RFX terms and conditions

Note to interested parties and Respondents

This document contains details of the RFX Process and the Terms and Conditions which apply to this RFX.

Words and phrases that have a special meaning are shown by the use of capitals. Definitions are included at the end of the Terms and Conditions.

If you have any questions about the Terms and Conditions, please get in touch with the Xero Contact Person.

1. Responses

1.1 Responses must follow the response format set out in the RFX (including for example, questionnaires, worksheets and tables). By submitting a Response, the Respondent accepts that it is bound by these Terms and Conditions.

1.2 Responses must be submitted to Xero via Xero’s Online Procurement Platform (unless otherwise agreed with Xero). Each Respondent is responsible for ensuring its Response is received on or before the Closing Date. Responses may be amended or withdrawn at any time prior to the Closing Date by providing written notice to the Xero Contact Person.

1.3 Xero is entitled to rely on the Respondent’s Response and information provided by the Respondent. In submitting a Response and communicating with Xero, each Respondent must ensure that the information it provides is true, accurate, complete, not misleading, and does not contain any intellectual property that breaches a third party’s rights. The Respondent must further ensure that the Response is based on the Respondent’s own investigations and determinations.

1.4 Requests to extend the Closing Date are likely to be declined unless there are extenuating circumstances. Any decision to extend the Closing Date or any other deadline will be made at the sole discretion of Xero.

1.5 Xero will acknowledge via email or Xero’s Online Procurement Platform the receipt of Responses and the withdrawal of any Response.

1.6 Any Response that does not comply with the response format set out in the RFX may be rejected or accepted in Xero’s sole discretion.

1.7 All notices relating to the RFX will be forwarded to the email address provided by Respondents in their Response.

2. Registering your interest

2.1 Respondents planning to submit a Response are required to notify Xero via Xero’s Online Procurement Platform within the time frame set out in the RFX (unless otherwise agreed with Xero).

3. Enquiries

3.1 General enquiries about the RFX and RFX Process must be made to the Xero Contact Person.

3.2 Respondents must not:

a) contact any other person at Xero regarding the RFX or RFX Process without the express authorisation of the Xero Contact Person;

b) approach, directly or indirectly lobby, attempt to influence or provide any form of incentive to, any representative of Xero concerning any aspect of the RFX or RFX Process. Any Respondent who either directly or indirectly makes any such approach or attempt to influence may be disqualified; or

c) make any public statement in relation to the RFX, RFX Process, or its Response (including the fact of its participation in the RFX or RFX Process).

3.3 Each Respondent must satisfy itself as to the correct interpretation of the RFX and will be deemed to have understood the RFX by submitting a Response. If there is any uncertainty Respondents should ask for clarification. Requests for clarification must be submitted to the Xero Contact Person via Xero’s Online Procurement Platform (unless otherwise agreed with Xero). Xero may respond to requests for clarification in its sole discretion.

3.4 Xero may provide details of any question/clarification received from a Respondent (which may be summarised), and the relevant answer(s), to the other Respondents. Xero will not disclose the requesting Respondent’s identity. The requesting Respondent may withdraw its request at any time.

3.5 In submitting a question or request for clarification, a Respondent must indicate whether any accompanying information is commercially sensitive. Xero will not publish such commercially sensitive information, but Xero may modify a question or request to remove the aspects identified as commercially sensitive and publish this modified version (including the answer) where Xero thinks it is of general significance to all Respondents. Before Xero publishes the modified version, the Respondent will be given the opportunity to withdraw the question or request, or to remove the commercially sensitive information.

4. Confidentiality

4.1 If a Respondent’s Response contains information that it considers is confidential, that Respondent must clearly identify such information and indicate the reason(s) why it considers the information should be held confidential.

4.2 Xero may disclose confidential information to any person who is involved in the RFX or RFX Process on its behalf, such as officers, employees, consultants, contractors, professional advisors, evaluation panel members, partners, principals or directors. Xero may also disclose confidential information to any of its affiliates.

4.3 For the duration of the RFX Process, each Respondent agrees to keep the RFX and RFX Process strictly confidential and not make any public statement to any third party in relation to any aspect of the RFX or RFX Process.

5. Ownership of response documents

5.1 The RFX and its contents remain the property of Xero. Ownership of the intellectual property in a Response does not pass to Xero with the submission of the Response. However, Responses will not be returned to Respondents and in submitting a Response, the Respondent grants Xero a license to retain, use, disclose and copy all of the information contained in that Response for the purposes of:

a) evaluating or clarifying the Response;

b) evaluating any subsequent Response;

c) negotiating a contract;

d) consultation with any affected parties (if required);

e) managing a contract with the successful Supplier (if any);

f) responding to any challenge to the RFX or RFX Process, including in connection with audit and compliance requirements; and

g) any other purpose related to the RFX, RFX Process, or the purposes set out in these Terms and Conditions.

