Business Day means a day when banks in London are open for business, other than on a Saturday, Sunday or public holiday in England.
Commencement Date means the earliest date specified on the NBS Order Form on which (subject to payment of any Subscription Fee and/ or notification from a third party lender that a credit agreement is effective between the Subscriber and such third party for the financing of the Subscription Fee) the Licence and/or NBS Chorus Service is to commence.
Concurrent User means the Users who are able to access the Product or use the NBS Chorus Service at any one time as stipulated on the NBS Order Form.
Content shall mean all human and machine readable data retained, maintained and displayed in the Product or via the NBS Chorus Service, other than the Subscriber Data.
Contract means the contract, entered into between the Subscriber and RIBAE for the use of the Product and/or the NBS Chorus Service and the Training for the Term, in accordance with these Terms and Conditions.
Data Protection Legislation the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
Initial Term means the initial duration of the Licence and the Subscription as specified on the NBS Order Form, which shall begin on the Commencement Date and shall end on the expiration of the time period specified on the NBS Order Form unless terminated earlier in accordance with the provisions of these Terms and Conditions.
Intellectual Property Rights means the patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
Licence means the permission given by RIBAE, to the Subscriber, to use the Product for the Term for business purposes as set out in clause 3.1.
Manufacturer Company means the company or organisation which supplies the Manufacturer Data to RIBAE.
Manufacturer Data shall mean such information, as may be amended from time to time, about the Manufacturer Company and its products which forms part of the Content.
NBS means the National Building Specification, a suite of products and services solely and wholly owned, promoted, sold and distributed by RIBAE.
NBS Chorus Service shall mean the ‘software as a service’ known as “NBS Chorus” selected by the Subscriber on the NBS Order Form.
NBS Order Form means the order form signed by the Subscriber confirming the Subscriber’s acceptance of the Contract and attached to these Terms and Conditions and as amended in writing by the parties from time to time pursuant to these Terms and Conditions.
NBS ID means the identification account system provided by RIBAE, through which a User creates the ID necessary in order to access and use the Product and/or the NBS Chorus Service.
Network Licence means the installation of the Product on the Subscriber’s network and the use of the Product on the computer hardware which supports the Subscriber’s network.
Privacy Settings means Subscriber controlled settings, accessible via the Product and/or the NBS Chorus Service or, where such functionality is not included in the Product and/or the NBS Chorus Service, by contacting RIBAE’s support team with instructions which enables the Subscriber to have control of the sharing of information related to the production and use of Subscriber Data and Manufacturer Data, with RIBAE and Manufacturer Companies.
Product shall mean the product(s) selected by the Subscriber on the NBS Order Form.
Project Title means the name given to a project by the Subscriber.
RIBAE means RIBA Enterprises Limited, a company incorporated and registered in England and Wales (company number 978271) whose registered office is at The Old Post Office, St Nicholas Street, Newcastle upon Tyne NE1 1RH.
Renewal Period shall have the meaning set out in clause 12.1.
Service Credit shall mean the percentage of the Subscription Fee for NBS Chorus Service paid for the current period (being the Initial Term or a subsequent Renewal Period) credited against the Subscription Fee for NBS Chorus Service for the next Renewal Period as calculated in accordance with RIBAE’s service level policies from time to time as accessible via www.thenbs.com/legal
Service Levels shall mean the service level targets for the NBS Chorus Service set out in RIBAE’s service level policies from time to time as accessible via www.thenbs.com/legal and subject to the exclusions set out in such policies from time to time.
Stand Alone Licence means the installation and use of the Product on individual computer workstations which are supported and operated by the Subscriber.
Subscriber means the company who has paid the Subscription Fee in full, to RIBAE, for use of the Product and/or the NBS Chorus Service for their desired number of Users for business purposes.
Subscriber Data means any data, excluding manufacturer company names, added to the Product or uploaded via the NBS Chorus Service by the Subscriber or any User throughout the Subscription.
Subscription means the Subscriber’s right to use the Product and/or access the NBS Chorus Service.
Subscription Fee means the licence fee payable by the Subscriber, to RIBAE, for the use of the Product for the Term and/or the service fees for the NBS Chorus Service for the Term as specified in the NBS Order Form from time to time.
Term means (subject to any earlier termination in accordance with these Terms and Conditions) the Initial Term together with any subsequent Renewal Periods.
Terms and Conditions mean these terms and conditions relating to the use of and ownership of the Product and the NBS Chorus Service and receipt of the Training.
