1. DEFINITIONS
1.1. The following defined terms shall have the meanings set out below:
Aggregate Data means data which has been collected from multiple subscribers and analysed and summarised by Digicon.
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 or on which the banks are generally closed in Toronto, Ontario, Canada.
Concurrent User means the number of Users who are able to access the Services at any one time as stipulated on the Order Form or as otherwise confirmed in writing by Digicon.
Content shall mean all human and machine readable data retained, maintained and displayed in the Services.
Contract means the Order Form and these Terms and Conditions, entered into between the Subscriber and Digicon for use of the Services for the Contract Term including any written side agreements, or changes made in accordance with clause 18, to the Contract which are agreed between the Subscriber and Digicon and confirmed in writing by Digicon.
Contract Start Date means the date the Order Form is signed by the Subscriber.
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 Information and on the free movement of such information which applies to either party’s Processing activities under this Contract. This may include PIPEDA and provincial privacy legislation, as well as any applicable laws or regulations amending or implementing any of the foregoing.
Digicon means Digicon Information Inc., a company incorporated under the laws of the province of Alberta whose registered office is at 3206 61 Street, Beaumont, Alberta, Canada.
Digicon ID means the identification account system provided by Digicon, through which a User creates the ID necessary in order to access and use the Services.
Educational Organisation means an organisation with the primary purpose of educating individuals through instruction by means of operating a training company, school, academy, college or university.
Feedback means any feedback concerning the Services, including but not limited to ideas, suggestions, requests for future functionality and reports of Flaws.
Flaw means any behaviour of the Services not actually or apparently intended by Digicon.
Force Majeure Event means any failure or delay in the Services or any part thereof occasioned by circumstances beyond the reasonable control of Digicon 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), supply chain disruption, governmental action, order or interference and labour disputes involving Digicon, the Subscriber and/or any third party.
Group means in relation to any corporate entity, that entity, any subsidiary or holding corporation from time to time of that entity, and any subsidiary from time to time of a holding corporation of that entity.
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.
Invoicing Company means a person, nominated by the Subscriber on the Order Form, to whom Digicon shall address invoices and from whom it may recover debts.
Legacy System means any Services, previously provided by Digicon which have since been retired.
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.
NBS Chorus means the software as a service known as “NBS Chorus” selected by the Subscriber on the Order Form.
Order Form means the document which details the items the Subscriber has committed to purchase from Digicon and forms part of the Contract together with these Terms and Conditions.
Personal Information means information of an identifiable individual transferred by the Subscriber or a User, or their permitted agents, to Digicon under the Contract, and any information accessed, developed, derived or otherwise created by Digicon in connection therewith.
PIPEDA means the Personal Information Protection and Electronic Documents Act (Canada) and any regulations thereunder.
Processing or Process means the collection, use, modification, retrieval, disclosure, storage, anonymization, deletion, and/or management of Personal Information.
Renewal Period shall have the meaning set out in clause 7.1.
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). Digicon Representatives and Subscriber Representatives shall be construed accordingly.
Service Credit shall mean 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 Digicon’s service level policies from time to time as available at www.thenbs.ca/legal.
Service Levels shall mean the service level targets for NBS Chorus set out in Digicon’s service level policies from time to time as available at www.thenbs.ca/legal and subject to the exclusions set out in such policies from time to time.
Services means NBS Chorus and any other services, products, or training, as provided by Digicon or jointly in association with Digicon partners from time to time. Digicon reserves the right to invoice separately for fees relating to Services.
Sharing Settings means controls accessible via NBS Chorus which enable the Subscriber or Users to control the sharing of project information.
Subscriber means the person who has entered into the Contract, for the use of the Services for their desired number of Users.
Subscriber Data any data produced as a result of the Subscriber’s use of the Services, excluding Aggregate Data.
Subscriber Default shall have the meaning set out in clause 14.3.
Subscription means the Subscriber’s access and use of the Services for the period commencing on the Subscription Start Date (or as otherwise confirmed in writing by Digicon) and continuing for the Subscription Term, followed by any Renewal Period.
