Barbour Service Terms & Conditions
BARBOUR SERVICE TERMS AND CONDITIONS
The Order Form and these written terms constitute the entire
agreement ('this Agreement') between Barbour and the Subscriber
concerning the Services and the Service Content. Any terms (whether
conditions, warranties or other terms) which would otherwise be
implied (whether by statute, common law, custom, course of
dealings, or the Subscriber's circumstances) are excluded.
The meanings of defined terms used in this Agreement are set out at
Clause 13.
1 THE SERVICES
1.1 Barbour will provide the Services to the
Subscriber.
1.2 Barbour shall use reasonable endeavours to deliver the
Services on or as soon as reasonably practicable after the Start
Date, but time is not of the essence and the UBMi Group has no
liability for any loss, damage, costs or expenses the Subscriber
suffers or incurs as a result of any delay.
1.3 It shall be the obligation of the Subscriber to notify
Barbour of any changes to the address/es set out on the order form
and the UBMi Group shall not be liable for any loss, damage, costs
or expenses resulting from the failure by the Subscriber to notify
Barbour of any such change.
1.4 Where the Services involve the supply of physical media
(including CD-ROMs and operating manuals), it remains Barbour's
property. Risk in such items passes to the Subscriber upon its
receipt of those items, and the Subscriber shall promptly notify
Barbour if any is lost or damaged.
1.5 Where the Services are online services, Barbour will
deliver them by making them available to the Subscriber via the
Internet by granting the Subscriber facilities for accessing them
(including accounts, permissions and passwords) at the addresses
set out on the Order Form unless otherwise agreed by the
parties.
1.6 Barbour will not deliver any British Standards or Irish
Standards until the Subscriber has complied with Clauses 3.1 and
3.2 respectively.
1.7 Barbour reserves the right to change the nature, content
and look-and-feel of the Services without prior notice. In
particular, Barbour might change the Services and the Service
Content for editorial reasons or if it ceases to have the right to
include certain content. These changes could be substantial.
Barbour shall be the sole arbiter of any changes and what Service
Content should or should not be included.
1.8 Barbour reserves the right to withdraw any or all of the
Services at any time at its discretion. If Barbour withdraws a
Service, this Agreement will continue and Barbour's only liability
to the Subscriber is to repay that proportion of any monies already
paid by the Subscriber which relate to the Subscriber's use of that
Service after its withdrawal. The UBMi Group has no liability for
any loss, damage, costs or expenses the Subscriber suffers or
incurs as a result of the withdrawal of the Services.
2 LICENCE
2.1 The Services, the Service Content and any passwords
issued by Barbour are protected by copyright and other intellectual
property rights. These rights are either owned by Barbour or are
licensed to Barbour and the Subscriber will not acquire any rights
or interests to or in any part of them.
2.2 Barbour grants the Subscriber a non-exclusive,
non-transferable licence to use the Services and the Service
Content in the manner and to the extent set out in this Agreement,
but not otherwise.
2.3 Unless otherwise notified to the Subscriber (which
includes notices and licence terms displayed or provided in the
Order Form or as part of the Services or Service Content), the
Services and the Service Content are provided to and licensed for
use by the Subscriber on a world-wide basis for use in the course
of the Subscriber's own business only and are not to be used
or relied upon by any third party.
2.4 The Services and Service Content may include copyright
notices and terms of access and use, issued by persons who own
intellectual property rights in the Service Content. The Subscriber
shall fully comply with those terms and notices. The reproduction
of parts of the Service Content is also subject to restrictions
imposed by third parties, and the Subscriber shall abide by all
restrictions in force from time to time. These are described in the
Services and/or the Service Content.
2.5 Where the Order Form restricts access to, or use of,
the Services to particular or a maximum number of End Users and/or
Sites, the Subscriber shall ensure that these restrictions are
complied with unless and to the extent that greater access and use
is expressly authorised in respect of any part of the Services.
