1. Formation and Interpretation of Contract
1.1. A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2. Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms
1.3. The following defined terms shall have the meanings set out below:
Amendment means any update, amendment, modification or correction to any Customer Record.
Annual Subscription Fee means the Subscription Fee payable by the Customer to NBS in accordance with clause 4.8.
Applicable Law means any law, rule, regulation, regulatory guidance or opinion, code of conduct, licence, permit, treaty and any order or decree of any court or arbitrator.
Background Intellectual Property means all Intellectual Property Rights in the processes and/or procedures followed by, and software used by, NBS and in the techniques used by NBS in the creation and/or development of any of the Services or any other NBS services and products and those arising out of, or in any way connected to, the provision of the Services (which shall include, for the avoidance of doubt, all Intellectual Property Rights in the Property Schedule) and all other Intellectual Property Rights that arise, or are obtained or developed by NBS during the Term in connection with the Contract, but excluding the Foreground Intellectual Property.
Business Day means 9:00am to 5:00pm Monday to Friday excluding any day that is a public holiday in England.
Certification means NBS’s warranty, and all marks associated with such warranty, that a Customer Record conforms to the applicable NBS Criteria.
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).
Contract Start Date means the contract start date set out on the Order Form or, if none, the date on which the Order Form is executed in accordance with clause 2.1.
Contract means these Terms and Conditions together with the Order Form.
Customer means you, the business purchasing the Services.
Customer Content means any and all Customer Records (and Amendments to such Records) and any other data, information or materials provided or uploaded by the Customer or commissioned by the Customer via the Digital Object Authoring Service.
Customer Record means the record relating to a particular Customer Product hosted in NBS Source.
Customer Product means the real-world physical building component (e.g. wall, window, door) or material (e.g. concrete block, glazing pane, fixing) that is used in the construction process and to which the Customer Content may relate.
Data Protection Legislation means the UK Data Protection Act 2018 and any other applicable legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including the privacy of electronic communications).
Digital Object means a digital file in a format compatible with the Services which contains information about the Customer Product that is used in the construction process. Each Digital Object file may include content defining any of its 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 Customer pursuant to clauses 4.2 and 4.3 and involves the creation and/or authoring of Digital Objects (which may include Amendments to Digital Objects).
Digital Object Quote means NBS’s offered price for the provision of the Digital Object Authoring Service in respect of particular Customer Products.
Disclosing Party means a party disclosing Confidential Information under this Contract.
Feedback means any feedback concerning the Services, including but not limited to ideas, suggestions requests for future functionality and reports of Flaws.
Flaw means any behaviour of the services not actually or apparently intended by NBS.
Force Majeure Event means any failure or delay in the Services or any part thereof occasioned by circumstances beyond NBS’s reasonable control including (but not limited to) acts of God, fire, flood, explosion, accident, inability to supply the information, software materials or support, breakdown of equipment, failure of telecoms, internet or utilities (regardless of cause), governmental action, order or interference and labour disputes involving NBS, the Customer and/or any third party.
Foreground Intellectual Property means all Intellectual Property Rights (excluding Background Intellectual Property) in the visual identity and readable content of a Customer Record and which are unique to that Customer Record made by or on behalf of the Customer, and any pre-existing Customer Content and Literature belonging to the Customer.
Initial Term means the period commencing on the Contract Start Date and continuing for the period set out in the Order Form.
Intellectual Property Rights means the patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software including rights in the source code of that software, database rights, rights in confidential information (including know-how and trade secrets) and any other Intellectual Property Rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
Invoicing Company means a company nominated by the Customer to whom NBS shall address invoices and from whom it may recover debts.
Legacy System means any of NBS’s previous products and services for the hosting of Customer Content, including: RIBA Product Selector, NBS National BIM Library, and NBS Plus.
Logo(s) means the logos, branding, trademarks or other marks belonging to NBS or its licensors and which NBS may from time to time permit the Customer to use in accordance with this Contract.
Losses means all liabilities, costs, expenses, damages and losses including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses.
