Applicable Law means in the UK or Australia, 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 means 9:00am to 5:00pm Monday to Friday, excluding any day that is a public holiday in Australia.
Contract Start Date means the date the NBS Order Form is countersigned by or on behalf of NBS.
Concurrent User means the Users who are able to access or use the NBS Chorus Service at any one time as stipulated on the NBS Order Form.
Content shall mean all human- and machine-readable data retained, maintained and displayed in the NBS Chorus Service, other than the Subscriber Data.
Contract means the NBS Order Form and these Terms and Conditions, entered into between the Subscriber and NBS for the use of the Services for the Contract Term.
Contract Term means the period of time from the Contract Start Date until the end of the Subscription together with any Renewal Periods.
Data Protection Legislation means all Applicable Law governing the protection and/ or processing of personal data and on the free movement of such data, which applies to either party’s processing activities under this Agreement. This may include the Data Protection Act 2018 (UK); the Privacy and Electronic Communications Regulations 2003 (UK); the Privacy Act 1988 (Cth), as well as any applicable laws or regulations amending or implementing any of the foregoing.
Force Majeure Event means any failure or delay in the Services or any part thereof occasioned by circumstances beyond NBS’ reasonable control including (but not limited to) acts of God, fire, flood, explosion, accident, inability to supply the information, software materials or support, computer viruses/ malware, breakdown of equipment, failure of telecoms, internet, or utilities (regardless of cause), governmental action, order or interference and labour disputes involving NBS, the Subscriber and/ or any third party.
Intellectual Property Rights means the patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
Legacy System means any product or Service provided by NBS which is due to or has been retired by NBS.
Manufacturer Company means the company or organisation which supplies Manufacturer Data to NBS.
Manufacturer Data shall mean such information, as may be amended from time to time, about the Manufacturer Company and its products which forms part of the Content.
NBS means NBS Enterprises Limited, a company incorporated and registered in England and Wales (company number 978271) whose registered office is at The Old Post Office, St Nicholas Street, Newcastle upon Tyne NE1 1RH.
NBS Chorus Service shall mean the ‘software as a service’ known as ’NBS Chorus’.
NBS Order Form means the document which details the items the Subscriber has committed to purchase from NBS and forms part of the Contract together with these Terms and Conditions.
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 NBS Chorus Service.
Project Title means the name given to a project by the Subscriber and/ or any User.
Renewal Period shall have the meaning set out in clause 6.1.
Service Credit shall mean the percentage of the Subscription Fee for the NBS Chorus Service credited against the Subscription Fee for NBS Chorus Service for the next Renewal Period as calculated in accordance with NBS’ service level policies from time to time as available at https://www.thenbs.com.au/legal.
Service Levels shall mean the service level targets for the NBS Chorus Service set out in NBS’ service level policies from time to time as available at https://www.thenbs.com.au/legal and subject to the exclusions set out in such policies from time to time.
Services (including NBS Services) means the NBS Chorus Service including any other services provided by NBS, including training, as provided by NBS from time to time. NBS reserves the right to invoice separately for fees relating to Services.
Sharing Settings means Subscriber controlled settings, accessible via the NBS Chorus Service which enable the Subscriber to control the sharing of information related to the production and use of Subscriber Data and Manufacturer Data with NBS and Manufacturer Companies.
Subscriber means the company who has entered into the Contract, for the use of the Services for their desired number of Users for business purposes.
Subscriber Data means any data (excluding Manufacturer Data), documents, drawings, designs, reports, specifications, photographs, visual material and anything else which is in a material or electronic form which is uploaded by the Subscriber or any User to the NBS Chorus Service or otherwise submitted to NBS to enable the Subscriber or any User to obtain the benefit of the Services.
Subscription means the Subscriber’s right to access and use the Services for the period as detailed on the NBS Order Form followed by any Renewal Period.
Subscription Fee means the fee payable by the Subscriber, to NBS, for the use the Services.
Terms and Conditions mean these terms and conditions which govern the Contract and may be updated from time to time. Terms and Conditions are available at https://www.thenbs.com.au/legal or such other location as NBS may notify to the Subscriber.