2.6 The Subscriber may view, print out and copy text from
parts of the Service Content into the Subscriber's own documents,
provided that:
(a) all copying, whether hard copy or electronic, complies
with the stated copyright policy of the owner of the relevant
Service Content
(b) no copies are made where this is expressly prohibited or
the Service Content is presented in a read-only format;
(c) documents and other text is copied without changing the
original meaning;
(d) the identity of the copyright owner(s) is clearly
acknowledged in any document or other material in which the copied
Service Content is reproduced
(e) each document or other material in which the copied
Service Content is reproduced is only for use by the Subscriber in
the course of its own business, and is not supplied (or otherwise
made available) to any third party for re-use or re-sale.
(f) the Subscriber does not claim any intellectual property
rights in the copied Service Content.
2.7 The Subscriber may store only such electronic copies of
the Service Content as are reasonably necessary in all the
circumstances to enable it to make reasonable use of the Services
in accordance with this Agreement.
2.8 The Subscriber may not make any use of the Services or
Service Content except as expressly authorised in this Agreement.
In particular, the Subscriber shall not:
(a) modify, alter or adapt the Services or the Service Content
or any underlying software
(b) copy, disclose or otherwise use any part of the Service
Content or any account or passwords issued to the Subscriber
otherwise than as expressly permitted in this Agreement;
(c) translate or decompile any computer program in the
Services or any website used for the delivery of the Services, nor
combine or incorporate any such computer program with or in any
other computer program;
(d) use the Services or the Service Content in the production
of anything defamatory, blasphemous, fraudulent, obscene, lewd, or
unlawful; or
(e) sell, assign, transfer, mortgage, lend or pass on to any
person any of the Services or the Service Content, or purport to do
so, or provide access to any of them or any copy of any of the
Service Content.
2.9 The scope of the licence granted hereunder, including the
number of licensed End Users and Sites, may be extended upon the
Subscriber's written request (and Barbour's express written
agreement to that request) and subject to the payment of additional
charges to be agreed between the parties. Any extensions requested
shall be granted at Barbour's absolute discretion and may be
refused without giving reason.
3 BRITISH AND IRISH STANDARDS
3.1 If the Services include British Standards:
(a) Subscribers to Services which include British Standards
must be members of the British Standards Institution or undertake
to become a member within 3 months of subscribing to those
Services. If the Subscriber does not become a member within 3
months of subscribing to such a Service, then Barbour may prevent
the Subscriber accessing British Standards unless the Subscriber
has paid all relevant charges applicable at that time. If
Barbour exercises this option, the Subscriber shall return all
copies of British Standards supplied with or through that Service
to Barbour within 7 days.
(b) Where Services subscribed to include British Standards,
the Subscriber shall complete, execute and return to Barbour the
British Standards Institution's relevant licence agreement. A
copy of this British Standards Institution's licence agreement has
been supplied to the Subscriber, and includes restrictions on the
use the Subscriber can make of British Standards. Any changes
in the British Standards Institution's relevant licence agreement
shall be notified to the Subscriber (including via e-mail or via
web-based versions of the Service) and shall be promptly agreed to
by the Subscriber. The Subscriber acknowledges that such
agreement is a condition of its use of British Standards derived
Services.
3.2 If the Services include Irish Standards, the Subscriber
shall comply with the additional terms and conditions provided by
Barbour regarding the use of those Irish Standards. In the event of
any inconsistency between this Agreement and those additional
terms, those additional terms shall prevail. The Subscriber shall
promptly complete, execute and return one copy of those terms to
Barbour.
4 SUPPORT
4.1 To the extent that appears to Barbour to be reasonably
necessary, during the Initial Term Barbour will provide instruction
in the operation and use of the Services.
4.2 Following delivery of the Services, at the request of the
Subscriber Barbour shall provide advice and assistance by telephone
or e-mail (at Barbour's option) concerning the use of the Services.
