1.1. A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted.
A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2. Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.3. The following defined terms shall have the meanings set out below:
Amendment means any update, amendment, modification or correction to any Customer Record.
Annual Subscription Fee means the Subscription Fee payable by the Customer to NBS in accordance with clause 4.8.
Applicable Law means any law, rule, regulation, regulatory guidance or opinion, code of conduct, licence, permit, treaty and any order or decree of any court or arbitrator.
Background Intellectual Property means all Intellectual Property Rights in the processes and/or procedures followed by, and software used by, NBS and in the techniques used by NBS in the creation and/or development of any of the Services or any other NBS services and products and those arising out of, or in any way connected to, the provision of the Services (which shall include, for the avoidance of doubt, all Intellectual Property Rights in the Property Schedule) and all other Intellectual
Property Rights that arise, or are obtained or developed by NBS during the Term in connection with the Contract, but excluding the Foreground Intellectual Property.
Business Day means 9:00am to 5:00pm Monday to Friday excluding any day that is a public holiday in England.
Certification means NBS’s warranty, and all marks associated with such warranty, that a Customer Record conforms to the applicable NBS Criteria.
Concurrent User means the number of Users who are able to access the NBS Chorus Service at any one time as stipulated on the NBS Order Form.
Confidential Information means all confidential information (however recorded or preserved) disclosed by the Disclosing Party or its Representatives to the Receiving Party or its Representatives after the Contract Start Date and in connection with the Contract including but not limited to any information that would be regarded as confidential by a reasonable business person relating to the business, affairs, suppliers, plans, intentions, market opportunities, operations, processes, product information, know-how, inventions, designs, trade secrets or software of the Disclosing Party (or of any member of the group of companies to which the Disclosing Party belongs).
Construction Specification means a construction specification for inclusion within a construction contract, bid or project document, but does not include customisable specification templates.
Contract Start Date means the date on which the Order Form is executed in accordance with clause 2.1, unless otherwise set out in the Order Form.
Contract means these Terms and Conditions together with the Order Form.
Customer means you, the business purchasing the Services.
Customer Content means any and all Customer Records (and Amendments to such Records) and any other data, information or materials provided or uploaded by the Customer or commissioned by the Customer via the Digital Object Authoring Service.
Customer Product means the real-world physical building component (e.g. wall, window, door) or material (e.g. concrete block, glazing pane, fixing) that is used in the construction process and to which the Customer Content may relate.
Customer Record means the record relating to a particular Customer Product hosted in NBS Source.
Customer Specification Clause means a construction specification clause relating to a Customer Product hosted in the NBS Chorus Service for use solely in Construction Specifications drafted by architecture, engineering or other practice with a current subscription to the NBS Chorus Service.
Data Protection Legislation means the UK Data Protection Act 2018 and any other applicable legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including the privacy of electronic communications).
Digital Object means a digital file in a format compatible with the Services which contains information about the Customer Product that is used in the construction process. Each Digital Object file may include content defining any of its threedimensional geometry; any of its physical and aesthetic properties and behaviour; any of its specification, construction and facilities management properties; and any of the relationships and constraints that describe the equivalent real-life physical component or material.
Digital Object Authoring Service means a service provided by NBS if requested by the Customer pursuant to clauses 4.2 and 4.3 and involves the creation and/or authoring of Digital Objects (which may include Amendments to Digital Objects).
Digital Object Quote means NBS’s offered price for the provision of the Digital Object Authoring Service in respect of particular Customer Products.
Disclosing Party means a party disclosing Confidential Information under this Contract.
Feedback means any feedback concerning the Services, including but not limited to ideas, suggestions requests for future functionality and reports of Flaws.
Flaw means any behaviour of the services not actually or apparently intended by NBS.
Force Majeure Event means any failure or delay in the Services or any part thereof occasioned by circumstances beyond NBS’s reasonable control including (but not limited to) acts of God, fire, flood, explosion, accident, inability to supply the information, software materials or support, breakdown of equipment, failure of telecoms, internet or utilities (regardless of cause), governmental action, order or interference and labour disputes involving NBS, the Customer and/or any third party.
Foreground Intellectual Property means all Intellectual Property Rights (excluding Background Intellectual Property) in the
visual identity and readable content of a Customer Record and which are unique to that Customer Record made by or on
behalf of the Customer, and any pre-existing Customer Content and Literature belonging to the Customer.
