1. DEFINITIONS AND INTERPRETATIONS
1.1. The following defined terms shall have the meanings set out below:
Anniversary Date means the date which is twelve months after the Subscription Start Date and the corresponding date in each subsequent year.
Applicable Law means any applicable law, rule, regulation, regulatory guidance or opinion, code of conduct, licence, permit, treaty and any order or decree of any court or arbitrator.
Business Day means 9:00am to 5:00pm Monday to Friday excluding any day that is a public holiday in England.
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 date on which the Contract is executed in accordance with clause 2.1.
Contract Term means the period of time from the Contract Start Date until the end of the Subscription together with any Renewal Periods.
Contract means these Terms and Conditions together with the Order Form.
CPD Material(s) means the Subscriber materials to be assessed and approved by RIBA as part of the RIBA CPD Providers Network service.
Data Protection Legislation means all Applicable Law governing the protection and/or processing of Personal Data and on the free movement of such data which applies to either party’s processing activities under this Contract. This may include the Data Protection Act 2018 (UK) and the UK GDPR, as well as any applicable laws or regulations amending or implementing any of the foregoing.
Disclosing Party means a party disclosing Confidential Information under this Contract.
First Year Subscription Fee means the Subscription Fee payable by the Subscriber, to NBS, for the first year of the Contract, as specified in the relevant invoice.
Force Majeure Event means any failure or delay in the Services or any part thereof occasioned by circumstances beyond the reasonable control of NBS including (but not limited to) acts of God, fire, flood, explosion, accident, epidemic, pandemic, terrorist attack, war, computer viruses/malware, breakdown of equipment, failure of telecoms, internet or utilities (regardless of cause), governmental action, order or interference and labour disputes involving NBS, the Subscriber and/or any third party.
Initial Term the period of time as set out as such in the Order Form, from the Subscription Start Date.
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.
Licensor(s) means any party who has granted NBS a licence to use one or more of the Logo(s) by agreement, including but not limited to, RIBA.
Logo(s) means the logos, branding or other marks belonging to NBS or its Licensors which NBS or its Licensors may from time to time permit the Subscriber to use in accordance with this Contract.
Marketing Services means marketing services provided by NBS to the Subscriber as set out on the Order Form or, subject always to these Terms and Conditions, as otherwise agreed in writing by the parties from time to time.
NBS means NBS Enterprises Limited, a company incorporated and registered in England and Wales (company number 978271) whose registered office is at The Old Post Office, St Nicholas Street, Newcastle upon Tyne, NE1 1RH.
NBS Chorus means the cloud-based specification writing platform provided by NBS whereby specifiers can specify their construction projects.
NBS Content shall mean all human and machine-readable data retained, maintained or displayed in the Services other than Subscriber Content.
NBS ID means the identification account system provided by NBS, through which a User creates the ID necessary in order to access and use the Digital Services.
NBS Intellectual Property means all Intellectual Property Rights in the processes and/or procedures followed by, and software used by NBS, and in the techniques used by NBS in the creation and/or development of any of the Services or any other NBS services and products and those arising out of, or in any way connected to, the provision of the Services and all other Intellectual Property Rights that arise, or are obtained or developed by NBS during the Contract Term in connection with the Contract, but excluding the Subscriber Intellectual Property.
NBS Source means the product discovery service provided by NBS whereby records relating to suppliers’ products are provided and made available to the public and to other users of NBS products and services.
Order Form means the signed document confirming the Subscriber’s subscription to the Services.
Partner Platform means the online platform through which Subscriber can manage Subscriber Content and Subscriber’s online brand profile within NBS Source and the RIBA CPD Website. The Partner Platform can also be used to view how users of NBS Chorus, NBS Source and the RIBA CPD Website have engaged with Subscriber Content.
Receiving Party means a party receiving Confidential Information under this Contract.
Renewal Period shall have the meaning set out in clause 18.1.
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). NBS Representatives and Subscriber Representatives shall be construed accordingly.
RIBA means the Royal Institute of British Architects, a registered charity (registered charity number 210566) whose registered office is at 66 Portland Place, London, W1B 1AD.
RIBA CPD Providers Network means a service jointly delivered by NBS and the RIBA which includes the assessment of CPD Materials and hosting of approved CPD Materials.
RIBA CPD Providers Network Quality Code means the set of conditions which apply to CPD Materials as set out at https://www.thenbs.com/legal/riba-cpd-providers-network-quality-code.
