1. INTRODUCTION
1.1 This page sets out the general customer terms (General Terms) which apply to BB’s software as a Service (as defined below) programmes and associated Services which BB (as defined below) licences or provides to any Customer (as defined below), unless Customer has entered into a separate written contract with BB signed by both parties in respect of the Services.
1.2 The parties’ agreement for the licensing, use and provision of the Services is made up of (i) these General Terms which includes, to the extent that BB provides Development Services (as defined below) to a Customer, the Addendum; (ii) the Proposal or terms specified by BB during the Checkout Process; and (iii) any other written document either issued by BB (and expressly referring to and incorporating itself into the agreement) or any amendments or supplements to the agreement signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Agreement and apply to the contract between the parties to the exclusion of any other terms that Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. For the avoidance of doubt, whilst the Services and Software may be marketed in online marketplaces which purport to allow customers to check out electronically, no agreement for the Services or Software shall be binding other than as signed or otherwise agreed in writing by an authorised representative of BB.
1.3 When construing the meaning of the Agreement, the documents listed in clause 1.2 shall be interpreted in a reverse order of priority in the event of any inconsistency or conflict, with documents appearing later in the list taking priority over documents appearing earlier in the list.
1.4 Any order placed by Customer (including orders for additional User Licences or to upgrade access Tiers) shall only be deemed to be accepted upon BB’s signature of the Proposal, or acceptance of the relevant Checkout Process submission by the Customer via the BB platform (which acceptance shall be confirmed by email or notification via the platform) at which point, and on which date, the Agreement shall come into existence.
1.5 These General Terms are published on BB’s website. Customer should print or save a copy of these General Terms for its records. BB may amend these General Terms from time to time as set out in clause 18.15. Every time Customer completes the Checkout Process or signs or agree a new Proposal with BB it should check these General Terms to ensure that it understands the terms which will apply to the Agreement at that time. This version five of these General Terms was most recently updated on 24th February 2025. Historic versions, where applicable, may be obtained by contacting us.
1.6 If BB issues a written Proposal (which it will not normally do, save where Development Services are being provided, most / all of the other Services being self-service via an applicable Checkout Process) it shall be valid for a period of 30 days (or such longer period specified on the Proposal) from the date of issue, if not agreed by Customer, at which point the offer outlined in the Proposal shall lapse.
2. INTERPRETATION
2.1 In the Agreement the following definitions and rules of interpretation shall apply:
Addendum means Addendum A to these General Terms;
Affiliates means any entity that directly or indirectly controls is controlled by or is under common control with either party, where “control” means having more than fifty percent (50%) ownership or the right to direct the entity’s management;
Agreement has the meaning given to it in clause 1.2;
Authorised Users means those employees, representatives, consultants, contractors, or agents of Customer and any Subscribing Organisations only, who are authorised by Customer to use the Subscription Services and the Documents for the benefit of Customer, who have agreed to the terms of the EULA who shall each have unique user identifications and passwords for the Subscription Services, and for whom the Customer has purchased a User Licence;
BB means Budibase Limited, a company incorporated in Northern Ireland under registered company number NI662141, whose registered office address is at 46 Hill Street, Belfast, Northern Ireland, BT1 2LB;
BB Data means all information and data that BB incorporates into the Subscription Services or Consultancy Services;
Beta Services means any Service identified as beta, preview or similar;
Business Day means any day which is not a Saturday, Sunday, bank or public holiday in Northern Ireland or the jurisdiction in which Customer is incorporated or registered;
Charges means the applicable charges for the Services from time to time, including the Consultancy Services Charges, the Subscription Charges and the Development Services Charges;
Chargeable Features means those Features of the Subscription Services which are not provided as Free Services as part of the basic access Tier, but require payment of specific Subscription Charges for different premium access Tiers (each unlocking additional Chargeable Features), and are subscribed for by Customer in-platform or in a written Proposal;
Checkout Process means the online subscription process by which Customer may agree to purchase or subscribe for any applicable Consultancy Services or User Licences (within relevant premium access Tiers);
Commencement Date means the date specified in the Proposal or that the Checkout Process is completed for: (a) commencement of the licence to the Subscription Services; or (b) commencement of the Development Services. There may be a different commencement date for particular access Tiers, where Customer upgraded their access Tier during the Term;
Community Support means such online forum support resources for Authorised Users as BB may choose to provide on any forum notified to Customer from time to time;
Confidential Information means in relation to either party, any or all information of a confidential nature (whether in oral, written or electronic form) including trade secrets and information (whether or not of commercial value) known and belonging to that party and concerning its business, suppliers, customers, products or services (including without limitation, in BB’s case, the Software and the Documents, and any confidential pricing offered by BB, and in Customer’s case Customer Data privately within their Authorised Users’ accounts) and any other information which the recipient knows or is notified or has reason to believe is confidential to the disclosing party;
Consultancy Charges means the service charges for any Consultancy Services purchased via the Subscription Services;
Consultancy Services means any chargeable consultancy services to be provided by BB to Customer (as purchased by the Customer from time to time), other than the Subscription Services or basic Community Support, including, for example, technical assistance, Support, training and Customer on-boarding. Such Consultancy Services as are available shall be specified on the BB platform or written Proposal from time to time. Save where otherwise specified below, the Consultancy Services include the Development Services;
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures each have the meaning given to them in the Data Protection Legislation.
Customer means the person licensing and taking the benefit of (and where applicable paying for) the Services provided by BB, as identified in the Proposal, during the Checkout Process, or applicable account record or billing statement where the Checkout Process is unclear;
Customer Data means the data, software, code, content and images inputted or created by Customer, Authorised Users, or (if applicable) BB (or its sub-contractors) on Customer’s behalf for the purposes of facilitating, or in connection with, Customer’s or its Authorised Users’ use of the Subscription Services. Customer Data shall be deemed to be the Confidential Information of Customer where it is not uploaded or disclosed in a manner that contemplates it being made available or viewable by third parties (other than Customer’s Authorised Users);
Customer Equipment means a functioning mobile, desktop, laptop or handheld hardware device, internet access, and software facilitating access to the following modern and high usage web browsers, namely, Chrome, Mozilla Firefox, Safari or Microsoft Edge in the most recent versions, or such other relevant software and/or hardware reasonably notified to Customer by BB from time to time;
Data Protection Law means all applicable data protection and privacy legislation in force from time to time in the UK or the other jurisdiction in which Customer is based, including, for so long as and to the extent that they are legally binding upon the parties and relevant to the Personal Data in question, the UK or EU the General Data Protection Regulation (GDPR);
Development Services means the application development services provided by BB to Customer from time to time, as specifically set out in a Proposal;
Development Services Charges has the meaning given in the Addendum;
Documents means the standard documents BB provides in connection with use of the Subscription Services, including user guides or manuals, for example;
EULA means BB’s standard end-user licence agreement which all Authorised Users are required to sign up to before beginning to use the Subscription Services, which is available here: https://budibase.com/terms/ ;
Feature means a specific feature or function of the Subscription Services, as made available from time to time by Budibase within particular access Tiers;
Free Services means the Subscription Services (without any Chargeable Features) or other services or features made available by BB to Customer on a free of charge basis, for example the basic Features available to all Authorised Users subscribed for the free access Tier or Chargeable Features made available as part of a free trial period;
Feedback means any ideas, know-how, algorithms, code contributions, suggestions, enhancement requests, recommendations or any other feedback on BB products or services;
General Terms has the meaning given to it in clause 1.1;
Initial Subscription Term means the initial subscription term for any premium access Tier (with corresponding Chargeable Features) for which Customer subscribes, typically either a year or a month, as selected by Customer during the Checkout Process or specified in a written Proposal;
Licence Restrictions means the licence restrictions specified or referred to in the Proposal, on the BB platform (including during the Checkout Process), or within the Agreement;
Payment Terms means the payment terms for payment of any Charges. Unless otherwise specified in a written Proposal, these require: in respect of any Development Services Charges (a) a 50% deposit to be paid upfront for Development Service Charges with the remaining amount to be paid on completion of the Development Services; (b) (for Customers on an enterprise Tier only), in respect of any Subscription Charges (i) Consultancy Charges to be paid up-front in advance (based on allocated time for specified Consultancy Services, or the relevant Support plan specified in any written Proposal); and (c) any relevant Subscription Charges being paid monthly or yearly in advance based on the Initial Subscription Term selected by Customer during the Checkout Process or within a written Proposal;
Purpose means approved Authorised Users accessing and using the functionality offered by the Subscription Services (including that contemplated within the Documents) as they are functionally contemplated to operate, namely to develop software applications to meet the legitimate internal business purposes of Customer (or any Subscribing Organisation(s)), in accordance with the Agreement;
Privacy Policy means BB’s privacy and cookies notice and policy, available here: https://budibase.com/privacy ;
Development ServicesProposal means (if applicable) a written quotation for provision of the Services, provided by BB to Customer;
Renewal Period means successive rolling terms (each of the Initial Subscription length selected during the Checkout Process) for specific access Tiers or User Licences subscribed for by Customer. The Customer’s subscription (including the then current number of paid User Licences within the relevant Tier) shall be automatically renewed over successive Renewal Periods per its terms (typically either annually or monthly by default) unless otherwise agreed;
Sensitive Information means (a) credit or debit card numbers; personal financial account information; national insurance or social security numbers or equivalents; passport numbers; driver’s licence numbers or similar identifiers; passwords; details of racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information defined under the UK Data Protection Legislation as ‘Sensitive Personal Data’ (or any analogous term which may apply from time to time), or any information subject to the US Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information as amended or applicable worldwide from time to time.