This assistance will be available to the Subscriber between the
hours of 8.30am and 4.45pm (UK time) Monday to Friday (excluding
days which are Bank Holidays in England and 27th to 31st December
inclusive in any year), via such telephone number or e-mail address
as Barbour may notify to the Subscriber from time to time. Barbour
shall use reasonable skill and care in providing advice and
assistance but it does not give any assurance that it will be able
to answer every question put to it.
4.3 If (but only if) the Subscriber is able to demonstrate
that a reported problem is a Fault, and is not due to the way the
Services are being accessed or used or to the computer resources
used by the Subscriber, Barbour shall use reasonable endeavours to
fix that Fault and shall provide the Subscriber with a workaround
solution as soon as reasonably practicable. But Barbour does not
give any assurance regarding the timely resolution of any such
Faults, and the UBMi Group has no liability for any loss, damage,
costs or expenses the Subscriber suffers or incurs as a result of
any delay in providing a fix or workaround.
4.4 The Subscriber shall provide all information and
assistance Barbour reasonably asks for when attempting to provide a
fix or workaround for a Fault.
5 THE SUBSCRIBER'S OBLIGATIONS AND LIABILITIES
5.1 The provisions of this Clause 5 are in addition to any
obligation or liability the Subscriber has under general law and
the other terms of this Agreement.
5.2 The Subscriber shall comply with any terms of use or
policies for reasonable or acceptable usage supplied
with or attaching to the Services.
5.3 The Subscriber shall ensure that all End Users are
employees of the Subscriber, are trained, competent and correctly
authorised to use the Services, and that they do not do anything to
put the Subscriber in breach of this Agreement.
5.4 The Subscriber accepts full responsibility and liability
for the unauthorised use of the Services and Service Content by the
End Users and its employees, and that which results from
unauthorised access to facilities granted to the Subscriber.
5.5 The Subscriber shall permit and enable Barbour to transmit
data and/or program files to the Subscriber's computer resources
used for accessing the Services.
5.6 The Subscriber shall ensure that the computer resources
and communications networks it uses to access the Services are
adequate for that purpose.
5.7 Where Barbour has granted facilities for accessing the
Services (including accounts, permissions and passwords), the
Subscriber shall effect and maintain adequate security measures to
restrict their use and shall prevent unauthorised use of the
Services through the Subscriber's facilities, which it shall
monitor regularly. In particular, the Subscriber shall ensure that
End Users are aware of the terms of this Agreement and, where
applicable, log out from the Services before they allow anyone else
to use their terminal.
5.8 The Subscriber shall indemnify the UBMi Group, and keep it
indemnified, against all claims and proceedings any third party
makes or brings against the UBMi Group in connection with any of
the following:
(a) the use by the Subscriber of the Services or the Service
Content outside the terms of this Agreement or any content
provider's terms of use which form part of the Service Content
and/or have been notified to the Subscriber;
(b) the use of or reliance upon the Services or the
Service Content provided to the Subscriber by any person other than
the Subscriber contrary to Clause 2.3;
(c) any processing of any personal information which is
undertaken or authorised by the Subscriber, including any such
processing by the UBMi Group;
(d) any information put in the Services by the
Subscriber.
This indemnity includes the reimbursement of all costs (including
legal costs on a solicitor and client basis) and expenses incurred
by the UBMi Group in connection with any of these things, and of
all money the UBMi Group pays to any third party on the order of
any court or tribunal of competent jurisdiction or on the
reasonable advice of its solicitors.
6 PAYMENT TERMS
6.1 Each year the Subscriber shall pay Barbour the Total
Cost, and VAT at the applicable rate, on or before the Payment
Date. If the Initial Term is longer than one year, the Payment Date
for each year shall be the anniversary of the Start Date at the
beginning of that year unless otherwise stated. No invoice shall
remain unpaid for more than 28 (twenty-eight) days from its date of
issue.
