Amendment means any update, amendment, modification or correction to any Subscriber Record.
Applicable Law means in the UK or Canada, any relevant 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 9:00 a.m. to 5:00 p.m. Monday to Friday, excluding any day that is a public holiday in Canada.
Certification means NBS’ 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 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 the NBS Order Form is countersigned by NBS.
Contract means the NBS Order Form and these Terms and Conditions entered into between the Subscriber and NBS.
Contract Term means the period of time from the Contract Start Date until the end of the Subscription together with any Renewal Periods.
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 Agreement. This may include the Data Protection Act 2018 (UK) and the Privacy and Electronic Communications Regulations 2003 (UK), 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 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 4.2 and 4.3 and involves the creation and/ or authoring of Digital Objects (which may include Amendments to Digital Objects).
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 errors.
Force Majeure Event means any failure or delay in the Services or any part thereof occasioned by circumstances beyond NBS’ reasonable control including (but not limited to) acts of God, fire, flood, explosion, accident, inability to supply the information, software materials or support, 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, 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.
Legacy System means any product or Service provided by NBS which is due to or has been retired by NBS, including, but not limited to 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 Subscriber and Users 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 Subscriber’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 Subscriber and Users.
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 Service means the software as a service known as ‘NBS Chorus’ selected by the Subscriber on the NBS Order Form.
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 (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 Contract in connection with the Contract, but excluding the Subscriber Intellectual Property.
NBS Content shall mean all human and machine-readable data retained, maintained or displayed in the Services other than Subscriber Data.
NBS Criteria means the standard, in NBS’ reasonable opinion, to which Subscriber Data 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 Order Form means the document which details the Services the Subscriber has committed to purchase from NBS and forms part of the Contract together with these Terms and Conditions.
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.
Promoted Content Service means a service whereby Subscriber Data 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 time representing an extension of the Contract, as set out in writing by NBS in accordance with clause 6.2.and 6.3, beginning immediately after the Subscription Term as detailed on the NBS Order Form, or the then 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 Subscriber Representatives shall be construed accordingly.
Quality Assurance means the review of Subscriber Data by NBS, including review for conformity to NBS Criteria, prior to and during the hosting of such Subscriber Data on NBS Source.
Services means the NBS Source service including any other services provided by NBS, including, but not limited to NBS Chorus Service and training, as set out in the NBS Order Form and such other services as may be agreed between the Parties in writing from time to time. NBS reserves the right to invoice separately for fees relating to Services.
Service Credit means the percentage of the Subscription Fee for the NBS Chorus Service paid for the current Subscription or Renewal Period (as applicable), credited against the Subscription Fee for the 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’ service level policies from time to time as accessible via https://www.thenbs.ca/legal and subject to the exclusions set out in such policies from time to time.
Sharing Settings means Subscriber controlled settings, accessible via the NBS Chorus Service which enable the Subscriber to control the sharing of information related to the production and use of Subscriber Data and Manufacturer Data with NBS and Manufacturer Companies.
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 the company who has entered into the Contract, for the use of the Services for their desired number of Users for business purposes.
Subscription means the Subscriber’s right to access and use the Services for the Subscription Term as detailed on the NBS Order Form followed by any Renewal Period.
Subscriber Data means any and all data, documents, drawings, designs, reports, specifications, photographs, visual material, Subscriber Records (and Amendments to such Records) and any other data, information or materials provided or uploaded by the Subscriber or Users to NBS Source, or the NBS Chorus Service, or commissioned by the Subscriber via the Digital Object Authoring Service, or otherwise submitted to NBS to enable the Subscriber or any User to obtain the benefit of the Services.
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.
Subscriber Record means the record relating to a particular Subscriber Product hosted by NBS.
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 Data may relate.
Subscriber Specification Clause means a construction specification clause relating to a Subscriber 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.
Subscription Fee means the fee payable by the Subscriber, to NBS, for the use of NBS Source and Services for the Subscription with any subsequent Renewal Periods.