Services means the Subscription Services, Community Support and Consultancy Services, the Development Services and any other services provided by BB to Customer from time to time;
SLA means any service level agreement BB may agree with Customer for paid Support services agreed between the parties;
Software means BB’s browser-based low-code or no-code platform, which provides Authorised Users access to the BudiBase™ portal and templates, including any Chargeable Features within the relevant access Tier (or any upgrades thereto from time to time), either: (a) purchased by Customer from time to time in return for payment of BB’s then prevailing charges, via relevant Checkout Process; or (b) to which Customer is otherwise entitled under the terms of the Agreement, and which is accessed through the Subscription Services on a SaaS basis;
Subscribing Organisations means, in addition to Customer, those other organisations for whom Customer shall be responsible whose Authorised Users are permitted to use the Subscription Services and the Documents, and for whom Customer has paid for User Licences, for example, the Customer’s clients;
Subscription Charges means the total amounts specified in the Proposal, or provided for at the point of purchase by Customer via the relevant Checkout Process, for any Chargeable Features or User Licences, to be paid in accordance with the Agreement. Use of the Free Services does not attract Subscription Charges;
Subscription Term means any term over which Customer subscribes for the Subscription Services generally beginning on the Commencement Date and continuing indefinitely unless and until the Agreement is terminated in accordance with its terms, but which shall commence on and continue for the applicable Initial Subscription Term and any applicable Renewal Period thereafter in respect of relevant access Tiers or User Licences;
Subscription Services means hosting of the Software and making it available for access to Authorised Users using Customer Equipment via BB’s Software platform available via the relevant URL through which BB may make them available from time to time;
Support means premium support services offered to the Customer as a paid Consultancy Service;
Term means the term of the Agreement as defined in clause 17.1;
Third-party Services means third party software applications or products, websites or professional services which (as applicable) interoperate with, are used in connection with, or made available through the Subscription Services;
Tier means a subscription tier for access to the BB Subscription Services. Different subscription tiers allow Customer’s Authorised Users access to different Chargeable Features and (may) also require Customer to purchase different minimum numbers of User Licences. Current access Tiers, the Chargeable Features available under each, and the minimum numbers of User Licences (if any) required under each, will be specified during the Checkout Process or in any written Proposal for enterprise customers, but may change from time to time (for example, as new Chargeable Features are added, Chargeable Features are removed or changed). The applicable Tier may also dictate the price payable for any relevant User Licences paid for by the Customer; and
User Licences means a chargeable user licence which is required for each Authorised User created by Customer where that Authorised User is permitted to access and use Chargeable Features under any premium access Tier in accordance with the Agreement.
2.2 Clause headings shall not affect the interpretation of the Agreement.
2.3 References to clauses are to the clauses of these General Terms.
2.4 Words in the singular shall include the plural and vice versa.
2.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.6 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.7 Where these General Terms refer to “use of”, or a “licence to”, the Software, or include any similar expression, this shall mean a licence to access the Subscription Services. Obligations relating to use of the Software shall be construed as use of the Software via the Subscription Services.
3. USE OF THE SUBSCRIPTION SERVICES
3.1 Customer warrants and represents that any information provided to BB by it or on its behalf is complete, accurate and not misleading (including information concerning its Authorised Users and other information providing as part of its account / Agreement setup process), that it will inform BB if at any time that information changes whilst Customer or its Authorised Users continue to use the Subscription Services and acknowledges that BB may rely on such information and not seek to establish its reliability. In particular, where Customer is or purports to represent an organisation or entity, Customer (including the person entering into the Agreement on Customer’s behalf in their individual capacity) warrants and represents that it or they is/are entitled to act in this capacity and to bind such organisation or entity (which shall be correctly specified as Customer in the relevant Proposal), and perform all actions taken by Customer or its Authorised Users via the Subscription Services, including uploading any Customer Data to Customer’s account (including making it available to other Authorised Users, or publicly available to third parties).
3.2 Customer acknowledges that it shall have sole responsibility for supervision and observation of the actions of its Authorised Users, and for setting any data access restrictions or administrative rights for Authorised Users in terms of the Subscription Services.
3.3 Subject to payment and the other restrictions set out in the Agreement, BB hereby grants to Customer, subject to the Licence Restrictions and subject to compliance with the EULA applicable to each Authorised User, a non-exclusive, non-transferable, non sub-licensable right, during the relevant Subscription Term, and solely for the Purpose to permit: (a) an unlimited number of its Authorised Users to use any Free Services, and (b) where it has subscribed for any premium access Tier, the relevant number of Authorised Users for whom it has purchased User Licences at any given time to access the relevant Chargeable Features unlocked within its chosen premium Tier. The rights provided under this clause are granted to Customer only, and not to any subsidiary, affiliated or holding company of Customer.
3.4 BB may permit Customer to create a potentially indefinite Authorised Users through its super admin account for access to the Free Services. However, Customer must always act reasonably and in good faith in exercising its rights, and all Authorised Users must meet the proper criteria and definition for Authorised Users under the Agreement, including that they must be using the Subscription Services for relevant and legitimate business Purpose. Customer must not create Authorised User accounts where they do not meet these requirements. BB shall exercise its discretion in assessing whether Customer has adhered to these restrictions. Additionally, a seat limitation applies for any access Tier involving access to Chargeable Features (where User Licences must be purchased for such Authorised Users) (such features being dependent upon the relevant access Tier), and Customer will be responsible for paying for excess use that exceeds any limitations in the Proposal, specified during the Checkout Process or which might otherwise apply from time to time.
3.5 In relation to the Authorised Users, Customer undertakes that: (a) it shall be responsible for compliance by Authorised Users (who must be aged 18 or over the legally required age in the country in which they live and to whose laws they are subject to use the Subscription Services) with the relevant terms of the Agreement and the terms of the EULA, and for compliance by any Subscribing Organisations with the applicable terms of the Agreement, and that the restrictions on Customer set out within the Agreement shall, unless the context requires otherwise, equally apply to any such persons; (b) the number of Authorised Users accessing the Subscription Services within any premium access Tiers shall not exceed the number of User Licences purchased by Customer from time to time; (c) it will not allow or suffer any one Authorised User’s account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Subscription Services and/or their documentation; (d) each Authorised User shall keep a secure and confidential password for their use of the Subscription Services; (e) it shall permit BB to audit its use of the Subscription Services and provide all such full, prompt accurate and complete information and assistance as BB may require in order to establish the name, role, functions and (if applicable) password of each Authorised User (so as to ensure that such Authorised User satisfies the relevant requirements of the Agreement); (f) if any of the audits referred to above reveals that Customer has underpaid Subscription Charges to BB, then without prejudice to any other right to which it may be entitled, Customer shall pay to BB an amount equal to such underpayment (as calculated by BB in its reasonable discretion based on the then current pricing that would apply to a new customer accessing the Subscription Services, which amount Customer accepts as being reasonable) within 10 Business Days of the date of the relevant audit; and (h) if any of the audits referred to above reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to BB’s other rights, Customer shall promptly disable such passwords and BB shall not issue any new passwords to any such individual.
3.6 Customer must not permit any of its Authorised Users to (a) be under the legal age to use the Subscription Services in the country in which the Authorised User resides (or whose laws apply to them); (b) share with or permit access to any Authorised User’s account by multiple people; (c) operate a service or automated account, where there is not a single human individual responsible for that account; or (d) otherwise in breach of its EULA. If BB determines that there has been a breach of this clause, in addition to its other rights, BB reserves the right to terminate affected Authorised User accounts or the Agreement as noted below.
3.7 Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Subscription Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property; and BB reserves the right, without liability to Customer, to disable Customer’s access to any material that breaches the provisions of this clause.
3.8 Customer shall not: (a) other than as permitted by law, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or its documentation (as applicable) in any form or media or by any means; nor attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (b) access all or any part of the Subscription Services in order to build, or to facilitate the building of, a product or service which competes with the Subscription Services (and Customer may not access the Subscription Services if it, its Affiliates or any Subscribing Organisations are, or are planning to, build any such product or service); or (c) use the Subscription Services to provide services to third parties (other than any Subscribing Organisations); or (d) subject to clause 18.6, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users; or (e) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services, other than as provided under the Agreement; or (f) interfere with or disrupt the integrity or performance of the Subscription Services or third party data contained therein; or (g) attempt to gain unauthorised access to the Subscription Services or their related systems or networks, including with a view to making alterations to, or modifications of, the whole or any part of the Software, or permitting the Software or any part of it to be combined with, or become incorporated in, any other programs.
3.9 Customer shall not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to BB’s servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Services in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Services; (iii) attempt to gain unauthorized access to the Subscription Services; (iv) access the Subscription Services other than through our interface; or (v) use the Subscription Services for any purpose or in any manner that is unlawful or prohibited by this Agreement.
3.10 Customer may not use the Subscription Services if Customer is legally prohibited from receiving or using same under the laws of the country in which Customer are resident or from which Customer proposes to access or use same. The Subscription Services are not designed to comply with industry-specific regulations such as the US Health Insurance Portability and Accountability Act (HIPAA), Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), or other laws relating to industries where financial data or other sensitive information is regularly exchanged, so Customer may not use the Subscription Services where Customer’s communications would be subject to such laws.
3.11 CUSTOMER AGREES NOT TO USE THE SUBSCRIPTION SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. BB WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICES TO COLLECT OR MANAGE SENSITIVE INFORMATION.
3.12 Customer agree to use any Third Party Services only in compliance with any terms of use specified by each relevant site or service. BB do not control such sites or services or the content, messages or information found in or on, or accessible through, same. BB disclaims and will have no liability with regards to such sites or services and any actions resulting from Customer’s use of same. The availability of such sites or services does not mean BB endorses, supports or warrants such sites or services.
3.13 Customer shall use best endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or the Documents and, in the event of any such unauthorised access or use, promptly notify BB.
3.14 Customer must ensure that its use of the Subscription Services and all Customer Data is at all times compliant with the terms of the Agreement, all applicable laws and regulations (nationally and internationally) and Customer represents and warrants that: (i) it has obtained all necessary rights, releases and permissions to provide all Customer Data to BB and to grant the rights granted to BB in the Agreement and (ii) Customer Data and its transfer to and use by BB as authorized by Customer under the Agreement do not violate any laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under clause 10.5, data protection obligations under clause 11 and confidentiality obligations under clause 12, BB assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it.