6.2 If more than one Payment Date is specified in the Order
Form for each year, then:
(a) the Total Cost for each Barbour Service is payable on each
Payment Date in the instalments specified or, if none are
specified, in equal amounts (excluding VAT, which shall be subject
to the provisions of Sub-Clause 6.2(c) below);
(b) At least 30 (thirty) days before the first Payment Date,
the Subscriber shall deliver to Barbour a properly executed
banker's direct debit mandate (in a form acceptable to Barbour) for
payment of the instalments;
(c) each year the Subscriber shall pay Barbour the VAT on the
Total Cost, on or before the first Payment Date;
6.3 If any payment remains unpaid for a period of in excess of
seven (7) days following any Payment Date, then without prejudice
to any other rights under this Agreement,
(a) Barbour is entitled to immediately seek payment of the
full balance of the Total Cost together with payment of any sums
already due and outstanding under this Agreement;
(b) Barbour shall be entitled to levy a late payment charge,
payable at the following rates:
(i) £40 for each invoice less than £1000;
(ii) £70 for each invoice of £1,000 or greater, but less than
£10,000;
(iii) £100 for any invoice of £10,000 or greater;
(c) Any discounts agreed shall not apply.
(d) Barbour shall be entitled (without prejudice to its other
rights and remedies) to charge daily interest on any unpaid monies
from the Payment Date until Barbour receives the monies in cleared
funds, at a rate equal to eight per cent per annum above the base
rate for the time being of Royal Bank of Scotland plc (or any
higher rate permitted by applicable law) and to recover costs that
are incurred on its behalf for collection of debts under this
Agreement from the Subscriber; and
(e) Barbour shall be entitled to suspend the Subscriber's
access to all or any Services until it receives in cleared funds
the full balance of the Total Cost outstanding together with
payment of any sums already due and outstanding under this
Agreement. After it receives such cleared funds, if the Agreement
is still in effect Barbour will reinstate the Services as soon as
practicable.
6.4 The Subscriber shall be responsible for notifying Barbour
of any change to the address to which invoices and other
notifications should be sent in connection with this Agreement, and
shall indemnify the UBMi Group against all loss, damage, costs and
expenses it suffers or incurs in connection with the Subscriber's
failure to do so.
6.5 Barbour reserves the right to increase the Total Cost with
effect from the end of the Initial Term or an anniversary of that
date by giving written notice at least 40 (forty) days' before the
increase takes effect.
7 RESTRICTIONS ON THE UBMi GROUP'S LIABILITY
7.1 The UBMi Group is not responsible or liable for any
failure of, or problems with, the Services (whether provided by
UBMi Group or by a third party used or employed by UBMi Group) or
their availability to the extent that such failure or problem is in
any way connected with the Subscriber's use of any other resources
which have not been expressly pre-approved by Barbour.
7.2 This Clause 7.2 applies to any service which is dependent
on the correct functioning of any computer program. The
nature of computer programs is such that Barbour cannot give any
assurance that the operation of the Service will be free from
errors. The Subscriber acknowledges and accepts that there may be
errors in the operation of the Service, and in computer programs
comprised in the Service, and agrees that the UBMi Group has no
liability for any loss, damage, costs or expenses the Subscriber
suffers or incurs as a result of such errors.
7.3 The Services (whether provided by UBMi Group or by a third
party used or employed by UBMi Group) are for use only as an
aid by persons with an understanding of all the issues involved,
and the UBMi Group has no liability for any loss, damage, costs or
expenses the Subscriber suffers or incurs as a result of any use
of, or reliance on, the Services (whether provided by UBMi Group or
by a third party used or employed by UBMi Group) or the Service
Content by any person who does not have an understanding of all the
issues involved.
