1. Definitions
1.1. The following defined terms shall have the meanings set out below:
Amendment means any update, amendment, modification or correction to any Subscriber Record.
Applicable Law means any applicable law, rule, regulation, regulatory guidance or opinion, code of conduct, licence, permit, treaty and any order or decree of any court or arbitrator.
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 Subscriber Record conforms to the applicable NBS Criteria.
Concurrent User means the number of Users who are able to access NBS Chorus at any one time as stipulated on the 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 2.4.
Contract means these Terms and Conditions together with the Order Form.
Contract Term means the period of time from the Contract Start Date until the end of the Subscription.
Data Protection Legislation means all Applicable Law governing the protection and/or processing of Personal Data and on the free movement of such data which applies to either party’s processing activities under this Contract. This may include the Data Protection Act 2018 (UK) and the UK GDPR, as well as any applicable laws or regulations amending or implementing any of the foregoing.
Digital Object means a digital file in a format compatible with the Digital Services which contains information about the Subscriber Product that is used in the construction process. Each Digital Object file may include content defining any of its three-dimensional 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 Subscriber pursuant to clauses 4.3 and 4.4, and involves the creation and/or authoring of Digital Objects (which may include Amendments to Digital Objects) and Structured Specification Information relating to such Digital Objects.
Digital Object Quote means NBS’s offered price for the provision of the Digital Object Authoring Service in respect of particular Subscriber Products.
Digital Services means all and each of the online services (including NBS Source and NBS Chorus) subscribed to by the Subscriber and to be delivered by NBS in accordance with these Terms and Conditions, including those set out in the Order Form and such other digital online services as may be agreed between the parties in writing from time to time.
Disclosing Party means a party disclosing Confidential Information under this Contract.
Feedback means any feedback concerning the Digital Services, including but not limited to ideas, suggestions, requests for future functionality and reports of Flaws.
Flaw means any behaviour of the Digital 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 the reasonable control of NBS including (but not limited to) acts of God, fire, flood, explosion, accident, epidemic, pandemic, terrorist attack, war, computer viruses/malware, breakdown of equipment, failure of telecoms, internet or utilities (regardless of cause), governmental action, order or interference and labour disputes involving NBS, the Subscriber and/or any third party.
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, work product, 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.
Inspection Period shall have the meaning set out in clause 3.7.
Invoicing Company means a company nominated by the Subscriber to whom NBS shall address invoices and from whom it may recover debts.
Legacy System means any Services previously provided by NBS which have since been retired.
Literature means the Subscriber’s most current technical literature and specifications and other materials including logos, certifications and promotional materials, which is supplied to NBS by the Subscriber.
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 Subscriber 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.
Marketing Advisory Services means marketing advice and guidance provided by NBS to the Subscriber as set out on the Order Form or, subject always to these Terms and Conditions, as otherwise agreed in writing by the parties from time to time.
Marketing Services means marketing services provided by NBS to the Subscriber through NBS Source and NBS Chorus as set out on the Order Form or, subject always to these Terms and Conditions, as otherwise agreed in writing by the parties from time to time.
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 means the software as a service known as “NBS Chorus” selected by the Subscriber on the Order Form.
NBS Chorus Content means all NBS Content made available through NBS Chorus.
NBS Content means all human and machine readable data retained, maintained or displayed in the Digital Services other than Subscriber Content.
NBS Criteria means the criteria to which Subscriber 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 Digital Services.
NBS 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 and all other Intellectual Property Rights that arise, or are obtained or developed by NBS during the Contract Term in connection with the Contract, but excluding the Subscriber Intellectual Property.
NBS Source means a service from NBS whereby Subscriber Records are provided and made available to the public and to other users of NBS products and services.
Order Form means the signed document which details the items the Subscriber has committed to purchase from NBS and forms part of the Contract together with these Terms and Conditions.
Partner Platform means the platform through which Subscriber can manage Subscriber Content and Subscriber’s online brand profile within NBS Source. The Partner Platform can also be used to view how users of NBS Chorus and NBS Source have engaged with Subscriber Content.
Product Authoring means the authoring of Structured Specification Information service provided by NBS, as set out in the Order Form or as otherwise agreed in writing between the parties from time to time.