3.15 Customer acknowledges that it has no right to have access to the Software underlying the Subscription Services under the Agreement, either in object or source code form or in unlocked coding or with comments.
4. TIERS, USER LICENCES AND CHARGEABLE FEATURES
4.1 Customer will be required to subscribe for a particular access Tier when opening its account for the Subscription Services, by completing the online Checkout Process via the Subscription Services or agreeing a written Proposal with BB (for enterprise customers only).
4.2 Whether Customer has subscribed for any premium access Tier, it will be required to purchase User Licences for Authorised Users wishing to access the Chargeable Features available in that Tier (which as noted elsewhere may vary between Tiers). Some Tiers may require purchase of a minimum number of User Licences (but there is no upper limit on User Licences that may be purchased within any relevant Tier). Each User Licence permits one Authorised User access to the Subscription Services including all Chargeable Features within the relevant access Tier for which Customer has subscribed for the relevant Subscription Term. User Licences are personal to the Customer, and whilst they can be used by any of Customer’s Authorised Users (one Authorised User per User Licence), they cannot be transferred or gifted to third parties. User Licences may not be shared between different named Authorised Users, and any Authorised Users suspected of sharing credentials for premium User Licences will be in (irremediable) breach of the Agreement and the relevant EULA.
4.3 Customer may, from time to time during the Subscription Term, enable additional User Licences (regardless of the premium access Tier it has elected) beyond its current number of purchased User Licences. This is done on a self-service basis by creating additional Authorised Users with access to any premium Tier, or enabling any of its existing Authorised Users to access to a premium Tier, via its account on the platform. Customer is responsible for setting appropriate administrative access privileges if it wishes to restrict which Authorised Users can purchase additional User Licences (or upgrade access Tiers) on its behalf. No specific Checkout Process will occur where Customer does so (and no warning will be given that additional charges may apply), and a pro-rated Subscription Charge shall be automatically calculated by the platform for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable) and will normally be automatically debited via the Customer’s connected payment method at any time of activation (although may also be invoiced in arrears). Customer can use the usage panel within its account on the Subscription Services at any time to access details of its current User Licences and Subscription Charges.
4.4 When Customer’s billing cycle renews for the next month / year (i.e., into the next Renewal Period), any Subscription Charges will be calculated on the basis of the access Tier and number of User Licences for which the Customer was subscribing immediately prior to renewal (unless a Customer has elected to downgrade or upgrade into that new billing cycle, as noted below).
4.5 Customer may, from time to time during the Subscription Term, upgrade (or downgrade, as further specified in clause 4.6) its access Tier. This can be done through a separate Checkout Process via the Customer’s account, or for customers on an enterprise Tier, may be agreed through a separate written Proposal. The Agreement will apply to all User Licences or access Tiers that Customer activates accordingly.
4.6 If Customer wishes to downgrade its access Tier, or reduce its number of Authorised Users, this can be done at any time (subject always to the minimum number of required User Licences for that access Tier, and to anything to the contrary specified during the Checkout Process or in a particular Proposal), and the Customer’s account on the Subscription Services will be issued with a pro-rata credit to reflect its Authorised Users’ reduced access to relevant Chargeable Features within that access Tier over the remainder of the then current Initial Subscription Term or Renewal Period (as the case may be), or its reduced number of User Licences, based on BB’s reasonable and good faith calculations. Such calculations are final and conclusive and may not be challenged. Any such credit can be used to offset future Charges payable by the Customer for Chargeable Features or Consultancy Services (excluding Development Services), but for clarity is non-refundable, non-transferable non-exchangeable, has no cash value and is not redeemable for cash or anything else. If not utilised by Customer such credit may expire at any point from the end of the immediately following Renewal Period).
5. SERVICES AND COMMUNITY SUPPORT
5.1 BB shall supply, during the Subscription Term, the Community Support, the Subscription Services and any agreed Consultancy Services to Customer on and subject to the terms of the Agreement.
5.2 BB may, from time to time at its discretion, generally upgrade and improve the Subscription Services as it sees fit and Customer acknowledges that such upgrades and improvements may affect its use of the Subscription Services. Any specific upgrades requested by Customer, which are technically feasible and agreed by BB, will be separately chargeable as a Consultancy Service.
5.3 Customer may purchase Consultancy Services by subscribing for these within its account on the BB platform via the Checkout Process, or completing a bespoke written Proposal for such Consultancy Services. Unless BB otherwise agrees in writing (including during a relevant Checkout Process), the Consultancy Services BB provide are described in the platform and will be delivered in English. Consultancy Charges are in addition to Subscription Charges. All Consultancy Services shall be performed remotely. Consultancy Services may be delivered via hourly slots, or service call time, which Customer may have the option to pay for and schedule via a Checkout Process on the platform.
5.4 Customer acknowledges that, in giving any opinion or advice in the course of provision of the Services, BB may rely on the information about Customer and its business and will not seek to establish the reliability of such information. Accordingly, Customer: (i) undertakes to provide complete and accurate information about itself and about anything which is or may be relevant to the Services and to provide such other information as BB may reasonably request; and (ii) warrants and represents that any such information provided is accurate, complete and not misleading.
5.5 BB shall procure hosting of the Software from its hosting sub-contractor and make the Subscription Services available to Customer in accordance with the terms imposed upon it by its hosting sub-contractor from time to time, a copy of which will be provided to Customer upon request. BB shall use reasonable endeavours to inform Customer in advance of any planned service interruption to the Subscription Services attributable to its hosting services provider, but for the avoidance of doubt cannot be held responsible for same.
5.6 BB will, as part of the Services and at no additional cost to Customer other than the Subscription Charges, provide Customer with free Community Support. Where Customer requires additional paid Support beyond the Community Support, it will be required to subscribe for such additional support as a Consultancy Service or Chargeable Feature. Tiered Support services may be provided under BB’s SLA from time to time. Customer’s representatives must be available to interact with BB’s support term where they have any queries regarding a particular request
5.7 Unless otherwise specified in any SLA or Proposal, any chargeable Support shall only be provided to the named Authorised Users set out within the SLA or Proposal and shall be subject to fair usage of the Support by Customer. BB is a UK based company and typically deals with Support tickets between 9 am and 5 pm GMT on Business Days in the UK. For clarity, subject to fair usage, there are no limitations on the number of Support tickets or requests that may be raised by the Customer, provided that Customer’s named Authorised Users must raise any Support tickets and must be available to interact with BB’s support team where they have any queries regarding a particular request, including to provide demonstrable or repeatable evidence of any alleged bugs or defects. Customer shall also procure that its Authorised Users provide access to BB to their accounts where required to provide remote support. All Support shall be delivered remotely.
5.8 There may be limits associated with the Free Services and Chargeable Features, which are generally subject to fair usage limits, including as regards the data usage throughput or storage volumes, Authorised User limits or other applicable limits. Usage of Free Services beyond these limits may be classed as an additional Chargeable Feature. BB reserves the right to charge additional Subscription Charges, based on BB’s standard rates from time to time (as set out either on BB’s website or otherwise). BB reserves the right to monitor or audit remotely this data by accessing the Subscription Services in connection with any Subscription Charges that are subject to such limits. If such monitoring reveals that Customer has underpaid Subscription Charges to BB, then Customer shall pay to BB an amount equal to such underpayment (as calculated by reference to the additional Subscription Charges for such excessive use historically and over the remainder of the then current minimum term commitment that would apply to any additional Chargeable Features within five (5) Business Days of the date of invoice by BB. BB may impose new, or may modify existing, limits for the Subscription Services at any time in BB’s discretion, giving notice to Customer, either on BB’s website or otherwise (provided BB shall not amend the limits for any Chargeable Features during the current Initial Subscription Term or Renewal Period for same).
5.9 Other than the Documents which BB makes available online for all users of the Subscription Services, to which BB shall have access for the Subscription Term, no training shall be provided as part of Customer’s licence for the Subscription Services, save as a payable Consultancy Service.
6. WARRANTIES
6.1 Where Customer has paid for any Chargeable Features or Consultancy Services, BB undertakes that the Services will be provided with reasonable skill and care expected of a suitably skilled person engaged in the same type of business as BB, and that it will use reasonable endeavours to maintain the applicable Subscription Services for which Customer has subscribed as Chargeable Features for the duration of the Customer’s subscription for the relevant Chargeable Feature, subject to downtimes for planned maintenance or maintenance outside BB’s reasonable control. Otherwise, BB gives no warranties in relation to the Services.
6.2 Customer acknowledges and agrees that the Subscription Services are available with only limited Features when accessed through a mobile or tablet device.
6.3 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by (a) use of the Services contrary to BB’s instructions or otherwise than as permitted by the Agreement, (b) modification or alteration of the Services by any party other than BB or BB’s duly authorised contractors or agents, without BB’s written consent; (c) accessing the Subscription Services using any software, hardware or materials for which it was not intended; (d) the Services are used otherwise than as permitted by the Agreement; (e) issues with Customer Equipment; (f) interaction of the Services with other software programmes or plugins maintained by Customer; or (g) acts or omissions otherwise attributable to Customer and/or outside BB’s reasonable control. If the Services do not conform to the undertaking in clause 6.1, BB will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance within a reasonable timeframe, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer’s sole and exclusive remedy for any breach of such undertaking.