7.4 The Services (whether provided by UBMi Group or by a third
party used or employed by UBMi Group) are not a substitute for
professional or legal advice. In particular, any Service in the
nature of a telephone helpline only provides general information
and guidance; it should not be treated as professional or legal
advice or a professional or legal recommendation. The
Subscriber agrees to seek professional/legal advice as appropriate,
and the UBMi Group shall have no liability whatsoever for any loss,
damage, costs or expenses the Subscriber suffers or incurs as a
result of relying on the Services (whether provided by UBMi Group
or by a third party used or employed by UBMi Group) or the Service
Content (including but not limited to any information provided via
the telephone helpline).
7.5 Where the Services (whether provided by UBMi Group or by a
third party used or employed by UBMi Group) automatically generate
bespoke results (including combinations of elements of the Service
Content), Barbour is unable to review such results and does not
give any assurance that such results will be complete, accurate, or
appropriate. The Subscriber agrees to seek professional/legal
advice as appropriate, and the UBMi Group shall have no liability
whatsoever for any loss, damage, costs or expenses the Subscriber
suffers or incurs as a result of relying on any such results.
7.6 Any Service Content (including but not limited to Barbour
Guides, Briefings and CPD notes and information provided as part of
a telephone helpline) which relates to the interpretation or effect
of any document (including any legislation, regulation, standard or
code of practice) is intended only as an aid to help persons with
an understanding of all the issues involved. The UBMi Group
shall have no liability whatsoever for any loss, damage, costs or
expenses the Subscriber suffers or incurs as a result of any person
relying on that Service Content (including but not limited to any
information provided via the telephone helpline).
7.7 Barbour exercises reasonable care and skill to reproduce
third party material accurately, but it does not check that the
information contained in that material is correct and the UBMi
Group shall have no liability whatsoever for any loss, damage,
costs or expenses the Subscriber suffers or incurs as a result of
any errors in, or omission from, any third party material except to
the extent that it results from Barbour's negligent error.
7.8 Barbour regularly checks the presentation of the Service
Content in the web-based services to ensure that it is accessible
and well presented, but it does not check the reliability,
suitability or any other quality of any product or service
described in the Service Content, and no reference in the Service
Content to any person, product or service is an endorsement or
assurance by Barbour concerning any of these. The UBMi Group shall
have no liability whatsoever for any loss, damage, costs or
expenses the Subscriber suffers or incurs as a result of using or
relying on any such product or service.
7.9 Any opinion or express or implied statement or other
representation expressed in the Service Content is the opinion of
the author. (The term 'author' includes any individual providing
information via a telephone helpline). Barbour exercises its
reasonable care and skill when appointing authors, and in
expressing their opinions, statements and other representations in
the telephone helpline and web-based services, authors also use
their reasonable care and skill but the opinions, statements and
other representations made by authors on the telephone helpline or
in the web-based services are not those of the UBMi Group and
should not be taken as being so. The UBMi Group shall have no
liability whatsoever for any loss, damage, costs or expenses the
Subscriber suffers or incurs as a result of relying on the
opinions, statements and other representations in any Service
Content (including any telephone helpline), except to the extent it
results from any opinions, statements or representations which are
contrary to the intentions of the author due to Barbour's negligent
error or which Barbour has expressly endorsed as its own.
7.10 Barbour exercises reasonable care and skill when
appointing independent consultants to provide information via
telephone help lines, but subject to this the UBMi Group shall have
no liability whatsoever for any loss, damage, costs or expenses the
Subscriber suffers or incurs as a result of relying on that
information.
7.11 Barbour exercises reasonable care and skill when
appointing its own staff to provide information via telephone help
lines but subject to this the UBMi Group shall have no
liability whatsoever for any loss, damage, costs or expenses the
Subscriber suffers or incurs as a result of relying on that
information.
7.12 Links in web-based versions of the Services (whether
provided by UBMi Group or by a third party used or employed by UBMi
Group) may take the Subscriber to websites controlled by third
parties. The UBMi Group shall have no liability whatsoever for any
loss, damage, costs or expenses the Subscriber suffers or incurs as
a result of visiting those websites or of using or relying on any
information on those websites.