RIBA CPD Website means the website located at www.ribacpd.com.
Second Year Subscription Fee means the Subscription Fee payable by the Subscriber to NBS for the second year of the Contract, as specified in the relevant invoice.
Services means all and each of the services subscribed to by the Subscriber and to be delivered by NBS in accordance with these Terms and Conditions, including those set out in the Order Form and such other services as may be agreed between the parties in writing from time to time.
Subscriber means you, the organisation purchasing the Services.
Subscriber Content means all Subscriber Data and any other data, information or materials provided or uploaded by the Subscriber.
Subscriber Data means any data, information or materials (including CPD Materials supplied by the Subscriber) provided or uploaded by the Subscriber throughout the Contract Term.
Subscriber Default shall have the meaning set out in clause 11.3.
Subscriber Intellectual Property means all Intellectual Property Rights (excluding NBS Intellectual Property) in any pre-existing Subscriber Content or Subscriber Data (including the Subscriber’s CPD Material) belonging to the Subscriber.
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 NBS) and continuing for the Initial Term, followed by any Renewal Period.
Subscription Fee means the total amount payable by the Subscriber to NBS for all Services.
Subscription Start Date means the date of commencement of subscription to the NBS product or Service as 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 16.
Training means the onboarding training provided to Subscriber by NBS as set out on the Order Form or, subject always to these Terms and Conditions, as otherwise agreed in writing by the parties from time to time.
UK GDPR means the United Kingdom General Data Protection Regulation.
Update means any update to these Terms and Conditions as more particularly set out in clause 16.
User means any person(s) or company who is not party to the Contract, but who has been given a right to use or access the Services by the Subscriber for business purposes and has created an NBS ID and password by accepting the NBS ID terms and conditions (available here https://www.thenbs.com/legal/nbs-id).
1.2. 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.
1.3. 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. GENERAL
2.1. The Contract shall come into existence only when a fully completed Order Form is sent to the Subscriber by an NBS Representative, signed by or on behalf of the Subscriber and the RIBA CPD Providers Network Quality Code has been counter-signed by RIBA.
2.2. 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.
2.3. These Terms and Conditions, as updated or amended by NBS from time to time, apply to the Contract to the exclusion of any other terms that the Subscriber seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
2.4. To the extent of any conflict between these Terms and Conditions and the Order Form, the Order Form will take priority.
2.5. This Contract will supersede any previous agreements between the parties for the provision of the Services.
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 Subscriber seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. SUBSCRIBER DATA
3.1. The Subscriber shall supply to NBS the Subscriber Data, including the CPD Materials, to enable NBS and RIBA to perform each of the Services. Failure to provide the Subscriber Data to NBS within a reasonable time period, such time period to be agreed upon in writing between NBS and the Customer, will be classed as a Subscriber Default (as defined in clause 11.4).
3.2. NBS accepts no responsibility for the accuracy of the Subscriber Data submitted by the Subscriber, nor for any errors or omissions, or any liability arising from the use of the Subscriber Data by third parties. The Subscriber hereby agrees that it shall at all times indemnify NBS against all and any liability arising out of the use of the Subscriber Data.
3.3. The Subscriber warrants that all Subscriber Data and/or Subscriber 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.
4. THE SERVICES
4.1. Services are provided for the Contract Term. The Services shall be deemed to commence on the Subscription Start Date.
4.2. NBS shall have the right to make any changes to any and all of the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and NBS shall notify the Subscriber in any such event.
4.3. By editing and releasing any Subscriber Content or Subscriber Data pursuant to the Services, NBS and its Representatives do not make any representation as to the presence or absence of patent rights subsisting in the Subscriber’s product or the legal right of any Subscriber to manufacture, market, install or maintain the Subscriber’s products referred to in the Subscriber Content.
4.4. The Subscriber may by e-mail offer to purchase additional services from NBS at any time during the Contract Term at NBS’s then-prevailing prices. NBS may, by e-mail, and at its sole discretion, accept or reject such offer, and will issue a corresponding invoice if applicable.
5. RIBA CPD PROVIDERS NETWORK
5.1. This clause 5 shall apply specifically in relation to RIBA CPD Providers Network.
5.2. Submission of CPD Material must be made to NBS within twelve weeks of the Subscription Start Date. All CPD Material that has been submitted for approval and returned to the Subscriber by NBS for further amendment must have those changes facilitated and resubmitted within a period of four weeks.