Update means any amendment to these Terms and Conditions as more particularly set out in clause 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 NBS Chorus Service by the Subscriber for business purposes and has created an NBS ID and password by accepting the NBS ID terms and conditions. NBS ID terms and conditions are available here https://www.thenbs.com/legal/nbs-id.
2.1.Neither the information contained nor the information provided through the NBS Chorus Service or as part of the Services are intended, and accordingly shall not be relied upon, either as a substitute for professional advice or judgement or to provide legal or other advice with respect to any particular circumstance.
2.2.Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.
2.3.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.
2.4.NBS shall have the right to make any amendments or changes that it deems reasonably necessary in order for the NBS Chorus Service, or any other goods or Services provided by it to the Subscriber, to be compliant with Applicable Law or health and safety regulations or requirements from time to time and shall not be in breach of the Contract as a result.
2.5.The Subscriber and Users acknowledge this Contract represents a business-to-business transaction and consumer legal protections shall not apply.
2.6.The Subscriber may allow its Users to access and use the NBS Chorus Services and Services, provided that the Subscriber shall procure that its Users shall, at all times, act in accordance with these Terms and Conditions.
2.7.References to UK legislation may be read in more detail at https://www.gov.uk or such website as provided by the UK Government from time to time.
3.NBS Chorus Service
3.1.Subject to compliance in full with these Terms and Conditions, the Subscriber and its Users may reproduce part or parts of the Content on a reasonable basis that is not commercially prejudicial to NBS, for the purpose of providing services to Subscriber’s clients and potential clients.
3.2.Notwithstanding clause 16, NBS may modify and/ or replace elements of the NBS Chorus Service and Services from time to time, including by replacing Legacy Systems with equivalent functionality, provided that such modifications and/ or replacements will not, in NBS’ sole but reasonable opinion, adversely affect the technical functionality offered to the Subscriber. NBS will provide reasonable notice to the Subscriber where such modifications and/ or replacements are likely to have a material effect on the Subscriber’s experience.
3.3.Subject to these Terms and Conditions, NBS hereby grants to the Subscriber a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Subscriber and its Users to use the NBS Chorus Service and any associated documentation during the Contract Term solely for the Subscriber's business operations.
3.4.In relation to the Users, the Subscriber undertakes that:
3.4.1.the maximum number of Concurrent Users that it authorises to access and use the NBS Chorus Service and any associated documentation shall not exceed the number specified on the NBS Order Form or as otherwise agreed by NBS in writing;
3.4.2.it will not allow or suffer any User log-in to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the NBS Chorus Service and/ or the associated documentation;
3.4.3.each User shall keep a secure password for use of the NBS Chorus Service and that each User shall keep this password confidential;
3.4.4.it shall permit NBS or its designated auditor to audit and/ or monitor the NBS Chorus Service in order to establish the identity of each User;
3.4.5.if any of the audits referred to in clause 3.4.4 reveal that any password has been provided to any individual who is not a User, then without prejudice to NBS’ other rights and remedies, the Subscriber shall promptly disable such passwords and NBS shall not issue any new passwords to any such individual; and
3.4.6.if any of the audits referred to in clause 3.4.4 reveal that the Subscriber has underpaid the Subscription Fee to NBS, then without prejudice to NBS’ other rights and remedies, the Subscriber shall pay to NBS an amount equal to such underpayment within 10 days of the date of the relevant audit.
3.5.The Subscriber warrants that it:
3.5.1.is the owner of, or has sufficient licence to use all material uploaded to the NBS Chorus Service by or on behalf of the Subscriber, or submitted to NBS,
3.5.2.is the owner of, or otherwise has a licence to, the Subscriber Data;
3.5.3.will not use the NBS Chorus Service in breach of any licenses, authorisations or approvals granted to it by a third party or place NBS in breach of such licenses, authorisations or approvals; and
3.5.4.has the right and power to grant the licences contained in this Contract to NBS, including to enable NBS to use the Subscriber Data to provide the Services and otherwise for the purposes of this Contract.