Professional Services means together the Marketing Advisory Services, Marketing Services and Training.
Quality Assurance means the review of Subscriber Content by NBS, including review for conformity to NBS Criteria, prior to and during the hosting of such Subscriber Content on NBS Source.
Receiving Party means a party receiving Confidential Information under this Contract.
Renewal Period means a period of equal length to the Term, beginning on the subscription start date set out in a new Order Form entered into by the parties on termination of this Order Form.
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 Subscriber Representatives shall be construed accordingly.
Service Credit means the percentage of the Subscription Fee for NBS Chorus credited against the Subscription Fee for NBS Chorus for the next Renewal Period as calculated in accordance with the Service Levels.
Service Levels mean the service level targets for NBS Chorus set out in NBS’s service level policies from time to time as available via www.thenbs.com/legal and subject to the exclusions set out in such policies from time to time.
Services means together the Digital Services, Digital Object Authoring Services, Marketing Advisory Services, Marketing Services, Quality Assurance, Product Authoring, Training 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 Subscriber Product in a format and structure that complies with the applicable NBS Criteria.
Subscriber means you, the business purchasing the Services.
Subscriber Content means any and all Subscriber Records (and Amendments to such Records) and any other data, information or materials provided or uploaded by the Subscriber, or commissioned by the Subscriber via the Digital Object Authoring Service.
Subscriber Default shall have the meaning set out in clause 13.4.
Subscriber Intellectual Property means all Intellectual Property Rights (excluding NBS Intellectual Property) in the visual identity and readable content of a Subscriber Record, and which are unique to that Subscriber Record made by or on behalf of the Subscriber, and any pre-existing Subscriber Content and Literature belonging to the Subscriber.
Subscriber 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 Subscriber Content may relate.
Subscriber Record means the record relating to a particular Subscriber Product hosted in NBS Source.
Subscriber Specification Clause means a construction specification clause relating to a Subscriber Product hosted in NBS Chorus for use solely in Construction Specifications drafted by architecture, engineering or other practice with a current subscription to NBS Chorus.
Subscription means the Subscriber’s right to access use of the Services for the period commencing on the Subscription Start Date and continuing for the Term.
Subscription Fee means the total amount payable by the Subscriber to NBS for all Services.
Subscription Start Date means the date set out as such on the Order Form.
Term means the period of time set out as such in the Order Form.
Terms and Conditions mean these terms and conditions which govern the Contract (together with any amendments to these terms and conditions provided in writing on the Order Form) and may be updated from time to time in accordance with clause 21.1. The current version of the Terms and Conditions is available at https://www.thenbs.com/legal).
Training means the training services to be provided by NBS to the Subscriber as set out on the Order Form or, subject always to these Terms and Conditions, as otherwise agreed in writing by the parties from time to time.
UK GDPR means the United Kingdom General Data Protection Regulation.
Update any update to these Terms and Conditions as more particularly set out in clause 21.1.
Upgraded Hosting means a service provided by NBS whereby Subscriber supplies the geometry of a Digital Object and NBS adds the Structured Specification Information for such Digital Object.
User means any person(s) or company who is not party to the Contract, but who has been given a right to use or access the Services by the Subscriber for business purposes and has created an NBS ID and password by accepting the NBS ID terms and conditions (available here https://www.thenbs.com/legal/nbs-id).
2. GENERAL
2.1. 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.
2.2. 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.
2.3. 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.
2.4. The Contract shall come into existence only when a fully completed Order Form is sent to the Subscriber by a representative of NBS, signed by or on behalf of the Subscriber 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.
2.5. Where the Subscriber purchases Services 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 Services.
2.6. To the extent of any conflict between these Terms and Conditions and the Order Form, the Order Form will take priority.
2.7. The Subscriber and Subscriber 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 Contract.
2.8. 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.
2.9. 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 Subscriber seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. SUBSCRIBER 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, Product Authoring and/or Marketing Services, the Subscriber 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 Subscriber of the Subscriber’s order pursuant to clauses 4.3 and/or 4.4. Should Subscriber fail to provide sufficient technical information to enable NBS to provide the Digital Object Authoring Services, this will result in a delay to the delivery of the Subscriber Record and clause 13.4 shall apply.