Subscription Start Date means the date specified as such on the NBS Order Form on which the Subscription is to commence.
Subscription Term means the initial duration of the Subscription, as set out on the NBS Order Form, which shall begin on the Subscription Start Date and shall end on the expiration of the time period specified on the NBS Order Form unless terminated earlier in accordance with the provisions of these Terms and Conditions.
Terms and Conditions means these terms and conditions which govern the Contract and may be updated from time to time. Terms and Conditions are available at https://www.thenbs.ca/legal or such other location as NBS may notify to the Subscriber.
Update means any amendment to these Terms and Conditions as more particularly set out in clause 17.
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.
2.1.The Contract shall be formed when the NBS Order Form is signed by or on behalf of the Subscriber and countersigned by or on behalf of NBS, where the NBS Order Form indicates a requirement for such countersignature.
2.2.Where the Subscriber purchases NBS Source and/ or Services on the NBS 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, the NBS Order Form, and any relevant invoice for the Services, the order of priority will be as follows: Invoice, NBS Order Form, Terms and Conditions.
2.4.The Subscriber acknowledges this Contract represents a business-to-business transaction only and consumer legal protections shall not apply to this Contract.
2.5.Neither the information contained, nor the information provided through the Services are intended, and accordingly shall not be relied upon, either as a substitute for professional advice or judgement, or to provide legal or other advice with respect to any particular circumstance.
2.6.NBS shall have the right to make any amendments or changes that it deems reasonably necessary in order for the Services provided by it to the Subscriber to be compliant with Applicable Law or health and safety regulations or requirements from time to time and shall not be in breach of the Contract as a result.
2.7.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. Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular. Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or terms preceding those terms.
2.8.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.
2.9.The Subscriber may allow its Users to access and use the Services, provided that the Subscriber shall procure that its Users shall, at all times, act in accordance with these Terms and Conditions.
2.10.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.
2.11.References to UK legislation may be read in more detail at https://www.gov.uk or such website as provided by the UK Government from time to time.
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 Promoted Content Service, 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.
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 Subscriber breaches clause 3.1.
3.3.The Subscriber warrants that all Literature and/ or Subscriber Data:
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; and
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 Subscriber will inspect all Subscriber Data prior to its publication via the Services, and at regular intervals thereafter, in order to ensure compliance with this clause. Where applicable, the Subscriber will use the online tools provided by NBS to make Amendments.
3.4.Where the Subscriber has purchased the Digital Object Authoring Service, the Subscriber shall request that NBS makes Amendments by notifying NBS and providing any information that NBS may reasonably require in order to make Amendments to the applicable Digital Object.
3.5.NBS shall make minor Amendments to Digital Objects at no additional charge to the Subscriber, provided that in NBS’ sole but reasonable opinion the requested Amendments do not result in a Digital Object relating to a different Subscriber Product and/ or the Subscriber shows that an Amendment is required in order to comply with Applicable Law.
3.6.NBS reserves the right to provide a Digital Object Quote to the Subscriber where in NBS’ sole but reasonable opinion the requested amends are not minor and clause 4.3 shall apply.
3.7.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:
3.7.1.pay additional charges for further Quality Assurance of; and/ or
3.7.2.purchase the Digital Object Authoring Service for the applicable Subscriber Data.
3.8.Where a Subscriber Record and any Amendment to such Subscriber Record, approved by NBS in accordance with clause 3.9, conforms to the applicable NBS Criteria, the Subscriber may use the applicable Logos and/ or other marks associated with Certification during the Term.
3.9.Subscriber Records may be hosted in perpetuity, including after termination of the Contract, provided that NBS will indicate on the applicable Subscriber Record:
3.9.1.where the Subscriber has notified NBS that the applicable Subscriber Product is no longer available; and
3.9.2.where the parties have terminated the Services with respect to the applicable Subscriber Record.
4.1.Services are provided for the Contract Term. The Services will commence on the Contract Start Date.