Initial Term the period commencing on the Contract Start Date and continuing for 12 months unless otherwise set out in the Order Form.
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 including rights in the source code of that 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.
Invoicing Company means a company nominated by the Customer to whom NBS shall address invoices and from whom it may recover debts.
Legacy System means any of NBS’s previous products and services for the hosting of Customer Content, including: RIBA Product Selector, NBS National BIM Library, and NBS Plus.
Logo(s) means the logos, branding, trademarks or other marks belonging to NBS or its licensors and which NBS may from time to time permit the Customer to use in accordance with this Contract.
Losses means all liabilities, costs, expenses, damages and losses including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses.
Literature means the Customer’s most current technical or trade literature and specifications and other material including logos, certifications and promotional materials, which is supplied to NBS by the Customer.
NBS means NBS 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.
NBS Chorus Content means all NBS Content made available through the NBS Chorus Service.
NBS Chorus Service means the software as a service known as “NBS Chorus” selected by the Customer on the Order Form.
NBS Content means all human and machine readable data retained, maintained or displayed in the Services other than Customer Content.
NBS Criteria means the criteria to which Customer Content must conform in order to be hosted on the Services and/or to qualify for Certification.
NBS ID means the identification account system provided by NBS, through which a User creates the ID necessary in order to access and use the Services.
NBS Source means a service from NBS whereby Customer Records are provided and made available to the public and to other users of NBS products and services.
Notice Period means the period of 90 days immediately prior to the end of the then-current Initial Term or Renewal Term.
Order Form means the signed document confirming the Customer’s subscription to the Services.
Promoted Content Service means a service whereby Customer Content is featured prominently in NBS Source.
Property Schedule means the schedule of information prepared by NBS, setting out the key properties of a Digital Object authored through the Digital Object Authoring Service.
Receiving Party means a party receiving Confidential Information under this Contract.
Renewal Period means a period of equal length to the Initial Term, beginning immediately after the Initial Term or the
applicable Renewal Period.
Representatives means, in relation to a party, its employees, officers, representatives and advisers and which includes third
parties or contractors who are instructed by that party to perform its obligations under this Contract on its behalf (if any). NBS
Representatives and Customer Representatives shall be construed accordingly.
Quality Assurance means the review of Customer Content by NBS, including review for conformity to NBS Criteria, prior to
and during the hosting of such Customer Content on NBS Source.
Service Credit means 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 the Service Levels.
Service Levels mean the service level targets for the NBS Chorus Service set out in NBS’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.
Services means all and each of the services subscribed to by the Customer and to be delivered by NBS in accordance with
these Terms and Conditions, including those set out in the Order Form and such other services as may be agreed between
the Parties in writing from time to time.
Structured Specification Information means building specification information relating to a Product in a format and structure
that complies with the applicable NBS Criteria.
Subscription Fee means the total amount payable by the Customer for all Services.
Term means the period commencing on the Contract Start Date and continuing for the Initial Term and any Renewal Periods.
Terms and Conditions mean these Terms and Conditions.
Training means the training services to be provided by NBS 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.
Update any update to these Terms and Conditions as more particularly set out in clause 17.1.
User means any person(s) or company who is not party to the Contract, but who has been given a right to use the Services
by the Subscriber for business purposes and who must create an NBS ID and password and must accepted any end user
licence agreement provided by NBS from time to time.
2.1. The Contract shall come into existence only when a fully completed Order Form is sent to the Customer by a representative of
NBS, signed by or on behalf of the Customer and either: i) counter-signed by or on behalf of NBS where the Order Form
indicates a requirement for such counter-signature; or, where counter-signature is not required, ii) delivered, automatically or
otherwise, to NBS within its period of validity.
2.2. Where the Customer purchases NBS Source on the Order Form, this Contract will supersede all previous agreements, or parts
of agreements, between the parties for the provision of Legacy Systems or NBS Source.
2.3. To the extent of any conflict between these Terms and Conditions and the Order Form, the Order Form will take priority.
2.4. The Customer and Customer Representatives acknowledge this Contract represents a business to business transaction only.