Subscription Fee means the fee payable by the Subscriber, to Digicon, for the use of the Services.
Subscription Start Date means the date set out as such on the Order Form.
Supplier means the company or organisation which provides Supplier Data to Digicon.
Supplier Data shall mean such information, as may be amended from time to time, about the Supplier and its products which forms part of the Content.
Subscription Term means the period of time stated set out as such on 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 18. The current version of the Terms and Conditions is available at https://www.thenbs.ca/legal/specifier-terms-and-conditions.
Training means the training services to be provided by Digicon 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.
Update means any amendment to these Terms and Conditions as more particularly set out in clause 18.1.
User means any individual or entity 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 Digicon ID and password by accepting the Digicon 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 Digicon, signed by or on behalf of the Subscriber and either: i) counter-signed by or on behalf of Digicon where the Order Form indicates a requirement for such counter-signature; or, where counter-signature is not required, ii) delivered, automatically or otherwise, to Digicon.
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 the Subscriber Representatives acknowledge this Contract represents a business to business transaction only. Except as otherwise set out herein, use of products and services shall be for business purposes only.
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 Digicon 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. NBS CHORUS
3.1. Subject to and conditioned on the Subscriber’s payment of the Subscription Fee and compliance with all terms and conditions of the Contract, Digicon hereby grants the Subscriber the right to access NBS Chorus during the Subscription Term for use by its Users.
3.2. Subject to the terms and conditions contained in the Contract, Digicon hereby grants the Subscriber a non-exclusive, non-sublicensable, non-transferable, revocable licence to use any end user documentation relating to the Services and made available by Digicon during the Subscription Term solely in connection with its use of the Services.
3.3. Notwithstanding clause 18, Digicon may modify and/or replace elements of the Services from time to time, including by replacing Legacy Systems with equivalent or improved functionality, provided that such modifications and/or replacements will not, in Digicon’s sole but reasonable opinion, adversely affect the technical functionality offered to the Subscriber. Digicon 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.
3.4. Subject to compliance in full with these Terms and Conditions, the Subscriber and its Users may reproduce part or parts of the Content on a reasonable basis that is not commercially prejudicial to Digicon for the purpose of providing services to the Subscriber’s clients and potential clients.
3.5. In relation to the Users, the Subscriber undertakes that:
3.5.1. the maximum number of Concurrent Users that it authorises to access and use NBS Chorus, and any associated documentation shall not exceed the number specified on the Order Form or as otherwise agreed by Digicon in writing. Subject to the payment of any additional fees for the same, the Subscriber may increase the number of Concurrent Users who are entitled to access and use the Services at any time during the Subscription.
3.5.2. it will not allow or suffer any User log-in to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use NBS Chorus and/ or the associated documentation;
3.5.3. each User shall keep a secure password for use of NBS Chorus and that each User shall keep this password confidential;
3.5.4. it shall permit Digicon or its designated auditor to audit and/ or monitor NBS Chorus and Digicon ID in order to establish the identity of each User;
3.5.5. if any of the audits referred to in clause 3.5.4 reveal that any password has been provided to any individual who is not a User, then without prejudice to Digicon’s other rights and remedies, the Subscriber shall promptly disable such passwords and Digicon shall not issue any new passwords to any such individual; and
3.5.6. if any of the audits referred to in clause 3.5.4 reveal that the Subscriber has underpaid the Subscription Fee to Digicon, then without prejudice to Digicon’s other rights and remedies, the Subscriber shall pay to Digicon an amount equal to such underpayment within 10 days of the date of the relevant audit.
3.6. The Subscriber represents, warrants and covenants that it:
3.6.1. Is and shall be the owner of, or has and will have sufficient licence to use all material uploaded to NBS Chorus by or on behalf of the Subscriber, or submitted to Digicon for use by Digicon;
3.6.2. Is and shall be the owner of, or otherwise has and will have a licence to the Subscriber Data;
3.6.3. will not use NBS Chorus in breach of any licenses, authorisations or approvals granted to it by a third party or place Digicon in breach of such licenses, authorisations or approvals; and
3.6.4. has and will have the right and power to grant the licences contained in this Contract to Digicon, including to enable Digicon to use the Subscriber Data to provide the Services and otherwise for the purposes of this Contract.