4.2.The Subscriber 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 Subscriber 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 Subscriber may accept a Digital Object quote via an email from any Representative of the Subscriber, and NBS will issue a corresponding invoice prior to commencement of work.
4.4.The Subscriber may by email offer to purchase:
4.4.1.the Promoted Content Service at any time during the Contract Term; and/ or
4.4.2.an upgraded Subscription to the Services; at NBS’ 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 NBS Order Form and/ or, the relevant invoice.
4.6.NBS will provide the Services using reasonable care and skill, and in accordance with Applicable Law.
4.7.The Subscriber shall in relation to all Services:
4.7.1.commit to the Contract and to the Contract Term, and shall pay to NBS the Subscription Fee and any relevant invoice(s);
4.7.2.co-operate with NBS in all matters relating to the Services; and
4.7.3.obtain and maintain all necessary licences and consents to comply with all relevant legislation.
4.8.Notwithstanding clause 17, NBS may modify and/ or replace elements of the Services from time to time, including by replacing Legacy Systems with equivalent functionality, provided that such modifications and/ or replacements will not, in NBS’ sole but reasonable opinion, adversely affect the technical functionality of the Services. NBS will notify the Subscriber where such modifications and/ or replacements are likely to have a material effect on the Subscriber’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’ sole, but reasonable opinion provide equivalent functionality.
4.10.NBS shall provide the training to the Subscriber in accordance with the description of the same set out on the NBS Order Form or as otherwise agreed in writing by the parties and at the locations and for the maximum number of delegates specified on the NBS Order Form or as otherwise agreed in writing by the parties.
4.11.NBS shall use its reasonable endeavours to provide the training on the dates and at the times provided to the Subscriber, but time shall not be of the essence in respect of such dates and times.
4.12.The Subscriber acknowledges and agrees that NBS does not warrant or guarantee that any delegates who participate in the training will, as a result of the Training, be proficient or competent in the subject matter of the training and it is the Subscriber’s responsibility to ensure that all Users are appropriately trained and skilled in the use of the Services prior to them being given access to the same.
4.13.The Subscriber shall pay the fees for the training specified on the NBS Order Form or relevant invoice (together with any expenses reasonably incurred in the provision of the training, including travel, accommodation and subsistence expenses).
4.14.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:
4.14.2.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 on the dates and at the times specified by NBS and ensuring that all training is completed by the relevant Users by the end of the Subscription or the Renewal Period in which it is ordered and the Subscriber agrees that Training which is not so completed cannot be carried over into the next Renewal Period.
5.The NBS Chorus Service
5.1.This clause 5 shall apply only where the Subscriber purchases the NBS Chorus Service.
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 Users to use the NBS Chorus Service and any associated documentation during the Subscription 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 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 Subscriber shall become entitled to the Service Credit on submitting a written claim for such Service Credit, provided that the failure to meet the relevant Service Level did not result from:
5.4.1.any improper use, misuse or unauthorized alteration of the NBS Chorus Service by the Subscriber or its Users;
5.4.2.any use of the NBS Chorus Service by the Subscriber or it’s Users in a manner inconsistent with any documentation or instructions provided by NBS or these Terms and Conditions;
5.4.3.the use by the Subscriber and it’s Users 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 Level Policy Exclusions set out in the NBS Chorus Service Level Policy accessible via https://www.thenbs.ca/legal.
5.5.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 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 Subscriber.
5.6.NBS shall follow its standard archiving procedures for Subscriber 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 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 in accordance with such archiving procedures. 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 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.Fees and Invoices
6.1.The Subscriber shall pay to NBS the Subscription Fee, and any fees for Services in accordance with the payment terms and invoicing frequency, as set out on the NBS Order Form or the relevant invoice.
6.2.At least 90 days prior to the end of the Subscription or any Renewal Period each party shall notify the other in writing of any proposed changes to the Subscription Fee or the Subscription in respect of the forthcoming Renewal Period.