Use of products and services shall be for business purposes only and consumer legal protections shall not apply to this
2.5. The Services and the information they contain are not 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.
2.6. These Terms and Conditions, as updated or amended by NBS from time to time, apply to the Contract to the exclusion of any
other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of
2.7. These Terms and Conditions and any other expressly incorporated document constitute the entire agreement between the
parties hereto relating to the subject matter hereof and neither party has relied on any representation made by the other party
unless such representation is expressly included herein.
2.8. 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
2.9. If any provision of these Terms and Conditions or part thereof shall be void for whatever reason, it shall be deemed deleted
and the remaining provisions shall continue in full force and effect.
2.10. 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.
2.11. Nothing in these Terms and Conditions shall create, imply or evidence any partnership or joint venture between the Customer
and NBS or the relationship between them of principal and agent or employer and employee.
2.12. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract and no person other than the Customer or
NBS shall have any rights under it.
2.13. 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.
3. CUSTOMER CONTENT
3.1. Subject to any explicit agreement to the contrary between the parties, where the Services include Quality Assurance, the Digital
Object Authoring Service and/or the Content Promotion Service, the Customer shall supply to NBS all Literature necessary to
enable NBS to perform such Services within 7 Business Days of the Contract Start Date and/or written confirmation, or
acceptance, by NBS to the Customer of the Customer’s order pursuant to clauses 4.3 and/or 4.4.
3.2. NBS will make reasonable efforts to provide Quality Assurance and/or the Digital Object Authoring Service, including any
Amendments, within the timeframes agreed between the parties, if any, and in any event within its standard timeframes. NBS
will not be liable for any delay in the Quality Assurance or Digital Object Authoring Services where the Customer breaches
3.3. The Customer warrants that all Literature and/or Customer Content:
3.3.1. is accurate, complete and up-to-date;
3.3.2. does not and will not infringe any Applicable Law, including but not limited to any law related to advertising or marketing;
3.3.3. does not and will not infringe any third party rights (including but not limited to Intellectual Property Rights);
when used as contemplated by this Contract. The Customer will inspect all Customer Content prior to its publication via the
Services, and at regular intervals thereafter, in order to ensure compliance with this clause. Where applicable, the Customer
will use the online tools provided by NBS to make Amendments.
3.4. Where the Customer is unable to make Amendments pursuant to clause 3.3, or where the Customer has purchased the Digital
Object Authoring Service, the Customer shall request that NBS make Amendments by notifying NBS and providing details of:
3.4.1. any breach or prospective breach of the Customer’s warranties under clause 3.3 and the likely consequences of such
3.4.2. any information that NBS may reasonably require in order to make Amendments to the applicable Customer Content.
3.5. NBS shall have no obligation to make more than:
3.5.1. two Amendments to Digital Objects; and
3.5.2. two Amendments to Structured Specification Data;
per Customer Record per year, provided that this clause shall not apply where the Customer shows that an Amendment is
required in order to comply with Applicable Law.
3.6. The parties may agree to suspend or cease the display of the applicable Customer Record:
3.6.1. pending Amendments by the Customer or NBS; or
3.6.2. where such Amendments are not possible.
3.7. The Customer will not make, and will not request that NBS make, any Amendments that would:
3.7.1. affect the geometry of a Digital Object; and/or
3.7.2. in NBS’s sole but reasonable opinion, result in a Customer Record relating to a different Customer Product;
provided that this clause shall not apply where the Customer shows that an Amendment is required in order to comply with
3.8. Where included in the Services, NBS shall provide Quality Assurance for conformity to the applicable NBS Criteria and report
any non-conformity to the Customer. Where a Customer Record fails to meet the NBS Criteria three or more times, NBS may
refuse to perform further Quality Assurance of the applicable Customer Record and require the Customer to:
3.8.1. pay additional charges for further Quality Assurance of; and/or
3.8.2. purchase the Digital Object A
uthoring Service for;
the applicable Customer Content.
3.9. Where a Customer Record and any Amendment to such Customer Record, approved by NBS in accordance with clause 3.8,
conforms to the applicable NBS Criteria, the Customer may use the applicable Logos and/or other marks associated with
Certification during the Term.
3.10. Customer Content may be hosted in perpetuity, including after termination of the Contract, provided that NBS will indicate on
the applicable Customer Record:
3.10.1. where the Customer has notified NBS that the applicable Customer Product is no longer available; and
3.10.2. where the parties have terminated the Services with respect to the applicable Customer Record.