6. Evaluation criteria

6.1 Responses will be evaluated against all or some of the following criteria, applied and judged by Xero in its sole discretion:

a) Demonstrated understanding of Xero’s requirements with regard to the required Services;

b) Demonstrated experience in providing the required Services, preferably with organizations with relevant industry/sector experience;

c) Confidence in the Respondent’s capacity and capability to deliver the Services in a way that meets Xero’s requirements as described in the RFX, including within the agreed time frames;

d) Completeness of the Services and suitability of the proposed approach to providing the Services;

e) Confidence in the Respondent’s ability to establish and maintain a mutually acceptable business relationship with Xero;

f) Confidence in the Respondent’s ability to perform the Services within available budgets and under a commercial proposition that represents value for money;

g) Suitability and availability of resources to perform the required Services;

h) Demonstrated commitment to health and safety, environmental sustainability, and inclusive behaviour;

i) Willingness of the Respondent to accept Xero’s commercial terms and conditions;

j) Compliance with these Terms and Conditions; and

k) Any other criteria chosen by Xero and set out in the RFX

6.2 The evaluation criteria under clause 6.1 are not in any particular order, are not exhaustive and will not necessarily be accorded equal weight or any particular weight at all.

6.3 Xero may request Respondents to provide a presentation of their Response, including their skills, experience, key attributes of personnel and/or demonstrate an understanding of the Service requirements. Notice of the presentation and an outline of expectations for the contents of the presentation will be provided to the relevant Respondents if required. If requested by Xero, Respondents will also facilitate customer reference site visits or calls.

7. Selection process

7.1 Xero’s preference is to accept Responses that meet the requirements of the RFX. However, Xero may consider Responses that don’t fully conform to the requirements of the RFX and Respondents are required to identify any aspects of their Response that don’t conform.

7.2 Xero may ask for further information or to verify information in relation to a Response.

7.3 If Xero’s discussions with Respondents or other circumstances make it necessary to extend the Closing Date or any other indicative date and/or milestone set out in the RFX, Xero will notify parties of the necessary extension of time.

7.4 Xero reserves the right to, at any time and at its sole discretion:

a) accept or reject any Response(s);

b) not accept the lowest priced Response(s);

c) consider, accept, or reject any non-conforming Response;

d) suspend or cancel (in whole or in part) the RFX and/or RFX Process;

e) re-invite Responses;

f) seek additional Responses;

g) amend any timetable detailed in the RFX;

h) amend the RFX and any associated documents;

i) notify and offer any of the Respondents the opportunity to amend their Responses;

j) negotiate and/or conclude a formal contract with any party, whether or not that party has submitted a Response;

k) negotiate concurrently with one or more Respondents;

l) negotiate with any Respondent(s), at any time before or after acceptance of a Response, and upon any terms and conditions; and

m) not enter into any contract in relation to the Services or other matters described in the RFX.

7.5 A decision to select a Response may be conditional, for example, subject to certain revisions being agreed.

8. Acceptance process

8.1 Xero will notify each Respondent in writing of the outcome of the RFX Process as soon as possible.

8.2 All notices will be provided via Xero’s Online Procurement Platform or forwarded to the email address provided by Respondents in their Response.

8.3 Unless otherwise notified, Xero may accept and proceed with any Response(s) at any time. Unless invited by Xero, Responses may not be amended or withdrawn after the date that Xero accepts its preferred Response(s).

8.4 If none of the Responses are acceptable to Xero (in its sole discretion), Xero may enter into negotiations with one or more of the Respondents, or with alternative parties, for a satisfactory offer.

8.5 Nothing contained in the RFX obliges Xero to discuss, justify or give reasons for any of its decisions or actions relating to the RFX, RFX Process or any Response.

8.6 There will be no binding legal relations between Xero and the successful Supplier(s) until the relevant parties sign a final contract for provision of the Services.

9. Pricing and fee principals

9.1 When responding to pricing-related questions, Respondents must consider the principles set out under clauses 9.2 to 9.4.

9.2 Pricing offers may be provided either globally or separately for each country covered by the Respondent’s Response as applicable. A Respondent must clearly state the proposed currency of its pricing offer.

9.3 Respondents must clearly state which of the Services are included within any pricing offer, preferably providing separate pricing for each of the Services.

9.4 Respondents must clearly identify in their Responses all fees that apply to the Services. There must not be any hidden fees and each Respondent must also clearly identify any minimum fees in its Response.

10. Xero’s standard contract terms

10.1 Xero’s standard contract terms may be attached to the RFX. Xero expects that the successful Supplier(s) will accept the standard contract terms provided, unless notified otherwise in writing.

10.2 For the purpose of clause 10.1, acceptance of Xero’s standard contract terms means:

a) in the case of a clause which is of an informative nature only, that this clause has been read and understood;

b) in the case of a clause which imposes a contractual obligation or confers a contractual right, that the obligation or right is agreed to in a strict and literal sense; and

c) in the case of a clause which specifies a characteristic or performance standard to be met by the Services provided, that the Respondent agrees to meet or exceed this standard.