Literature means the Customer’s most current technical or trade literature and specifications and other material including logos, certifications and promotional materials, which is supplied to NBS by the Customer.
NBS means NBS Enterprises Limited, a company incorporated and registered in England and Wales (company number 978271) whose registered office is at The Old Post Office, St Nicholas Street, Newcastle upon Tyne, NE1 1RH.
NBS Content shall mean all human and machine readable data retained, maintained or displayed in the Services other than Customer Content.
NBS Criteria means the criteria to which Customer Content must conform in order to be: hosted on the Services and/or to qualify for Certification.
NBS Source means a service from NBS whereby Customer Records are provided and made available to the public and to other users of NBS products and services.
Notice Period means the period of 90 days immediately prior to the end of the then-current Initial Term or Renewal Term.
Order Form means the signed document confirming the Customer’s subscription to the Services.
Promoted Content Service means a service whereby Customer Content is featured prominently in NBS Source.
Property Schedule means the schedule of information prepared by NBS, setting out the key properties of a Digital Object authored through the Digital Object Authoring Service.
Receiving Party means a party receiving Confidential Information under this Contract.
Renewal Period means a period of equal length to the Initial Term, beginning immediately after the Initial Term or the applicable Renewal Period.
Representatives means, in relation to a party, its employees, officers, representatives and advisers and which includes third parties or contractors who are instructed by that party to perform its obligations under this Contract on its behalf (if any). NBS Representatives and Customer Representatives shall be construed accordingly.
Quality Assurance means the review of Customer Content by NBS, including review for conformity to NBS Criteria, prior to and during the hosting of such Customer Content on NBS Source.
Services means all and each of the services subscribed to by the Customer and to be delivered by NBS in accordance with these Terms and Conditions, including those set out in the Order Form and such other services as may be agreed between the Parties in writing from time to time.
Structured Specification Information means building specification information relating to a Product in a format and structure that complies with the applicable NBS Criteria.
Subscription Fee means the total amount payable by the Customer for all Services.
Term means the period commencing on the Contract Start Date and continuing for the Initial Term and any Renewal Periods.
Terms and Conditions mean these Terms and Conditions.
Update any update to these Terms and Conditions as more particularly set out in clause 15.1.
2. GENERAL
2.1. The Contract shall come be formed only when a fully completed Order Form is sent to the Customer by a representative of NBS, signed by or on behalf of the Customer and either: i) counter-signed by or on behalf of NBS where the Order Form indicates a requirement for such counter-signature; or, where counter-signature is not required, ii) delivered, automatically or otherwise, to NBS within its period of validity.
2.2. Where the Customer purchases NBS Source on the Order Form, this Contract will supersede all previous agreements, or parts of agreements, between the parties for the provision of Legacy Systems or NBS Source.
2.3. To the extent of any conflict between these Terms and Conditions and the Order Form, the Order Form will take priority.
2.4. The Customer and Customer Representatives acknowledge this Contract represents a business to business transaction only. Use of products and services shall be for business purposes only and consumer legal protections shall not apply to this Contract.
2.5. The Services and the information they contain are not intended and accordingly shall not be relied upon either as a substitute for professional advice or judgement or to provide legal or other advice with respect to any particular circumstance.
2.6. These Terms and Conditions, as updated or amended by NBS from time to time, apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7. These Terms and Conditions and any other expressly incorporated document constitute the entire agreement between the parties hereto relating to the subject matter hereof and neither party has relied on any representation made by the other party unless such representation is expressly included herein.
2.8. In entering into this Contract neither party has relied on any pre-contractual statement. The only remedy available to either party for breach of this Contract shall be for breach of Contract and it shall have no right of action against any other party in respect of any pre-contractual statement
2.9. If any provision of these Terms and Conditions or part thereof shall be void for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
2.10. Clause headings are inserted into these Terms and Conditions for convenience only, and they shall not be taken into account in the interpretation of these Terms and Conditions.
2.11. Nothing in these Terms and Conditions shall create, imply or evidence any partnership or joint venture between the Customer and NBS or the relationship between them of principal and agent or employer and employee.