6.4 The Agreement shall not prevent BB from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
6.5 BB warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
6.6 Timing for performance of BB’s obligations under the Agreement shall not be of the essence.
7. CUSTOMER’S OBLIGATIONS
Customer shall: (a) at its cost, provide BB with all necessary co-operation in relation to the Agreement, and all necessary data and access to information as may be required by BB, its agents or contractors, in order to provide the Services and Support, including but not limited to applicable specifications, data management decisions, approvals, security access information and configuration services; (b) comply with all applicable laws and regulations with respect to its activities under the Agreement, including any applicable industry code of conduct, recommendations or guidelines issued by any relevant trade organisation or industry body; (c) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner (in the event of any delays, BB may adjust any agreed timetable or delivery schedule for Services as reasonably necessary); (d) ensure that the Authorised Users and any Subscribing Organisations use the Services in accordance with the terms and conditions of the Agreement and shall be responsible for any breach of the Agreement by same; (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for BB, its contractors and agents to perform their obligations under the Agreement; (f) ensure that its network and systems comply with the relevant specifications provided by BB from time to time; (g) be solely responsible for procuring and maintaining its network connections and telecommunications links, and maintaining appropriate Customer Equipment, so as to permit its Authorised Users to access the Subscription Services and avail of the Support; (h) provide a single main point of contact who can address questions or issues relating to the Services, provide timely feedback and review any changes to the Services; (i) be solely responsible at its own cost for generating Customer Data, content and data required to utilise the Services and uploading all such content and data to the site provided to Customer using the Services. In the event that Customer requires any assistance from BB in this regard, BB has confirmed that any assistance will be chargeable and Customer has approved such assistance, BB may provide such assistance as it deems appropriate at its then prevailing charges as a Consultancy Service; and (j) comply and procure the compliance of its Authorised Users with any reasonable directions given to it by BB from time to time, including as posted on the site or via the Subscription Services.
8. THIRD PARTY INTEGRATIONS
8.1 Customer may use Third-party Services when accessing the Subscription Services, for example where it downloads an application that integrates with or incorporates the Subscription Services, links from the Subscription Services to another service, or uses a Third Party Service to authenticate its access to the Subscription Services. While the Agreement represents the agreement between BB and Customer, other parties’ terms govern their relationships. Whilst BB takes no responsibility for any Authorised User’s or Customer’s adherence to such terms or the actions taken by such third-parties, Customer warrants and represents that it will honour and adhere to such terms when using the Subscription Services and that Customer will not hold BB responsible for any interactions with such third parties or their terms, including for wrongful or negligent acts or omissions, or breaches of contract. Customer acknowledges that BB cannot be held responsible for any errors or issues with the Subscription Services to the extent attributable to such Third-party Services.
8.2 When importing third party data streams using the Subscription Services, the Customer warrants and represents that it shall ensure it use industry standard anti-virus technology and otherwise checks such data streams for any malicious code or content, including Data which would breach the terms of the Agreement.
8.3 BB does not control the Third-party Services and the availability of such services does not mean BB endorses, supports or warrants same.
8.4 BB shall not be responsible for any issues with performance of any Third-party Services, and their integration within and functioning through the Subscription Services at all times is outside BB’s control and is not guaranteed. The third party integrations supported by the Subscription Services may change from time to time, and Customer must always have a valid third party account or subscription for any such applications and pay all relevant fees for same (which are not included as part of the Subscription Services).
8.5 BB DISCLAIMS AND shall have no liability to Customer whatsoever in respect of THIRD-PARTY SERVICES or the content, messages or information found in or on or accessible through same, or any claims, causes of action, liabilities or losses which may arise in respect of, or in connection with same including Customer’s, itS Affiliates’, Subscribing Organisations’ or its Authorised Users’ use of the same. The parties specifically accept and agree these limitations to be reasonable having regard to the FACT THAT THIRD PARTIES ARE RESPONSIBLE FOR THE THIRD-PARTY services.
9. CHARGES AND PAYMENT
9.1 Customer shall pay the relevant Subscription Charges (and any Consultancy Charges, or other charges specified or agreed) to BB in accordance with the Payment Terms.
9.2 Customer will keep its contact information, billing information and credit card information (where applicable) up to date through its account.
9.3 If Customer is paying by direct debit, credit card, direct debit or other online payment methods, including Stripe, it authorises BB to charge Customer’s credit card, debit card, bank account or other online payment account for all Charges (of any nature) that may become payable during the Subscription Term. Customer further authorise BB to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party. BB may update the accepted payment mechanisms from time to time and cannot guarantee any payment mechanism that might have applied when Customer first signed up will always remain an option. Customer can update its details associated with the relevant payment mechanism at any time by logging into its super admin account, or any connected third party payment account (e.g. Stripe), where the Subscription Services offer that functionality.
9.4 Where BB use a third party payment processor (e.g. Stripe, a payment service provided by Stripe Inc), Customer will be required to accept the terms and privacy policy of that provider to use the Subscription Services. This payment processor will collect and hold Customer’s financial details, not us, although BB will obtain details of Customer’s username via the relevant API.
9.5 If BB has not received payment of any amount due and owing under the Agreement within ten (10) days after the due date, without prejudice to any of its other rights and remedies: (a) BB may, without liability to Customer, disable Customer’s and any Authorised Users’ passwords, accounts and access to all or part of the Subscription Services (including the Free Services) and BB shall be under no obligation to provide any or all of the Services or Support while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of HSBC plc at the date the relevant invoice was issued, compounded monthly, commencing on the due date and continuing until fully paid, whether before or after judgment (or the highest rate permitted by applicable law). BB also reserves the right to charge Customer its reasonable administration costs, including charges for failed payments and/or its costs in relation to pursuing outstanding amounts (including legal fees and expenses), where BB is not satisfied (in its sole discretion) that Customer has not acted reasonably and in good faith in disputing any amount due and owing. If the Subscription Services are suspended for non-payment or any breach of the Agreement, BB may charge a re-activation fee to re-activate same.
9.6 All amounts and fees stated or referred to in the Agreement: (a) shall be payable in pounds sterling (unless another currency is denominated in the Proposal or as part of the Checkout Process); (b) are non-cancellable and non-refundable; (c) are exclusive of taxes or duties payable under the Agreement as specified below (including VAT or GST), which shall be added to BB’s invoice(s) at the appropriate rate; and (d) be paid by bank transfer in full and cleared funds to the account specified on BB’s invoice, by such other payment method (which must be kept up to date and accurate) as BB may accept from time to time.
9.7 Customer is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on BB’s net income or gross revenue) imposed or become due in connection with the provision of Services to Customer under the Agreement. If Customer is located in the EU, the Customer must provide BB with the VAT registration number under which Customer is registered in Customer’s member state. If Customer does not provide BB with a VAT registration number prior to Customer’s transaction being processed, BB will not issue refunds or credits for any VAT that was charged.
9.8 If Customer is required to deduct or withhold any tax, Customer must pay the amount deducted or withheld as required by law and pay BB an additional amount so that BB receives payment in full as if there were no deduction or withholding.
9.9 If, at any time whilst using the Services, Customer exceeds the Licence Restrictions, BB shall charge Customer, and Customer shall pay, BB’s then prevailing charges for such excessive use. Usage outside Licence Restrictions, e.g. added User Licences, will not be notified to Customer in advance.
9.10 BB shall be entitled to increase Subscription Charges (including for any enhanced access Tiers or additional User Licences), or its rate for any Consultancy Charges, at any time having given at least fourteen (14) days’ prior notice to Customer (including by email or via any pop-up notification on the Subscription Services), and the Charges set out in Proposal or specified via any Checkout Process shall be deemed amended accordingly with effect from the start of the next Renewal Period (unless Customer objects to such increase within 14 (fourteen) days of notice from BB, which case the Agreement shall not renew into any Renewal Period, unless the parties agree otherwise in writing).
10. PROPRIETARY RIGHTS AND DATA
10.1 Customer acknowledges and agrees that BB and/or its licensors own all intellectual property rights in, or arising from, the Services, Software and their documentation. All content on BB’s site and the Subscription Service is copyright © Budibase Limited. The Budibase™ name and brand, as well as any other BB trademarks (word marks, picture marks or integrated marks) and associated unregistered trademarks and trade names used by BB. Except as expressly stated herein, the Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, Software, their documentation and the BB trademark or associated unregistered trademarks. This shall be without prejudice to Customer’s ownership of any background intellectual property rights owned by it separately from the Agreement and/or pre-dating the Agreement. For the avoidance of doubt, BB’s rights under this clause shall not extend to any intellectual property rights arising from the lawful use of the Services by Customer as contemplated hereunder, which is dealt with under clause 10.3.
10.2 Customer may not duplicate, copy, or reuse any portion of BB’s Software or Services or trademarks, without BB’s express permission, save that Customer may link to BB’s site, provided it does so fairly and legally and in a way that does not damage BB’s reputation or take advantage of it. Customer must not establish a link in such a way as to suggest any form of association, approval or endorsement on BB’s part where none exists. Customer must not establish a link to BB’s Site on any website that Customer does not own unless Customer has relevant authorisations. BB reserves the right to withdraw linking permission without notice. The website in which Customer is linking must comply in all respects with the content standards set out in the Agreement and the EULA. BB’s site must not be framed on any other site. BB may withdraw this licence at any time on notice. If Customer has an Account with BB and wish to link to or make any use of Data on our Site other than that set out above, it may contact BB.
10.3 Customer or its licensors shall own all rights, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data and the means by which it acquired such Customer Data, as well as how it shares and licences its Customer Data with third parties, save as otherwise agreed in writing between Customer and any specific Authorised Users. This shall be provided that BB shall have a lien over access to the Customer Data it has stored on the BB platform in the event of non-payment by Customer of any Charges validly due and owing under the Agreement, where Customer has been notified of non-payment and has failed to remedy such breach (other than as a result of a genuine administrative error, or where BB is satisfied, acting reasonably and in good faith, that Customer has raised some bona fide dispute over specific Charges (and in such circumstances provided that Customer has paid any undisputed sums due and owing)) and BB reserves the right to restrict access to such Customer Data in the event of such non-payment and otherwise delete Customer Data after 90 days’ notice (or 90 days after termination of the Agreement, as noted below) in exercise of its rights of lien. This notwithstanding, BB may use the Personal Data as comprised in the Customer Data as set out in its Privacy Policy from time to time, and shall generally be granted a non-exclusive, royalty free, non sub-licensable, worldwide and non-transferable licence to access the Customer Data for the Term (and until such Customer Data is deleted in accordance with the requirements of the Agreement thereafter)
10.4 Where BB creates any specific content or material for Customer through the Consultancy Services, and such content is unique to such Customer, subject to payment in full of any charges owing under the Agreement, BB agrees to assign all its right and title in the intellectual property rights subsisting in such content to Customer, with effect from the date of its creation.