10.3 When preparing your response to the RFX, please:

a) confirm your acceptance of Xero’s standard contract terms; or

b) propose a variation to any standard term you partially accept or reject in full. Ensure you include your justification for why you require the variation.

10.4 Any clause or condition of the standard contract terms not specifically mentioned in your Response will be deemed by Xero to have been accepted in full.

10.5 Xero reserves the right to amend any part of the standard contract terms before and during negotiations.

11. Conflict of interest

11.1 To the best of the Respondent’s knowledge and belief, no personal relationship exists between any of the Respondent’s representatives or employees who are materially, directly or indirectly involved in the preparation of submission of the Response, and any officer, employee or contractor of Xero involved in evaluation of proposals, administration of procurement or who is in possession of confidential information relating to the RFX Process.

11.2 The Respondent further confirms that no employee or representative of the Respondent who is materially, directly or indirectly involved in the preparation or submission of the Respondent’s Response holds a directorship or senior management position, or has a material financial interest, in any other Respondent submitting a Response to the RFX.

11.3 Respondents must disclose any actual or perceived conflicts of interest or fair dealings associated with their Response.

11.4 Respondents must not place themselves into a situation that could create a Conflict of Interest during the RFX Process. If any situations or relationships arise during the RFX Process that could create a Conflict of Interest, a Respondent must declare them immediately to Xero. Xero will assess the impact and advise any further actions as required.

12. General

12.1 The RFX may result in negotiations with a view to entering a contract for the supply of the Services, but of itself is not an offer that Respondents accept by submitting Responses. The Respondent will cooperate fully in good faith and in a timely manner in any negotiations initiated by Xero in relation to this RFX. Any information provided by Xero prior to the date of the RFX release will not form part of any binding contract which may be entered into between Xero and the Respondent.

12.2 By responding to the RFX, Respondents accept these Terms and Conditions. Each Respondent will meet its own costs associated with the preparation and presentation of its Response.

12.3 Xero is not liable (whether in contract, tort or otherwise) for any liability, loss (including direct, indirect or consequential loss), cost or expense arising from any Response or from the preparation or submission of any Response.

12.4 Respondents and their officers, employees, agents and advisors must not engage in any collusion, anti-competitive conduct, unethical or any similar conduct with any other Respondent or person in relation to the preparation or submission of their Responses.

12.5 All reasonable care has been taken to ensure the information in the RFX is correct, however we do not guarantee the accuracy or completeness of the RFX or any information provided in connection with it.

12.6 The Respondent will notify Xero in writing immediately if any element of its response becomes incorrect or inaccurate after it is submitted to Xero.

12.7 These Terms and Conditions are governed by New Zealand law.

12.8 All Responses submitted shall remain valid for a period of 180 days from the Closing Date.

13. Definitions

13.1. The following words and expressions have the meanings described below:

Closing Date means the date by which Responses must be received by Xero as identified in the RFX.

Confidential Information means information, oral or written and in any format, that the discloser designates as confidential at the time of disclosure, or would reasonably be considered confidential given the nature of the information and/or the circumstances of its disclosure, including the fact and nature of the discussions between the Respondent and Xero. Confidential Information may include financial information, customer information, software, marketing plans, research, technical or proprietary information and intellectual property.

Conflict of Interest means a situation where a Respondent’s personal or business interests or obligations do, could, or could be perceived to, conflict with its obligations to Xero under the RFX or in the provision of Services. A Conflict of Interest may be:

• actual: where the conflict currently exists;
• potential: where the conflict is about to happen or could happen; or
• perceived: where other people may reasonably think that a person is compromised.

Online Procurement Platform means the software used by Xero to conduct and manage the RFX.

Response means a proposal for the supply of the Services described in the RFX.

RFP / RFI / RFQ (RFX) means the Request for Proposal (RFP) / Request for Information (RFI) / Request for Quote (RFQ) set out in the tender documentation provided by Xero and inviting Respondents to submit a Response. RFX is a catch-all term that captures all references to Request for Information, Request for Proposal and Request for Quote.

RFX Process means the series of actions or steps taken by Xero, the Respondent(s) and/or the Supplier(s) in connection with the RFX, including all actions or steps required for Xero and the Supplier(s) to enter into an agreement for provision of the Services.

Respondent means a natural person, partnership, association, body corporate or other entity, whether corporate or unincorporated that submits a Response as per the requirements of the RFX. The term ‘Respondent’ includes its officers, employees, contractors, consultants, agents and representatives.

Services means the services, deliverables and/or products described in the RFX that are to be provided by the successful Supplier(s).

Supplier(s) means the successful Respondent for the provision of the required Services described in the RFX.

Terms and Conditions means the terms and conditions set out in this document.

Xero means the Xero company entity identified in the RFX, its employees, nominated agents and permitted contractors and assigns of Xero.

Xero Contact Person means Xero’s point of contact for all enquiries and other matters relating to the RFX.