NBS Schumann Terms and Conditions
1. Definitions
Additional Quote shall have the meaning set out in clause 9.2.
Additional Services shall have the meaning set out in clause 9.1.
Applicable Law means any relevant law, rule, regulation, regulatory guidance or opinion, code of conduct, licence, permit, treaty and any order or decree of any court or arbitrator.
Business Day means 9:00am to 5:00pm Monday to Friday, excluding any day that is a public holiday in England.
Estimated Completion Date means the date stated as such in the NBS Order Form that the Specification shall be submitted by NBS to the Customer.
Cancellation Date means the date NBS receives written notification from the Customer that a Project has been cancelled.
Contract means the NBS Order Form and these Terms and Conditions, entered into between Customer and NBS for use of the Services for the Contract Term including any changes made in accordance with clause 9.1 to the Contract which are agreed between Customer and NBS and confirmed in writing by NBS.
Contract Start Date means the date the NBS Order Form is signed by the Customer.
Contract Term means the period of time from the Contract Start Date until the Termination Date.
Customer means the company who has entered into the Contract, for the use of the Services.
Customer’s Client means the company who has appointed, and entered into a contract with the Customer to design and/or deliver the Project.
Customer Materials means any data, documents, drawings, designs, reports, specifications, photographs, visual material and anything else which is in a material or electronic form which is submitted to NBS to enable the Customer to obtain the benefit of the Services.
Data Protection Legislation means all Applicable Law governing the protection and/or processing of personal data and on the free movement of such data which applies to either party’s processing activities under this Contract. This may include the Data Protection Act 2018 (UK), the Privacy and Electronic Communications Regulations 2003 (UK) and the UK GDPR, as well as any applicable laws or regulations amending or implementing any of the foregoing.
Design Management Services means project management/advisory services to assist the Customer in the fulfilment of Customer’s obligations to their client through the application of managerial and administrative procedures.
Fee means the fee payable by the Customer, to NBS, for the use of the Services and any Additional Services.
Force Majeure Event means any failure or delay in the Services, or any part thereof, occasioned by circumstances beyond either party’s reasonable control including (but not limited to) acts of God, fire, flood, explosion, accident, epidemic, pandemic, terrorist attack, war, computer viruses/malware, breakdown of equipment, failure of telecoms, internet or utilities (regardless of cause), governmental action, order or interference and labour disputes.
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, 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.
Infringing Item shall have the meaning set out in clause 10.7.
IPR Claim means any claim brought against either party by a third party, solely in relation to this Contract, that such party is infringing that third party’s Intellectual Property Rights.
Man Day and Man Day Rates shall have the meanings set out in clause 3.10.
NBS means NBS Enterprises Limited, a company incorporated and registered in England and Wales (company number 978271) whose registered office is at The Old Post Office, St Nicholas Street, Newcastle upon Tyne, NE1 1RH.
NBS Chorus shall mean NBS’s ‘software as a service’ known as “NBS Chorus”.
NBS Order Form means the document which details the Services Customer has committed to purchase from NBS and forms part of the Contract together with these Terms and Conditions.
NBS Personnel means any person who will perform services on NBS’s behalf, whether employed by NBS or one of its group or subsidiary companies or any organisation who may perform work for NBS on a sub-contracted basis.
Project means the Customer’s project as described in the Scope of Work set out in the NBS Order Form.
Services means the Specification Services and/or the Design Management Services and any other services provided by NBS as set out in the NBS Order Form.
Specification(s) means the well-structured, detailed description of the quality, standards, workmanship, materials, and completion of work to be done across Customer’s Project to be provided by NBS as part of the Services.
Specification Services means the preparation of architectural specifications, using Customer’s NBS Chorus licence, which set out in detail the scope of work, materials to be used, methods of installation, and quality of workmanship for a construction project.
Termination Date shall have the meaning set out in clause 6.1.
Terms and Conditions means these terms and conditions which govern the Contract (together with any amendments to these terms and conditions provided in writing on the NBS Order Form) as may be amended from time to time in accordance with clause 9.
UK GDPR means the United Kingdom General Data Protection Regulation.
2. General
2.1. Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.
2.2. Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or terms preceding those terms.
2.3. 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. NBS shall have the right to make any amendments or changes that it deems reasonably necessary in order for the Services to be compliant with Applicable Law or health and safety regulations or requirements from time to time and shall not be in breach of the Contract as a result.