2.12. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract and no person other than the Customer or NBS shall have any rights under it.
2.13. The Terms of this Contract or any of them may be varied, amended, or modified or this Contract may be suspended, cancelled or terminated by agreement in writing between the parties or this Contract may be rescinded (in each case), without the consent of any third party.
3. CUSTOMER CONTENT
3.1. Subject to any explicit agreement to the contrary between the parties, where the Services include Quality Assurance, the Digital Object Authoring Service and/or the Content Promotion Service, the Customer shall supply to NBS all Literature necessary to enable NBS to perform such Services within 7 Business Days of the Contract Start Date and/or written confirmation, or acceptance, by NBS to the Customer of the Customer’s order pursuant to clauses 4.3 and/or 4.4.
3.2. NBS will make reasonable efforts to provide Quality Assurance and/or the Digital Object Authoring Service, including any Amendments, within the timeframes agreed between the parties, if any, and in any event within its standard timeframes. NBS will not be liable for any delay in the Quality Assurance or Digital Object Authoring Services where the Customer breaches clause 3.1.
3.3. The Customer warrants that all Literature and/or Customer Content:
3.3.1. is accurate, complete and up-to-date;
3.3.2. does not and will not infringe any Applicable Law, including but not limited to any law related to advertising or marketing; 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 Customer will inspect all Customer Content prior to its publication via the Services, and at regular intervals thereafter, in order to ensure compliance with this clause. Where applicable, the Customer will use the online tools provided by NBS to make Amendments.
3.4. Where the Customer is unable to make Amendments pursuant to clause 3.3, or where the Customer has purchased the Digital Object Authoring Service, the Customer shall request that NBS make Amendments by notifying NBS and providing details of:
3.4.1. any breach or prospective breach of the Customer’s warranties under clause 3.3 and the likely consequences of such breach; and
3.4.2. any information that NBS may reasonably require in order to make Amendments to the applicable Customer Content.
3.5. NBS shall have no obligation to make more than:
3.5.1. two Amendments to Digital Objects; and
3.5.2. two Amendments to Structured Specification Data;
per Customer Record per year, provided that this clause shall not apply where the Customer shows that an Amendment is required in order to comply with Applicable Law.
3.6. The parties may agree to suspend or cease the display of the applicable Customer Record:
3.6.1. pending Amendments by the Customer or NBS; or
3.6.2. where such Amendments are not possible.
3.7. The Customer will not make, and will not request that NBS make, any Amendments that would:
3.7.1. affect the geometry of a Digital Object; and/or
3.7.2. in NBS’s sole but reasonable opinion, result in a Customer Record relating to a different Customer Product;
provided that this clause shall not apply where the Customer shows that an Amendment is required in order to comply with Applicable Law.
3.8. Where included in the Services, NBS shall provide Quality Assurance for conformity to the applicable NBS Criteria and report any non-conformity to the Customer. Where a Customer Record fails to meet the NBS Criteria three or more times, NBS may refuse to perform further Quality Assurance of the applicable Customer Record and require the Customer to:
3.8.1. pay additional charges for further Quality Assurance of; and/or
3.8.2. purchase the Digital Object Authoring Service for;
the applicable Customer Content.
3.9. Where a Customer Record and any Amendment to such Customer Record, approved by NBS in accordance with clause 3.8, conforms to the applicable NBS Criteria, the Customer may use the applicable Logos and/or other marks associated with Certification during the Term.
3.10. Customer Content may be hosted in perpetuity, including after termination of the Contract, provided that NBS will indicate on the applicable Customer Record:
3.10.1. where the Customer has notified NBS that the applicable Customer Product is no longer available; and
3.10.2. where the parties have terminated the Services with respect to the applicable Customer Record.
4. THE SERVICES
4.1. Services are provided for the Term. The Services will commence on the Contract Start Date.
4.2. The Customer may request the Digital Object Authoring Service at any time by providing NBS with:
4.2.1. sufficient information for NBS to compile a complete Property Schedule for each applicable Customer Product; and
4.2.2. any other information reasonably requested by NBS;
and NBS will provide a Digital Object Quote based upon such information.