4. THE SERVICES
4.1. Services are provided for the Term. The Services will commence on the Contract Start Date.
4.2. The Customer may request the Digital Object Authoring Service at any time by providing NBS with:
4.2.1. sufficient information for NBS to compile a complete Property Schedule for each applicable Customer Product; and
4.2.2. any other information reasonably requested by NBS;
and NBS will provide a Digital Object Quote based upon such information.
4.3. The Customer may accept a Digital Object Quote by email from any Representative of the Customer and NBS will issue a
corresponding invoice prior to commencement of work.
4.4. The Customer may by email offer to purchase:
4.4.1. the Promoted Content Service at any time during the Term; and/or
4.4.2. an upgraded annual subscription to the Services at any time prior to the Notice Period;
at NBS’s then-prevailing prices. NBS may by email, and at its sole discretion, accept or reject such offer and will issue a
corresponding invoice if applicable.
4.5. NBS agrees to provide the Services in accordance with these Terms and Conditions and the relevant Order Form and/or, the
4.6. NBS will provide the Services using reasonable care and skill, and in accordance with Applicable Law.
4.7. The Customer shall in relation to all Services:
4.7.1. commit to the Contract and to the Term, and shall pay to NBS the Subscription Fee as specified in the relevant invoice;
4.7.2. co-operate with NBS in all matters relating to the Service; and
4.7.3. obtain and maintain all necessary licences and consents to comply with all relevant legislation.
4.8. Notwithstanding clause 17.1, NBS may modify and/or replace elements of the Services from time to time, including by replacing
Legacy Systems with equivalent functionality in NBS Source, provided that such modifications and/or replacements will not, in
NBS’s sole but reasonable opinion, adversely affect the technical functionality of the Services. NBS will notify the Customer
where such modifications and/or replacements are likely to have a material effect on the Customer’s experience of the Services.
4.9. Where the Services include functionality that is not yet available in NBS Source, NBS may supply Legacy Systems which in
NBS’s sole, but reasonable opinion provide equivalent functionality.
5. THE NBS CHORUS SERVICE
5.1. This clause 5 shall apply only where the Customer purchases the NBS Chorus Service.
5.2. Subject to these Terms and Conditions, NBS hereby grants to the Customer 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 Customer's internal business operations.
5.3. 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.
5.4. NBS shall use commercially reasonable endeavours to make the NBS Chorus Service available in accordance with the Service
Levels and where NBS fails to meet a relevant Service Level the Customer 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
5.4.1. any improper use, misuse or unauthorised alteration of the NBS Chorus Service by the Customer;
5.4.2. any use of the NBS Chorus Service by the Customer in a manner inconsistent with any documentation or instructions
provided by NBS or these Terms and Conditions;
5.4.3. the use by the Customer of any hardware, equipment or software not provided or approved by NBS for use in connection
with the NBS Chorus Service; or
5.4.4. any matter falling within the NBS Chorus Service, Service Level policy exclusions accessible via www.thenbs.com/legal.
5.5. A Service Credit shall be the Customer’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 Customer to NBS on the next invoice then due to be issued for
the Subscription Fee for the next Renewal Period and NBS shall not in any circumstances be obliged to pay any money or
make any refund to the Customer.
5.6. NBS shall follow its standard archiving procedures for Customer Data held within the NBS Chorus Service, as may be amended
by NBS in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and
exclusive remedy against NBS shall be for NBS to use reasonable commercial endeavours to restore the lost or damaged
Customer Data from the latest back-up of such Customer Data maintained by NBS in accordance with such archiving
procedures. NBS shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any
5.7. Subject to compliance in full with these Terms and Conditions, the Customer and its Users may reproduce part or parts of the
NBS Chorus Content made either alone or in conjunction with the Customer Data:
5.7.1. for the purposes of the Customer’s and its Users’ own personal use where that use is not for any commercial or profit
making purpose; or
5.7.2. for the production of Customer Specification Clauses.
6.1. NBS will invoice the Customer for the first Annual Subscription Fee following signature of the Order Form, and will invoice any
subsequent Annual Subscription Fees on or around 30 days prior to the commencement of the applicable Renewal Period.