Training means the training services to be provided by RIBAE to the Subscriber as set out on the NBS Order Form or, subject always to these Terms and Conditions, as otherwise agreed in writing by the parties from time to time.
User means any person(s) or company who is not party to the Contract, but who has been given a right to use the Product or access the NBS Chorus Service by the Subscriber for business purposes and has created an NBS ID and password and who has accepted any end user licence agreement provided by RIBAE from time to time.
2.1 Neither the Product nor the information it contains nor the information provided through the NBS Chorus Service or as part of the Training are intended, and accordingly shall not be relied upon, either as a substitute for professional advice or judgement, or to provide legal or other advice with respect to any particular circumstance.
2.2 Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.
2.3 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or terms preceding those terms.
2.4 The signature and return of the NBS Order Form unamended by the Subscriber to RIBAE constitutes the acceptance of its terms by the Subscriber and the Contract shall be deemed to have commenced on the date of receipt by RIBAE.
2.5 RIBAE shall have the right to make any amendments or changes that it deems reasonably necessary in order for the Product, the NBS Chorus Service, the Training or any other goods or services provided by it to the Subscriber to be compliant with all applicable laws or health and safety regulations or requirements from time to time and shall not be in breach of the Contract as a result.
2.6 The Subscriber and Users acknowledge this Contract represents a business to business transaction only. Use of the Product and or NBS Chorus Service shall be for business purposes only. Consumer legal protections shall not apply to this business to business Contract.
3.1 In consideration of the Subscription Fee paid by the Subscriber to RIBAE, RIBAE grants to the Subscriber a non-exclusive licence to use the Product for the Term for business purposes. RIBAE grants the Licence (which may, depending upon the Subscriber’s requirements, be either a Stand Alone Licence or a Network Licence) to the Subscriber in accordance with the provisions of the NBS Order Form and subject to these Terms and Conditions.
3.2 The Subscriber may allow its Users to access and use the Product, provided that the Subscriber shall procure that its Users shall, at all times, act in accordance with these Terms and Conditions.
3.3 For all Products (save only those licenced to the Subscriber under a Stand Alone Licence) RIBAE shall adopt a floating licensing model for the purpose of regulating a Subscriber’s use of the Product. This floating licensing model shall permit the Concurrent Users to access and use the Product at the same time. The number of Concurrent Users (which for the avoidance of doubt may be less than the number of Users) shall be as stipulated on the relevant NBS Order Form.
3.4 Subject to the payment of any additional fees for the same, the Subscriber may increase the number of Concurrent Users who are entitled to access and use the Product at any time during the Subscription by contacting RIBAE from the UK on 0345 456 9594 or from outside the UK on +44 (0)191 232 9594..
3.5 Subject to compliance in full with these Terms and Conditions, the Subscriber and its Users may reproduce part or parts of the Content either alone or in conjunction with the Subscriber Data;
3.5.1 for the purposes of the Subscriber’s and its Users’ own personal use where that personal use is not for any commercial or profit making purpose; or
3.5.2 for inclusion in any contract document used or intended to be used in connection with the performance of a building contract (Building Contract) where the Subscriber is a contracting party, or in connection with which the Subscriber is engaged by one of the contracting parties in a professional capacity, provided that the Content is not included, used or reproduced other than in connection with the performance of the Building Contract.
3.6 The Subscriber undertakes that it will access and use the Product in accordance with these Terms and Conditions.
3.7 The Subscriber shall be responsible for controlling a User’s access to, and use of the Product and shall ensure that all Users accept the terms of any end user licence agreement provided by RIBAE for such purposes from time to time.
4. Subscription Fee
4.1 The Subscriber shall pay to RIBAE the Subscription Fee.
4.2 The Subscriber acknowledges and agrees that it is its sole responsibility to finance the Subscription Fee on a basis which is commercially appropriate for its business and that where finance is provided by a third party, whether such third party is introduced by RIBAE or otherwise, then the Subscriber is solely responsible for discharging its obligations to such third party including where the Subscription is cancelled or the Contract is terminated.
4.3 RIBAE shall invoice the Subscriber for the Subscription Fee upon receipt, by RIBAE, of the signed NBS Order Form from the Subscriber. RIBAE shall be under no obligation to perform any of its obligations under the Contract unless and until the Subscription Fee is paid in full.
4.4 The Subscription Fee is exclusive of VAT, which shall be added to all invoices at the rate prevailing at the date of invoice.