4.3. The Customer may accept a Digital Object Quote by email from any Representative of the Customer and NBS will issue a corresponding invoice prior to commencement of work.
4.4. The Customer may by email offer to purchase:
4.4.1. the Promoted Content Service at any time during the Term; and/or
4.4.2. an upgraded annual subscription to the Services at any time prior to the Notice Period;
at NBS’s then-prevailing prices. NBS may by email, and at its sole discretion, accept or reject such offer and will issue a corresponding invoice if applicable.
4.5. NBS agrees to provide the Services in accordance with these Terms and Conditions and the relevant Order Form and/or, the relevant invoice.
4.6. NBS will provide the Services using reasonable care and skill, and in accordance with Applicable Law.
4.7. The Customer shall in relation to all Services:
4.7.1. commit to the Contract and to the Term, and shall pay to NBS the Subscription Fee as specified in the relevant invoice;
4.7.2. co-operate with NBS in all matters relating to the Service; and
4.7.3. obtain and maintain all necessary licences and consents to comply with all relevant legislation.
4.8. Notwithstanding clause 15.1, NBS may modify and/or replace elements of the Services from time to time, including by replacing Legacy Systems with equivalent functionality in NBS Source, provided that such modifications and/or replacements will not, in NBS’s sole but reasonable opinion, adversely affect the technical functionality of the Services. NBS will notify the Customer where such modifications and/or replacements are likely to have a material effect on the Customer’s experience of the Services.
4.9. Where the Services include functionality that is not yet available in NBS Source, NBS may supply Legacy Systems which in NBS’s sole, but reasonable opinion provide equivalent functionality.
5. PAYMENT
5.1. NBS will invoice the Customer for the first Annual Subscription Fee following signature of the Order Form, and will invoice any subsequent Annual Subscription Fees on or around 30 days prior to the commencement of the applicable Renewal Period.
5.2. All invoices must be paid within 30 days of issue and/or notification received from a third party lender, within 30 days of invoice issue, that a credit agreement is effective between the Customer and such third party for the financing of the total invoice amount. NBS shall be under no obligation to perform any of its obligations under the Contract unless and until the Subscription Fee is paid in full, and may suspend services where any sum is outstanding pursuant to this Contract.
5.3. Where the Customer nominates an Invoicing Company, the Customer and the Invoicing Company will be jointly and severally liable for the payment of the Subscription Fee.
5.4. NBS reserves the right to charge interest and late payment compensation in accordance with the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 or such other similar legislation as may be enacted from time to time on any such overdue sums. The Customer shall pay on demand all NBS’s reasonable costs and expenses incurred in enforcing this contract and recovering overdue monies and interest from the Customer, and NBS may recover such costs and expenses from any other sums received from the Customer.
6. LIMITATION OF LIABILITY
6.1. NBS does not warrant that the Services will meet the Customer’s requirements or that the hosting or performance of any of the Services will be uninterrupted or error free. In no event will NBS be liable to the Customer for any loss or damage of any kind including lost profits, lost revenue, loss of anticipated saving, loss or corruption of data, down time or any special, consequential or indirect loss arising from errors or deficiencies in the Services whether caused by breach of contract, negligence or otherwise, except as expressly provided in these Terms and Conditions.
6.2. NBS has obtained insurance cover in respect of its own legal liability for individual claims. The limits and exclusions in these Terms and Conditions reflect the insurance cover NBS has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
6.3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for: death or personal injury caused by negligence; fraud or fraudulent misrepresentation.
6.4. Subject to clause 6.3, NBS’s total liability to the Customer shall not exceed the aggregate amount of the Subscription Fee actually paid by the Customer to NBS in the immediately preceding period of twelve months. NBS’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
6.5. Subject to clause 6.3 the following types of loss are wholly excluded:
6.5.1. loss of profits;
6.5.2. loss of sales or business;
6.5.3. loss of agreements or contracts;
6.5.4. loss of anticipated savings;
6.5.5. loss of use or corruption of software, data or information;
6.5.6. loss of or damage to goodwill; and
6.5.7. indirect or consequential loss.