5.3. NBS relies on Subscriber’s submission of the CPD Materials in order to provide the Services. NBS and RIBA cannot provide the Services until such CPD Materials have been supplied to NBS. For the avoidance of doubt, Subscriber shall not be entitled to any extension to the Initial Term, or a refund or cancellation of the Subscription Fee, due to NBS’s delay in performing the Services as a result of the Subscriber’s delay in submitting the CPD Materials.
5.4. The Customer must abide by the RIBA CPD Providers Network Quality Code as set out in the Order Form and available to view here and the RIBA CPD Logo Terms of Use as set out in the Order Form and available to view here, or such other website addresses as may be notified to the Subscriber from time to time.
5.5. In the event that the Subscriber commits a breach under clause 5.4 and fails to remedy such breach (which is capable of remedy) within 14 days of receipt of written notice requiring the same to be remedied, NBS may terminate the Contract immediately by giving written notice to the Subscriber.
5.6. The Subscriber is wholly responsible for ensuring that Subscriber Content in the RIBA CPD Providers Network and CPD Material is accurate and up to date.
5.7. On termination of the Contract, the Subscriber must not refer to any CPD Materials as being approved or certified by NBS, RIBA or the RIBA CPD Providers Network.
5.8. On termination of the Contract the Subscriber must confirm in writing to the registered office of NBS that they have removed all symbols and logos pertaining to the RIBA CPD Providers Network and any certified material, similarly branded, from all promotional material at their own expense.
5.9. The availability of Subscriber Content and CPD Material via the RIBA CPD Providers Network will be organised into groups and indexes determined by NBS. NBS reserves the right to amend, revise or alter these groups and indexing without prior notice to the Subscriber. The number of pieces of CPD Materials Subscriber can submit during the Initial Term, and for any Renewal Period, shall be as set out in the Order Form.
6. TRAINING SERVICES
6.1 NBS shall provide Training to the Subscriber in accordance with the description of the same set out on the Order Form or as otherwise agreed in writing by the parties.
6.2 The Subscriber acknowledges and agrees that NBS does not warrant or guarantee that any Users who participate in the Training will, as a result of the Training, be proficient or competent in the subject matter of the Training.
6.3 For any Training which is delivered online, NBS does not guarantee that access to the website through which Training will be delivered will be available or uninterrupted or that such website will be free of bugs and viruses and the Subscriber is responsible for:
6.3.1. ensuring that all Users who are receiving Training have appropriate and adequate access to the internet and to such other correctly configured equipment and software to allow those Users to receive the Training and that all such Users accept and comply with any terms of use for the website through which such Training is delivered;
6.3.2. where applicable, providing such access to its premises, facilities, equipment, information and materials and acquiring all such licences and consents as are required by NBS in order to deliver the Training; and
6.3.3. ensuring all relevant Users are available for and attend the Training as agreed in writing between the parties and ensuring that all Training is completed by the relevant Users by the first assessment deadline.
7. MARKETING SERVICES
7.1.NBS shall provide the Marketing Services to the Subscriber in accordance with the description of the same set out on the Order Form or as otherwise agreed in writing by the parties.
7.2.The Subscriber shall pay the fees for the Marketing Services specified on the Order Form or relevant invoice in accordance with clause 9.4.
7.3.NBS retains the right to perform the same or similar marketing services for third parties during the Contract Term.
7.4.Subscriber shall use reasonable efforts to respond promptly to any request by NBS to provide direction, information, approvals, authorisations or decisions that are reasonably necessary for NBS to perform the Marketing Services in accordance with the requirements of this Contract.
8. PARTNER PLATFORM
8.1. Subscriber shall be granted access to their account on NBS’s Partner Platform via an invitation link. Users can then log onto the Partner Platform via their NBS ID. It is Subscriber’s responsibility to set the access level for each User within Subscriber’s Partner Platform.
8.2. Subscriber shall use the Partner Platform for the following purposes:
8.2.1 to manage Subscriber’s brand and profile information that will appear on NBS Source and the RIBA CPD Website.
8.2.2 to upload CPD Material in order for RIBA to complete the RIBA assessment process.
8.2.3 to access how users of NBS Chorus, NBS Source and the RIBA CPD Website have engaged with Subscriber Content.