2.5. Customer acknowledges this Contract represents a business-to-business transaction and consumer legal protections shall not apply.
3. Services
3.1. NBS shall, during the Contract Term, provide the Services to the Customer on and subject to the Contract.
3.2. The Services are solely for the use and benefit of the Customer unless agreed otherwise in writing between the parties.
3.3. NBS warrants that the Services will be provided with reasonable skill and care.
3.4. If the Services do not comply with clause 3.3 NBS will, at NBS’s discretion and expense, use reasonable endeavours to promptly correct such non-compliance.
3.5. The remedies in clause 3.4 constitute Customer’s sole and exclusive remedy for any breach of clause 3.3.
3.6. NBS may subcontract the performance of any of its duties or obligations under this Contract provided that:
3.6.1. prior to the commencement of any work by any subcontractor, NBS enters into a written agreement with such subcontractor that binds the subcontractor to terms that are at least as protective of the rights and information of the Customer as this Contract;
3.6.2. NBS uses reasonable endeavours to subcontract only with subcontractors who have the requisite skills to perform any subcontracted obligations in accordance with the terms of this Contract.
In all cases, NBS shall be responsible and liable for the acts and omissions of each subcontractor to the same extent as if such acts or omissions were by NBS and shall be responsible for all fees and expenses payable to any subcontractor.
3.7. Customer shall promptly provide NBS with all necessary information, including the Customer Materials, for NBS to provide the Services under the Contract.
3.8. Customer shall provide assistance reasonably required by NBS including:
3.8.1. making decisions as may be reasonably required by NBS, within a sufficient time period to enable the performance of the Services in accordance with agreed performance dates;
3.8.2. giving access to NBS, as appropriate, to Customer’s premises, staff and systems as required by NBS in order to perform the Services;
3.8.3. making available appropriately skilled and qualified members of its staff with the authority to provide assistance to NBS in relation to performance of the Services.
3.9. NBS shall not be responsible for any non-compliance of the Services warranted in clause 3.3 as a result of Customer’s failure to comply with clauses 3.7 or 3.8.
3.10. The rates chargeable by NBS in relation to a Man Day (“Man Day Rates”), being a six (6) hour day of Services (“Man Day"), shall be as set out in NBS’s current rate card, available on request,
3.11. The amount charged for a Man Day will be subject to a minimum charge equal to half (1/2) a Man Day where NBS Personnel work less than three (3) hours, and the rate and amount chargeable may be increased if the applicable person(s) are required to work in excess of a six (6) hour Man Day.
4. Specification Services
4.1. This clause 4 shall apply only where the Customer purchases Specification Services
4.2. NBS shall use reasonable endeavours to ensure the performance dates for the provision of the Services set out in the NBS Order Form are met. Notwithstanding the foregoing, Customer acknowledges that all dates for provision of the Services are estimates only. If NBS believes that the Services may be delayed, then NBS shall inform the Customer in writing including the following information:
4.2.1. the reason for the delay
4.2.2. the nature and length of the delay anticipated; and
4.2.3. an approximate revised Estimated Completion Date.
5. Design Management Services
5.1. This clause 5 shall apply only where the Customer purchases Design Management Services.
5.2. The specific details of the Design Management Services to be provided by NBS shall be as set out in the Order Form.
5.3. Any Project specific exclusions shall be as set out in the Order Form.
5.4. NBS shall not be liable for the design of any Project, unless agreed otherwise, and included in the Order Form.
6. Term and Termination
6.1. Performance of the Services shall commence on the Contract Start Date. NBS shall use reasonable endeavours to deliver the Specification(s) to Customer on the Estimated Completion Date. If Customer has purchased Specification Services, the Contract shall terminate on the date of issue of the Specification by the Customer for tender, if Customer has purchased Design Management Services, the contract shall terminate on the date set out as such in the Order Form (“Termination Date”).
6.2. Without affecting any other right or remedy available, NBS may terminate the Contract with immediate effect by giving written notice to Customer if Customer 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.
6.3. 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:
6.3.1. 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;
6.3.2. the other party, or Customer’s Client, 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
6.3.3. an order is made, or a resolution is passed for the winding up of the other party, or Customer’s Client, or circumstances arise which entitle a court of competent jurisdiction to make a winding up order against it; or
6.3.4. the other party, or Customer’s Client ceases, or threatens to cease, to trade.