6.3.Any proposed changes submitted in accordance with clause 6.2 and agreed by the parties shall be confirmed in writing by NBS.
6.4.The Subscriber acknowledges and agrees that it is its sole responsibility to finance the Subscription Fee and Services on a basis which is commercially appropriate for its business and that where finance is provided by a third party, whether such third party is introduced by 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.
6.5.NBS shall be under no obligation to perform any of its obligations under the Contract unless and until any relevant invoice for Services is paid in full.
6.6.Without prejudice to any other rights or remedies of NBS, if any amount is outstanding beyond the permitted payment terms as set out on the relevant invoice, NBS may, by written notice, either deem the Contract be terminated by default, resulting in cancellation charges of 100% of the remaining value of the then Subscription or Renewal Period, or suspend provision of Services pending payment in full of any outstanding amount.
6.7.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 reasonable costs and expenses incurred by NBS in enforcing this Contract and recovering monies owed to NBS by the Subscriber.
7.Renewal and Termination
7.1.The Subscription shall commence on the Contract Start Date and continue for the Subscription Term as set out on the NBS Order Form and, thereafter the Subscription may be extended for successive Renewal Periods in accordance with clauses 6.2 and 6.3.
7.2.Without affecting any other right or remedy available, NBS may terminate the Contract with immediate effect by giving written notice to the other party if the Subscriber fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment.
7.3.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 if:
7.3.1.the other party commits a material breach 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;
7.3.2.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
7.3.3.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
7.3.4.the other party ceases, or threatens to cease, to trade.
7.4.On termination of the Contract in whole or part for any reason:
7.4.1.the Subscription and any Services provided under the Contract shall, to the extent that the Contract has terminated, immediately terminate and the Subscriber shall immediately cease all use of the Services to the extent its right to do so has been terminated;
7.4.2.subject to clause 8.3, 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 (including any materials or software used or created in the provision of the training) and used in relation to those aspects of the Contract that have terminated;
7.4.3.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;
7.4.4.no refund of the Subscription Fee or any fees in respect of training shall be made; and
7.4.5.NBS shall not be obliged to provide any training which has not been completed as at the date of termination.
8.Intellectual Property and Feedback
8.1.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.
8.2.All Intellectual Property Rights in the Subscriber Data hosted under this Contract shall be owned by, and shall remain the property of, the Subscriber or the Subscriber’s licensors.
8.3.The Subscriber grants NBS a non-exclusive perpetual licence to, publish, make available, copy, make derivative works and re-sell and do all acts in relation to all Intellectual Property Rights in the Subscriber Data.
8.4.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 10.3, Feedback will not be considered Confidential Information unless otherwise agreed between the parties.
8.5.On termination of the Contract or the applicable part thereof the Subscriber must remove the Logos and/ or Certifications. Upon request by NBS, the Subscriber shall provide written confirmation they have complied with this clause.
9.1.Except with NBS’ 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 Subscriber to make full use of the Services, the Subscriber may not at any time during the Contract, or at any time thereafter:
9.1.1.use or permit others to use the Services or the NBS Content for the purpose of developing and/ or maintaining for Subscriber 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;
9.1.2.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;
9.1.3.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
9.1.4.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 third party.
10.1.The provisions of this clause shall not apply to any Confidential Information that:
10.1.1.is hosted on any NBS website and is therefore available to the public;
10.1.2.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);
10.1.3.was available to the Receiving Party on a non-confidential basis before disclosure by the Disclosing Party;
10.1.4.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;
10.1.5.the parties agree in writing is not confidential or may be disclosed; or
10.1.6.is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party.
10.2.The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and shall not:
10.2.1.use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Contract; or
10.2.2.disclose such Confidential Information in whole or in part to any third party, except its own Representatives, or as expressly permitted by this clause 10.