3.6.NBS shall, during the Contract Term, provide the NBS Chorus Service and make available any associated documentation to the Subscriber on and subject to the Contract.
3.7.NBS shall use commercially reasonable endeavours to make the NBS Chorus Service available in accordance with the Service Levels and where NBS fails to meet a relevant Service Level the Subscriber shall become entitled to the Service Credit on submitting a written claim for such Service Credit, provided that the failure to meet the relevant Service Level did not result from:
3.7.1.a cause outside of NBS’ control;
3.7.2.any improper use, misuse or unauthorised alteration of the NBS Chorus Service by the Subscriber;
3.7.3.any use of the NBS Chorus Service by the Subscriber in a manner inconsistent with any documentation or instructions provided by NBS or the Contract;
3.7.4.the use by the Subscriber of any hardware, equipment or software not provided or approved by NBS for use in connection with the NBS Chorus Service; or
3.7.5.any matter falling within the NBS Chorus Service, Service Level policy exclusions accessible via www.thenbs.com.au/legal.
3.8.The parties acknowledge that the Service Credit is a genuine pre-estimate of the loss likely to be suffered by the Subscriber and not a penalty and the provision of a Service Credit shall be the Subscriber’s sole and exclusive remedy for the specified Service Level failure. Each Service Credit shall be shown as a deduction from the amount due from the Subscriber to NBS on the next invoice then due to be issued for the next Renewal Period and NBS shall not in any circumstances be obliged to pay any money or make any refund to the Subscriber.
3.9.NBS shall follow its standard archiving procedures for Subscriber Data held within the NBS Chorus Service. In the event of any loss or damage to Subscriber Data, the Subscriber’s sole and exclusive remedy against NBS shall be for NBS to use reasonable commercial endeavours to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by NBS. NBS shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party.
4.1.NBS shall be under no obligation to provide any support or maintenance services to the Subscriber in respect of its use of the NBS Chorus Service but may, in its absolute discretion, provide to the Subscriber the assistance and support in relation to the NBS Chorus Service upon the request of the Subscriber as is set out in its support policy from time to time as available via www.thenbs.com/legal from time to time.
4.2.NBS reserves the right, in its absolute discretion, to withhold any such assistance or support or to charge the Subscriber an additional fee for any assistance or support that it considers to be excessive, or which is required in response to operating difficulties caused by matters outside NBS’ control including the Subscriber’s operating errors or shortcomings, or defects in any of the Subscriber’s hardware or software.
5.1.NBS shall provide the training to the Subscriber in accordance with the description of the same set out on the NBS Order Form or as otherwise agreed in writing by the parties and at the locations and for the maximum number of delegates specified on the NBS Order Form or as otherwise agreed in writing by the parties.
5.2.NBS shall use its reasonable endeavours to provide the training on the dates and at the times provided to the Subscriber but time shall not be of the essence in respect of such dates and times.
5.3.The Subscriber acknowledges and agrees that NBS does not warrant or guarantee that any delegates who participate in the training will, as a result of the training, be proficient or competent in the subject matter of the training and it is the Subscriber’s responsibility to ensure that all Users are appropriately trained and skilled in the use of the NBS Chorus Service prior to them being given access to the same.
5.4.The Subscriber shall pay the fees for the training specified on the NBS Order Form or relevant invoice (together with any expenses reasonably incurred in the provision of the training, including travel, accommodation and subsistence expenses).
5.5.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:
5.5.2.providing such access to its premises, facilities, equipment, information and materials and acquiring all such licences and consents as are required by NBS in order to deliver the training; and
5.5.3.ensuring all relevant Users are available to receive the training on the dates and at the times specified by NBS and ensuring that all training is completed by the relevant Users by the end of the Subscription or the Renewal Period in which it is ordered and the Subscriber agrees that training which is not so completed cannot be carried over into the next Renewal Period.