6.4. On termination of the Contract in whole or part for any reason:
6.4.1. 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;
6.4.2. NBS may destroy, or otherwise dispose of, any of the Customer Materials in its possession in respect of those aspects of the Contract that have been terminated;
6.4.3. any rights, remedies, obligations or liabilities of the parties that have accrued up to the Termination Date, including the right to claim damages in respect of any breach of the Contract which existed at or before the Termination Date 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
6.4.4. no refund of the Fee or any fees in respect of Services shall be made.
6.5. Customer retains the right to continue to use Specifications that have been produced during the Contract Term after the termination of the Contract.
6.6. Notwithstanding any requirement elsewhere in the Contract for notice to terminate the Contract to be in writing, the parties agree that a novation of this Contract pursuant to clause 13.8 may be effected by conduct.
5. Fees and Invoices
7.1. Customer shall pay the Fee as set out in the NBS Order Form, to NBS. Subject to the parties agreeing in writing to the contrary, Customer agrees to pay any invoice relating to the Contract within 30 days of the date of such invoice.
7.2. Without prejudice to any other rights or remedies of NBS, if any amount due to NBS is outstanding for more than 30 days following the date of an invoice, NBS may, at its sole discretion, suspend performance of Services which are in progress., refuse to release the Specification(s), or by written notice, deem the Contract be terminated by default.
7.3. If a Project is cancelled, then Customer shall inform NBS in writing as soon as reasonably possible after Customer becomes aware of such cancellation. NBS shall then raise an invoice to reflect the work completed up to and including the Cancellation Date. This shall be based on Man Days provided by NBS and shall be calculated at NBS’s sole but reasonable discretion.
7.4. NBS reserves the right to charge interest and late payment compensation in accordance with the provisions of The Late Payment of Commercial Debts (Interest) Act 1998 or such other similar legislation as may be enacted from time to time on any such overdue sums. For the avoidance of doubt, in addition to interest payments the Customer shall pay all reasonable costs and expenses incurred by NBS in enforcing this Contract and recovering monies owed to NBS by the Customer.
7.5. NBS shall invoice the Customer for the Fee in accordance with the timelines set out in NBS Order Form.
7.6. The Fee is exclusive of VAT, which shall be added to all invoices at the rate prevailing at the date of invoice.
7.7. Customer acknowledges and agrees that it is its sole responsibility to finance the Fee on a basis which is commercially appropriate for its business. Where finance is provided by a third party, whether such third party is introduced by NBS or otherwise, then Customer is solely responsible for discharging its obligations to such third party including where the Contract is terminated. In the event that the Customer chooses to cancel the services of such third party, the Customer is liable for the remaining value of the Fee.
8. Customer Materials
8.1. The Customer and its licensors shall retain ownership of the Intellectual Property Rights in the Customer Materials and Customer is solely responsible for ensuring that the Customer Materials are accurate and complete.
8.2. NBS shall not, in any circumstance, be liable for the legality, reliability, integrity, quality or accuracy of the Customer Materials.
8.3. NBS accepts no responsibility for any liability arising from the use of the Customer Materials by third parties in the course of the Customer’s use of the Services.
9. Amendments
9.1. If Customer requires a variation to the Services or for NBS to conduct additional services (“Additional Services”) to those set out in the Order Form, Customer must request such Additional Services in writing.
9.2. In response to such request, NBS shall provide a price and timescale to Customer for the delivery of such services (“Additional Quote”) based on estimated Man Days. If Customer agrees to the Additional Quote, then Customer will confirm this in writing to NBS, at which point NBS shall provide the Additional Services, and these Terms and Conditions shall apply to such Additional Services.
10. Intellectual Property Rights
10.1. All of the Intellectual Property Rights in the Services and in any materials, drawings, reports, Specifications, and other documents provided or created by NBS in connection with the provision of the Services are, and shall remain at all times, the sole and exclusive property of NBS or its licensors. All such rights are reserved. Customer shall acquire no rights in the Services, or the materials created or used in the provision of the Services except as expressly provided for in these Terms and Conditions.
10.2. Without prejudice to the generality of clause 10.1, the NBS logos and all other NBS trademarks, product names, and trade names logos appearing in, on or in connection with the Services are owned by NBS or its licensors. Customer may not use or display any such trademark, product name, trade name, or logo without NBS’s or the relevant owner’s prior written consent.