8.3. Subscriber agrees not to include personal data (other than User’s work e-mail addresses) in the Partner Platform.
8.4. The terms of NBS’s Website Acceptable Use Policy apply to Subscriber’s use of the Partner Platform.
9. PAYMENT
9.1. The Subscriber shall be invoiced for the First Year Subscription Fee following signature of the Order Form.
9.2. The Subscriber shall be invoiced for the Second Year Subscription Fee on or about 30 days prior to the Anniversary Date which is twelve months after the Subscription Start Date.
9.3. During a Renewal Period, the Subscriber will be invoiced for each year of the Subscription on or about 30 days prior to the Anniversary Date.
9.4. All invoices must be paid within 30 days of issue and/or notification received from a third party lender, within 30 days of invoice issue, that a credit agreement is effective between the Subscriber and such third party for the financing of the total invoice amount. NBS shall be under no obligation to perform any of its obligations under the Contract unless and until the Subscription Fee for each year is paid in full, and may suspend Services where any sum is outstanding pursuant to this Contract.
9.5. The Subscriber acknowledges and agrees that it is its sole responsibility to finance the Subscription Fee on a basis which is commercially appropriate for its business. Where finance is provided by a third party, whether such third party is introduced by NBS or otherwise, then the Subscriber is solely responsible for discharging its obligations to such third party including where the Subscription is cancelled, or the Contract is terminated. In the event that the Subscriber chooses to cancel the services of such third party, the Subscriber is liable for the remaining value of the Subscription Fee.
9.6. NBS reserves the right to charge interest and associated costs on late payments. Failure to pay invoices on time may amount to a material breach of contract entitling NBS to end the Services and terminate the Contract. NBS reserves the right to charge interest and late payment compensation in accordance with the provisions of The Late Payment of Commercial Debts (Interest) Act 1998 or such other similar legislation as may be enacted from time to time on any such overdue sums. For the avoidance of doubt, in addition to interest payments the Subscriber shall pay on demand all NBS’s reasonable costs and expenses incurred in enforcing the Contract and recovering monies owed to NBS by the Subscriber. NBS may recover such costs and expenses from any other sums received from the Subscriber.
9.7. NBS reserves the right to amend any of the payment terms, including the amount of the fees and the payment periods, from time to time upon notice to the Subscriber.
10. LIMITATION OF LIABILITY
10.1.NBS does not warrant that the Services will meet the Subscriber’s requirements or that the hosting or performance of any of the Services will be uninterrupted or error free. The Subscriber uses the Services at the Subscriber’s own risk and subject to clause 7.3, in no event will NBS be liable to the Subscriber for any loss or damage of any kind arising from the use of or inability to use the Services or from errors whether caused by negligence or otherwise, except as expressly provided for in these Terms and Conditions.
10.2.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 Subscriber is responsible for making its own arrangements for the insurance of any excess loss.
10.3.Nothing in the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence, and fraud or fraudulent misrepresentation.
10.4.Subject to clause 10.3, the NBS’s total liability to the Subscriber shall not exceed the aggregate amount of the Subscription Fee paid or payable to NBS in the immediately preceding period of twelve months. NBS’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
10.5.Subject to clause 10.3 the following types of loss are wholly excluded:
10.5.1. loss of profits;
10.5.2. loss of sales or business;
10.5.3. loss of agreements or contracts;
10.5.4. loss of anticipated savings;
10.5.5. loss of use or corruption of software, data or information;
10.5.6. loss of or damage to goodwill; and
10.5.7. indirect or consequential loss.
10.6.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.
10.7.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:
10.7.1. inappropriate use of the Content or any of the Services;
10.7.2. failure to exercise reasonable levels of due care and attention when using the Content or any of the Services; or
10.7.3. failure to exercise reasonable levels of professional skill and competence when using the Content or any of the Services.
10.8.NBS accepts no responsibility for (and Subscriber shall indemnify and hold NBS harmless against any losses or claims arising from or relating to) the accuracy of any of the CPD Materials or Subscriber Data provided by the Subscriber, nor any errors or omissions, nor any liability arising from the use of the CPD Materials or Subscriber Data by third parties.
10.9. 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 NBS’s products or services. All NBS online products and services, including the hosting services set out herein, shall be subject to both scheduled and emergency maintenance without notice to the Subscriber.