6.Renewal and Termination
6.1.The Subscription shall commence on the Contract Start Date and continue for the duration of the Subscription, unless terminated as provided in this clause 6, and thereafter, shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
6.1.1.either party notifies the other party of termination of the provision of the NBS Chorus Service, in writing, at least 90 days before the end of the Subscription or any Renewal Period, in which case the Contract shall terminate in respect of the NBS Chorus Service and any relevant Services not then used upon the expiry of the applicable Subscription or Renewal Period; or
6.1.2.otherwise terminated in accordance with the provisions of the Contract.
6.2.Without affecting any other right or remedy available, NBS may terminate the Contract with immediate effect by giving written notice to the other party if the Subscriber fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
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 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 circumstances arise which entitle a court of competent jurisdiction to make a winding up order against it; or
6.3.4.the other party ceases, or threatens to cease, to trade.
6.4.On termination of the Contract in whole or part for any reason:
6.4.1.the Subscription and all other licences granted under the Contract and any Services provided under the Contract shall, to the extent that the Contract has terminated, immediately terminate and the Subscriber shall immediately cease all use of the NBS Chorus Service and Services to the extent its right to do so has been terminated;
6.4.2.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 (including any materials or software used or created in the provision of the training) and used in relation to those aspects of the Contract that have terminated;
6.4.3.NBS may, subject to clause 11.5., destroy or otherwise dispose of any of the Subscriber Data in its possession in respect of those aspects of the Contract that have been terminated;
6.4.4.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;
6.4.5.no refund of the Subscription Fee or any fees in respect of Services or training shall be made; and
6.4.6.NBS shall not be obliged to provide any training which has not been completed as at the date of termination.
6.5.In the event of the termination of the Contract in whole or part, NBS shall, where the NBS Chorus Service has been terminated, be entitled to disable the Subscriber’s access to the NBS Chorus Service. Subject to clause 11.5. the Subscriber retains the right to continue to use Subscriber Data that has been produced during the Subscription after the termination of the Subscription. The Subscriber shall procure that, upon termination of the Subscription, all Users fully comply with the requirements set out in clauses 6.4. and 6.5.
7.Fees and Invoices
7.1.The Subscriber shall pay to NBS the Subscription Fee, and any fees for Services, in accordance with the invoicing frequency and payment terms as set out on the NBS Order Form.
7.2.At least 90 days prior to the end of the Subscription or any Renewal Period each party shall notify the other in writing of any proposed changes to the Subscription Fee or the Subscription in respect of the forthcoming Renewal Period.
7.3.Any proposed changes submitted in accordance with clause 7.2 and agreed by the parties shall be confirmed in writing by NBS.
7.4.The Subscriber acknowledges and agrees that it is its sole responsibility to finance the Subscription Fee and Services on a basis which is commercially appropriate for its business and that where finance is provided by a third party, whether such third party is introduced by NBS or otherwise, then the Subscriber is solely responsible for discharging its obligations to such third party, including where the Subscription is cancelled or the Contract is terminated.
7.5.NBS shall be under no obligation to perform any of its obligations under the Contract unless and until the Subscription Fee and/ or any relevant invoice for Services is paid in full.
7.6.Without prejudice to any other rights or remedies of NBS if any amount is outstanding beyond the permitted payment terms as set out on the relevant invoice NBS may, by written notice, either deem the Contract be terminated by default, resulting in cancellation charges of 100% of the remaining value of the then Subscription or Renewal Period or suspend provision of Services pending payment in full of any outstanding amount.
7.7.NBS reserves the right to charge interest and late payment compensation in accordance with the provisions of The Late Payment of Commercial Debts (Interest) Act 1998 or such other similar legislation as may be enacted from time to time on any such overdue sums. For the avoidance of doubt, in addition to interest payments the Subscriber shall pay reasonable costs and expenses incurred by NBS in enforcing this Contract and recovering monies owed to NBS by the Subscriber.
8.Intellectual Property Rights
8.1.All of the Intellectual Property Rights in the Services, the Content and in any materials or software created or used in the provision of the Services and training are, and shall remain at all times, the sole and exclusive property of NBS or its licensors. All such rights are reserved. The Subscriber shall acquire no rights in the Services, the Content or the materials or software created or used in the provision of the Services or training except as expressly provided for in these Terms and Conditions.