10.3.NBS may compile statistics relating to the use of NBS Source, including usage by the Subscriber and Users, and the use of Subscriber Data and/ or Subscriber Products in NBS Source, and may publish and use such statistics for any commercially reasonable purpose.
10.4.NBS may disclose the Subscriber's Confidential Information to NBS Representatives who need to know such Confidential Information for the permitted purpose, provided that:
10.4.1.it informs such NBS Representatives of the confidential nature of the Confidential Information before disclosure;
10.4.2.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.
10.5.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.
10.6.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.
10.7.The Subscriber shall adjust the Sharing Settings within the NBS Chorus Service to indicate where certain information cannot be shared or disclosed by NBS in accordance with this clause 10 provided that:
10.7.1.the Sharing Settings will always enable the Subscriber to prevent the disclosure of Subscriber Data to Manufacturers and other third parties;
10.7.2.NBS shall have no liability where the Subscriber fails to adjust such Sharing Settings.
11.2.Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
11.3.The Subscriber acknowledges and agrees that:
11.3.1.the Services are not intended for storing or otherwise Processing any Personal Data on behalf of the Subscriber;
11.3.2.NBS is not appointed as a Personal Data Processor under the Contract; and
11.3.3.it shall ensure no Personal Data is entered, stored or otherwise Processed using the Services other than as set out in clauses 11.4 and 11.5.
11.4.NBS will disclose to the Subscriber the NBS ID data of Users with access to the Subscriber’s account to the extent necessary for allowing the Subscriber to:
11.4.1.control which Users may access its account and any Subscriber Data;
11.4.2.track edits made to the Subscriber Data;
11.4.3.make use of other account management functionality released by NBS from time to time; and
NBS and the Subscriber shall hold such data separately, each as a Controller.
11.6The Subscriber will inform NBS immediately upon becoming aware of any breach of security related to its account or to any User with access to its account.
12.Warranties, Remedies and Limitation of Liability
12.1.NBS warrants that the NBS Chorus Service will be virus-free as at the Contract Start Date and that the Services including training will be provided with reasonable skill and care.
12.2.NBS warrants that the NBS Chorus Service will provide the functionality and features substantially in accordance with the accompanying documentation supplied by NBS, provided that each is properly used in conjunction with the equipment and operating systems for which they were designed. NBS warrants that any documentation supplied by NBS correctly describes the NBS Chorus Service (as applicable) in all material respects. If NBS is notified of any significant error during the period of 90 days after the Contract Start Date it will correct any such error within a reasonable time, or at its option refund the Subscription Fee whereupon the Contract will be terminated without NBS incurring any further liability and the provisions of clause 7.4 shall apply.
12.3.The warranties set out in clauses 12.1 and 12.2 are exclusive of and in lieu of all other conditions and warranties, either expressed or implied, including without limitation those relating to satisfactory quality or fitness for purpose which are hereby excluded to the fullest extent permitted by law.
12.4.NBS does not warrant that the Services will meet the Subscriber’s requirements or that the hosting, performance, operation of or use of any of the Services will be uninterrupted or error-free, or that all errors can be corrected. The Subscriber installs and uses the Services at the Subscriber’s own risk and subject to clause 12.6; in no event will NBS be liable to the Subscriber for any loss or damage of any kind including lost profits, lost revenue, loss of anticipated saving, loss or corruption of data, downtime or any special, consequential or indirect loss arising from the use of or inability to use the Services as a result of errors or deficiencies in the Services whether caused by breach of contract, negligence or otherwise, except as expressly provided in these Terms and Conditions.
12.5.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 NBS’ insurance cover and the Subscriber is responsible for making its own arrangements for the insurance of any excess loss.
12.6.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.
12.7.Subject to clause 12.6, NBS’ total liability to the Subscriber shall not exceed the aggregate amount of the Subscription Fee actually paid by the Subscriber to NBS in the immediately preceding period of twelve months. NBS’ total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
12.8.Subject to clause 12.6 the following types of loss are wholly excluded:
12.8.1.loss of profits;
12.8.2.loss of sales or business;
12.8.3.loss of agreements or contracts;
12.8.4.loss of anticipated savings;
12.8.5.loss of use or corruption of software, data or information;
12.8.6.loss of or damage to goodwill; and
12.8.7.indirect or consequential loss.