10.5 BB shall use reasonable endeavours to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. However, Customer understands and acknowledges that use of the Subscription Services necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by BB, and that BB cannot be held responsible for any Customer Data lost, altered, intercepted or stored across such networks. BB does not guarantee that its security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorised third parties will never be able to defeat BB’s security measures or those of BB’s third-party service providers.
10.6 By entering into the Agreement with BB, Customer grants BB and its successors and assigns a non-exclusive, worldwide, royalty-free licence and right to store, utilise, and display Customer Data (in the manner in which Customer or its Authorised Users have made it available to other Authorised Users), and make copies as set out in clause 10.7 below. For example, this includes a right to do things like copy it to BB’s database and make backups or to display the Customer Data and share it with other Authorised Users (unless to the extent access is restricted). BB do not sell Customer Data or otherwise distribute or use it outside the context of providing the Subscription Services. This licence will end or be revoked within a certain period of time (our data retention cycles) after the Agreement is terminated, or Customer has deleted all relevant Customer Data.
10.7 BB shall not modify Customer Data, disclose Customer Data or access Customer Data, which shall be treated as the Confidential Information of Customer, except: (a) as required by law; (b) as expressly permitted by Customer; (c) to provide the Services; (d) to address technical problems or issues with the Services; (e) at Customer’s request when providing Support; or (f) under its lien over such data as contemplated in clause 10.3 above, or as otherwise contemplated under the Agreement.
10.8 Neither Customer or any Authorised Users may access the Subscription Services where they are engaged as an employee or contractor with any business that competes with BB own or to attempt to gain access to BB’s Confidential Information with a view to building, creating or amending any software or service which competes with any element of the Subscription Service offered by BB. Further, during the Subscription Term, and for twelve (12) months thereafter, Customer shall not, or attempt to, build or develop any product or service that commercially competes with or is substantially similar to the Software, which it provides or intends to provide to third parties for payment (i.e. which is not solely intended for internal use). This obligation shall cease to apply only where there is no longer a commercial relationship between the parties, and Customer can demonstrate that (a) an independent third party has licensed or sold the Software (or something similar to it) to it on arms’ length terms, and (b) such competing solutions do not incorporate or contain, are not based upon, and do not rely in any way upon any Confidential Information made available by BB to Customer, or to which Customer otherwise gained access, under the Agreement or any previous contract between the parties.
10.9 If Customer (including its Authorised Users) gives BB any Feedback, it acknowledges and agrees by accepting the Agreement that such Feedback will be non-confidential and non-proprietary and BB will have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual licence to implement, use, modify, commercially exploit or incorporate the Feedback into BB’s products, services, and documentation.
10.10 Customer acknowledges that it has no right to access the Software in source code form or unlocked coding or comments.
10.11 BB shall use its reasonable commercial endeavours to back-up all Customer Data on a daily basis but otherwise backup of all Customer Data shall be the sole responsibility of Customer. In the event of any loss of or damage to Customer Data, Customer’s sole and exclusive remedy shall be for BB to use its reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up maintained by BB (or its hosting services provider, as appropriate). Customer should note that BB’s typical retention periods for Customer Data are as set out in its Privacy Policy.
11. DATA PROTECTION
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
11.2 The parties acknowledge that for the purposes of the Data Protection Legislation, in relation to any Personal Data comprised within Customer Data (Customer Personal Data), Customer is the Data Controller and BB is the Data Processor. Such Personal Data shall only be processed by BB in accordance with any lawful instructions reasonably given by Customer from time to time in writing, as reasonably necessary to fulfil the Agreement (including as required by the underlying operating procedures for the Software) and exercise BB’s rights and obligations hereunder and as applicable in accordance with the terms of BB’s privacy notice and policy, which is available at https://budibase.com/privacy (Privacy Policy). The Privacy Policy provides detailed notice of BB’s privacy and data use practices concerning any personal data comprised in Customer Data. The parties record their intention that the Agreement represents the data processing agreement envisaged by Article 28 of the EU GDPR (and the equivalent provision under UK GDPR).
11.3 As between the parties, where each party processes any Personal Data provided by or relating to the other party or its employees otherwise than Customer Personal Data, including employee names and email addresses of employees of Customer with whom BB interacts (for example), each party acknowledges that they shall act as a Data Controller in relation to such Personal Data and only process it for specified purposes in accordance with each party’s respective privacy policy for the purposes of contract administration or otherwise in its own legitimate interests, as permitted under applicable laws.
11.4 Without prejudice to the generality of clause 11.1, Customer must ensure that its use of the Subscription Services and all Customer Data is at all times compliant with the terms of the Agreement, all applicable laws and regulations including Data Protection Law (nationally and internationally) and Customer represents and warrants that: (a) it has obtained all necessary rights, releases and permissions to provide all Customer Data to BB for the purposes and duration of the Agreement and to grant the rights granted to BB in the Agreement; and (b) Customer Data and its transfer to and use by BB as authorised by Customer under the Agreement do not violate any laws or rights of any third party, or data subject, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised herein is not inconsistent with the terms of any applicable privacy policies. Other than BB’s security obligations under clause 9.3, limited back-up obligations in clause 10.8, and legal obligations under Data Protection Law (as set out in this clause 11) and confidentiality obligations in clause 12, BB assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for Customer Data and the consequences of determining the purpose and manner in which Customer Data is to be processed, used, disclosed, stored, or transmitted.
11.5 Without prejudice to the generality of clause 11.1, BB shall, in relation to any Customer Personal Data: (a) process that Customer Personal Data only on the written instructions of Customer unless BB is required by Data Protection Law to otherwise process that Customer Personal Data; (b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures; (c) ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep Customer Personal Data confidential; (d) not transfer any Customer Personal Data outside of the EEA unless the prior written consent of Customer has been obtained and the following conditions are fulfilled: (i) Customer or BB has provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; (iii) BB complies with its obligations under the Data Protection Law by providing an adequate level of protection to any Customer Personal Data that is transferred; and (iv) BB complies with reasonable instructions notified to it in advance by Customer with respect to the processing of Customer Personal Data; (e) assist Customer, at Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (e) notify Customer without undue delay on becoming aware of a Personal Data breach; and (f) at the written direction of Customer, delete or return Customer Personal Data and copies thereof to Customer on termination of the agreement unless required by Applicable Law to store Customer Personal Data (subject always to Customer having paid BB any then outstanding charges owing under the Agreement).
11.6 Customer consents to BB appointing the categories of sub-processor listed in the Privacy Policy, or otherwise notified to Customer from time to time by BB, as third-party processors of any Personal Data processed by BB under the Agreement. BB confirms that it has entered or (as the case may be) will enter with such third-party processors into a written agreement substantially on those third parties’ standard terms of business (which shall at a minimum require such sub-processors to treat any Customer Data as confidential and process any Customer Personal Data in compliance with Data Protection Law). As between the parties, BB shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11.6.
12. CONFIDENTIALITY
12.1 Neither party will use the other’s Confidential Information except as permitted under the Agreement. Each party agrees to maintain in confidence and protect the other party’s Confidential Information using at least the same degree of care as it uses for its information of a confidential and proprietary nature but in any event at least a reasonable degree of care. Each party agrees to take all reasonable precautions to prevent any unauthorised disclosure of the other party’s Confidential Information, including, without limitation, disclosing such Confidential Information strictly only to those of its or its Affiliates’ employees, representatives, consultants, contractors or agents (together Representatives) who need to know such information, are subject to restrictions around the use of such Confidential Information substantially similar to those set out in this clause. Each party shall be liable and responsible for its Representatives’ adherence to such terms. The preceding obligations will not restrict either party from disclosing Confidential Information of the other party under the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable such party to contest such order or requirement (to the extent permitted by law).
12.2 For the avoidance of doubt, BB considers Customer Data not publicly disclosed by Customer to be Customer’s Confidential Information and will protect and keep confidential such Confidential Information per (this) clause 12. BB may access and use such Confidential Information under the following circumstances (a) with Customer’s consent and knowledge, for support reasons; (b) if it have reason to believe such Confidential Information violates the law or of the Agreement (including the EULA in respect of a specific Authorised User’s usage), in which case it reserves the right to access, review, and remove them; (c) where it is compelled by law to disclose Customer’s Confidential Information; or (d) when access is required for operational or security reasons, including when access is required to maintain ongoing confidentiality, integrity, availability and resilience of BB’s Subscription Services (in which case access will be limited to specifically authorised personnel and only exercised to the extent necessary to facilitate such purposes).
12.3 Customer is responsible for managing access to its account and Customer Data stored thereon, including invitations, administrative control, and access. BB is not responsible for the actions of any of Customer’s Authorised Users in this regard. Nor is BB responsible for any third party’s or Authorised User’s adherence to any terms imposed by Customer as a pre-requisite for access to its Customer Data.
12.4 In accessing the Subscription Services, Customer and its Authorised Users may also gain access to information relating to Beta Previews which BB considers to be Confidential Information, and Customer agrees on behalf of itself and its Authorised Users to protect and keep strictly confidential such Confidential Information per this clause 12.