8.2.Without prejudice to the generality of clause 8.1 the NBS logos and all other NBS trademarks, names, and trade names logos appearing in, on or in connection with the Services or training are owned by NBS or its licensors. The Subscriber may not use or display any such trademark, product name, trade name, or logo without NBS’ or the relevant owner’s prior written consent.
8.3.The Subscriber 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 Subscriber Data for the purposes of NBS exercising its rights and performing its obligations under the Contract and to enable the Subscriber to obtain the benefit of the Services during the Subscription and any Renewal Period.
8.4.The Subscriber 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 Subscriber Data, the upload, processing, storage or use of the Subscriber Data in the NBS Chorus Service as contemplated by this Contract, or the Subscriber's use of the Services otherwise than in accordance with this Contract, infringes the intellectual property rights of a third party. For the avoidance of doubt, the Subscriber is not required to indemnify NBS to the extent arising out of or in connection with any claims that the NBS Chorus Service itself (absent the Subscriber Data), when used by the Subscriber in accordance with this Contract, infringes the intellectual property rights of a third party.
9.1.Except with NBS’ 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:
9.1.1.use or permit others to use the Services or the Content for the purpose of developing and/ or maintaining for himself or for others, an alternative service provision which either directly or indirectly competes with the NBS Services or serves the same or a similar purpose as the Services including by providing a dedicated specification writing service to architectural, design, or engineering practices or manufacturing companies;
9.1.2.attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Content, the Services or any materials or software used or created in the provision of the Services or training (as applicable) in any form or media or by any means; or
9.1.3.attempt to decompile, reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the Services or any software used or created in the provision of the Services or training except as permitted in law; or
9.1.4.subject to clause 3, licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the Services or any materials or software used or created in the provision of the Services or training available to any third party except the Users provided that third parties who are not employees of the Subscriber shall only be granted access to and use of NBS Chorus Service as Users to the extent and for such period as is absolutely necessary for them to collaborate with the Subscriber on a project being managed by the Subscriber using the NBS Chorus Service.
9.2.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.
9.3.The Subscriber shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services, or any software used as part of the Services or training that:
9.3.1.is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
9.3.2.facilitates illegal activity;
9.3.3.depicts sexually explicit images;
9.3.4.promotes unlawful violence;
9.3.5.is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
9.3.6.is otherwise illegal or causes damage or injury to any person or property;
and NBS reserves the right, without liability or prejudice to its other rights to the Subscriber, to disable the Subscriber’s or individual Users’ access to any material that breaches the provisions of this clause 9.33.
9.4.The Subscriber shall procure that any User acting under its authority shall comply with the restrictions imposed in this clause 9.
10.Confidentiality and Data Protection
10.1.In this clause 10, the terms Controller, Personal Data, Process, and Processor, shall have the meanings given in the Data Protection Act 2018, available at https://www.gov.uk/data-protection or such website as provided by the UK Government from time to time.
10.2.Any information imparted by either party relating to the Content, or Services and use thereof, shall be kept confidential by the parties, and shall be used solely in connection with the normal use of the Services strictly in accordance with these Terms and Conditions and Sharing Settings.
10.3.Subject to clauses 10.5, 10.6 and 10.7, NBS may incorporate, make use of, record and disclose information relating to the usage of the Manufacturer Data and the usage, performance and functionality of the Services and the Content in accordance with the Sharing Settings.
10.4.Subject to clauses 10.5, 10.6 and 10.7 the information specified in clause 10.3. may, in NBS’ absolute discretion, be used or stored internally by NBS or shared with and disclosed to third parties for such purposes as NBS deems appropriate from time to time. NBS will not share Personal Data of Users with Manufacturer Companies.
10.5.The Subscriber shall adjust the Sharing Settings within the NBS Chorus Service to indicate where certain information cannot be shared or disclosed by NBS in accordance with this clause 10 provided that:
10.5.1.the Sharing Settings will enable the Subscriber to prevent the disclosure of Subscriber Data to Manufacturers and other third parties;
10.5.2.NBS shall have no liability where the Subscriber fails to adjust such Sharing Settings.