4.5 Subject to the parties agreeing in writing to the contrary, the Subscriber agrees to pay any invoice relating to the Contract immediately on receipt of the relevant invoice. Without prejudice to any other rights or remedies of RIBAE if any amount of the Subscription Fee or the fees for Training payable under clause 11 are outstanding for more than 7 days following receipt of such invoice, RIBAE may, by written notice, deem the Contract be terminated by default, resulting in cancellation charges of 100% of the remaining value of the Subscription Fee. RIBAE reserves the right to charge interest and late payment compensation in accordance with the provisions of The Late Payment of Commercial Debts (Interest) Act 1998 or such other similar legislation as may be enacted from time to time on any such overdue sums. For the avoidance of doubt, in addition to interest payments the Subscriber shall pay on demand all RIBAEs reasonable costs and expenses incurred in enforcing this contract and recovering overdue monies and interest from the Subscriber.
4.6 At least 90 days prior to the end of the Initial Term or any Renewal Period RIBAE shall notify the Subscriber of the Subscription Fee and any fees for Training payable in respect of the forthcoming Renewal Period.
4.7 At least 90 days prior to the end of the Initial Term or any Renewal Period each party shall notify the other in writing of any proposed changes to the Licence, the number of Concurrent Users, the Subscriber’s use of the NBS Chorus Service or the Training for the forthcoming Renewal Period.
4.8 Any proposed changes submitted in accordance with clause 4.7 and agreed by the parties together with the Subscription Fee and any fees for Training payable in respect of the forthcoming Renewal Period shall be confirmed in writing by RIBAE.
5. Intellectual Property Rights
5.1 All of the Intellectual Property Rights in the Product, the NBS Chorus Service, the Content and in any materials or software created or used in the provision of the Training are, and shall remain at all times, the sole and exclusive property of RIBAE or its licensors. All such rights are reserved. The Subscriber shall acquire no rights in the Product, the NBS Chorus Service, the Content or the materials or software created or used in the provision of the Training except as expressly provided for in these Terms and Conditions.
5.2 Without prejudice to the generality of clause 5.1 the RIBAE and NBS logos and all other RIBAE and NBS trademarks, product names, and trade names logos appearing in, on or in connection with the Product or the NBS Chorus Service are owned by RIBAE or its licensors. The Subscriber may not use or display any such trademark, product name, trade name, or logo without RIBAE’s or the relevant owner’s prior written consent.
6. Prohibited Uses
6.1 The Subscriber may not reproduce in any form, any part of the Product, the NBS Chorus Service, the Content or any materials or software used or created in the provision of the Training except as expressly provided for in these Terms and Conditions.
6.2 Except with RIBAE’s express, prior written consent (there being no presumption that RIBAE shall give its consent) or as otherwise specified in these Terms and Conditions or as is necessary for the Subscriber to make full use of the functionality of the Product or the NBS Chorus Service, the Subscriber may not at any time during the Contract, or at any time thereafter:
6.2.1 use or permit others to use the Product the NBS Chorus Service or the Content for the purpose of developing and/or maintaining for himself or for others, an alternative service provision which either directly or indirectly competes with the Product or the NBS Chorus Service or in some other way serves the same or a similar purpose as the Product or the NBS Chorus Service;
6.2.2 attempt to copy, modify, duplicate, creative derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Product, the Content, the NBS Chorus Service or any materials or software used or created in the provision of the Training (as applicable) in any form or media or by any means; or
6.2.3 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the Product, the NBS Chorus Service or any software used or created in the provision of the Training except as permitted in law; or
6.2.4 use the NBS Chorus Service and/or the Product to provide services to third parties; or
6.2.5 subject to clause 3, licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the Product, the NBS Chorus Service or any materials or software used or created in the provision of the Training available to any third party except the Users provided that third parties who are not employees of the Subscriber shall only be granted access to and use of the Product and/or NBS Chorus Service as Users to the extent and for such period as is absolutely necessary for them to collaborate with the Subscriber on a project being managed by the Subscriber using the Product and/or NBS Chorus Service.
6.3 The Subscriber shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Product or the NBS Chorus Service and, in the event of any such unauthorised access or use, promptly notify RIBAE.