3.2. Where Subscriber supplies Digital Objects for NBS to host, Subscriber is fully responsible for any and all Amendments to the geometry and Structured Specification Information within such Digital Objects.
3.3. Where Subscriber purchases Upgraded Hosting from NBS, Subscriber is responsible for any and all Amendments to the geometry and NBS is responsible for any and all Amendments to the Structured Specification Information.
3.4. Where Subscriber has purchased the Digital Object Authoring Service and NBS is therefore creating the geometry and adding the Structured Specification Information, NBS is responsible for any and all Amendments to both the geometry and the Structured Specification Information.
3.5. NBS will make reasonable efforts to provide Quality Assurance, Product Authoring 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, Product Authoring or Digital Object Authoring Services where the Subscriber breaches clause 3.1.
3.6. The Subscriber warrants that all Literature and/or Subscriber Content:
3.6.1. is accurate, complete and up-to-date;
3.6.2. does not and will not infringe any Applicable Law, including but not limited to any law related to advertising or marketing; and
3.6.3. 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.
3.7. The Subscriber will have 30 days from receipt of notification from NBS that Subscriber Content is ready for review to inspect such Subscriber Content (“Inspection Period”), in order to ensure compliance with clause 3.6. NBS will set such Subscriber Content live at the end of the Inspection Period on the assumption that Subscriber has inspected such Subscriber Content. NBS assumes no liability should Subscriber have failed to inspect the Subscriber Content within the Inspection Period. Where applicable, the Subscriber will use the online tools provided by NBS to make Amendments.
3.8. Where the Subscriber is unable to make Amendments pursuant to clause 3.7, or where the Subscriber has purchased the Digital Object Authoring Service, the Subscriber shall request that NBS make Amendments by notifying NBS and providing details of:
3.8.1. any breach or prospective breach of the Subscriber’s warranties under clause 3.6 and the likely consequences of such breach; and
3.8.2. any information that NBS may reasonably require in order to make Amendments to the applicable Subscriber Content.
3.9. NBS shall have no obligation to make more than two Amendments to Digital Objects per Subscriber Record per year, provided that this clause shall not apply where the Subscriber shows that an Amendment is required in order to comply with Applicable Law.
3.10. Should Subscriber wish to make Amendments to Digital Objects authored by NBS, this will be done at NBS’s discretion and a cost may be incurred.
3.11. The parties may agree to suspend or cease the display of the applicable Subscriber Record:
3.11.1. pending Amendments by the Subscriber or NBS; or
3.11.2. where such Amendments are not possible.
3.12. The Subscriber will not make, and will not request that NBS makes, any Amendments that would:
3.12.1. affect the geometry of a Digital Object; and/or
3.12.2. in NBS’s sole but reasonable opinion, result in a Subscriber Record relating to a different Subscriber Product;
provided that this clause shall not apply where the Subscriber shows that an Amendment is required in order to comply with Applicable Law.
3.13. Where included in the Services, NBS shall provide Quality Assurance for conformity to the applicable NBS Criteria and report any non-conformity to the Subscriber. Where a Subscriber Record fails to meet the NBS Criteria three or more times, NBS may refuse to perform further Quality Assurance of the applicable Subscriber Record and require the Subscriber to:
3.13.1. pay additional charges for further Quality Assurance of; and/or
3.13.2. purchase the Digital Object Authoring Service for;
the applicable Subscriber Content.
3.14. Where a Subscriber Record and any Amendment to such Subscriber Record, approved by NBS in accordance with clause 3.13, conforms to the applicable NBS Criteria, the Subscriber may use the applicable Logos and/or other marks associated with Certification during the Contract Term.
3.15. Subscriber Content may be hosted in perpetuity, including after termination of the Contract (to ensure compliance with the Building Safety Act (2022)), provided that NBS will indicate on the applicable Subscriber Record:
3.15.1. where the Subscriber has notified NBS that the applicable Subscriber Product is no longer available; and
3.15.2. where the parties have terminated the Services with respect to the applicable Subscriber Record.