10.3. Customer hereby grants NBS a non-exclusive, transferrable, royalty free licence (including a right to sub-licence) to use, copy, modify, reproduce, publish, adapt, translate, distribute, communicate and host the Customer Materials for the purposes of NBS exercising its rights and performing its obligations under the Contract and to enable Customer to obtain the benefit of the Services during the Contract Term.
10.4. NBS hereby grants Customer a non-exclusive, non-transferrable licence to use any materials, drawings, reports, Specifications, and other documents provided or created by NBS in connection with the provision of the Services, for the sole purpose of completing the Project.
10.5. Customer indemnifies NBS 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 Customer Materials, or the Customer's use of the Services otherwise than in accordance with this Contract, infringes the Intellectual Property Rights of a third party.
10.6. NBS indemnifies Customer from and against all loss and damages to the extent arising out of or in connection with any claims brought by a third party that a Specification infringes that third party’s Intellectual Property Rights (“Infringing Item”).
10.7. If any third party makes an IPR Claim against Customer in relation to an Infringing Item, or in either party’s reasonable opinion, is likely to do so: (a) the Customer shall immediately cease using the Infringing Item; and (b) NBS shall at its option, with minimal disruption to the Customer, promptly and at its own expense either: (i) procure for the Customer the right to continue using, possessing and receiving the Infringing Item in accordance with the Contract; or (ii) modify or replace the Infringing Item with a substitute item that is reasonably equivalent to the Infringing Item. If neither (i) nor (ii) are commercially achievable, then NBS will refund any advance payments made by the Customer for the use of the Infringing Item in the period following cessation of use.
10.8. If any third party makes an IPR Claim, or notifies an intention to make an IPR Claim against the Customer, the Customer shall:
10.8.1. promptly give written notice of the IPR Claim to NBS, specifying the nature of the IPR Claim in reasonable detail;
10.8.2. not make any admission of liability, offer of settlement or compromise in relation to the IPR Claim without the prior written consent of NBS;
10.8.3. give NBS and its professional advisors copies of any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable NBS and its professional advisers to examine them for the purpose of assessing the IPR Claim; and
10.8.4. take such action as NBS may reasonably request to compromise or defend the IPR Claim (at NBS’s expense).
10.9. NBS shall have no liabilities or obligations in relation to an IPR Claim to the extent that it relates to:
10.9.1. the use of Customer Materials in the Infringing Item;
10.9.2. any modification of the Specification(s), other than by or on behalf of NBS, or any use of the Specification(s) for a purpose or in a context other than the purpose or in the context for which it was designed;
10.9.3. compliance with the Customer's instructions; and/or
10.9.4. the use of the Specification(s) in combination with any software not provided by NBS.
11. Confidentiality and Data Protection
11.1. In this clause 11, the terms Personal Data and Process, shall have the meanings given in the Data Protection Act 2018.
11.2. Any information imparted by either party relating to the 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.
11.3. Customer shall be solely responsible for adjusting the Sharing Settings within NBS Chorus to indicate where certain information cannot be shared or disclosed by NBS. NBS shall have no liability where Customer fails to adjust such Sharing Settings.
11.4. NBS shall, in providing the Services, comply with its privacy policy relating to the privacy and security of any Personal Data comprised in the Customer Materials available, at www.thenbs.com/legal 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.
11.5. 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.
11.6. If NBS Processes Personal Data on behalf of Customer pursuant to this Contract, then NBS and Customer will comply with the terms of the NBS Data Processing Agreement, currently available at NBS Data Processing Agreement | NBS (thenbs.com), the terms of which are incorporated into this Contract.
11.7. Where Customer shares the Personal Data of any third parties with NBS, Customer confirms that they have obtained consent from such third parties to share such Personal Data with NBS.
12. Warranties, Remedies and Limitation of Liability
12.1. NBS warrants that:
12.1.1. it will provide the Services in accordance with Applicable Law; and
12.1.2. it has full power and authority to execute, deliver and perform its obligations under this Contract.
12.2. The warranties set out in clause 12.1 are exclusive of and in lieu of all other conditions and warranties, either expressed or implied, including without limitation those relating to satisfactory quality or fitness for purpose which are hereby excluded to the fullest extent permitted by law.