6.4 The Subscriber shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the NBS Chorus Service, any software used as part of the Training or the Product that:
6.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
6.4.2 facilitates illegal activity;
6.4.3 depicts sexually explicit images;
6.4.4 promotes unlawful violence;
6.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
6.4.6 is otherwise illegal or causes damage or injury to any person or property;
and RIBAE reserves the right, without liability or prejudice to its other rights to the Subscriber, to disable the Subscriber’s or individual Users’ access to any material that breaches the provisions of this clause 6.4.
6.5 The Subscriber shall procure that any User acting under its authority shall comply with the restrictions imposed in this clause 6.
7. Confidentiality and Data Protection
7.1 Any information imparted to the Subscriber relating to the Product, the NBS Chorus Service or the Content or during the Training, shall be kept confidential by the Subscriber and any User, and shall be used solely in connection with the normal use of the Product and/or the NBS Chorus Service strictly in accordance with these Terms and Conditions.
7.2 Subject to clauses 7.4, 7.5 and 7.6, RIBAE may incorporate, make use of and record information relating to the usage of the Manufacturer Data and the usage, performance and functionality of the Product and NBS Chorus Service and the Content including User name and contact details, NBS ID, Subscriber name and contact details, Project Title, manufacturer company names and analytics, statistics and data relating to usage of the Product or the NBS Chorus Service or the Content.
7.3 Subject to clauses 7.4, 7.5 and 7.6 the information specified in clause 7.2 may, in RIBAE’s absolute discretion be used, or stored internally by RIBAE or shared with and disclosed to third parties for such purposes as RIBAE deems appropriate from time to time provided that RIBAE will not share any personal data (including email addresses) with Manufacturer Companies.
7.4 The Subscriber shall adjust the Privacy Settings within the Product and/or NBS Chorus Service to indicate where certain information cannot be used, shared or disclosed by RIBAE in accordance with this clause 7 provided that RIBAE shall have no liability where the Subscriber fails to adjust such Privacy Settings.
7.6 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
7.7 The Subscriber acknowledges and agrees that:
7.7.1 neither the Product nor the NBS Chorus Service are intended for storing or otherwise processing any personal data on behalf of the Subscriber;
7.7.2 RIBAE is not appointed as a personal data processor under the Contract;
7.7.3 it shall ensure no personal data is entered, stored or otherwise processed using the Product or NBS Chorus Service other than as set out in Clause 7.7.4;
7.7.4 email addresses of the Subscriber and Users may be used by RIBAE to create NBS ID and User accounts, but RIBAE and the Subscriber shall hold such information separately, each as a controller. The Subscriber and Users shall only provide personal data to RIBAE for the purposes of this sub-clause 7.7 where entitled to do so under the applicable Data Protection Legislation;
(terms used in this clause 7.7 shall have the meaning given in the Data Protection Act 2018).
7.8 Without prejudice to the generality of clause 7.6 the Subscriber will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to RIBAE for the duration and purposes of the Contract so that RIBAE may lawfully use, process and transfer the personal data in accordance with the Contract.
7.9 Without prejudice to the generality of clause 7.6, if, contrary to the original intention of the parties, RIBAE does process personal data as a processor acting on behalf of the Subscriber in connection with the performance by RIBAE of its obligations under the Contract, RIBAE shall:
7.9.1 process that personal data only on the express instructions of the Subscriber unless RIBAE is required by the laws of any member of the European Union or by the laws of the European Union applicable to RIBAE and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where RIBAE is relying on Applicable Laws as the basis for processing personal data, RIBAE shall promptly notify the Subscriber of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit RIBAE from so notifying the Subscriber;
7.9.2 not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
184.108.40.206 the Subscriber or RIBAE has provided appropriate safeguards in relation to the transfer;
220.127.116.11 the data subject has enforceable rights and effective legal remedies;
18.104.22.168 RIBAE complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
22.214.171.124 RIBAE complies with reasonable instructions notified to it in advance by the Subscriber with respect to the processing of the personal data;
7.9.3 assist the Subscriber, at the Subscriber's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.9.4 notify the Subscriber without undue delay on becoming aware of a personal data breach;
7.9.5 at the written direction of the Subscriber and subject to clause 8.5, delete or return personal data and copies thereof to the Subscriber on termination of the Contract unless required by Applicable Law to store the personal data; and
7.9.6 maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and immediately inform the Subscriber if, in its opinion, an instruction infringes the Data Protection Legislation.
7.10 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
7.11 The Subscriber consents to RIBAE appointing a third party hosting company as a third-party processor of personal data under the Contract.