4. THE SERVICES
4.1. The Services will commence on the Subscription Start Date and are provided for the Term.
4.2. NBS agrees to provide the Services in accordance with these Terms and Conditions and the relevant Order Form, using reasonable care and skill, and in accordance with Applicable Law.
4.3. The Subscriber may request the Digital Object Authoring Service at any time by providing NBS with:
4.3.1. sufficient information for NBS to compile a complete data approval for each applicable Subscriber Product; and
4.3.2. any other information reasonably requested by NBS;
and NBS will provide a Digital Object Quote based upon such information.
4.4. The Subscriber may accept a Digital Object Quote by email from any Representative of the Subscriber and NBS will issue a corresponding invoice prior to commencement of work.
4.5. The Subscriber may by email offer to purchase the Marketing Services, the Marketing Advisory Services and/or Training at any time during the Contract Term 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.
4.6. The Subscriber shall in relation to all Services:
4.6.1. commit to the Contract and to the Contract Term, and shall pay to NBS the Subscription Fee as specified in the relevant invoice;
4.6.2. co-operate with NBS in all matters relating to the Services; and
4.6.3. obtain and maintain all necessary licences and consents to comply with all Applicable Law.
4.7. Should Customer wish to change the brand they host within NBS Source, the Customer must notify NBS in writing of such change, and an administration fee shall be due and payable to NBS in accordance with the payment terms set out in clause 10.2.
4.8. Notwithstanding clause 20.1, NBS may modify and/or replace elements of the Digital Services from time to time, including by replacing Legacy Systems with equivalent functionality, provided that such modifications and/or replacements will not, in NBS’s sole but reasonable opinion, adversely affect the technical functionality offered to the Subscriber. NBS will provide reasonable notice to the Subscriber where such modifications and/or replacements are likely to have a material effect on the Subscriber’s experience.
5. THE NBS CHORUS SERVICE
5.1. This clause 5 shall apply only where the Subscriber purchases NBS Chorus.
5.2. Subject to these Terms and Conditions, NBS hereby grants to the Subscriber a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Subscriber and its Users to use NBS Chorus and any associated documentation during the Term solely for the Subscriber'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 Order Form.
5.4. NBS shall use commercially reasonable endeavours to make NBS Chorus available in accordance with the Service Levels and where NBS fails to meet a relevant Service Level the Subscriber shall become entitled to a 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:
5.4.1. a cause outside of NBS’s control;
5.4.2. any improper use, misuse or unauthorised alteration of NBS Chorus by the Subscriber;
5.4.3. any use of NBS Chorus by the Subscriber in a manner inconsistent with any documentation or instructions provided by NBS or the Contract;
5.4.4. the use by the Subscriber of any hardware, equipment or software not suitable for use with NBS Chorus; or
5.4.5. any matter falling within NBS Chorus Service Level policy exclusions, accessible via www.thenbs.com/legal.
5.5. The parties acknowledge that a 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 NBS on the next invoice then due to be issued for the next Renewal Period and NBS shall not in any circumstances be obliged to pay any money or make any refund to the Subscriber.
5.6. NBS shall follow its standard archiving procedures for Subscriber Data held within NBS Chorus. In the event of any loss or damage to Subscriber Data, the Subscriber’s sole and exclusive remedy against NBS shall be for NBS to use reasonable commercial endeavours to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by NBS. NBS shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party.
5.7. Subject to compliance in full with these Terms and Conditions, the Subscriber and its Users may reproduce part or parts of the NBS Chorus Content made either alone or in conjunction with the Subscriber Data:
5.7.1. for the purposes of the Subscriber’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 Subscriber specification clauses.
6. TRAINING SERVICES
6.1. NBS shall provide Training to the Subscriber in accordance with the description of the same set out on the 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 Order Form or as otherwise agreed in writing by the parties.
6.2. NBS shall use its reasonable endeavours to provide the Training on the dates and at the times specified on the 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.
6.3. The Subscriber 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.
6.4. The Subscriber shall pay the fees for the Training specified on the Order Form or relevant invoice (together with any expenses reasonably incurred in the provision of the Training, including travel, accommodation and subsistence expenses) in accordance with clause 10.2.