3.7. Digicon shall, during the Subscription Term, provide NBS Chorus and make available any associated documentation to the Subscriber on and subject to the Contract.
3.8. Digicon shall use commercially reasonable efforts to make NBS Chorus available in accordance with the Service Levels and where Digicon 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:
3.8.1. a cause outside of Digicon’s control;
3.8.2. any improper use, misuse or unauthorised alteration of NBS Chorus by the Subscriber;
3.8.3. any use of NBS Chorus by the Subscriber in a manner inconsistent with any documentation or instructions provided by Digicon or the Contract;
3.8.4. the use by the Subscriber of any hardware, equipment or software not provided or approved by Digicon for use in connection with NBS Chorus; or
3.8.5. any matter falling within NBS Chorus’ Service Level policy exclusions accessible via http://www.thenbs.ca/legal.
3.9. 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 Digicon on the next invoice then due to be issued for the next Renewal Period and Digicon shall not in any circumstances be obliged to pay any money or make any refund to the Subscriber.
3.10. Digicon 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 Digicon shall be for Digicon to use reasonable commercial efforts to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by Digicon. Digicon shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party.
4. EDUCATIONAL ORGANISATIONS
4.1. Where the Services are provided to an Educational Organisation and its Users, use of the Services is strictly limited to educational purposes only. In such instances, the Services may not be used for, or in connection with, any commercial activity. The Education Organisation represents and warrants that its Users shall comply with the requirements of this clause 4.1.
5. SUPPORT
5.1. Digicon 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 the assistance and support in relation to the Services upon the request of the Subscriber as is set out in its support policy from time to time as available via www.thenbs.ca/legal from time to time.
5.2. Digicon 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 Digicon’s control including the Subscriber’s operating errors or shortcomings, or defects in any of the Subscriber’s hardware or software.
6. TRAINING SERVICES
6.1. Digicon shall provide the Training to the Subscriber in accordance with the description of the same set out on the Digicon Order Form or as otherwise agreed in writing by the parties.
6.2. Digicon shall use its reasonable efforts to provide Training on the dates, via the means, and at the times specified on the Digicon 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 Digicon does not warrant or guarantee that any delegates who participate in 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 the payment terms set out in the Order Form.
6.5. For any Training which is delivered online Digicon 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 delegates who are receiving Training have appropriate and adequate access to the internet and to such other correctly configured equipment and software to allow those delegates to receive the Training and that all such delegates 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 Digicon in order to deliver the Training; and
6.5.3. ensuring all relevant delegates are available to receive the Training on the dates and at the times specified on the Order Form or as otherwise agreed or advised in writing between the parties and ensuring that all training is completed by the relevant delegates 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.
7. TERM AND TERMINATION
7.1. The Subscription shall commence on the Contract Start Date and continue for the Subscription Term, and thereafter shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
7.1.1. either party notifies the other party of termination in writing, at least 90 days before the end of the Subscription Term or any Renewal Period, in which case the Contract shall terminate; or
7.1.2. otherwise terminated in accordance with the provisions of the Contract.
7.2. Without affecting any other right or remedy available, Digicon may terminate the Contract with immediate effect by giving written notice to the Subscriber 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 which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
7.3.2. the other party commences or institutes any application, proceeding, or other action under any Law relating to bankruptcy, insolvency, winding-up, reorganization, administration, plan of arrangement, relief or protection of debtors, compromise of debts, or similar Applicable Laws, seeking: (A) to have an order for relief entered with respect to it; (B) to adjudicate it as bankrupt or insolvent; (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, compromise, arrangement, stay of proceedings of creditors generally, or other relief with respect to it or its assets or debts; or (D) appointment of a receiver, interim receiver, receiver and manager, trustee, custodian, conservator, or other similar official for it or for all or any part of its assets; or
7.3.3. the other party ceases, or threatens to cease, to trade or carry on business.
