  7. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
  8. the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
  9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  10. 15.2.10.a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
  11. 15.2.11.any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.3.3 to clause 15.3.10 (inclusive);
  12. 15.2.12.the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
  13. 15.2.13.the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy; or
  14. 15.2.14.there is a Change of Control of the other party.
3. On termination of the Contract for any reason:
  1. the Buyer shall immediately pay to Tru Trade all of Tru Trade’s outstanding unpaid invoices and interest (including but not limited to in respect of any Job List Charges);
  2. the Buyer shall promptly report to Tru Trade on any Relevant Contracts in respect of which it has paid all or part of the Price for the relevant Goods and/or Services since submission of its last report under clause 10.5 and, subject to Tru Trade confirming such Buyer Kickback and receiving payment of such Buyer Kickback in full and in cleared funds from the relevant Merchant, Tru Trade shall pay to the Buyer any such Buyer Kickback ;
  3. all licences granted under the Contract shall immediately terminate and the Buyer shall immediately cease all use of the Platform and/or the Documentation;
  4. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
  5. Tru Trade may destroy or otherwise dispose of any of the personal data in its possession unless Tru Trade receives, no later than ten (10) days after the effective date of the termination of the Contract, a written request for the delivery to the Buyer of the then most recent back-up of such personal data. Tru Trade shall use reasonable commercial endeavours to deliver the back-up to the Buyer within thirty (30) days of its receipt of such a written request, provided that the Buyer has, at that time, paid all fees and charges outstanding at and/or resulting from termination (whether or not due at the date of termination). The Buyer shall pay all reasonable expenses incurred by Tru Trade in returning or disposing of such personal data; and
  6. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.
Force majeure
1. Tru Trade shall have no liability to the Buyer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Tru Trade or any other party), failure of a utility service or transport or telecommunications network, flood, drought, earthquake or other natural disaster, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
Other Terms
1. Variation: No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
2. Waiver: No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
3. Rights and Remedies: Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
4. Severance:
  1. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
  2. If any provision or part-provision of the Contract is deemed deleted under clause 17.4.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
5. Entire Agreement:
  1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
  3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
6. Assignment & Other Dealings:
  1. The Buyer shall not, without the prior written consent of Tru Trade, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
  2. Tru Trade may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
7. No Partnership or Agency: Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
8. Third Party Rights: Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
9. Notices:
  1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered:
    1. by hand or by pre-paid first-class post or other next working day delivery service at, in the case of Tru Trade, its registered address and, in the case of the Buyer, the address specified in the Buyer’s Application; or
    2. by email to, in the case of Tru Trade, team@trutrade.co.uk and, in the case of the Buyer, the email address specified in the Buyer’s Application.
  2. Any notice or communication shall be deemed to have been received:
    1. if delivered by hand, at the time the notice is left at the proper address;
    2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
    3. if sent by email at the time of transmission, or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.
  3. This clause 17.9 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
10. Governing Law & Jurisdiction: The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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