13. NON-SOLICITION
13.1 During the Term and for 12 months thereafter, neither party, directly or indirectly, will solicit for employment or for engagement as an independent contractor, or encourage leaving its employment or engagement, any employee or independent contractor of the other party known to the soliciting party solely through the Agreement. For the avoidance of doubt, general public advertisements for employment or engagement and any individual’s response thereto will not be deemed a violation of this clause.
14. INDEMNITY– CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
14.1 Customer shall defend, indemnify and hold harmless BB against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with its and/or the Authorised Users’ use of the Services and Software including, without limitation, for any liability, damages, costs or claims incurred by BB due to Customer’s use of the Services or Software for any purpose outside of the Purpose or any claim relating to Customer Data, including, without limitation, any claim brought by a third party alleging that Customer Data, or Customer’s use of the Services or Software in breach of the Agreement infringes or misappropriates the intellectual property rights of a third party or violates applicable law, save to the extent directly attributable to BB’s breach of the Agreement, or any claim from a third party in consequence of their use of, and/or reliance on, any output of the Subscription Services.
14.2 Where Customer is paying any Subscription Charges, BB shall, subject to the other provisions of this clause 14 and the limitations in clause 15, defend Customer against any third party claim that the Subscription Services infringe any copyright, trade mark, patent or right of confidentiality and shall indemnify Customer for any amounts awarded by a court of competent jurisdiction against Customer in final judgment or settlement of such claims, or agreed to by BB, provided that: (a) BB is given prompt notice of any such claim, together with all relevant details of the claim; (b) Customer provides reasonable co-operation to BB in the defence and settlement of such claim, at BB’s expense; and (c) BB is given sole authority to defend or settle the claim, and Customer does not compromise, settle or admit liability with respect to any claim without BB’s prior written consent (not to be unreasonably withheld). This indemnity shall not apply to any Free Services or Third-Party Services.
14.3 In the defence or settlement of any claim, BB may procure the right for Customer to continue using the Subscription Services, replace or modify the Subscription Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement without any additional liability or obligation to pay liquidated damages or other additional costs to Customer.
14.4 In no event shall BB, its employees, agents and sub-contractors be liable to Customer to the extent that the alleged infringement is based on: (a) a modification of the Software or Subscription Services by anyone other than BB or BB’s authorised contractors or agents or (b) Customer’s use of the Services in a manner contrary to the instructions given to Customer by BB or BB’s authorised contractors or agents; (c) Customer’s use of the Subscription Services after notice of the alleged or actual infringement from BB or any appropriate authority; or (d) any element of the Software (or the Customer Data’s integration with same) not attributable to BB (for example, due to any Third-party Services, Customer databases, or bespoke upgrades to the Software undertaken at Customer’s direction incorporating content provided by Customer).
14.5 The foregoing provisions of clause 14 state Customer’s sole and exclusive rights and remedies, and BB’s (including BB’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
15. LIMITATION OF LIABILITY – CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
15.1 This clause 15 sets out the entire financial liability of BB (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer in respect of: (a) any breach of the Agreement (including without limitation, any claim under clause 14.1 or clause 14.3); (b) any use made by Customer of the Services, Documents or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
15.2 Except as expressly and specifically provided in the Agreement: (a) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement, including without limitation any warranty of merchantability, fitness for a particular purpose, title, security, accuracy and non-infringement; (b) the Services, Documents and all other services, goods or works provided, procured and/or sub-contracted by BB under the Agreement, including any data output from same, are provided to Customer on an “as is” and “as available” basis; and (c) Customer assumes sole responsibility for the use of the Services and Documents by Customer and its Authorised Users, and for conclusions drawn from such use, including the software resulting from use of the Subscription Services. BB shall have no liability for any damage caused by errors or omissions in any information, instructions or data provided to BB by Customer in connection with the Services, or any actions taken by BB at Customer’s direction.
15.3 BB does not warrant that the Subscription Services will meet Customer’s requirements (and Customer acknowledges that this is the case); that the Subscription Services will be uninterrupted, timely, secure, or error-free; that the information provided through the Subscription Services is accurate, reliable or correct; that any defects or errors will be corrected; that the Subscription Services will be available at any particular time or location; or that the Subscription Services are or will be free of viruses or other harmful components. BB will not be responsible for any risk of loss resulting from Customer’s downloading or using files, information, data or other material obtained using the Subscription Services.
15.4 Nothing in the Agreement excludes BB’s liability: (a) for death or personal injury caused by BB’s negligence; or (b) for fraud or fraudulent misrepresentation; or (c) any other liability which cannot strictly be excluded or limited by relevant law.
15.5 Subject to clauses 15.2 and 15.4: (a) BB shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and (b) BB’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total Subscription Charges and Consultancy Charges paid during the 12 months immediately preceding the date on which the claim arose.
15.6 Without prejudice to the generality of the other limitations in this clause, Customer acknowledges and accepts that the Services have not been developed or programmed specifically to meet its requirements, and that it is therefore its sole responsibility to ensure that the functions of the Services meet such requirements. In particular, Customer acknowledges that the Subscription Services simply provide a digital platform with various tools permitting it and its Authorised Users to develop software tools and protocols (collectively Customer Tools) for the Customer’s bespoke purposes.
15.7 Customer acknowledges and accepts that BB shall have no liability or responsibility for ensuring that such Customer Tools (as developed by Customer’s Authorised Users) are compliant with any applicable legal, regulatory or industry standards or requirements to which Customer may be subject, or which may be relevant to same (the Relevant Standards), nor that such Customer Tools are in any way adequate, complete, relevant and/or appropriate for the purposes for which they are intended, either at the time they are set or at any point in the future
15.8 The results and outcomes of Customer’s use of the Services cannot be in any guaranteed and use of the Services is something for which Customer acknowledges and accepts that BB cannot and do not accept any liability or responsibility. Customer shall be entirely responsible for same. It is Customer’s sole responsibility to ensure its Authorised Users’ use of the Services and ensure that any Customer Tools are lawful and proper.
15.9 Customer acknowledges and accepts that (a) BB does not and cannot warrant or represent that the Services are compliant with any regulatory or legal requirements to which it may be subject, or which may be relevant to the purposes for the Customer Tools may be used or intended, including the Relevant Standards; (b) the nature of the Subscription Services is such that it attempts to assist Customer in software development processes, but results and outcomes cannot be in any guaranteed, and these outcomes or results are entirely outside of BB’s control, and something for which Customer, not BB, is solely responsible and liable; (c) the Subscription Services and their BB is not responsible or liable for human error and negligent or fraudulent use of the Subscription Services and the use and interpretation of the Subscription Services requires specialist skill and knowledge. Customer warrants and undertakes that its Authorised Users have and will exercise same, and appropriate judgment, when using the Subscription Services.
15.10 Customer acknowledges that it will retain responsibility at all times for compliance with all relevant laws, protocols and regulations with respect to its business and responsibility for all costs of such compliance, including as regards any Customer Tools. Customer also generally warrants on an ongoing basis that it will comply with all laws in Customer’s use of the Services, including any applicable export laws.
15.11 Customer acknowledges and accepts that the above limitations, and those outlined elsewhere in the Agreement, are fair, proportionate and reasonable in light of, among other things, the nature of the Subscription Services (including the acknowledgements outlined in this clause).
16. FREE SERVICES AND BETA SERVICES – CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
16.1 Customer makes no commitment to purchase User Licences or Chargeable Features from BB by availing of any Free Services (unless otherwise agreed by Customer during the Checkout Process or in the Proposal).
16.2 Customer acknowledges and agrees that its entitlement to access and use any applicable Free Services constitutes good and sufficient consideration and in return it is willing to adhere to the terms of the Agreement.
16.3 As a Beta Services user, Customer may get access to information that isn’t yet publicly available about new products and features that BB plans to offer. Given the nature of this information, it is important that Customer keeps it confidential. Customer agrees that any Beta Service information that isn’t yet in the public domain, for example, information about a preview for a new Beta Service, is BB’s Confidential Information, whether or not expressly labelled as such. Customer agrees only to use such Confidential Information to test and evaluate the Beta Service (the Purpose), not for any other purpose. Customer also agrees not to disclose, publish, or share any Confidential Information with or to any third party unless it has set up the Beta Service in such a way that expressly encourages this (for example, where Customer is part of a forum BB has organised to trial or discuss a new Beta Service).
16.4 BB’s Confidential Information relating to Beta Services does not include information that is: (a) (or becomes) publicly available without breach of the Agreement through no act or inaction on Customer’s part (for example, where a previously private Beta Service is rolled out as a regular Service by us); (b) independently developed by Customer without breach of any confidentiality obligation to BB or any third party; or (c) disclosed with Customer’s express written permission from BB. If Customer is required to disclose Confidential Information according to any order by a court or regulatory authority with jurisdiction over BB, it may do so provided that BB has been given reasonable advance written notice to object (unless prohibited by law) and the disclosure is limited to the maximum extent possible to comply with such an order of law.
16.5 BB do not guarantee that the Free Services (including in this section any Beta Services (i.e. preview or early access Services)) will be available or uninterrupted. Access to the Free Services is permitted on a temporary basis and BB may suspend, withdraw, discontinue or change all or any part of the Free Services, either generally, OR SPECIFICALLY for Customer or any of its Authorised UserS, at any time, for any reason, with or without notice. BB will not be liable to Customer or any Authorised User if for any reason the Free Services are unavailable at any time or for any period. Customer uses Free Services entirely at its own risk. BB gives no warranties whatsoever, and to the extent permitted by law, accept no liabilities whatsoever regarding the Free Services and their use by Customer or any Authorised Users, AND THEY ARE PROVIDED ENTIRELY ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. The parties specifically accept and agree these limitations to be reasonable having regard to the FACT THAT THIRD PARTIES ARE RESPONSIBLE FOR THE THIRD-PARTY services.
17. TERM, TERMINATION AND SUSPENSION
17.1 The Agreement shall commence on the Commencement Date, or the date the Proposal is agreed or signed by both parties or the Checkout Process is completed by Customer and confirmed by BB (as applicable), whichever is earlier, and shall (unless terminated earlier in accordance with these terms) continue in full force and effect until the end of any relevant Subscription Term.