7.4. Any termination of this Contract will be without prejudice to Digicon’s rights existing at the date of termination and the Subscriber shall not be entitled to any refund of the Subscription Fee, unless the Subscriber has terminated under clause 7.3.1, 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.
7.5. On termination of the Contract in whole or part for any reason:
7.5.1. the Subscription and all other licences granted to the 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:
7.5.2. subject to clause 12.4, 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;
7.5.3. 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;
7.5.4. the Subscriber shall not be entitled to any refund of the Subscription Fee, unless the Subscriber has terminated under clause 7.3.1; and
7.5.5. Digicon shall not be obliged to provide any Training which has not been completed as at the date of termination.
7.6. In the event of the termination of the Contract in whole or part, Digicon shall, where NBS Chorus has been terminated, be entitled to disable the Subscriber’s access to NBS Chorus. Subject to clause 12.3, the Subscriber retains the right to continue to use Subscriber Data that has been produced during the Subscription after the termination of the Subscription. The Subscriber shall ensure that, upon termination of the Subscription, all Users fully comply with the requirements set out in clauses 7.4. and 7.6.
8. FEES AND INVOICES
8.1. Digicon will invoice the Subscriber, or the Invoicing Company, as appropriate, for the Subscription Fee following signature of the Order Form.
8.2. 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. Digicon 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.
8.3. 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 Digicon 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.
8.4. Without prejudice to any other rights or remedies of Digicon if any amount due to Digicon is outstanding for more than seven days beyond the permitted payment terms, Digicon may, by written notice, deem the Contract be terminated by default, resulting in cancellation charges of 100% of the remaining value of the Subscription Fee for the current Subscription Term or Renewal Period as applicable. Digicon reserves the right to charge interest on the past due amount at the rate of one and a half percent per month (19.56% per annum) or, if lower, the highest rate permitted under Applicable Law, and late payment compensation 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 Digicon in enforcing this Contract and recovering monies owed to Digicon by the Subscriber.
8.5. Digicon shall invoice the Subscriber for the Subscription Fee upon receipt, by Digicon, of the signed Order Form from the Subscriber, in accordance with the invoicing frequency set out in the Order Form. The Subscriber shall only be granted access to the Services once the Subscription Fee is paid in full.
8.6. The Subscription Fee and other amounts payable by the Subscriber under the Contract are exclusive of taxes and similar assessments. The Subscriber is responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, state, or local governmental entity on any amounts payable by the Subscriber hereunder, other than any taxes imposed on Digicon’s income.
8.7. The Subscriber acknowledges and agrees that the Subscription Fee payable by the Subscriber in any Renewal Period shall be subject to an increase equal to the greater of (i) the then current subscription fee rate charged to other customers for similar services and (ii) an amount that is three percent above the Subscription Fee that was payable by the Subscriber in the initial Subscription Term or the immediately preceding Renewal Period, as applicable.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. All of the Intellectual Property Rights in the Services, the Content and in any materials or software created or used in the provision of the Services and training are, and shall remain at all times, the sole and exclusive property of Digicon or its licensors. All such rights are reserved. The Subscriber shall acquire no rights in the Services, the Content or the materials or software created or used in the provision of the Services and Training except as expressly provided for in these Terms and Conditions.
9.2. Without prejudice to the generality of clause 9.1 the Digicon logos and all other Digicon trademarks, product names, and trade names logos appearing in, on or in connection with the Services or training are owned by Digicon or its licensors. The Subscriber may not use or display any such trademark, product name, trade name, or logo without Digicon’s or the relevant owner’s prior written consent.
9.3. The Subscriber hereby grants Digicon a non-exclusive, transferrable, revocable, royalty free licence (including a right to sub-licence) to use, copy, modify, reproduce, publish, adapt, translate, distribute, communicate and host the Subscriber Data for the purposes of Digicon exercising its rights and performing its obligations under the Contract and to enable the Subscriber to obtain the benefit of the Services during the Subscription Term and any Renewal Period.