6.6. This clause 6 shall survive termination of the Contract.
6.7. NBS shall not be responsible for loss occasioned to any person acting or refraining from action as a result of using the Services or any NBS website. The Services, NBS websites and all NBS software products and content are offered as is and without any warranties as to the results obtained from their use.
6.8. For the avoidance of doubt, NBS shall not be liable for any loss resulting from, or in any way arising out of or in connection with, any third party’s:
6.8.1. inappropriate use of the NBS Content or any of the Services;
6.8.2. failure to exercise reasonable levels of due care and attention when using the NBS Content or any of the Services; or
6.8.3. failure to exercise reasonable levels of professional skill and competence when using the NBS Content or any of the Services.
6.9. Nothing in this Contract shall be construed as a guarantee of availability or uptime for any aspect of the Services nor of any other of NBSs products or services. All NBS online products and services, including the hosting services set out herein, shall be subject to both scheduled and emergency maintenance without notice to the Customer.
7. FORCE MAJEURE
7.1. NBS shall not be liable for any Force Majeure Event.
7.2. Where a Force Majeure Event continues for more than 2 months, either party may terminate this Contract or part thereof on 14 days’ notice to the other party. For certainty, the Customer will not be entitled to any repayment of Subscription Fees as a result of a Force Majeure event.
8. RESTRICTIONS
8.1. The Customer may not reproduce in any form any part of the Services, the NBS Content or any materials or software used or created in the provision of the Services except as expressly provided for in these Terms and Conditions.
8.2. Except with NBS’s express, prior written consent (there being no presumption that NBS shall give its consent) or as otherwise specified in these Terms and Conditions or as is necessary for the Customer to make full use of the Services, the Customer may not at any time during the Contract, or at any time thereafter:
8.2.1. use or permit others to use the Services or the NBS Content for the purpose of developing and/or maintaining for himself or for others, an alternative service provision which either directly or indirectly competes with the Services or in some other way serves the same or a similar purpose as the Services;
8.2.2. attempt to copy, modify, duplicate, creative derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the NBS Content, the Services or any materials or software used or created in the provision of the Services in any form or media or by any means; or
8.2.3. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the NBS Content, the Services or any software used or created in the provision of the Services except as permitted in law; or
8.2.4. licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the NBS Content or any materials or software used or created in the provision of the Services available to any third party.
9. CUSTOMER’S OBLIGATIONS AND WARRANTIES
9.1. The Customer shall:
9.1.1. co-operate with NBS in all matters relating to the Services;
9.1.2. obtain and maintain all necessary licences and consents to comply with all relevant legislation in relation to the Customer Content;
9.1.3. not assign, transfer, mortgage, sub-licence, charge or otherwise dispose of or encumber this Contract, or any of its rights or obligations under it without the prior written consent of NBS;
9.1.4. not at any time during the Contract, or at any time thereafter, hold itself out to be the author, owner or supplier of any NBS products or services.
9.2. The Customer shall at all times indemnify NBS and its publishers, agents and distributors against all and any Losses associated with the use of the Customer Content by any person, anywhere in the world, including but not limited to Losses associated with the Customer’s breach of any of its warranties under clause 3.3.
9.3. The Customer warrants that it is authorised to enter into this Contract on behalf of itself and, if applicable, the Invoicing Company.
9.4. If NBS’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
9.4.1. NBS shall without limiting its other rights or remedies have the right to suspend performance of the Services in whole or in part until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays NBS’s performance of any of its obligations;
9.4.2. NBS shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from NBS’s failure or delay to perform any of its obligations as set out in this clause 9.4; and
9.4.3. the Customer shall reimburse NBS on written demand for any costs or losses sustained or incurred by NBS arising directly or indirectly from the Customer Default.
10. DATA PROTECTION
10.1. NBS shall comply with its privacy policy available at https://www.thenbs.com/legal/privacy-policy or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by NBS in its sole discretion.