6.2. All invoices must be paid within 30 days of issue and/or notification received from a third party lender, within 30 days of invoice
issue, that a credit agreement is effective between the Customer and such third party for the financing of the total invoice
amount. NBS shall be under no obligation to perform any of its obligations under the Contract unless and until the Subscription
Fee is paid in full, and may suspend services where any sum is outstanding pursuant to this Contract.
6.3. Where the Customer nominates an Invoicing Company, the Customer and the Invoicing Company will be jointly and severally
liable for the payment of the Subscription Fee.
6.4. NBS 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. The Customer shall pay on demand all NBS’s reasonable costs and expenses incurred in enforcing this
contract and recovering overdue monies and interest from the Customer, and NBS may recover such costs and expenses from
any other sums received from the Customer.
7. SUPPORT AND TRAINING
7.1. NBS shall be under no obligation to provide any support or maintenance services to the Customer in respect of its use of the
Services but may, in its absolute discretion, provide to the Customer the assistance and support in relation to the Services
upon the request of the Customer as is set out in its support policy from time to time as available via www.thenbs.com/legal
from time to time.
7.2. NBS reserves the right, in its absolute discretion, to withhold any such assistance or support, or to charge the Customer 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 NBS’s control including the Customer’s operating errors or shortcomings, or defects in
any of the Customer’s hardware or software.
7.3. NBS shall provide the Training to the Customer 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.
7.4. NBS 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.
7.5. The Customer acknowledges and agrees that NBS 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 Customer’s
responsibility to ensure that all Users are appropriately trained and skilled in the use of the Services prior to them being given
access to the same.
7.6. The Customer 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 NBS’s invoice for the same which may be issued at any time after the receipt
of the signed unamended NBS Order Form from the Customer. 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.
7.7. For any Training which is delivered on line NBS 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 Customer is responsible
7.7.1. ensuring that all Users who are undertaking Training have appropriate and adequate access to the internet and to such
other correctly configured equipment and software to allow those Users to undertake the Training and that all such Users
7.7.2. providing such access to its premises, facilities, equipment, information and materials and acquiring all such licences
and consents as are required by NBS in order to deliver the Training; and
7.7.3. 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 Customer agrees that
Training which is not so completed cannot be carried over into the next Renewal Period.
8. LIMITATION OF LIABILITY
8.1. NBS does not warrant that the Services will meet the Customer’s requirements or that the hosting or performance of any of
the Services will be uninterrupted or error free. In no event will NBS be liable to the Customer for any loss or damage of any
kind including lost profits, lost revenue, loss of anticipated saving, loss or corruption of data, down time or any special,
consequential or indirect loss arising from errors or deficiencies in the Services whether caused by breach of contract,
negligence or otherwise, except as expressly provided in these Terms and Conditions.
8.2. NBS 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 NBS has been able to arrange and the Customer is responsible for making
its own arrangements for the insurance of any excess loss.
8.3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for: death or personal injury caused
by negligence; fraud or fraudulent misrepresentation.
8.4. Subject to clause 8.3, NBS’s total liability to the Customer shall not exceed the aggregate amount of the Subscription Fee
actually paid by the Customer to NBS in the immediately preceding period of twelve months. NBS’s total liability includes
liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the
8.5. Subject to clause 8.3 the following types of loss are wholly excluded:
8.5.1. loss of profits;
8.5.2. loss of sales or business;
8.5.3. loss of agreements or contracts;
8.5.4. loss of anticipated savings;
8.5.5. loss of use or corruption of software, data or information;
8.5.6. loss of or damage to goodwill; and
8.5.7. indirect or consequential loss.
8.6. This clause 8 shall survive termination of the Contract.
8.7. NBS shall not be responsible for loss occasioned to any person acting or refraining from action as a result of using the Services
or any NBS website. The Services, NBS websites and all NBS software products and content are offered as is and without any
warranties as to the results obtained from their use.
8.8. For the avoidance of doubt, NBS shall not be liable for any loss resulting from, or in any way arising out of or in connection
with, any third party’s:
8.8.1. inappropriate use of the NBS Content or any of the Services;
8.8.2. failure to exercise reasonable levels of due care and attention when using the NBS Content or any of the Services; or
8.8.3. failure to exercise reasonable levels of professional skill and competence when using the NBS Content or any of the
8.9. Nothing in this Contract shall be construed as a guarantee of availability or uptime for any aspect of the Services nor of any
other of NBSs products or services. All NBS online products and services, including the hosting services set out herein, shall
be subject to both scheduled and emergency maintenance without notice to the Customer.