9.4. Subject to clauses 11.1 and 11.2, the Subscriber also grants to Digicon a non-exclusive, non-transferrable, revocable licence to copy Subscriber Data and incorporate Subscriber Data into other Digicon products and services and those of members of its Group.
9.5. The Subscriber indemnifies Digicon and its officers, employees, contractors and agents from and against all loss and damages to the extent arising out of or in connection with any claims that the Subscriber Data, the upload, processing, storage or use of the Subscriber Data in NBS Chorus as contemplated by this Contract, or the Subscriber's use of the Services otherwise than in accordance with this Contract, infringes the Intellectual Property Rights of a third party. For the avoidance of doubt, the Subscriber is not required to indemnify Digicon to the extent arising out of or in connection with any claims that NBS Chorus itself (absent the Subscriber Data), when used by the Subscriber in accordance with this Contract, infringes the Intellectual Property Rights of a third party.
9.6. Digicon 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.
10. RESTRICTIONS
10.1. The Subscriber may not reproduce in any form, any part of any Services, the Content or any materials or software used or created in the provision of Training except as expressly provided for in these Terms and Conditions.
10.2. Except with Digicon’s express, prior written consent (there being no presumption that Digicon shall give its consent), the Subscriber may not at any time during the Contract, or at any time thereafter:
10.2.1. use or permit others to use the Services or the Content for the purpose of developing and/or maintaining for himself or for others, an alternative service provision which either directly or indirectly competes with the Services or serves the same or a similar purpose as the Services including by providing a dedicated specification writing service to architectural, design or engineering practices, or manufacturing companies;
10.2.2. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Content, the Services or any materials or software used or created in the provision of the Services or Training (as applicable) in any form or media or by any means;
10.2.3. attempt to decompile, reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the Services or any software used or created in the provision of the Services or Training except as expressly permitted by Applicable Law; or
10.2.4. subject to clause 3, licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the Services or any materials or software used or created in the provision of the Services or Training available to any third party except the Users provided that third parties who are not employees of the Subscriber shall only be granted access to and use of NBS Chorus as Users to the extent and for such period as is absolutely necessary for them to collaborate with the Subscriber on a project being managed by the Subscriber using NBS Chorus.
10.3. The Subscriber shall use all reasonable efforts to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Digicon in writing.
10.4. The Subscriber shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services, any software used as part of the Services or Training that:
10.4.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
10.4.2. facilitates illegal activity;
10.4.3. depicts sexually explicit images;
10.4.4. promotes unlawful violence;
10.4.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
10.4.6. is otherwise illegal or causes damage or injury to any person or property;
and Digicon reserves the right, without liability or prejudice to its other rights to the Subscriber, to disable the Subscriber’s or individual Users’ access to any material that breaches the provisions of this clause 10.4.
10.5. 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.
11. CONFIDENTIALITY AND DATA PROTECTION
11.1. Any information imparted by either party relating to the Content or Services and use thereof, shall be kept confidential by the parties, and shall be used solely in connection with the normal use of the Services strictly in accordance with these Terms and Conditions and the Sharing Settings.
11.2. Subject to clauses 11.4, 11.6 and 11.7, Digicon may incorporate, make use of, record, and disclose to members of its Group, Subscriber Data and information relating to the usage of the Supplier Data and the usage performance and functionality of the Services and the Content in accordance with the Sharing Settings.
11.3. Subject to clauses 11.4, 11.6 and 11.7 the information specified in clause 11.2 may, in Digicon’s absolute discretion be used, or stored internally by Digicon or shared with and disclosed to third parties for such purposes as Digicon deems appropriate from time to time. Without limiting the foregoing, the Subscriber acknowledges and agrees that Subscriber Data may be disclosed to other members of the Subscriber’s Group, including such party’s subsidiaries and affiliates.
11.4. The Subscriber shall adjust the Sharing Settings within NBS Chorus to indicate where certain information cannot be shared or disclosed by Digicon in accordance with this clause 11 provided that,
11.4.1. Digicon shall have no liability where the Subscriber fails to adjust such Sharing Settings; and
11.4.2. Digicon shall reserve the right to add new categories of data that may be controlled by the Sharing Settings, from time to time.