6.5. For any Training which is delivered online, 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 Subscriber is responsible for:
6.5.1. ensuring that all Users who are receiving Training have appropriate and adequate access to the internet and to such other correctly configured equipment and software to allow those Users to receive the Training and that all such Users accept and comply with any terms of use for the website through which such Training is delivered;
6.5.2. 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
6.5.3. ensuring all relevant Users are available for and attend the Training on the dates and at the times specified on the 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 Term. No refund shall be due for any Training not completed by the end of the Term.
7. MARKETING SERVICES
7.1. NBS shall provide the Marketing Services to the Subscriber in accordance with the description of the same set out on the Order Form or as otherwise agreed in writing by the parties.
7.2. The Subscriber shall pay the fees for the Marketing Services specified on the Order Form or relevant invoice in accordance with clause 10.2.
7.3. NBS retains the right to perform the same or similar marketing services for third parties during the Contract Term.
7.4. Subscriber shall use reasonable efforts to respond promptly to any request by NBS to provide direction, information, approvals, authorisations or decisions that are reasonably necessary for NBS to perform the Marketing Services in accordance with the requirements of this Contract.
8. MARKETING ADVISORY SERVICES
8.1. Where Subscriber purchases Marketing Advisory Services, NBS shall provide guidance to Subscriber on:
8.1.1. marketing strategy, route to market and marketing communications;
8.1.2. targeting specifiers to include Subscriber’s Products in their specifications, avoid product substitution and engage contractors; and
8.1.3. digitising Subscriber Product data and aligning such data to fit the requirements of specifiers.
8.2. Where NBS provides Marketing Advisory Services, such services are not intended, and accordingly shall not be relied upon, either as a substitute for professional advice or judgement or to provide advice with respect to any particular circumstance. Such Marketing Advisory Services are provided as guidance only and NBS accepts no liability for any Subscriber Losses caused as a result of reliance on such guidance.
9. PARTNER PLATFORM
9.1. Subscriber shall be granted access to their account on NBS’s Partner Platform via an invitation link. Users can then log onto the Partner Platform via their NBS ID. It is Subscriber’s responsibility to set the access level for each User within Subscriber’s Partner Platform.
9.2. Any changes Subscriber makes to Subscriber Content through the Partner Platform will, without exception, be immediately available in the relevant Subscriber Record on NBS Source.
9.3. All Users will receive a notification when a comment is added to a Subscriber Record, or a Subscriber Record is changed. It is the Subscriber’s responsibility to change notification preferences within the Partner Platform as appropriate.
9.4. Subscriber agrees not to include personal data (other than User’s work e-mail addresses) in the Partner Platform.
9.5. Subscriber may choose to include a link to their Subscriber Record on NBS Source from their website by embedding an iframe in such website. NBS shall provide guidance on how to configure such iframe, however the technical implementation is the responsibility of the Subscriber. NBS disclaims any and all liability should such iframe negatively impact Subscriber’s website.
9.6. The terms of NBS’ Website Acceptable Use Policy apply to Subscriber’s use of the Partner Platform.
10. PAYMENT
10.1. NBS will invoice the Subscriber for the Subscription Fee following signature of the Order Form.
10.2. 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 Subscriber 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.
10.3. 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. Where finance is provided by a third party, whether such third party is introduced by NBS 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. In the event that the Subscriber chooses to cancel the services of such third party, the Subscriber is liable for the remaining value of the Subscription Fee.
10.4. 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. For the avoidance of doubt, in addition to interest payments the Subscriber shall pay all reasonable costs and expenses incurred by NBS in enforcing this Contract and recovering monies owed to NBS by the Subscriber. NBS may recover such costs and expenses from any other sums received from the Subscriber.
11. SUPPORT
11.1. NBS shall be under no obligation to provide any support or maintenance services to the Subscriber in respect of its use of the Services but may, in its absolute discretion, provide to the Subscriber assistance and support in relation to the Services, upon the request of the Subscriber, as set out in NBS’s support policy from time to time, as available via www.thenbs.com/legal/support-policy.
11.2. NBS 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 NBS’s control, including the Subscriber’s operating errors or shortcomings, or defects in any of the Subscriber’s hardware or software.
12. NBS WARRANTIES AND LIMITATION OF LIABILITY
12.1. NBS warrants that the Digital Services will be virus-free as at the Subscription Start Date and that the Services will be provided with reasonable skill and care.