10.7.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 the Data Protection Legislation.
10.8.The Subscriber acknowledges and agrees that:
10.8.1.neither the NBS Chorus Service nor Services are intended for storing or otherwise Processing any Personal Data on behalf of the Subscriber;
10.8.2.NBS is not appointed as a Personal Data Processor under the Contract;
10.8.3.it shall ensure no Personal Data is entered, stored or otherwise Processed using the NBS Chorus Service other than as set out in Clause 10.4.
10.9.NBS will disclose to the Subscriber the NBS ID data of Users with access to the Subscriber’s account to the extent necessary for allowing the Subscriber to:
10.9.1.control which Users may access its account and any Subscriber Data;
10.9.2.track edits made to the Subscriber Data; and
10.9.3.make use of other account management functionality released by NBS from time to time.
NBS and the Subscriber shall hold such data separately, each as a Controller.
10.10.The Subscriber will inform NBS immediately upon becoming aware of any breach of security related to its account or to any User with access to its account.
11.1.The Subscriber and its licensors shall retain ownership of the Intellectual Property Rights in the Subscriber Data and the Subscriber is solely responsible for ensuring that the Subscriber Data is accurate and complete.
11.2.Subject to clauses 10.3 and 10.4 NBS shall not, in any circumstance, copy any Subscriber Data or incorporate that Subscriber Data into any other Services without first obtaining the written consent of the relevant Subscriber.
11.3.NBS shall not, in any circumstance, be liable for the legality, reliability, integrity, quality or accuracy of the Subscriber Data or any data or Content (including any Manufacturer Data) which is supplied by a third party (including a Manufacturer Company) which is provided to the Subscriber through use of the NBS Chorus Service, Services or training.
11.4.Subscriber Data will be stored securely by NBS up to a limit of 10GB (or as otherwise agreed by NBS in writing) free of additional charge. NBS reserves the right to review this data storage limit from time to time, and to charge Subscribers in the event that a Subscriber exceeds the data storage limit for its licensed number of Concurrent Users.
11.5.Where the Subscription is terminated in accordance with these Terms and Conditions the Subscriber’s access to all of the Subscriber Data will be lost on the termination date. It is the Subscriber’s responsibility to export and save such Subscriber Data to its own storage media prior to the date of termination. NBS shall retain the Subscriber Data relating to the NBS Chorus Service for two years from the date of termination and may, on request and subject to payment of its fees for the same, provide an export of such Subscriber Data to the Subscriber during such two-year period.
11.6.NBS accepts no responsibility for any liability arising from the use of the Subscriber Data by third parties in the course of the Subscriber’s use of the Content, the NBS Chorus Service, Services or training.
12.Warranties, Remedies and Limitation of Liability
12.1.NBS warrants that the NBS Chorus Service will be virus-free as at the Contract Start Date and that the Services including training will be provided with reasonable skill and care
12.2.NBS warrants that the NBS Chorus Service will provide the functionality and features substantially in accordance with the accompanying documentation supplied by NBS, provided that each is properly used in conjunction with the equipment and operating systems for which they were designed. NBS warrants that any documentation supplied by NBS correctly describes the NBS Chorus Service (as applicable) in all material respects. If NBS is notified of any significant error during the period of 90 days after the Contract Start Date it will correct any such error within a reasonable time, or at its option refund the Subscription Fee whereupon the Contract will be terminated without NBS incurring any further liability and the provisions of clauses 6.4 and 6.5 shall apply.
12.3.The warranties set out in clauses 12.1.1 and 12.2 are exclusive of and in lieu of all other conditions and warranties, either expressed or implied, including without limitation those relating to satisfactory quality or fitness for purpose which are hereby excluded to the fullest extent permitted by law.