11.5. The Services allow users to share and exchange project information with other users. The Subscriber should carefully consider how it shares any Subscriber Data with other users and adjust its Sharing Settlings accordingly. Digicon does not review and cannot control what information is uploaded or exchanged between users of the Services. Digicon is not responsible and fully disclaims responsibility for any and all information that is exchanged between users of the Services in accordance with a Subscriber’s Sharing Settings.
11.6. Digicon shall, in providing the Services, comply with its privacy policy relating to the privacy and security of any Personal Information comprised in the Subscriber Data available, at www.thenbs.ca/legal 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 Digicon in its sole discretion.
11.7. 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.
11.8. If Digicon Processes Personal Information on behalf of the Subscriber pursuant to this Contract, then Digicon and the Subscriber will comply with the terms of the Digicon Data Processing Agreement, currently available at https://www.thenbs.com/legal/nbs-data-processing-agreement (DPA), the terms of which are incorporated into this Contract.
11.9. Subscriber Data, including Personal Information, may be stored on cloud servers located in Canada, the United Kingdom or the United States. In instances where the Subscriber Data is located on servers outside Canada, the Subscriber Data and access thereto shall be governed by the laws of the jurisdiction in which such servers are located, which may be different than those in Canada, including additional access rights of government institutions to the Subscriber Data. Given the communication channels inherent in data flow, Subscriber Data may flow through communication channels and our communication partners’ servers in connection with the provision of the Services. The Subscriber understands that, in performing the required technical steps to provide the Services to Digicon’s customers and users, Digicon may, (i) transmit or distribute Subscriber Data over various public networks and in various media; and (ii) make such changes to Subscriber Data as are necessary to conform and adapt Subscriber Data to the technical requirements of connecting networks, devices, services or media. The Subscriber agrees that the Contract shall permit Digicon to take these actions.
11.10. Where the Subscriber uploads to NBS Chorus and/or shares the Personal Information of any third parties with Digicon, the Subscriber confirms that they have obtained consent from such third parties to include such Personal Information in NBS Chorus and to share with Digicon.
11.11. Digicon will disclose to the Subscriber the Digicon ID data of Users with access to the Subscriber’s account to the extent necessary for allowing the Subscriber to:
11.11.1. control which Users may access its account and any Subscriber Data;
11.11.2. track edits made to the Subscriber Data; and
11.11.3. make use of other account management functionality released by Digicon from time to time.
11.12. The Subscriber will inform Digicon immediately upon becoming aware of any breach of security related to its account or to any User with access to its account.
12. SUBSCRIBER DATA
12.1. The Subscriber and its licensors shall retain ownership of the Intellectual Property Rights in the Subscriber Data and the Subscriber is solely responsible for ensuring that the Subscriber Data is accurate and complete.
12.2. Digicon shall not, in any circumstance, be liable for the legality, reliability, integrity, quality or accuracy of the Subscriber Data or any data or Content (including any Supplier Data) which is supplied by a third party (including a Supplier) which is provided to the Subscriber through use of the Services.
12.3. Subscriber Data will be stored securely by Digicon up to a limit of 10GB (or as otherwise agreed by Digicon in writing) free of additional charge. Digicon reserves the right to review this data storage limit from time to time, and to charge Subscribers in the event that a Subscriber exceeds the data storage limit for its licensed number of Concurrent Users.
12.4. Where the Subscription is terminated in accordance with these Terms and Conditions the Subscriber’s access to all of the Subscriber Data will be lost on the termination date. It is the Subscriber’s responsibility to export and save such Subscriber Data to its own storage media prior to the date of termination. Except as otherwise required by Applicable Law, Digicon shall retain the Subscriber Data relating to the Services for two years from the date of termination and may, on request and subject to payment of its fees for the same, provide an export of such Subscriber Data to the Subscriber during such two year period.
12.5. Digicon accepts no responsibility for any liability arising from the use of the Subscriber Data by third parties in the course of the Subscriber’s use of the Content, Services or Training.