12.2. NBS does not warrant that the Services will meet the Subscriber’s requirements or that the hosting or performance of any of the Services will be uninterrupted or error free. The Subscriber uses the Services at the Subscriber’s own risk and subject to clause 12.4, in no event will NBS be liable to the Subscriber for any loss or damage of any kind arising from the use of or inability to use the Services or from errors whether caused by negligence or otherwise, except as expressly provided in these Terms and Conditions.
12.3. 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 Subscriber is responsible for making its own arrangements for the insurance of any excess loss.
12.4. Nothing in the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence, and fraud or fraudulent misrepresentation.
12.5. Subject to clause 12.4, NBS’s total liability to the Subscriber shall not exceed the aggregate amount of the Subscription Fee paid or payable 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 Contract.
12.6. Subject to clause 12.4 the following types of loss are wholly excluded:
12.6.1. loss of profits;
12.6.2. loss of sales or business;
12.6.3. loss of agreements or contracts;
12.6.4. loss of anticipated savings;
12.6.5. loss of use or corruption of software, data or information;
12.6.6. loss of or damage to goodwill; and
12.6.7. indirect or consequential loss.
12.7. 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.
12.8. 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:
12.8.1. inappropriate use of the NBS Content or any of the Services;
12.8.2. failure to exercise reasonable levels of due care and attention when using the NBS Content or any of the Services; or
12.8.3. failure to exercise reasonable levels of professional skill and competence when using the NBS Content or any of the Services.
12.9. Subject to Clause 5.4, 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 NBS’s products or services. All NBS Digital Services, including the hosting services set out herein, shall be subject to both scheduled and emergency maintenance without notice to the Subscriber.
12.10. This clause 12 shall survive termination of the Contract.
13. SUBSCRIBER’S OBLIGATIONS AND WARRANTIES
13.1. The Subscriber shall:
13.1.1. co-operate with NBS in all matters relating to the Services;
13.1.2. obtain and maintain all necessary licences and consents to comply with all relevant legislation in relation to the Subscriber Content;
13.1.3. not assign, novate, 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, and NBS hereby consents to any novation pursuant to clause 22.8;
13.1.4. 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.
13.2. The Subscriber shall at all times indemnify NBS and its publishers, agents and distributors against any and all Losses associated with the use of the Subscriber Content by any person, anywhere in the world, including, but not limited to, Losses associated with the Subscriber’s breach of any of its warranties under clause 3.6.
13.3. The Subscriber warrants that it is authorised to enter into this Contract on behalf of itself and, if applicable, the Invoicing Company.
13.4. If NBS’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Subscriber or failure by the Subscriber to perform any relevant obligation (“Subscriber Default”):
13.4.1. 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 Subscriber remedies the Subscriber Default, and to rely on the Subscriber Default to relieve it from the performance of any of its obligations to the extent the Subscriber Default prevents or delays NBS’s performance of any of its obligations;
13.4.2. NBS shall not be liable for any costs or losses sustained or incurred by the Subscriber arising directly or indirectly from NBS’s failure or delay to perform any of its obligations as set out in this clause 13.4; and
13.4.3. the Subscriber shall reimburse NBS on written demand for any costs or losses sustained or incurred by NBS arising directly or indirectly from the Subscriber Default.
14. RESTRICTIONS
14.1. The Subscriber 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.
14.2. Except with NBS’s express, prior written consent (there being no presumption that NBS shall give its consent) , the Subscriber may not at any time during the Contract, or at any time thereafter:
14.2.1. use or permit others to use the Services or the NBS Content for the purpose of developing and/or maintaining for themselves or for others, an alternative service provision which either directly or indirectly competes with the Services or serves the same or a similar purpose as the Services;
14.2.2. attempt to copy, modify, duplicate, create 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
14.2.3. attempt to decompile, 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
14.2.4. licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the NBS Content, NBS Source, NBS Chorus or any materials or software used or created in the provision of the Services available to any third party.
14.3. The Subscriber shall not access, store, distribute or transmit any viruses during the course of its use of the Services.