17.2 The Subscription Term for the Free Services shall continue indefinitely from the Commencement Date, unless and until terminated at any time by either party. Such termination may be effected with immediate effect by Customer closing its account (unless Customer has subscribed for any User Licences to facilitate its use of premium access Tier, in which case the Subscription Term shall continue unless and until the subscription term for all such User Licences has ended). As regards User Licences (and corresponding access Tiers), following expiry of the Initial Subscription Term or (as applicable) any following Renewal Period for specific User Licences, the Subscription Term shall automatically renew over subsequent Renewal Periods unless and until either party gives notice to the other in writing (including by email) that it does not wish the Agreement to continue beyond the then current Renewal Period or Initial Subscription Term (as applicable), such notice to expire no later than 14 days prior to the end of the then current Renewal Period or Initial Subscription Term (as applicable).
17.3 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (b) an order is made or a resolution is passed for the winding up of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or if such an administrator is appointed or if documents are filed with the court for the appointment of an administrator or if notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder, or if a receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitle the court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt; or (c) the other party ceases, or threatens to cease, to trade.
17.4 BB may also terminate the Agreement (a) for cause on fourteen (14) days’ notice if BB reasonably determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect BB, BB’s prospects, or BB’s customers; or (b) immediately, if Customer has persistently breached the Agreement.
17.5 Save as specified in the Agreement, and to the extent permitted by law, the Agreement may not otherwise be terminated prior to the end of the Subscription Term.
17.6 BB may immediately suspend any Authorised User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Services in a way that violates applicable laws or regulations or the terms of the Agreement or the EULA, (ii) posting or uploading material that infringes or is alleged to infringe on the intellectual property rights of any person or relevant law, or (iii) to protect the integrity, operability, and security of the Subscription Services. BB may, without notice, review, edit and delete any Customer Data that BB has reason to determine in good faith violates the Agreement or the terms of the EULA, provided that the parties acknowledge and agree that BB has no duty to, and shall not, pre-screen, control, monitor or edit Customer Data. BB will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of the Subscription Services.
17.7 On expiry or termination of the Agreement for any reason: (a) the Customer’s right to access or use the Subscription Services and any BB Data or Confidential Information shall immediately cease; (b) BB may offer Customer Free Services for a time limited period to allow them to continue to utilise their account, in which case the Agreement shall continue to apply (but subject to the provisions around such Free Services) and Customer’s Authorised User accounts shall remain open (subject always to BB’s right to cancel or close same, and withdraw the offer of Free Services) at any time; (c) each party shall return and make no further use of any Confidential Information belonging to the other party (save for any access required by BB pursuant to sub-clause (b) above; (d) the accrued rights of the parties as at expiry or termination, or the continuation after expiry or termination of any provision expressly stated to survive (including, without limitation, clauses 1, 2, 8 to 13 (inclusive), 14.1, 15, 16.3 to 16.4 (inclusive), this clause 17.7 and clause 18) or implicitly surviving termination, shall not be affected or prejudiced; (e) as long as Customer has paid all Charges owed to BB, if Customer make a written request within thirty (30) days after termination or expiration, BB will provide Customer with temporary access to the Subscription Services to retrieve, or BB will provide Customer with copies of, all Customer Data then in BB’s possession or control. If BB provides Customer with temporary access to the account, BB may charge a re-activation fee. BB may withhold access to Customer Data until Customer pay any Charges owed to BB. After termination or expiration of the Agreement, BB will have no obligation to maintain or provide Customer the Customer Data and may, unless legally prohibited, delete all Customer Data in BB’s systems or otherwise in BB’s control. Customer shall pay all reasonable expenses incurred by BB in returning or disposing of Customer Data; and (f) if Customer has validly and lawfully terminated the Agreement for cause in accordance with clause 17.2, BB will promptly refund any prepaid but unused Subscription Charges after termination up to the end of any prepaid Subscription Term on a pro-rata basis for relevant User Licences (as Customer’s sole and exclusive remedy for early termination of the Agreement). BB will make the reimbursement without undue delay, and not later than 30 days after the date of valid termination, using the payment mechanism by which Customer typically pays Subscription Charges, unless the parties have expressly agreed otherwise. If BB has terminated the Agreement for cause, Customer will promptly pay all unpaid Charges due through the end of the Subscription Term (without prejudice to BB’s other rights or remedies). Charges are otherwise non-refundable.
18. GENERAL
18.1 BB shall have no liability to Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of BB or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Customer is notified of such an event and its expected duration.
18.2 A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
18.3 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
18.4 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18.5 The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. For the avoidance of doubt, the Agreement shall apply to the exclusion of any terms introduced by Customer, through custom, dealing or otherwise. BB’s obligations are not contingent on the delivery of any future functionality or features of the Subscription Services or dependent on any oral or written public comments made by BB regarding future functionality or features of the Subscription Services.
18.6 Customer shall not, without the prior written consent of BB (such consent not to be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. BB shall be free to assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement without the consent of Customer but providing notice of any assignment or transfer. BB may also appoint a suitably qualified sub-contractor to perform or provide certain Services on its behalf. Customer will continue to be liable to pay BB any Charges due under the Agreement and shall not be liable directly for any of the subcontractor’s fees or expenses. BB shall remain responsible for the performance by its sub-contractor of any sub-contracted Services and shall not sub-contract the Subscription Services in their entirety.
18.7 Nothing in the Agreement is intended to or shall operate to create a partnership between the parties or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18.8 Other than our third party licensors (who may enforce the applicable licences you have agreed under clause Error! Reference source not found. directly), notwithstanding any other provisions of the Agreement, nothing in the Agreement confers or purports to confer any right to enforce any of its terms on any person who is not a party to it, and any such person shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 (or otherwise) to enforce any term of the Agreement.
18.9 Any notice required or permitted to be given under the Agreement shall be in writing and shall be delivered or transmitted to the intended recipient’s address as specified in the Agreement or such other address as either party may notify in writing to the other from time to time for this purpose. It may also, in the case of notice by BB only, be generally notified to Customers via their account, or notified by way of email to the email address BB has on account for a given Customer. Any notice shall be treated as having been served on delivery if delivered by hand or 4 Business Days after posting if sent by pre-paid first-class post. In the case of notice served by posting on the website or by email, the notice shall be deemed given at the time such upload goes live onto the website and at the time of transmission of the email (respectively).
18.10 The construction, validity and performance of the Agreement shall be governed by the laws of Northern Ireland, and the parties submit any dispute regarding the construction, validity and performance of the Agreement, or its subject matter, or any non-contractual disputes, to the exclusive jurisdiction of the courts of Northern Ireland.
18.11 Where any Proposal is issued or signed it may be executed in any number of counterparts, each of which will be considered an original, but all of which together will constitute the same agreement. The exchange of a fully executed valid Proposal (in counterparts or otherwise) by electronic transmission, or signature via DocuSign or other EIDAS compliant signature platform, or Customer’s confirmation by email of its agreement to the terms of a valid Proposal, shall be sufficient to bind the parties to the terms and conditions of the Agreement.
18.12 Similarly, the completion of the Checkout Process by Customer or on its behalf (including Customer’s indicating its acceptance of these General Terms by click- through appropriate acceptance method) and acceptance of the customer’s order by BB (either in-platform or by email confirmation) shall also be sufficient to bind the parties to the terms and conditions of the Agreement. The Agreement is a contract for the provision of services and not a contract for the sale of goods. Where Customer is based in the USA the provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as enacted, shall not apply to this Agreement. If Customer is based outside the USA, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern the Agreement or the rights and obligations of the parties under it.
18.13 All Consultancy Services and Support, the Agreement and any correspondence between the parties regarding the subject matter of the Agreement (including any dispute) shall be exclusively in the English language.
18.14 BB might make versions of the Agreement available in languages other than English. If BB does, the English version of the Agreement will govern the parties’ relationship. The translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
18.15 Unless otherwise stated in these General Terms, no amendment or variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). The above notwithstanding, BB may update and change any part or all of these General Terms, (other than those relating to fees and Charges) at any time. If BB update or change these General Terms or any other document comprising part of the Agreement, and the updated General Terms or constituent document will be posted at the URL at which Customer originally accessed it and BB will let Customer know via email or through a pop-up notification when using the Software. The updated document will become effective and binding on the next Business Day after notice of any update is so given. When BB change any document, the “Last Updated” date and version reference in the relevant document (e.g., clause 1.5 of these General Terms) will be updated to reflect the date of the most recent version. BB encourages Customer to review the documents forming part of the Agreement periodically. Every time Customer completes the Checkout Process for new or extended Chargeable Features, or signs a new Proposal, the terms applying to the Agreement between the Parties shall be as outlined in the relevant version of these General Terms linked (in either the Proposal or as part of the Checkout Process) at the time.
18.16 Each party (including in the case of the Customer, the person completing the Checkout Process or signing the Proposal in their individual capacity) represents and warrants to the other that it has full power and authority to enter into the Agreement (or to act on behalf of the party on whose behalf it purports to act) and that it is binding upon such party and enforceable in accordance with its terms.
ADDENDUM A - DEVELOPMENT SERVICES ADDENDUM
This Development Services Addendum (the Addendum) is an addendum to the General Terms between BB and the Customer. This Addendum applies to the extent that a Proposal for the provision of Development Services by BB to the Customer is agreed between BB and the Customer (whether via BB’s signature of the Proposal, the Customer’s agreement in writing to any Proposal (including by way of email) or the Customer issuing a purchase order for any Charges or taking any similar steps to indicate their agreement.