13. WARRANTIES, REMEDIES AND LIMITATION OF LIABILITY
13.1. Digicon warrants that the Services, including Training will be provided with reasonable skill and care.
13.2. Digicon warrants that NBS Chorus will provide the functionality and features substantially in accordance with the accompanying documentation supplied by Digicon, provided that each is properly used in conjunction with the equipment and operating systems for which they were designed. Digicon warrants that any documentation supplied by Digicon correctly describes NBS Chorus in all material respects. If Digicon is notified of any significant error during the period of 90 days after the Subscription 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 Digicon incurring any further liability and the provisions of clauses 7.4 and 7.6 shall apply.
13.3. THE WARRANTIES SET OUT IN CLAUSES 13.1 AND 13.2 ARE EXCLUSIVE OF AND IN LIEU OF ALL OTHER REPRESENTATIONS, CONDITIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THOSE RELATING TO MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR PURPOSE, ALL OF WHICH ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
13.4. DIGICON DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR TRAINING WILL MEET THE SUBSCRIBER’S REQUIREMENTS OR THAT THE OPERATION OF OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS CAN BE CORRECTED. THE SUBSCRIBER USES THE SERVICES AT THE SUBSCRIBER’S OWN RISK AND, SUBJECT TO CLAUSE 13.6, IN NO EVENT WILL DIGICON BE LIABLE TO THE SUBSCRIBER FOR ANY LOSS OR DAMAGE ARISING FROM THE USE OF OR THE INABILITY TO USE THE SERVICES OR TRAINING OR FROM ERRORS OR WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE, EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS.
13.5. Digicon 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 Digicon has been able to arrange, and the Subscriber is responsible for making its own arrangements for the insurance of any excess loss.
13.6. Nothing in the Contract limits any liability which cannot legally be limited.
13.7. SUBJECT TO CLAUSE 13.6, DIGICON’S TOTAL LIABILITY TO THE SUBSCRIBER SHALL NOT EXCEED THE AGGREGATE AMOUNT OF THE SUBSCRIPTION FEES PAID TO DIGICON IN THE IMMEDIATELY PRECEDING PERIOD OF TWELVE MONTHS. DIGICON’S TOTAL LIABILITY INCLUDES LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THE CONTRACT.
13.8. Subject to clause 13.6 the following types of loss are wholly excluded:
13.8.1. loss of profits;
13.8.2. loss of sales or business;
13.8.3. loss of agreements or contracts;
13.8.4. loss of anticipated savings;
13.8.5. loss of use or corruption of software, data or information;
13.8.6. loss of or damage to goodwill; and
13.8.7. indirect or consequential loss.
13.9. For the avoidance of doubt, Digicon shall not be liable for any loss resulting from, or in any way arising out of or in connection with, any third party’s:
13.9.1. inappropriate use of the Content or any of the Services;
13.9.2. failure to exercise reasonable levels of due care and attention when using the Content or any of the Services; or
13.9.3. failure to exercise reasonable levels of professional skill and competence when using the Content or any of the Services.
13.10. The Services or Training may provide links to third party websites. Digicon is not responsible or liable for:
13.10.1. the availability or accuracy of such websites; or
13.10.2. the content, products, or services on or available from such websites or the data protection or privacy practices of such websites; and
links to such websites do not imply any endorsement by Digicon 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.
13.11. Subject to clause 3.3, 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 Digicon’s products or services. All Services shall be subject to both scheduled and emergency maintenance without notice to the Subscriber.
13.12. This clause 13 shall survive termination of the Contract.
14. SUBSCRIBER’S OBLIGATIONS AND WARRANTIES
14.1. The Subscriber shall:
14.1.1. co-operate with Digicon in all matters relating to the Services;
14.1.2. obtain and maintain all necessary licences and consents to comply with all relevant legislation in relation to the Subscriber Data;
14.1.3. 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 Digicon, which shall be in its sole discretion, and Digicon hereby consents to any novation pursuant to clause 15.8;
14.1.4. not at any time during the Contract, or at any time thereafter, hold itself out to be the author, owner or supplier of any Digicon products or services.