9. FORCE MAJEURE
9.1. NBS shall not be liable for any Force Majeure Event.
9.2. Where a Force Majeure Event continues for more than 2 months, either party may terminate this Contract or part thereof on
14 days’ notice to the other party. For certainty, the Customer will not be entitled to any repayment of Subscription Fees as a
result of a Force Majeure event.
10.1. The Customer may not reproduce in any form any part of the Services, the NBS Content or any materials or software used or
created in the provision of the Services except as expressly provided for in these Terms and Conditions.
10.2. Except with NBS’s express, prior written consent (there being no presumption that NBS shall give its consent) or as otherwise
specified in these Terms and Conditions or as is necessary for the Customer to make full use of the Services, the Customer
may not at any time during the Contract, or at any time thereafter:
10.2.1. use or permit others to use the Services or the NBS 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 Services or in some
other way serves the same or a similar purpose as the Services;
10.2.2. attempt to copy, modify, duplicate, creative derivative works from, frame, mirror, republish, download, display, transmit,
or distribute all or any portion of the NBS Content, the Services or any materials or software used or created in the
provision of the Services in any form or media or by any means; or
10.2.3. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form
all or any part of the NBS Content, the Services or any software used or created in the provision of the Services except
as permitted in law; or
10.2.4. licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise
make the NBS Content or any materials or software used or created in the provision of the Services available to any
10.3. The Customer shall not access, store, distribute or transmit any viruses during the course of its use of the Services.
10.4. The Customer may not reproduce in any form any part of the Services, the NBS 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.
10.5. The Customer shall be responsible for controlling a User’s access to, and use, of the Services, and shall ensure that all Users
accept the terms of any end user licence agreement provided by NBS for such purposes from time to time.
10.6. Except with NBS’s express, prior written consent (there being no presumption that NBS shall give its consent) or as
otherwise specified in these Terms and Conditions or as is necessary for the Customer to make full use of the functionality of
the Services, the Customer may not at any time during the Contract, or at any time thereafter:
10.6.1. use or permit others to use the Services 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 NBS Chorus Service or
in some other way serves the same or a similar purpose as the Services;
10.6.2. attempt to copy, modify, duplicate, creative derivative works from, frame, mirror, republish, download, display, transmit,
or distribute all or any portion of the NBS Content, the Services, 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
10.6.3. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form
all or any part of the Services or any software used or created in the provision of the Training except as permitted in
10.6.4. use the Services to provide services to third parties; or
10.6.5. licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise
make the Services or any materials or software used or created in the provision of the Training available to any third
10.7. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the
event of any such unauthorised access or use, promptly notify NBS.
11. CUSTOMER’S OBLIGATIONS AND WARRANTIES
11.1. The Customer shall:
11.1.1. co-operate with NBS in all matters relating to the Services;
11.1.2. obtain and maintain all necessary licences and consents to comply with all relevant legislation in relation to the Customer
11.1.3. not assign, transfer, mortgage, sub-licence, charge or otherwise dispose of or encumber this Contract, or any of its rights
or obligations under it without the prior written consent of NBS;
11.1.4. not at any time during the Contract, or at any time thereafter, hold itself out to be the author, owner or supplier of any
NBS products or services.
11.2. The Customer shall at all times indemnify NBS and its publishers, agents and distributors against all and any Losses associated
with the use of the Customer Content by any person, anywhere in the world, including but not limited to Losses associated
with the Customer’s breach of any of its warranties under clause 3.3.
11.3. The Customer warrants that it is authorised to enter into this Contract on behalf of itself and, if applicable, the Invoicing
11.4. If NBS’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the
Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
11.4.1. NBS shall without limiting its other rights or remedies have the right to suspend performance of the Services in whole or
in part until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the
performance of any of its obligations to the extent the Customer Default prevents or delays NBS’s performance of any
of its obligations;
11.4.2. NBS shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from
NBS’s failure or delay to perform any of its obligations as set out in this clause 11.4; and
11.4.3. the Customer shall reimburse NBS on written demand for any costs or losses sustained or incurred by NBS arising
directly or indirectly from the Customer Default.