10.10. This clause 10 shall survive termination of the Contract.
11. FORCE MAJEURE
11.1.NBS shall not be liable for any Force Majeure Event.
11.2.Where the 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.
12. RESTRICTIONS
12.1.The Subscriber may not reproduce in any form any part of the Services, the NBS Content or any materials or software used or created in the provision of the Services except as expressly provided for in these Terms and Conditions.
12.2.Except with NBS’s express, prior written consent (there being no presumption that NBS shall give its consent), the Subscriber may not at any time during the Contract, or at any time thereafter:
12.2.1. use or permit others to use the Services or the NBS Content for the purpose of developing and/or maintaining for themselves or for others, an alternative service provision which either directly or indirectly competes with the Services or serves the same or a similar purpose as the Services;
12.2.2. 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;
12.2.3. 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
12.2.4. 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.
12.3.The Subscriber shall not access, store, distribute or transmit any viruses during the course of its use of the Services.
12.4.The Subscriber shall be responsible for controlling a User’s access to, and use, of the Services and shall ensure that all Users are aware of the terms of this Contract.
12.5.The Subscriber shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify NBS.
13. OBLIGATIONS OF NBS
13.1. NBS agrees to provide the Services in accordance with these Terms and Conditions, the relevant Order Form and/or, the relevant invoice.
13.2. NBS warrants to the Subscriber that NBS will provide the Services using reasonable care and skill.
14. SUBSCRIBER’S OBLIGATIONS AND WARRANTIES
14.1. The Subscriber shall:
14.1.1. commit to the Contract and to the Initial Term, and shall pay to NBS the Subscription Fee as specified in the relevant invoice;
14.1.2. co-operate with NBS in all matters relating to the Services and, subject to clause 3.1, provide, in a suitable format, all Subscriber Data, , required by NBS from time to time to perform the Services;
14.1.3. obtain and maintain all necessary licences and consents to comply with all relevant legislation in relation to the CPD Materials and the Services;
14.1.4. not assign, novate, transfer, mortgage, sub-licence, charge or otherwise dispose of or encumber this Contract, or any of its rights or obligations under it without the prior written consent of NBS, and NBS hereby consents to any novation pursuant to clause 21.9;
14.1.5. 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.
14.2. The Subscriber warrants to NBS that all Intellectual Property Rights in the Subscriber Content provided to NBS for the purposes of providing the Services are its sole and exclusive property and/or that it holds a sufficient licence or authority from the owners of such Intellectual Property Rights for the purposes of facilitating performance of this Contract and grants NBS a non-exclusive licence, throughout the Contract Term, to use, publish, make available, copy and re-sell and do all acts in relation to all of the foregoing.
14.3. The Subscriber shall at all times indemnify NBS against any and all losses associated with the use of the Subscriber Content by any person, anywhere in the world, including, but not limited to, losses associated with the Subscriber’s breach of any of its warranties under clause 3.3.
14.4. If NBS’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Subscriber or failure by the Subscriber to perform any relevant obligation (”Subscriber Default”):
14.4.1. NBS shall, without limiting its other rights or remedies, have the right to suspend performance of the Services in whole or in part until the Subscriber remedies the Subscriber Default, and to rely on the Subscriber Default to relieve it from the performance of any of its obligations to the extent the Subscriber Default prevents or delays NBS’s performance of any of its obligations;
14.4.2. NBS shall not be liable for any costs or losses sustained or incurred by the Subscriber arising directly or indirectly from NBS’s failure or delay to perform any of its obligations as set out in this clause 14.4; and
14.4.3. the Subscriber shall reimburse NBS on written demand for any costs or losses sustained or incurred by NBS arising directly or indirectly from the Subscriber Default.
15. DATA PROTECTION
15.1. NBS shall comply with its privacy policy available at https://www.thenbs.com/legal/privacy-policy or such other website address as may be notified to the Subscriber from time to time, as such document may be amended from time to time by NBS in its sole discretion.
15.2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Legislation.
15.3. The Subscriber acknowledges and agrees that:
15.3.1. the Services are not intended for storing or otherwise processing any personal data on behalf of the Subscriber;
15.3.2. NBS is not appointed as a personal data processor (as that term is defined in the Data Protection Legislation) under the Contract.