14.2. The Subscriber shall at all times indemnify, defend and hold harmless Digicon and its publishers, agents and distributors against any and all Losses associated with the use of the Subscriber Data by any person, anywhere in the world.
14.3. The Subscriber represents and warrants that it is authorised to enter into this Contract on behalf of itself and, if applicable, the Invoicing Company.
14.4. If Digicon’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):
14.4.1. Digicon 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 Digicon’s performance of any of its obligations;
14.4.2. Digicon shall not be liable for any Losses sustained or incurred by the Subscriber arising directly or indirectly from Digicon’s failure or delay to perform any of its obligations as set out in this clause 14; and
14.4.3. the Subscriber shall reimburse Digicon on written demand for any Losses sustained or incurred by Digicon arising directly or indirectly from the Subscriber Default.
15. ENTIRE AGREEMENT
15.1. These Terms and Conditions (together with the relevant Order Form) constitute the entire agreement between the parties relating to the Contract and neither party has relied on any representation or warranty made by the other party unless such representation or warranty is expressly included in these Terms and Conditions or on the Order Form. These Terms and Conditions, as updated or amended by Digicon 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 or unenforceable for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
15.4. Clause headings are inserted into these Terms and Conditions for convenience only, and they shall not be taken into account in the interpretation of these Terms and Conditions.
15.5. Nothing in these Terms and Conditions shall create, imply or evidence any partnership or joint venture between the Subscriber and Digicon or the relationship between them of principal and agent or employers and employee.
15.6. Except as expressly provided in these Terms and Conditions, nothing shall confer or purport to confer on a third party any benefit or any right to enforce any provision of the Contract.
15.7. The Contract is personal to the Subscriber and the Subscriber shall not assign, novate, 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 Digicon.
15.8. Digicon 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. Digicon 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.
15.9. For the avoidance of doubt, the requirement for Digicon to provide termination in writing shall not preclude a novation by conduct where Digicon exercises its rights under clause 15.8.
16. FORCE MAJEURE
16.1. Digicon shall not be liable for any Force Majeure Event.
16.2. 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.
17. NOTICES
17.1. 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 certified or registered mail at its registered and records office address by email to the email address for legal notices (as stated on the Order Form) or in the case of notices given to Digicon, to the relevant Account Manager.
17.2. The deemed time of receipt of a notice will be:
17.2.1. if sent by email, at the time of transmission or, if this falls outside of a Business Day, on the next Business Day;
17.2.2. if sent by certified or registered mail, on signature of a delivery receipt by a representative of the other party.
17.3. 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.
17.4. 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.
18. UPDATES TO TERMS AND CONDITIONS
18.1. Digicon 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 Digicon may notify to the Subscriber.
18.2. Digicon 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 Digicon of any changes by email to the relevant Account Manager.
18.3. Any Update necessary for compliance with Applicable Law will become effective immediately notice to the Subscriber of such Update.
18.4. Any other Update will become effective 30 days after Digicon provides notice to the Subscriber of such Update.
18.5. 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 Digicon 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 earlier of: i) the end of the Subscription Term or Renewal Period; or ii) 12 months after the Subscriber receives notice of the Update.
18.6. 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 Digicon; or ii) such agreement states by reference to this clause 18 that it is intended to take priority over such Update.
18.7. No amendment to the Contract, other than Updates, shall be effective unless it is in writing and signed by both parties.
19. GOVERNING LAW AND JURISDICTION
19.1. These Terms and Conditions and all related documents including all exhibits attached hereto, and all matters arising out of or relating to these Terms and Conditions, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to these Terms and Conditions, including all exhibits, schedules, attachments, and appendices attached to these Terms and Conditions, the Services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding.
19.2. Notwithstanding that the whole or any part of any provision of these Terms and Conditions may prove to be illegal or unenforceable the remaining provisions of these Terms and Conditions and of the provision or provisions in question shall remain in full force and effect.
Last Updated: January 2025