7.12 Either party may, at any time on not less than 30 days' notice, revise any of clauses 7.5 to 7.12 by replacing any or all of them with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.
8. Subscriber Data
8.1 The Subscriber and its licensors shall retain ownership of the Intellectual Property Rights in the Subscriber Data and the Subscriber is solely responsible for ensuring that the Subscriber Data is accurate and complete.
8.2 Subject to clauses 7.2 and 7.3 RIBAE shall not, in any circumstance, copy any Subscriber Data or incorporate that Subscriber Data into any other RIBAE product or service without first obtaining the written consent of the relevant Subscriber.
8.3 RIBAE shall not, in any circumstance, be liable for the legality, reliability, integrity, quality or accuracy of the Subscriber Data or any data or Content (including any Manufacturer Data) which is supplied by a third party (including a Manufacturer Company) which is provided to the Subscriber through use of the Product or NBS Chorus Service.
8.4 Subscriber Data will be stored securely by RIBAE up to a limit of 10GB free of charge. RIBAE reserves the right to review this data storage limit from time to time, and to charge Subscribers in the event that a Subscriber exceeds the data storage limit for its licensed number of Concurrent Users.
8.5 Where the Subscription is terminated in accordance with these Terms and Conditions the Subscriber’s access to all of the Subscriber Data will be lost on the termination date. It is the Subscriber’s responsibility to export and save such Subscriber Data to its own storage media prior to the date of termination. RIBAE shall retain the Subscriber Data relating to the “NBS Create” Products and NBS Chorus Service for two years from the date of termination and may, on request and subject to payment of its fees for the same, provide an export of such Subscriber Data to the Subscriber during such 2 year period. The Subscriber acknowledges and agrees that RIBAE shall not retain any Subscriber Data held within any “NBS Building” Product.
8.6 RIBAE accepts no responsibility for any liability arising from the use of the Subscriber Data by third parties in the course of the Subscriber’s use of the Product and the Content and/or the NBS Chorus Service.
Clause 9 shall apply only to those Subscribers who select the following Products on the NBS Order Form: NBS Building; NBS Contract Administrator; NBS Landscape or NBS Scheduler
9.1 In relation to Stand Alone Licences, the number of individual computer workstations upon which the Subscriber shall be entitled to install and use the Product shall be limited to the number of Stand Alone Licences specified on the NBS Order Form.
9.2 In relation to Network Licences, the Subscriber’s access to and use of the Product shall be in accordance with the floating licencing model more particularly described at clause 3.3.
9.3 The Subscriber undertakes that the Product shall only be installed and used by its employees and shall not be installed or, subject to clause 6.2.5, used by third parties.
9.4 Upon the termination of the Subscription the Subscriber shall not:
9.4.1 be entitled to open or use the Product; or
9.4.2 have access to any project upon which it was working during the Subscription.
Clause 10 shall apply only to those Subscribers who select the NBS Chorus Service on the NBS Order Form
10. NBS Chorus Service
10.1 Subject to these Terms and Conditions, RIBAE hereby grants to the Subscriber a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Users to use the NBS Chorus Service and any associated documentation during the Term solely for the Subscriber's internal business operations.
10.2 In relation to the Users, the Subscriber undertakes that:
10.2.1 the maximum number of Users that it authorises to access and use the NBS Chorus Service and any associated documentation shall not exceed the number specified on the NBS Order Form;
10.2.2 it will not allow or suffer any User log-in to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the NBS Chorus Service and/or the associated documentation;
10.2.3 each User shall keep a secure password for use of the NBS Chorus Service and that each User shall keep this password confidential;
10.2.4 it shall permit RIBAE or its designated auditor to audit the NBS Chorus Service in order to establish the identity of each User;
10.2.5 if any of the audits referred to in clause 10.2.4 reveal that any password has been provided to any individual who is not a User, then without prejudice to RIBAE's other rights and remedies, the Subscriber shall promptly disable such passwords and RIBAE shall not issue any new passwords to any such individual; and
10.2.6 if any of the audits referred to in clause 10.2.4 reveal that the Subscriber has underpaid the Subscription Fee to RIBAE, then without prejudice to RIBAE’s other rights and remedies, the Subscriber shall pay to RIBAE an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.
10.3 RIBAE shall, during the Term, provide the NBS Chorus Service and make available any associated documentation to the Subscriber on and subject to these Terms and Conditions.