10.2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Legislation.
10.3. The Customer acknowledges and agrees that:
10.3.1. the Services are not intended for storing or otherwise processing any personal data on behalf of the Customer;
10.3.2. NBS is not appointed as a data processor (as that term is defined in the Data Protection Legislation) under the Contract.
11. CONFIDENTIALITY
11.1. The provisions of this clause shall not apply to any Confidential Information that:
11.1.1. is hosted on any NBS website and is therefore available to the public;
11.1.2. 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);
11.1.3. was available to the receiving party on a non-confidential basis before disclosure by the Disclosing Party;
11.1.4. 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;
11.1.5. the parties agree in writing is not confidential or may be disclosed; or
11.1.6. is developed by or for the receiving party independently of the information disclosed by the Disclosing Party.
11.2. The receiving party shall keep the Disclosing Party’s Confidential Information confidential and shall not:
11.2.1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Contract); or
11.2.2. disclose such Confidential Information in whole or in part to any third party, except its own Representatives, or as expressly permitted by this clause 11.
11.3. NBS may compile statistics relating to the use of Source, including usage by the Customer, and the use of Customer Content and/or Customer Products in Source, and may publish and use such statistics for any commercially reasonable purpose.
11.4. The Customer will report all Flaws to NBS, and will treat such Flaws as Confidential Information until NBS has mitigated or resolved such Flaws.
11.5. NBS may disclose the Customer's Confidential Information to NBS Representatives who need to know such Confidential Information for the permitted purpose, provided that:
11.5.1. it informs such NBS Representatives of the confidential nature of the Confidential Information before disclosure;
11.5.2. it procures that NBS Representatives shall, in relation to any Confidential Information disclosed to them, comply with the obligations set out in this clause as if they were a party to this Contract.
11.6. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority, by a court or other authority of competent jurisdiction or by the rules of any listing authority or stock exchange provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.
11.7. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in these Terms and Conditions are granted to the other party, or to be implied from the Contract.
12. INTELLECTUAL PROPERTY, FEEDBACK AND CERTIFICATION
12.1. All of the Intellectual Property Rights in the Background Intellectual Property are, and shall remain at all times, the sole and exclusive property of NBS or its licensors. All such rights are reserved and no licence or permission is to be implied or granted hereunder except as explicitly set out in these Terms and Conditions.
12.2. All Intellectual Property Rights in the Customer Content hosted under this Contract shall be owned by, and shall remain the property of, the Customer or the Customer’s licensors.
12.3. The Customer 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 Customer Content.
12.4. NBS shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it by the Customer entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. Subject to clause 11.3, Feedback will not be considered Confidential Information unless otherwise agreed between the parties.
12.5. On termination of the Contract or the applicable part thereof the Customer must remove the Logos and/or Certifications.
13. TERMINATION
13.1. This Contract shall, unless and until terminated in accordance with this Contract, commence upon the Contract Start Date and shall continue for the Initial Term and thereafter shall continue for successive Renewal Periods unless either party notifies the other party of termination of the Contract or part thereof, in writing, prior to the Notice Period, in which case the Contract shall terminate or be partially terminated in respect of a particular Service. Partial termination of the Services will be effective only if Customer provides details of the affected Customer Products no less than 45 days prior to commencement of the applicable Renewal Period.
13.2. At least 104 days prior to the expiry of the Initial Term or Renewal Period NBS shall notify the Customer of the Subscription Fee for the forthcoming Renewal Period.
13.3. At least 104 days prior to the expiry of the Initial Term or Renewal Period each party shall notify the other in writing of any proposed changes to the Contract in respect of the forthcoming Renewal Period.
13.4. Any proposed changes submitted in accordance with clause 13.3 and agreed by the parties together with the Subscription Fee payable in respect of the forthcoming Renewal Period shall be confirmed in writing by NBS.