1. INTERPRETATIONS AND DEFINITIONS
1.1. Terms defined in the General Terms shall, unless otherwise defined in this Addendum, have the same meaning in this Addendum. In addition, the following definitions apply in this Addendum:
Assigned Rights has the meaning given to it in clause 4.1 of this Addendum;
Customer Materials means any content, information or data, including any text or images, which are provided by, or are to be provided by, the Customer from time to time in connection with the Development Services or Deliverables;
Deliverables means any bespoke front-end UI or UX designs, documents, products and materials developed by BB or its personnel exclusively for the Customer as part of the Development Services (excluding BB Data, the Software (or any improvements or amendments thereto), BB’s own logos or generic information or details contained therein provided to other customers of BB);
Scope of Work means any specification or scope of work for the Development Services and Deliverables agreed as part of the Proposal;
Open-Source Software means any bespoke software libraries or code licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (http://www.opensource.org/docs/definition.php) or anything similar, included or used in, or in the development of, the Software, or with which the Software is compiled or to which it is linked, at a Customer’s request as part of specific Development Services, but excluding the Software;
Development Services Charges means the aggregate price for the Services and the granting of the Assigned Rights, as specified in any Proposal. If no price is quoted, the price for Development Services shall be calculated on a time and materials basis at BB’s then prevailing standard rates for such Development Services, as set out in any Proposal or on the BB website;
Third-Party Software means the software programs proprietary to third parties which are to be provided to the Customer (other than the normal BB Software) at the Customer’s request as part of the Deliverables; and
Third-Party Licences means any Open-Source Software licences relating to any Open-Source Software , or any Third-Party Software licences relating to any Third-Party Software.
2. DEVELOPMENT SERVICES AND DELIVERABLES
2.1. BB shall, subject to payment of the Development Services Charges and receipt of a copy of the Customer Materials by the date(s) requested or required by BB, supply the Development Services (in accordance with the applicable Scope of Work), and the Deliverables (as applicable) to Customer in accordance with and subject to the terms and conditions set out in the Agreement.
2.2. Time shall not be of the essence regarding any date for delivery by BB of any good or service specified in the Proposal, notwithstanding the terms of any Proposal, and any timeframes given by BB, including within the Proposal, shall be reasonable estimates, which BB shall use reasonable endeavours to work towards only.
2.3. For the avoidance of doubt, BB shall only provide the Development Services specifically set out in the Proposal and Scope of Work, and any other services shall be outside scope. For example, BB does not provide any web or mobile browser testing services (i.e. checking relevant web browsers for obvious bugs or errors), other than those browser testing services specifically mentioned in the Proposal which BB shall undertake. Unless otherwise specified in the relevant Proposal, BB shall only perform the Development Services during Business Days between the hours of 9am to 5pm UK time on Business Days.
2.4. Where the Customer is paying for Development Services, this shall include a reasonable level of Support for the agreed term in the Proposal (only) in relation to the in-scope Deliverables, subject to any caveats or exclusions outlined in the General Terms or Proposal. All tickets must be raised via BB’s support ticket platform in accordance with the support services policy rolled out by BB from time to time for Development Services projects (if any). The Support also allows for an amount of time (as specified in the Proposal, and unless excluded under the Proposal) to the Customer to assist the Customer in taking responsibility for the implemented Software following handover.
2.5. BB shall at all times provide the Development Services in accordance with all applicable laws, and shall have the right to make any changes to the Development 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 Development Services, and BB shall notify the Customer in any such event.
2.6. BB shall only incorporate Third-Party Software or Open-Source Software in the Deliverables where particular features that do not form part of the standard Software functionality are requested by the Customer. BB shall provide any relevant Third-Party Software or Open-Source Software to Customer under the standard licence terms provided by the relevant third parties, copies of which Customer may request, and Customer agrees to be bound to the relevant third parties by such licence terms and to use reasonable endeavours to ensure that its Affiliates are bound under similar obligations owed to the relevant third parties. As these are third-party products that are not owned by BB, the Customer acknowledges and agrees that BB is not responsible for any issues that the Customer has with Third-Party Software or Open-Source Software, such as downtime or bugs. Where Third-Party Software is re-sold to the Customer that entails payment of any additional licence fees, this will be specifically agreed with the Customer in advance, and the Customer may be responsible for obtaining and maintaining its Third-Party Software Licence(s) renewals directly after handover, and these costs are not included in the Development Service Charges.
2.7. Customer shall be responsible for ensuring that it has obtained all relevant third-party hardware or software (Customer Equipment) which is required for the Deliverables to function, or to otherwise receive the benefit of the Development Services and Deliverables, as advised by BB from time to time.
3. CHANGE CONTROL
3.1. The Customer may, by giving written notice to BB at any time during the term of the Agreement, request a change to the scope of the Development Services (including any agreed Scope of Work).
3.2. Within a reasonable period following receipt of such notice, BB shall prepare for Customer a written estimate of any increase or decrease in the Development Services Charges, and of any effect that the requested change would have on any estimated timescales the parties have been working towards.
3.3. Customer shall inform BB in writing of whether or not Customer wishes the requested change to be made. If the change is required, BB shall not make the requested change until the parties have agreed in writing (including by email) the terms on which such change will be serviced specifying, in particular, any changes to the Development Services Charges.
4. WARRANTIES
4.1. BB warrants that it shall provide any Development Services and deliver the Deliverables, using reasonable skill and care and in accordance with the terms of the Agreement, endeavouring to meet the requirements of the Scope of Work.
4.2. The sole remedy for breach of the warranty under clause 4.1 shall be correction or re-performance of defective Development Services by BB within a reasonable time from notification by Customer of the relevant breach. Customer shall provide all information as may be reasonably necessary to assist BB in resolving any breach including, without limitation, sufficient information to enable BB to re-create any alleged defect in the Development Services.
4.3. The express terms of the Agreement are in lieu of all other express or implied warranties, conditions, undertakings, terms and obligations implied by statute, common law, trade usage, course of dealing or otherwise, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, conditions, all of which are hereby excluded to the fullest extent permitted by law. In particular, BB denies any implied or express representation that the Deliverables will be fit: (a) to operate in conjunction with any hardware items or software products other than with those that are identified in any Proposal as being compatible with the Deliverables; or (b) to operate uninterrupted or error-free. BB does not warrant or guarantee that it will be able to rectify all defects, nor that any defect which does not materially affect Customer’s operations using the Deliverables can or will be corrected.
4.4. Any unauthorised modifications, use or improper installation of the Deliverables by, or on behalf of, Customer shall render BB’s warranties and obligations under the Agreement null and void.
4.5. BB shall not be obliged to rectify any particular defect if attempts to rectify such defect other than normal recovery or diagnostic procedures have been made by Customer’s personnel or third parties without the permission of BB.
4.6. Customer acknowledges that the only warranties in relation to the Third-Party Software or Open-Source Software, or the supply thereof, are those contained in the relevant Third-Party Licences, and that these are otherwise provided on an “as is” basis.
4.7. Customer acknowledges that it has assessed for itself the suitability of the Deliverables for its requirements. BB does not warrant that the Deliverables will be suitable for such requirements, nor that any use of the Deliverables will be uninterrupted or error free. BB may also recommend third party platforms, service provider or products from time to time, but gives no warranties about such products, platforms or their relevant providers. Customer should assess for itself whether they properly meet its requirements and will enter into separate contracts independently of BB.
4.8. BB does not accept any responsibility for protection of the Deliverables against security breaches, any loss of data resulting from delays, non-deliveries, mis-deliveries or service interruptions caused by its third parties’ negligence or Customer’s errors or omissions.
4.9. Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform the Agreement and that those signing the Agreement are duly authorised to bind the party for whom they sign.
5. INTELLECTUAL PROPERTY
5.1. Subject to the terms of the Agreement and for the consideration set out herein, with effect from the date of payment of the full amount of the Development Service Charges in accordance with the terms of the Agreement, BB assigns to Customer all its right, title and interest in and to the Intellectual Property Rights subsisting in any Deliverables (the Assigned Rights), including the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of the Assigned Rights whether occurring before, on, or after the date of the Agreement.
5.2. Customer shall comply with the Third-Party Licences and shall indemnify and hold BB harmless against any loss of damage which it may suffer or incur as a result of Customer’s breach of such terms howsoever arising. BB may treat Customer’s breach of any Third-Party Licence as a breach of the Agreement.
5.3. BB acknowledges that any and all Intellectual Property Rights which subsist in or arise in connection with the Customer Materials belong to Customer and/or its third-party licensors.
6. CHARGES AND PAYMENT TERMS
6.1. BB shall submit invoices for the Development Services Charges in accordance with the Payment Terms. Where BB has requested an up-front payment or deposit it reserves the right not to commence the Development Services until it has received this amount.
6.2. If any delivery is delayed at the request of Customer, or because of its acts or omissions, including failure to provide Customer Materials within the required timeframes to permit BB to provide the Development Services within the target timeframes set out in the Proposal, Customer acknowledge that the project may need to be delayed and re-scheduled accordingly.
6.3. The Development Services Charges and all other payments under the Agreement are net of tax. Customer shall, in addition, pay to BB the amount of any tax, duty or assessment, including any applicable VAT, which BB is obliged to pay and/or collect from Customer in respect of any supply under the Agreement (other than tax on BB’s income).
6.4. Any expenses incurred by BB in the provision of the Development Services shall be deemed included in the Development Services Fees, save as otherwise expressly set out in the Proposal. For the avoidance of doubt, this is predicated on all Development Services being delivered remotely, and expenses may be chargeable if and to the extent BB is asked to travel as part of any Development Services.
7. TERM & TERMINATION
7.1. The Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with the express termination rights set out in these General Terms or the Proposal.
7.2. If the Customer terminates the Agreement without cause, or if BB terminates this Agreement early due to Customer’s breach of the Agreement, then, in addition to any other outstanding Charges owed at the date of termination, the Customer shall pay BB an early termination fee equal to the unpaid anticipated and/or agreed Development Service Charges (the Early Termination Fee).