7.13 Barbour will determine what constitutes the Service
Content in the web-based services. It may include references
to products, services, information or other materials which are no
longer relevant, current or available. These are included for the
Subscriber's benefit and convenience, but in each case it is the
Subscriber's responsibility to determine the extent to which they
remain valid or relevant. The UBMi Group shall have no liability
whatsoever for any loss, damage, costs or expenses the Subscriber
suffers or incurs as a result of treating the Service Content as
complete, exhaustive or up-to-date.
7.14 The results returned by any electronic search facility
will not be monitored by Barbour, and Barbour does not give any
assurance that any of the results will be complete, accurate or the
most appropriate results for the search conducted. The Subscriber
is responsible for assessing the results. The UBMi Group shall have
no liability whatsoever for any loss, damage, costs or expenses the
Subscriber suffers or incurs as a result of relying on the search
results being complete or appropriate.
7.15 Barbour shall use reasonable endeavours to display in the
web-based services the most recent version of the Service Content
supplied to it by third parties. The UBMi Group shall have no
liability whatsoever for any loss, damage, costs or expenses the
Subscriber suffers or incurs as a result of the Service Content not
being up-to-date.
7.16 Barbour may withdraw any Service Content previously
included in the web-based Services (whether provided by UBMi Group
or by a third party used or employed by UBMi Group) for any reason.
The UBMi Group shall have no liability whatsoever for any loss,
damage, costs or expenses the Subscriber suffers or incurs as a
result of the withdrawal of any Service Content.
7.17 The UBMi Group shall have no liability whatsoever for any
indirect or consequential loss or damage the Subscriber
suffers.
7.18 The UBMi Group shall have no liability whatsoever for any
loss of, or damage to, any revenue, profit, anticipated savings,
goodwill or reputation.
7.19 The UBMi Group shall have no liability whatsoever for or
in connection with any loss of, or damage to, any data or computer
program.
7.20 Barbour takes reasonable precautions to detect viruses
and other harmful code in the Services (whether provided by UBMi
Group or by a third party used or employed by UBMi Group), but the
Subscriber is responsible for using its own procedures for
detecting these and for protecting its systems and information
against them. The Subscriber shall insure itself against any loss,
damage, costs or expenses which the Subscriber might suffer or
incur as a result of or in connection with any viruses or other
harmful code. The UBMi Group shall have no liability whatsoever for
any such loss, damage, costs or expenses.
7.21 Barbour shall be entitled to disable the web-based
versions of the Services (whether provided by UBMi Group or by a
third party used or employed by UBMi Group) in part or whole so as
to enable it to undertake maintenance. This will usually be
outside of normal business hours (09:00 to 17:00 UK time). Barbour
shall use reasonable endeavours to pre-notify planned maintenance
work to the Subscriber where significant downtime is planned.
7.22 The UBMi Group shall have no liability whatsoever for any
liability, loss, damage, costs or expenses which the Subscriber
suffers or incurs in connection with any claim or proceedings
brought against the Subscriber by any third party, except to the
extent it relates to the proven infringement of that third party's
copyright or database rights by Barbour.
7.23 The total aggregate liability of the UBMi Group for all
loss, damage, costs and expenses the Subscriber suffers or incurs
in connection with the Services (whether provided by UBMi Group or
by a third party used or employed by UBMi Group), the Service
Content, breaches of this Agreement or misrepresentations relating
to any of the foregoing shall not exceed:
(a) Four times the Total Cost in relation to an event or
series of connected events.
(b) One million pounds in total.
7.24 The exclusions and restrictions of liability set out in
this Agreement cover liability on any legal or equitable basis for
all loss, damage, costs and expenses of the kind described even if
it is of a kind:
(a) which the UBMi Group had been advised could or will occur;
or
(b) which in the circumstances would arise in the ordinary
course of things; or
(c) was reasonably foreseeable at the date of this Agreement
and/or the time of the relevant event or occurrence.