14.4. The Subscriber shall be responsible for controlling a User’s access to, and use, of the Services and shall ensure that all Users are aware of the terms of this Contract.
14.5. The Subscriber 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.
15. DATA PROTECTION
15.1. NBS shall comply with its privacy policy available at https://www.thenbs.com/legal/privacy-policy or such other website address as may be notified to the Subscriber from time to time, as such document may be amended from time to time by NBS in its sole discretion.
15.2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Legislation.
15.3. The Subscriber acknowledges and agrees that:
15.3.1. the Services are not intended for storing or otherwise processing any personal data on behalf of the Subscriber;
15.3.2. NBS is not appointed as a data processor (as that term is defined in the Data Protection Legislation) under the Contract.
16. CONFIDENTIALITY
16.1. The provisions of this clause shall not apply to any Confidential Information that:
16.1.1. is hosted on any NBS website and is therefore available to the public;
16.1.2. 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);
16.1.3. was available to the Receiving Party on a non-confidential basis before disclosure by the Disclosing Party;
16.1.4. 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;
16.1.5. the parties agree in writing is not confidential or may be disclosed; or
16.1.6. is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party.
16.2. The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and shall not:
16.2.1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Contract; or
16.2.2. disclose such Confidential Information in whole or in part to any third party, except its own Representatives, or as expressly permitted by this clause 16.
16.3. NBS may compile statistics relating to the use of NBS Source, including usage by the Subscriber, and the use of Subscriber Content and/or Subscriber Products in NBS Source, and may publish and use such statistics for any commercially reasonable purpose.
16.4. The Subscriber will report all Flaws to NBS, and will treat such Flaws as Confidential Information until NBS has mitigated or resolved such Flaws.
16.5. NBS may disclose the Subscriber's Confidential Information to NBS Representatives who need to know such Confidential Information for the permitted purpose, provided that:
16.5.1. it informs such NBS Representatives of the confidential nature of the Confidential Information before disclosure;
16.5.2. 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.
16.6. 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.
16.7. 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.
17. INTELLECTUAL PROPERTY, FEEDBACK, AND CERTIFICATION
17.1. All of the Intellectual Property Rights in the NBS 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.
17.2. All Intellectual Property Rights in the Subscriber Content hosted under this Contract shall be owned by, and shall remain the property of, the Subscriber or the Subscriber’s licensors.
17.3. The Subscriber grants NBS a non-exclusive, royalty free, licence to use, publish, make available, copy, make derivative works, reproduce, host and do all acts in relation to all Intellectual Property Rights in the Subscriber Content for the duration of the Contract Term. The Subscriber grants NBS a non-exclusive, royalty free, perpetual licence to store, copy and make available the Subscriber Content for the purposes of publishing historical Subscriber Content using permalinks. Subscriber also grants to NBS a non-exclusive, royalty free licence to use, publish, make available, copy and reproduce Subscriber’s logo(s) to the extent necessary to provide the Services to the Subscriber.
17.4. NBS shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it by the Subscriber entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. Subject to clause 16.3, Feedback will not be considered Confidential Information unless otherwise agreed between the parties.
18. TERMINATION
18.1. This Contract shall, unless and until terminated earlier in accordance with this Contract, commence upon the Contract Start Date, shall continue for the Term and thereafter shall terminate.
18.2. Without affecting any other right or remedy available to it, NBS may terminate the Contract with immediate effect by giving written notice to the Subscriber in the event that the Subscriber 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.
18.3. 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 in the event that:
18.3.1. the other party commits a material breach of the Contract which breach is irremediable, or if such breach is remediable, fails to remedy such breach within 14 days of the receipt of notification in writing to do so; or
18.3.2. the other party 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
18.3.3. an order is made, or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding up order against it; or
18.3.4. the other party ceases, or threatens to cease, to trade.
18.4. Any termination of this Contract will be without prejudice to NBS’s rights existing at the date of termination and the Subscriber shall not be entitled to any refund of the Subscription Fee, unless Subscriber has terminated under clause 18.3.1, in which case the Subscriber shall be entitled to a pro rata refund. For the avoidance of doubt, the Subscriber 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.