12. DATA PROTECTION
as may be notified to the Customer from time to time, as such document may be amended from time to time by NBS in its sole
12.2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and
does not relieve, remove or replace, a party’s obligations or rights under Data Protection Legislation.
12.3. The Customer acknowledges and agrees that:
12.3.1. the Services are not intended for storing or otherwise processing any personal data on behalf of the Customer;
12.3.2. NBS is not appointed as a data processor (as that term is defined in the Data Protection Legislation) under the Contract.
13.1. The provisions of this clause shall not apply to any Confidential Information that:
13.1.1. is hosted on any NBS website and is therefore available to the public;
13.1.2. is or becomes otherwise generally available to the public (other than as a result of its disclosure by the receiving party
or its Representatives in breach of this clause);
13.1.3. was available to the receiving party on a non-confidential basis before disclosure by the Disclosing Party;
13.1.4. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s
knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing
the information to the receiving party;
13.1.5. the parties agree in writing is not confidential or may be disclosed; or
13.1.6. is developed by or for the receiving party independently of the information disclosed by the Disclosing Party.
13.2. The receiving party shall keep the Disclosing Party’s Confidential Information confidential and shall not:
13.2.1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or
in connection with the Contract); or
13.2.2. disclose such Confidential Information in whole or in part to any third party, except its own Representatives, or as
expressly permitted by this clause 13.
13.3. NBS may compile statistics relating to the use of Source, including usage by the Customer, and the use of Customer Content
and/or Customer Products in Source, and may publish and use such statistics for any commercially reasonable purpose.
13.4. The Customer will report all Flaws to NBS, and will treat such Flaws as Confidential Information until NBS has mitigated or
resolved such Flaws.
13.5. NBS may disclose the Customer's Confidential Information to NBS Representatives who need to know such Confidential
Information for the permitted purpose, provided that:
13.5.1. it informs such NBS Representatives of the confidential nature of the Confidential Information before disclosure;
13.5.2. it procures that NBS Representatives shall, in relation to any Confidential Information disclosed to them, comply with the
obligations set out in this clause as if they were a party to this Contract.
13.6. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by
any governmental or other regulatory authority, by a court or other authority of competent jurisdiction or by the rules of any
listing authority or stock exchange 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.
13.7. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential
Information other than those expressly stated in these Terms and Conditions are granted to the other party, or to be implied
from the Contract.
14. INTELLECTUAL PROPERTY, FEEDBACK, AND CERTIFICATION
14.1. All of the Intellectual Property Rights in the Background Intellectual Property are, and shall remain at all times, the sole and
exclusive property of NBS or its licensors. All such rights are reserved and no licence or permission is to be implied or granted
hereunder except as explicitly set out in these Terms and Conditions.
14.2. All Intellectual Property Rights in the Customer Content hosted under this Contract shall be owned by, and shall remain the
property of, the Customer or the Customer’s licensors.
14.3. The Customer grants NBS a non-exclusive perpetual licence to, publish, make available, copy, make derivative works and resell
and do all acts in relation to all Intellectual Property Rights in the Customer Content.
14.4. NBS shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it by the
Customer entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. Subject to
clause 13.3, Feedback will not be considered Confidential Information unless otherwise agreed between the parties.
14.5. On termination of the Contract or the applicable part thereof the Customer must remove all NBS Logos and/or Certifications,
15.1. This Contract shall, unless and until terminated in accordance with this Contract, commence upon the Contract Start Date and
shall continue for the Initial Term and thereafter shall continue for successive Renewal Periods unless either party notifies the
other party of termination of the Contract or part thereof, in writing, prior to the Notice Period, in which case the Contract shall
terminate or be partially terminated in respect of a particular Service. Partial termination of the Services will be effective only if
Customer provides details of the affected Customer Products no less than 45 days prior to commencement of the applicable
15.2. At least 104 days prior to the expiry of the Initial Term or Renewal Period NBS shall notify the Customer of the Subscription
Fee for the forthcoming Renewal Period.
15.3. At least 104 days prior to the expiry of the Initial Term or Renewal Period each party shall notify the other in writing of any
proposed changes to the Contract in respect of the forthcoming Renewal Period.
15.4. Any proposed changes submitted in accordance with clause 15.3 and agreed by the parties together with the Subscription Fee
payable in respect of the forthcoming Renewal Period shall be confirmed in writing by NBS.