10.4 RIBAE shall use commercially reasonable endeavours to make the NBS Chorus Service available in accordance with the Service Levels and where RIBAE fails to meet a relevant Service Level the Subscriber shall become entitled to the Service Credit on submitting a written claim for such Service Credit, provided that the failure to meet the relevant Service Level did not result from:
10.4.1 a cause outside of RIBAE’s control;
10.4.2 any improper use, misuse or unauthorised alteration of the NBS Chorus Service by the Subscriber;
10.4.3 any use of the NBS Chorus Service by the Subscriber in a manner inconsistent with any documentation or instructions provided by RIBAE or these Terms and Conditions;
10.4.4 the use by the Subscriber of any hardware, equipment or software not provided or approved by RIBAE for use in connection with the NBS Chorus Service; or
10.4.5 any matter falling within the NBS Chorus Service, Service Level policy exclusions accessible via www.thenbs.com/legal .
10.5 The parties acknowledge that the Service Credit is a genuine pre estimate of the loss likely to be suffered by the Subscriber and not a penalty and the provision of a Service Credit shall be the Subscriber’s sole and exclusive remedy for the specified Service Level failure. Each Service Credit shall be shown as a deduction from the amount due from the Subscriber to RIBAE on the next invoice then due to be issued for the Subscription Fee for the next Renewal Period and RIBAE shall not in any circumstances be obliged to pay any money or make any refund to the Subscriber.
10.6 RIBAE shall follow its standard archiving procedures for Subscriber Data held within the NBS Chorus Service, as may be amended by RIBAE in its sole discretion from time to time. In the event of any loss or damage to Subscriber Data, the Subscriber’s sole and exclusive remedy against RIBAE shall be for RIBAE to use reasonable commercial endeavours to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by RIBAE in accordance with such archiving procedures. RIBAE shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party.
11. Support and Training
11.1 RIBAE shall be under no obligation to provide any support or maintenance services to the Subscriber in respect of its use of the Product or the NBS Chorus Service but may, in its absolute discretion, provide to the Subscriber the assistance and support in relation to the Product and the NBS Chorus Service upon the request of the Subscriber as is set out in its support policy from time to time as available via www.thenbs.com/legal from time to time.
11.2 RIBAE reserves the right, in its absolute discretion, to withhold any such assistance or support, or to charge the Subscriber an additional fee for any assistance or support that it considers to be excessive, or which is required in response to operating difficulties caused by matters outside RIBAE’s control including the Subscriber’s operating errors or shortcomings, or defects in any of the Subscriber’s hardware or software.
11.3 RIBAE shall provide the Training to the Subscriber in accordance with the description of the same set out on the NBS Order Form or as otherwise agreed in writing by the parties and at the locations and for the maximum number of delegates specified on the NBS Order Form or as otherwise agreed in writing by the parties.
11.4 RIBAE shall use its reasonable endeavours to provide the Training on the dates and at the times specified on the NBS Order Form or as otherwise agreed in writing by the parties, but time shall not be of the essence in respect of such dates and times.
11.5 The Subscriber acknowledges and agrees that RIBAE does not warrant or guarantee that any Users who participate in the Training will, as a result of the Training, be proficient or competent in the subject matter of the Training and it is the Subscriber’s responsibility to ensure that all Users are appropriately trained and skilled in the use of the Product and the NBS Chorus Service prior to them being given access to the same.
11.6 The Subscriber shall pay the fees for the Training specified on the NBS Order Form or otherwise agreed in writing between the parties (together with any expenses reasonably incurred in the provision of the Training, including travel, accommodation and subsistence expenses) immediately on receipt of RIBAE’s invoice for the same which may be issued at any time after the receipt of the signed unamended NBS Order Form from the Subscriber. The fees for such Training are exclusive of VAT, which shall be added to all invoices at the rate prevailing at the date of invoice.
11.7 For any Training which is delivered on line RIBAE does not guarantee that access to the website through which Training will be delivered will be available or uninterrupted or that such website will be free of bugs and viruses and the Subscriber is responsible for:
11.7.2 providing such access to its premises, facilities, equipment, information and materials and acquiring all such licences and consents as are required by RIBAE in order to deliver the Training; and
11.7.3 ensuring all relevant Users are available for and attend the Training on the dates and at the times specified on the NBS Order Form or as otherwise agreed in writing between the parties and ensuring that all Training is completed by the relevant Users by the end of the Initial Term or the Renewal Period in which it is ordered and the Subscriber agrees that Training which is not so completed cannot be carried over into the next Renewal Period.