12.3. The Customer warrants that it:
12.3.1. will comply with Applicable Law;
12.3.2. is the owner of, or otherwise has a licence to the Customer Materials;
12.3.3. has the right and power to grant the licences contained in this Contract to NBS, including to enable NBS to use the Customer Materials to provide the Services and otherwise for the purposes of this Contract; and
12.3.4. has the full power and authority to execute, deliver and perform its obligations under this Contract.
12.4. 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 Customer is responsible for making its own arrangements for the insurance of any excess loss.
12.5. Except as expressly provided in this Contract, and to the fullest extent permitted by applicable law:
12.5.1. Customer shall be solely responsible, as against NBS, for any opinions, recommendations, forecasts or other conclusions made or actions taken by the Customer, any Customer Client or any other third party based (wholly or in part) on the results obtained from the use of the Services, or the Specifications, by the Customer or any third party; and
12.5.2. NBS shall have no liability for any damage caused by errors or omissions in any Customer Materials, information or instructions provided to NBS by the Customer in connection with the Services, the Specifications and the Project.
12.6. Subject to clause 12.7, the Customer shall hold NBS harmless for any action, claims, liability or loss in respect of performance of the Services and use of the Specifications by the Customer.
12.7. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
12.7.1. death or personal injury caused by negligence;
12.7.2. fraud or fraudulent misrepresentation; and
12.7.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.8. Subject to clause 12.7, NBS’s total liability to Customer shall not exceed the aggregate amount of the Fees paid or payable to NBS in the immediately preceding period of twelve months. NBS’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
12.9. Subject to clause 12.7 the following types of loss are wholly excluded:
12.9.1. loss of profits;
12.9.2. loss of production;
12.9.3. loss of sales or business;
12.9.4. loss of agreements or contracts;
12.9.5. loss of anticipated savings or wasted expenditure;
12.9.6. loss of use or corruption of software, data or information;
12.9.7. loss of or damage to reputation or goodwill;
12.9.8. any loss or liability under or in relation to any other contract; and
12.9.9. indirect or consequential loss.
12.10. This clause 12 shall survive termination of the Contract.
13. Entire Agreement
13.1. These Terms and Conditions (together with the relevant NBS Order Form) constitute the entire agreement between the parties relating to the Contract and neither party has relied on any representation made by the other party unless such representation is expressly included in these Terms and Conditions or on the NBS Order Form. These Terms and Conditions shall apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
13.2. 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.
13.3. If any provision of these Terms and Conditions or any part of them shall be void for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
13.4. Nothing in these Terms and Conditions shall create, imply or evidence any partnership or joint venture between Customer and NBS or the relationship between them of principal and agent or employers and employee.
13.5. Except as expressly provided in these Terms and Conditions, nothing shall confer or purport to confer on a third party any benefit or any right to enforce any provision of the Contract.
13.6. The Contract is personal to the Customer and Customer 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 NBS, and NBS hereby consents to any novation pursuant to clause 13.8.
13.7. NBS may at any time assign, novate, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Contract and may novate, subcontract, or delegate any or all of its obligations under the Contract to any third party, in each case without Customer’s consent. NBS may at any time novate the Contract, or any or all of its rights and obligations under the Contract, to another member of its group of companies or any other third party.
13.8. For the avoidance of doubt, the requirement for NBS to provide termination in writing shall not preclude a novation by conduct where NBS exercises its rights under clause 13.7.
14. Force Majeure
14.1. Neither party shall be liable for any Force Majeure Event.
14.2. Where a Force Majeure Event continues for more than two months, either party may terminate this Contract or part thereof on 14 days’ notice to the other party. For certainty, Customer will not be entitled to any repayment of Fees as a result of a Force Majeure Event.
15. Notices
15.1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by email, or by recorded post at its registered company address or email address for legal notices as stated on the NBS Order Form, or in the case of notices given to NBS, to the relevant Project Leader. Any notice shall be deemed to have been received:
15.1.1. 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; and
15.1.2. if sent by recorded post on signature of a delivery receipt by a representative of the other party.
16. Governing Law and Jurisdiction
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. 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.
NBS Enterprises Ltd Registered Office:
The Old Post Office, St Nicholas Street, Newcastle upon Tyne, NE1 1RH
Registered in England 978271
15th February 2024