18.5. In the event of termination, the Subscriber shall erase all references to the Certification and the Logos, or any other reference to the Services, wherever displayed. Upon request by NBS, the Subscriber shall confirm in writing to NBS that all such material has been deleted.
18.6. On termination of the Contract in whole or part for any reason:
18.6.1. the Subscription and all other licences granted to Subscriber under the Contract and all Services provided under the Contract shall immediately terminate and the Subscriber shall immediately cease all use of the Services to the extent its right to do so has been terminated:
18.6.2. subject to clause 17.3, 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;
18.6.3. 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;
18.6.4. Subscriber shall not be entitled to any refund of the Subscription Fee, unless Subscriber has terminated under clause 18.3.1; and
18.6.5. NBS shall not be obliged to provide any Training which has not been completed as at the date of termination.
18.7. Notwithstanding any requirement elsewhere in the Contract for notice to terminate the Contract to be in writing, the parties agree that a novation of this Contract pursuant to clause 22.8 may be effected by conduct.
19. FORCE MAJEURE
19.1. NBS shall not be liable for any Force Majeure Event.
19.2. Where a Force Majeure Event continues for more than two months, either party may terminate this Contract or part thereof on 14 days’ notice to the other party. For certainty, the Subscriber will not be entitled to any repayment of Subscription Fees as a result of a Force Majeure event.
20. NOTICES
20.1. A notice given to a party under or in connection with the Contract shall be in writing and in English and shall be delivered by recorded post at its registered company address or by email to the email address for legal notices (as stated on the NBS Order Form) or in the case of notices given to NBS, to the relevant Account Manager.
20.2. The deemed time of receipt of a notice will be:
20.2.1. if sent by email, at the time of transmission or, if this falls outside of a Business Day, on the next Business Day;
20.2.2. if sent by recorded post, on signature of a delivery receipt by a representative of the other party.
20.3. 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.
20.4. Where the Subscriber 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 Subscriber and the Invoicing Company.
21. UPDATES TO TERMS AND CONDITIONS
21.1. NBS may make Updates from time to time and will make the updated terms available at https://www.thenbs.com/legal or such other location as NBS may notify to the Subscriber.
21.2. NBS will provide notice of any Update to the Subscriber via email to the email address for legal notices provided in the Order Form, unless otherwise agreed between the parties in writing. The Subscriber is responsible for ensuring that their contact details for such notices are accurate and up to date and shall inform NBS of any changes via email to the relevant Account Manager.
21.3. Any Update necessary for compliance with Applicable Law will become effective immediately.
21.4. Any other Update will become effective 30 days after NBS provides notice to the Subscriber of such Update.
21.5. If an Update has a material adverse impact on the Subscriber, and the Update is not required in order to comply with Applicable Law, the Subscriber may notify NBS within 30 days of receiving notice of an Update that the Subscriber does not accept such Update, whereupon the Subscriber will remain governed by the terms in effect immediately prior to the Update until the end of the Contract Term.
21.6. To the extent of any conflict between an Update and any other agreement in writing between the parties, the Update will take priority unless: i) the Subscriber is otherwise notified by NBS; or ii) such agreement states by reference to this clause 21 that it is intended to take priority over such Update.
21.7. No amendment to the Contract, other than Updates, shall be effective unless it is in writing and signed by both parties.
22. ENTIRE AGREEMENT
22.1. 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.
22.2. 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.
22.3. 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.
22.4. Nothing in these Terms and Conditions shall create, imply or evidence any partnership or joint venture between the Subscriber and NBS or the relationship between them of principal and agent or employer and employee.
22.5. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract and no person other than the Subscriber or NBS shall have any rights under it.
22.6. The Terms and Conditions of this Contract 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.
22.7. NBS may at any time assign, novate, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Contract and may novate, subcontract, or delegate any or all of its obligations under the Contract to any third party, in each case without the Subscriber’s consent. NBS may at any time novate the Contract, or any or all of its rights and obligations under the Contract, to another member of its group of companies or any other third party.
22.8. For the avoidance of doubt, the requirement for NBS to provide termination in writing shall not preclude a novation by conduct where NBS exercises its rights under clause 22.7.
23. GOVERNING LAW AND JURISDICTION
23.1. 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.
23.2. 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).
Last Updated: 2 May 2023