12. Renewal and Termination
12.1 The provision of the NBS Chorus Service and the Licence shall, unless otherwise terminated as provided in this clause 12, commence on the Commencement Date and shall continue for the Initial Term and, thereafter, shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
12.1.1 either party notifies the other party of termination of the provision of the NBS Chorus Service and/or the Licence, in writing, at least 90 days before the end of the Initial Term or any Renewal Period, in which case the Contract shall terminate in respect of the NBS Chorus Service and/or the Licence and any relevant Training not then completed upon the expiry of the applicable Term or Renewal Period; or
12.1.2 otherwise terminated in accordance with the provisions of the Contract.
12.2 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;
12.2.1 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 seven days after being notified in writing to make such payment;
12.2.2 the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
12.2.3 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
12.2.4 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, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
12.2.5 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;
12.2.6 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;
12.2.7 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;
12.2.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
12.2.9 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;
12.2.10 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;
12.2.11 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 12.2.4 to clause 12.2.10 (inclusive); or
12.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.3 On termination of the Contract in whole or part for any reason:
12.3.1 the Subscription, the Licence and all other licences granted under the Contract and any services provided under the Contract shall, to the extent that the Contract has terminated, immediately terminate and the Subscriber shall immediately cease all use of the Product and/or the NBS Chorus Service to the extent its right to do so has been terminated;
12.3.2 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 (including any materials or software used or created in the provision of the Training) and used in relation to those aspects of the Contract that have terminated;
12.3.3 RIBAE may, subject to clause 8.5, destroy or otherwise dispose of any of the Subscriber Data in its possession in respect of those aspects of the Contract that have been terminated;
12.3.4 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 and any provisions of the Contract which are expressed or implied to continue after termination shall do so;
12.3.5 no refund of the Subscription Fee or any fees in respect of Training shall be made; and
12.3.6 RIBAE shall not be obliged to provide any Training which has not been completed as at the date of termination
12.4 In the event of the termination of the Contract in whole or part, RIBAE shall, where the NBS Chorus Service has been terminated, be entitled to disable the Subscriber’s access to the NBS Chorus Service and, where the Licence has been terminated, the Subscriber shall delete the Product, together with its accompanying usernames and passwords, documentation and data and delete all copies of the Product under the Subscriber’s control and stored on any medium. The Subscriber shall confirm in writing to RIBAE that all such material has been deleted. Subject to clause 8.5 the Subscriber retains the right to continue to use Subscriber Data that has been produced during the Subscription, after the termination of the Subscription. The Subscriber shall procure that, upon termination of the Subscription, all Users fully comply with the requirements set out in clauses 12.3 and 12.4.
13. Warranties, Remedies and Limitation of Liability
13.1 RIBAE shall not be liable to the Subscriber, for any failure to provide the Training, the Product and/or NBS Chorus Service or any failure of, or fault or error in, the Product or any materials or software used or created in the provision of the Training occasioned by circumstances beyond its reasonable control, including (but not limited to) the Subscriber or any User’s inability to connect to the internet or the unavailability of any broadband or internet services of the Subscriber or any User, acts of God, fire, flood, explosion, accident, computer viruses/malware, inability to supply information, software materials or support, breakdown of equipment and labour disputes whether involving RIBAE, the Subscriber, a User and/or any third party.
13.2 RIBAE warrants that the Product and the NBS Chorus Service will be virus-free as at the Commencement Date and that the Training will be provided with reasonable skill and care
13.3 RIBAE warrants that the Product will perform and the NBS Chorus Service will provide the functionality and features substantially in accordance with the accompanying documentation supplied by RIBAE, provided that each is properly used in conjunction with the equipment and operating systems for which they were designed. RIBAE warrants that any documentation supplied by RIBAE correctly describes the Product or the NBS Chorus Service (as applicable) in all material respects. If RIBAE is notified of any significant error during the period of 90 days after Commencement Date it will correct any such error within a reasonable time, or at its option refund the Subscription Fee whereupon the Contract will be terminated without RIBAE incurring any further liability and the provisions of clauses 12.3 and 12.4 shall apply.
13.4 The warranties set out in clauses 13.2 and 13.3 are exclusive of and in lieu of all other conditions and warranties, either expressed or implied, including without limitation those relating to satisfactory quality or fitness for purpose which are hereby excluded to the fullest extent permitted by law.