12.9.This clause 12 shall survive termination of the Contract.
12.10.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.
12.11.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:
12.11.1.inappropriate use of the NBS Content or any of the Services;
12.11.2.failure to exercise reasonable levels of due care and attention when using the NBS Content or any of the Services; or
12.11.3.failure to exercise reasonable levels of professional skill and competence when using the NBS Content or any of the Services.
12.12.Nothing in this Contract shall be construed as a guarantee of availability or uptime for any aspect of the Services nor of any other NBS 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 Subscriber.
12.13.The NBS Chorus Service, Services or the training may provide links to third party websites. NBS is not responsible or liable for:
12.13.1.the availability or accuracy of such websites; or
12.13.2.the content, products, or services on or available from such websites or the data protection or privacy practices of such websites; and
12.13.3.links to such websites do not imply any endorsement by NBS of such websites, or the content, products, or services available from such websites. The Subscriber takes sole responsibility for, and assumes all risks arising from, the Subscriber’s and any User’s use of any such websites.
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 Data;
13.1.3.not assign, transfer, mortgage, sublicence, 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
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 Services.
13.2.The Subscriber shall at all times indemnify NBS and its publishers, agents and distributors against all and any Losses associated with the use of the Subscriber Data 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 3.3.
13.3.The Subscriber warrants that it is authorised to enter into this Contract on behalf of itself.
13.4.If NBS’ 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’ 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’ 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.
14.1.NBS shall not be liable for any Force Majeure Event.
14.2.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.
15.1.These Terms and Conditions (together with the relevant NBS Order Form) constitute the entire agreement between the parties relating to the Contract and neither party has relied on any representation made by the other party unless such representation is expressly included in these Terms and Conditions or on the NBS Order Form. These Terms and Conditions, as updated or amended by NBS from time to time, shall apply to the Contract to the exclusion of any other terms that the Subscriber seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
15.2.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.
15.3.If any provision of these Terms and Conditions or any part of them shall be void for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
15.4.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 employers and employee.
15.5.Except as expressly provided in these Terms and Conditions, nothing shall confer or purport to confer on a third party any benefit or any right to enforce any provision of the Contract.
15.6.The Contract is personal to the Subscriber and the Subscriber shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights or obligations under the Contract without the prior express written consent of NBS.
15.7.NBS may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Contract and may subcontract or delegate any or all of its obligations under the Contract to any third party.
16.1.Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by email or by recorded post at its registered company address or email address for legal notices as stated on the NBS Order Form. Any notice shall be deemed to have been received:
16.1.1.if sent by recorded post on signature of a delivery receipt by a representative of the other party; or
16.1.2.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 Business Day. 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 by email to email@example.com.
17.Updates to Terms and Conditions
17.1.NBS may make Updates to these Terms and Conditions from time to time and will make the updated terms available at https://www.thenbs.ca/legal or such other location as NBS may notify to the Subscriber.
17.2.NBS will provide notice of any Update to the Subscriber via email to the email address for legal notices provided by the Subscriber.
17.3.Any Update necessary for compliance with Applicable Law will become effective immediately.
17.4.Any other Update will become effective 30 days after NBS provides notice to the Subscriber of such Update.
17.5.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 14 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 earlier of: i) the end of the Subscription or Renewal Period; or ii) 12 months after the Subscriber receives notice of the Update.
17.6.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 that it is intended to take priority over such Update.
18.Governing Law and Jurisdiction
18.1.These Terms and Conditions shall be governed by and construed in accordance with the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English Courts.
NBS Enterprises Ltd Registered Office:
The Old Post Office, St Nicholas Street, Newcastle upon Tyne, NE1 1RH