15.5. Without affecting any other right or remedy available to it, NBS may terminate this Contract immediately by giving notice to the
Customer, in writing, in the event that:
15.5.1. the Customer breaches any material term of the Contract and fails to remedy such breach (which is capable of remedy)
within 14 days of the receipt of notice requiring the same to be remedied; or
15.5.2. the Customer fails to pay any amount due under the Contract on the due date for payment and fails to pay all outstanding
amounts within 7 days after being notified in writing to do so; or
15.5.3. the Customer has a receiver and/or manager and/or an administrator appointed over all or part of its assets or it enters
into liquidation whether compulsory or voluntary (other than for the purposes of the bona fide solvent reconstruction) or
otherwise enters into any arrangement or composition with its creditors or otherwise expresses an inability to pay its
debts when they become due; or
15.5.4. an order is made or a resolution is passed for the winding up of the Customer, or circumstances arise which entitle a
court of competent jurisdiction to make a winding up order against it; or
15.5.5. the Customer ceases, or threatens to cease, to trade.
15.6. Any termination of this Contract will be without prejudice to NBS’s rights existing at the date of termination and the Customer
shall not be entitled to any refund of the Subscription Fee. For the avoidance of doubt, the Customer shall be liable to pay
(within 30 days) the full Subscription Fee, as set out in the Order Form or invoice, applicable for the duration of the Contract
irrespective of when the Contract is terminated.
15.7. In the event of termination the Customer shall erase all references to the Certification and the Logos, or any other reference
to the Services, wherever displayed. Upon request by NBS, the Customer shall confirm in writing to NBS that all such material
has been deleted.
15.8. On termination of the Contract in whole or part for any reason:
15.8.1. subject to clause 14.3, 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 and used in relation to those aspects of the Contract
that have terminated;
15.8.2. 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; and
15.8.3. Customer shall not be entitled to any refund of the Subscription Fee.
16.1. A notice given to a party under or in connection with this agreement shall:
16.1.1. be in writing and in English; and
16.1.2. be sent to the email address for legal notices set out in the Order Form or to the registered address of the party receiving
notice or such other address as that party may notify pursuant to clause 16.3.
16.2. The deemed time of receipt of a notice will be:
16.2.1. if sent by email, at the time of transmission or, if this falls outside of a Business Day in the place of receipt, on the next
16.2.2. if sent by pre-paid first class post or other next working day delivery service on the second Business Day after posting.
16.3. A party may change its address for legal notices pursuant to clause 16.1 by giving notice, the change taking effect for the party
notified of the change at 9:00am on the later of:
16.3.1. the date, if any, specified in the notice as the effective date for the change; or
16.3.2. the date seven days after the deemed receipt of the notice.
16.4. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any
arbitration or other method of dispute resolution.
16.5. Where the Customer appoints an Invoicing Company, notices sent to the email address for legal notices set out in the Order
Form shall be deemed validly served to the Customer and the Invoicing Company.
17.1. NBS may make Updates from time to time and will make the updated terms available at the following URL:
https://www.thenbs.com/legal or such other location as NBS may notify to the Customer from time to time. NBS will provide
notice of any Update to the Customer via email to the email address for legal notices provided in the Order Form, unless
otherwise agreed between the parties in writing. The Customer is responsible for ensuring that their contact details for such
notice are accurate and up to date. Any Update necessary for compliance with Applicable Law will become effective
immediately. Any other Update will become effective 30 days after NBS provides notice to the Customer of such Update. If an
Update has a material adverse impact on the Customer, and the Update is not required in order to comply with Applicable Law,
the Customer may notify NBS within 30 days of receiving notice of an Update that the Customer does not accept such Update.
Where the Customer provides such notice, it will remain governed by the terms in effect immediately prior to the Update until
the earlier of: i) the end of the then current Initial Term or Renewal Period; or ii) 12 months after the Customer receives notice
of the Update.
17.2. To the extent of any conflict between an Update and any other agreement between the parties, the Update will take priority unless: i) the Customer is otherwise notified by NBS; or ii) such agreement states by reference to this clause that it is intended to take priority over such Update.
18. GOVERNING LAW AND JURISDICTION
18.1. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
18.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
Source Terms 1.2
Last updated: 22 June 2019
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