16. CONFIDENTIALITY
16.1. The provisions of this clause shall not apply to any Confidential Information that:
16.1.1. is hosted on any NBS website and is therefore available to the public;
16.1.2. is or becomes otherwise generally available to the public (other than as a result of its disclosure by the Receiving Party or its Representatives in breach of this clause);
16.1.3. was available to the Receiving Party on a non-confidential basis before disclosure by the Disclosing Party;
16.1.4. was, is or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party’s knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Receiving Party;
16.1.5. the parties agree in writing is not confidential or may be disclosed; or
16.1.6. is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party.
16.2. The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and shall not:
16.2.1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Contract; or
16.2.2. disclose such Confidential Information in whole or in part to any third party, except its own Representatives, or as expressly permitted by this clause 16.
16.3. NBS may disclose the Subscriber's Confidential Information to NBS Representatives who need to know such Confidential Information for the purposes of providing the Services, provided that:
16.3.1. it informs such NBS Representatives of the confidential nature of the Confidential Information before disclosure;
16.3.2. it procures that NBS Representatives shall, in relation to any Confidential Information disclosed to them, comply with the obligations set out in this clause as if they were a party to this Contract.
16.4. 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 or by a court or other authority of competent jurisdiction or by the rules of any listing authority or stock exchange provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.
16.5. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in these Terms and Conditions are granted to the other party, or to be implied from the Contract.
17. INTELLECTUAL PROPERTY
17.1. All Intellectual Property Rights in the Logos, and the NBS Intellectual Property are, and shall remain at all times, the sole and exclusive property of NBS or its Licensors. All such rights are reserved, and no licence or permission is to be implied or granted hereunder except as explicitly set out in these Terms and Conditions.
17.2. All Intellectual Property Rights in the Subscriber Intellectual Property are, and shall remain at all times, the sole and exclusive property of the Subscriber or the Subscriber’s licensors.
17.3. The Subscriber shall indemnify and hold NBS harmless in full against all losses, claims, costs, expenses and any sums awarded or claimed against NBS arising out of or in connection with any claim brought against NBS for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the CPD Materials, or Subscriber Content.
17.4. The Logos may only be used by the Subscriber during the Contract Term. The Subscriber’s failure to adhere to this clause 17.4 will be a material breach of the Contract entitling NBS to terminate the Contract and retain all Subscription Fees paid in advance. On termination of the Contract or part thereof the Subscriber must remove the Logos from all media relating to the Services.
18. TERMINATION
18.1. This Contract shall, unless and until terminated in accordance with this Contract, commence upon the Contract Start Date, shall continue for the Initial Term and thereafter, shall automatically be renewed for successive periods of 24 months on the expiry of the Initial Term or Renewal Period unless:
18.1.1. either party notifies the other party of termination of the Contract or part thereof, in writing, at least 90 days before the expiry of the Initial Term or Renewal Period, in which case the Contract shall terminate or be partially terminated in respect of a particular Service or Services upon the expiry of the Initial Term or Renewal Period; or
18.1.2. otherwise terminated in accordance with the provisions of the Contract.
18.2. At least 104 days prior to the expiry of the Initial Term or Renewal Period NBS shall notify the Subscriber of the Subscription Fee payable in respect of the forthcoming Renewal Period.
18.3. 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 Order Form in respect of the forthcoming Renewal Period.
18.4. Any proposed changes submitted in accordance with clause 18.3 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.
18.5. Without affecting any other right or remedy available to it, NBS may terminate the Contract with immediate effect by giving written notice to the Subscriber in the event that the Subscriber fails to pay any amount due under the Contract on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so.
18.6. Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party in the event that:
18.6.1. the other party commits a material breach of the Contract which breach is irremediable, or if such breach is remediable, fails to remedy such breach within 14 days of the receipt of notification in writing to do so; or
18.6.2. the other party has a receiver and/or manager and/or an administrator appointed over all or part of its assets or it enters into liquidation whether compulsory or voluntary (other than for the purposes of the bona fide solvent reconstruction) or otherwise enters into any arrangement or composition with its creditors or otherwise expresses an inability to pay its debts when they become due; or
18.6.3. an order is made, or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding up order against it; or
18.6.4. the other party ceases, or threatens to cease, to trade.
18.7. Without prejudice to clause 18.8 NBS may terminate this Contract at any time by giving a minimum of 12 weeks’ notice to terminate the Contract.