13.5 RIBAE does not warrant that the Training, the Product or the NBS Chorus Service will meet the Subscriber’s requirements or that the operation of the Product or use of the NBS Chorus Service will be uninterrupted or error free, or that all errors in the Product or the NBS Chorus Service can be corrected. The Subscriber installs and uses the Product and uses the NBS Chorus Service at the Subscriber’s own risk and, subject to clause 13.7, in no event will RIBAE be liable to the Subscriber for any loss or damage of any kind arising from the use of or inability to use the Product or the NBS Chorus Service or from errors or deficiencies in the Product or the NBS Chorus Service or the Training whether caused by negligence or otherwise, except as expressly provided in these Terms and Conditions.
13.6 RIBAE has obtained insurance cover in respect of its own legal liability for individual claims. The limits and exclusions in these Terms and Conditions reflect the insurance cover RIBAE has been able to arrange and the Subscriber is responsible for making its own arrangements for the insurance of any excess loss.
13.7 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
13.7.1 death or personal injury caused by negligence;
13.7.2 fraud or fraudulent misrepresentation; and
13.7.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.8 Subject to clause 13.7, RIBAE’s total liability to the Subscriber shall not exceed the aggregate amount of the Subscription Fee and the fees for Training actually paid by the Subscriber to RIBAE in the immediately preceding period of twelve months. RIBAE’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
13.9 Subject to clause 13.7 the following types of loss are wholly excluded:
13.9.1 loss of profits;
13.9.2 loss of sales or business;
13.9.3 loss of agreements or contracts;
13.9.4 loss of anticipated savings;
13.9.5 loss of use or corruption of software, data or information;
13.9.6 loss of or damage to goodwill; and
13.9.7 indirect or consequential loss.
13.10 Clause 13 shall survive termination of the Contract.
13.11 The Product may include, or the NBS Chorus Service or the Training may provide, links to third party websites. RIBAE is not responsible or liable for:
13.11.1 the availability or accuracy of such websites; or
13.11.2 the content, products, or services on or available from such websites or the data protection or privacy practices of such websites; and
links to such websites do not imply any endorsement by RIBAE of such websites, or the content, products, or services available from such websites. The Subscriber takes sole responsibility for, and assumes all risks arising from, the Subscriber’s and any User’s use of any such websites.
14. Entire Agreement
14.1 These Terms and Conditions (together with the relevant NBS Order Form) constitute the entire agreement between the parties relating to the Contract and neither party has relied on any representation made by the other party unless such representation is expressly included in these Terms and Conditions or on the NBS Order Form. These Terms and Conditions shall apply to the Contract to the exclusion of any other terms that the Subscriber seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
14.2 In entering into this Contract neither party has relied on any pre-contractual statement. The only remedy available to either party for breach of this Contract shall be for breach of Contract and it shall have no right of action against any other party in respect of any pre-contractual statement.
14.3 If any provision of these Terms and Conditions or any part of them shall be void for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
14.4 Clause headings are inserted into these Terms and Conditions for convenience only, and they shall not be taken into account in the interpretation of these Terms and Conditions.
14.5 Nothing in these Terms and Conditions shall create, imply or evidence any partnership or joint venture between the Subscriber and RIBAE or the relationship between them of principal and agent or employers and employee.
14.6 Except as expressly provided in these Terms and Conditions, nothing shall confer or purport to confer on a third party any benefit or any right to enforce any provision of the Contract.
14.7 The Contract is personal to the Subscriber and the Subscriber shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights or obligations under the Contract.
14.8 RIBAE may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Contract and may subcontract or delegate any or all of its obligations under the Contract to any third party.
14.9 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or its principal place of business (in any other case). Any notice shall be deemed to have been received:
14.9.1 if delivered by hand, on signature of a delivery receipt; and
14.9.2 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.
The Terms of this Contract or any of them may be varied, amended, or modified or this Contract may be suspended, cancelled or terminated by agreement in writing between the parties or this Contract may be rescinded (in each case), without the consent of any third party.
16. Governing Law and Jurisdiction
These Terms and Conditions shall be governed by and construed in accordance with the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English Courts. Notwithstanding that the whole or any part of any provision of these Terms and Conditions may prove to be illegal or unenforceable the remaining provisions of these Terms and Conditions and of the provision or provisions in question shall remain in full force and effect.
RIBA Enterprises Ltd Registered Office:
The Old Post Office, St Nicholas Street, Newcastle upon Tyne, NE1 1RH
Registered in England 978271
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