13.5. Without affecting any other right or remedy available to it, NBS may terminate this Contract immediately by giving notice to the Customer, in writing, in the event that:
13.5.1. the Customer breaches any material term of the Contract and fails to remedy such breach (which is capable of remedy) within 14 days of the receipt of notice requiring the same to be remedied; or
13.5.2. the Customer fails to pay any amount due under the Contract on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so; or
13.5.3. the Customer has a receiver and/or manager and/or an administrator appointed over all or part of its assets or it enters into liquidation whether compulsory or voluntary (other than for the purposes of the bona fide solvent reconstruction) or otherwise enters into any arrangement or composition with its creditors or otherwise expresses an inability to pay its debts when they become due; or
13.5.4. an order is made or a resolution is passed for the winding up of the Customer, or circumstances arise which entitle a court of competent jurisdiction to make a winding up order against it; or
13.5.5. the Customer ceases, or threatens to cease, to trade.
13.6. Any termination of this Contract will be without prejudice to NBS’s rights existing at the date of termination and the Customer shall not be entitled to any refund of the Subscription Fee. For the avoidance of doubt, the Customer shall be liable to pay (within 30 days) the full Subscription Fee, as set out in the Order Form or invoice, applicable for the duration of the Contract irrespective of when the Contract is terminated.
13.7. In the event of termination the Customer shall erase all references to the Certification and the Logos, or any other reference to the Services, wherever displayed. Upon request by NBS, the Customer shall confirm in writing to NBS that all such material has been deleted.
13.8. On termination of the Contract in whole or part for any reason:
13.8.1. subject to clause 12.3, each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party and used in relation to those aspects of the Contract that have terminated;
13.8.2. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced and any provisions of the Contract which are expressed or implied to continue after termination shall do so; and
13.8.3. Customer shall not be entitled to any refund of the Subscription Fee.
14. NOTICES
14.1. A notice given to a party under or in connection with this agreement shall:
14.1.1. be in writing and in English; and
14.1.2. be sent to the email address for legal notices set out in the Order Form or to the registered address of the party receiving notice or such other address as that party may notify pursuant to clause 14.3.
14.2. The deemed time of receipt of a notice will be:
14.2.1. if sent by email, at the time of transmission or, if this falls outside of a Business Day in the place of receipt, on the next Business Day;
14.2.2. if sent by pre-paid first class post or other next working day delivery service on the second Business Day after posting.
14.3. A party may change its address for legal notices pursuant to clause 14.1 by giving notice, the change taking effect for the party notified of the change at 9:00am on the later of:
14.3.1. the date, if any, specified in the notice as the effective date for the change; or
14.3.2. the date seven days after the deemed receipt of the notice.
14.4. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
14.5. Where the Customer appoints an Invoicing Company, notices sent to the email address for legal notices set out in the Order Form shall be deemed validly served to the Customer and the Invoicing Company.
15. VARIATION
15.1. NBS may make Updates from time to time and will make the updated terms available at the following URL: https://www.thenbs.com/legal or such other location as NBS may notify to the Customer from time to time. NBS will provide notice of any Update to the Customer via email to the email address for legal notices provided in the Order Form, unless otherwise agreed between the parties in writing. The Customer is responsible for ensuring that their contact details for such notice are accurate and up to date. Any Update necessary for compliance with Applicable Law will become effective immediately. Any other Update will become effective 30 days after NBS provides notice to the Customer of such Update. If an Update has a material adverse impact on the Customer, and the Update is not required in order to comply with Applicable Law, the Customer may notify NBS within 30 days of receiving notice of an Update that the Customer does not accept such Update. Where the Customer provides such notice, it will remain governed by the terms in effect immediately prior to the Update until the earlier of: i) the end of the then current Initial Term or Renewal Period; or ii) 12 months after the Customer receives notice of the Update.
15.2. To the extent of any conflict between an Update and any other agreement between the parties, the Update will take priority unless: i) the Customer is otherwise notified by NBS; or ii) such agreement states by reference to this clause that it is intended to take priority over such Update.
16. GOVERNING LAW AND JURISDICTION
16.1. 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.
Source Terms 1.0
Last updated: 5 April 2020