18.8. Any termination of this Contract will be without prejudice to NBS’s rights existing at the date of termination and the Subscriber shall not be entitled to any refund of the Subscription Fee, unless Subscriber has terminated under clause 18.6.1, in which case the Subscriber shall be entitled to a pro rata refund. For the avoidance of doubt, the Subscriber shall be liable to pay (within 30 days) the full Subscription Fee, as set out in the Order Form or invoice, applicable for the duration of the Contract irrespective of when the Contract is terminated.
18.9. In the event of termination, the Subscriber shall delete any software and any accompanying documentation and data, and erase all references to the Logos, or any other reference to the Services, including such references that are displayed on the Subscriber’s website. Upon request by NBS, the Subscriber shall confirm in writing to NBS that all such material has been deleted.
18.10.On termination of the Contract in whole or part for any reason:
18.10.1. the Subscription and all other licences granted to Subscriber under the Contract and all Services provided under the Contract shall immediately terminate and the Subscriber shall immediately cease all use of the Services to the extent its right to do so has been terminated;
18.10.2. each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party and used in relation to those aspects of the Contract that have terminated;
18.10.3. 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; and
18.10.4. Subscriber shall not be entitled to any refund of the Subscription Fee, unless Subscriber has terminated under clause 18.6.1.
19. NOTICES
19.1. A notice given to a party under or in connection with the Contract shall be in writing and in English and shall be delivered by recorded post at its registered company address or by email to the email address for legal notices (as stated on the Order Form) or in the case of notices given to NBS, to the relevant Account Manager.
19.2. The deemed time of receipt of a notice will be:
19.2.1. if sent by email, at the time of transmission or, if this falls outside of a Business Day, on the next Business Day;
19.2.2. if sent by recorded post, on signature of a delivery receipt by a representative of the other party.
19.3.This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20. UPDATES TO TERMS AND CONDITIONS
20.1. NBS may make Updates from time to time and will make the updated terms available at https://www.thenbs.com/legal or such other location as NBS may notify to the Subscriber.
20.2. NBS will provide notice of any Update to the Subscriber via email to the email address for legal notices provided in the Order Form, unless otherwise agreed between the parties in writing. The Subscriber is responsible for ensuring that their contact details for such notices are accurate and up to date and shall inform NBS of any changes via email to the relevant Account Manager.
20.3. Any Update necessary for compliance with Applicable Law will become effective immediately.
20.4. Any other Update will become effective 30 days after NBS provides notice to the Subscriber of such Update.
20.5. If an Update has a material adverse impact on the Subscriber, and the Update is not required in order to comply with Applicable Law, the Subscriber may notify NBS within 30 days of receiving notice of an Update that the Subscriber does not accept such Update, whereupon the Subscriber will remain governed by the terms in effect immediately prior to the Update until the end of the Contract Term.
20.6. To the extent of any conflict between an Update and any other agreement in writing between the parties, the Update will take priority unless: i) the Subscriber is otherwise notified by NBS; or ii) such agreement states by reference to this clause 20 that it is intended to take priority over such Update.
20.7. No amendment to the Contract, other than Updates, shall be effective unless it is in writing and signed by both parties.
21. GENERAL
21.1. These Terms and Conditions and any other expressly incorporated document constitute the entire agreement between the parties hereto relating to the subject matter hereof and neither party has relied on any representation made by the other party unless such representation is expressly included herein.
21.2. 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.
21.3. If any provision of these Terms and Conditions or part thereof shall be void for whatever reason, it shall be deemed deleted, and the remaining provisions shall continue in full force and effect.
21.4. 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.
21.5. Nothing in these Terms and Conditions shall create, imply or evidence any partnership or joint venture between the Subscriber and NBS or the relationship between them of principal and agent or employer and employee.
21.6. 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.
21.7. A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
21.8. NBS may at any time assign, novate, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Contract and may novate, subcontract, or delegate any or all of its obligations under the Contract to any third party, in each case without the Subscriber’s consent. NBS may at any time novate the Contract, or any or all of its rights and obligations under the Contract, to another member of its group of companies or any other third party.
21.9. 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 21.8.
22. THIRD PARTY RIGHTS
22.1. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract and no person other than the Subscriber or NBS shall have any rights under it.
22.2. 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.
23. GOVERNING LAW AND JURISDICTION
23.1. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
23.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
Last Updated: 18th March 2024