12.4.NBS does not warrant that the NBS Chorus Service, Services or training will meet the Subscriber’s requirements or that the operation of or use of will be uninterrupted or error free, or that all errors can be corrected. The Subscriber installs and uses the NBS Chorus Service at the Subscriber’s own risk and, subject to clause 12.6, in no event will NBS be liable to the Subscriber for any loss or damage of any kind arising from the use of or inability to use the NBS Chorus Service, Services or training from errors or deficiencies whether caused by negligence or otherwise, except as expressly provided in these Terms and Conditions.
12.5.NBS has obtained insurance cover in respect of its own legal liability for individual claims. The limits and exclusions in these Terms and Conditions reflect 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.
12.6.Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
12.6.1.death or personal injury caused by negligence;
12.6.2.fraud or fraudulent misrepresentation; and
12.6.3.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).
12.7.Subject to clause 12.6, NBS’ total liability to the Subscriber shall not exceed the aggregate amount of the invoices actually paid by the Subscriber to NBS in the immediately preceding period of twelve months. NBS’ total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
12.8.Subject to clause 12.6 the following types of loss are wholly excluded:
12.8.1.loss of profits;
12.8.2.loss of sales or business;
12.8.3.loss of agreements or contracts;
12.8.4.loss of anticipated savings;
12.8.5.loss of use or corruption of software, data or information;
12.8.6.loss of or damage to goodwill; and
12.8.7.indirect or consequential loss.
12.9.Clause 12 shall survive termination of the Contract.
12.10.The NBS Chorus Service, Services or the training may provide links to third party websites. NBS is not responsible or liable for:
12.10.1.the availability or accuracy of such websites; or
12.10.2.the content, products, or services on or available from such websites or the data protection or privacy practices of such websites; and links to such websites do not imply any endorsement by NBS of such websites, or the content, products, or services available from such websites. The Subscriber takes sole responsibility for, and assumes all risks arising from, the Subscriber’s and any Users’ use of any such websites.
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, as updated or amended by NBS from time to time, shall apply to the Contract to the exclusion of any other terms that the Subscriber seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
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.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.
13.5.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 employers and employee.
13.6.Except as expressly provided in these Terms and Conditions, nothing shall confer or purport to confer on a third party any benefit or any right to enforce any provision of the Contract.
13.7.The Contract is personal to the Subscriber and the Subscriber shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights or obligations under the Contract without the prior express written consent of NBS
13.8.NBS may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Contract and may subcontract or delegate any or all of its obligations under the Contract to any third party.
14.1.NBS shall not be liable for any Force Majeure Event.
14.2.Where a Force Majeure Event continues for more than two months, either party may terminate this Contract or part thereof on 14 days’ notice to the other party. For certainty, the Subscriber will not be entitled to any repayment of Subscription Fees as a result of a Force Majeure event.
15.1Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by email or by recorded post at its registered company address or email address for legal notices as stated on the NBS Order Form. Any notice shall be deemed to have been received:
15.1.1if sent by recorded post on signature of a delivery receipt by a representative of the other party;
15.1.2if sent by email, at the time of transmission or, if this falls outside of a Business Day in the place of receipt, on the next Business Day. The Subscriber is responsible for ensuring that their contact details for such notice are accurate and up to date, and shall inform NBS of any changes by email to email@example.com.
16.Updates to Terms and Conditions
16.1NBS may make Updates to these Terms and Conditions from time to time and will make the updated terms available at https://www.thenbs.com.au/legal or such other location as NBS may notify to the Subscriber.
16.2NBS will provide notice of any Update to the Subscriber via email to the email address for legal notices provided by the Subscriber.
16.3Any Update necessary for compliance with Applicable Law will become effective immediately.
16.4Any other Update will become effective 30 days after NBS provides notice to the Subscriber of such Update.
16.5If an Update has a material adverse impact on the Subscriber, and the Update is not required in order to comply with Applicable Law, the Subscriber may notify NBS within 14 days of receiving notice of an Update that the Subscriber does not accept such Update, whereupon the Subscriber will remain governed by the terms in effect immediately prior to the Update until the earlier of: i) the end of the Term or Renewal Period; or ii) 12 months after the Subscriber receives notice of the Update.
16.6To 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 16 that it is intended to take priority over such Update.
17.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
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