7.25 Except as expressly stated, the exclusions and
restrictions of the UBMi Group's liability set out in this
Agreement cover its liability in contract and tort for all loss,
damage, costs and expenses of the kind described however it might
arise, even if it results from Barbour's negligence or other
negligence for which it or the UBMi Group would otherwise be
liable.
7.26 As exceptions to all the other terms of this Agreement,
the members of the UBMi Group do not exclude or restrict their
liability (if any) for any of the following: (i) personal injury to
any individual (whether or not it results in their death) resulting
from negligence; (ii) fraud; (iii) fraudulent
misrepresentation.
8 DATA PROTECTION POLICY
8.1 The UBMi Group may obtain information about the
Subscriber, its End Users or other individuals connected with the
Subscriber, including that submitted in the course of entering into
this Agreement and information collected from the use of the
Services by the Subscriber and End Users. The Subscriber (on behalf
of itself and the End Users) authorises the UBMi Group to:
(a) process this information
(b) use it for marketing the UBMi Group's products and
services to the Subscriber and to relevant individuals (including
the End Users)
(c) pass this information to any third party used or employed
by UBMi Group in order to provide the Services
(d) pass this information for auditing purposes to the
licensors of any computer programs or Service Content included in
the Services, third parties associated with the Services, and third
parties who have websites with links to or from any website
operated by Barbour (or a company associated with Barbour)
(e) monitor and record calls to calls to a telephone helpline
for quality and training purposes
8.2 The Subscriber shall ensure that End Users who, directly
or indirectly, provide personal data about themselves to Barbour,
are aware of the provisions of this Clause 8 and have read the
relevant privacy policy appearing on the Barbour website.
9 TERM AND TERMINATION
9.1 This Agreement starts on the Start Date and continues
in force for the Initial Term and thereafter from year to year
until terminated in accordance with this Agreement.
9.2 Barbour may terminate this Agreement forthwith at any time
during or after the Initial Term by giving the Subscriber written
notice if the Subscriber is in breach of any of the Agreement's
terms.
9.3 Either party may terminate this Agreement without giving
any reason by giving 30 (thirty) days notice in writing served by
recorded delivery to terminate on the expiry of the Initial Term
or, if the Initial Term has already expired, on an anniversary of
the Start Date.
9.4 Either party may terminate this Agreement forthwith at any
time during or after the Initial Term by giving the other written
notice if the other party: (i) becomes the subject of a voluntary
arrangement under Section 1 of the Insolvency Act 1985; (ii) is
unable to pay its debts within the meaning of S.123 of the
Insolvency Act 1986; (iii) has a trustee, receiver, manager,
administrator, or administrative receiver appointed over all or any
parts of its undertaking, assets or income; (iv) has passed a
resolution for its winding up; or (v) has an order made by the
Court for its bankruptcy, winding-up or administration or (vi)
ceases to carry on business.
9.5 Barbour may vary this Agreement (other than the Total
Cost) by giving written notice at least 30 (thirty) days before the
change takes effect, clearly stating the changes and when they take
effect. The Subscriber will not be bound by the changes unless it
accepts them. The Subscriber is deemed to have accepted them if it:
(i) pays any part of the Total Cost in respect of the next year; or
(ii) uses the affected Services after the change is stated to take
effect.
9.6 The Subscriber's licence to use the Services and the
Service Content automatically terminates with this Agreement and
the Subscriber shall immediately stop using them. In accordance
with Barbour's instructions at the time, the Subscriber shall:
(a) destroy Barbour's property (including all physical media
on which the Service Content is contained) or return it to Barbour;
and
(b) destroy all other copies of the Service Content, including
the deletion of all electronically-stored copies, except those
parts of the Service Content which the Subscriber has included in
the Subscriber's documents in accordance with this Agreement. At
Barbour's request, the Subscriber shall promptly provide Barbour
with written confirmation that this has been done in the form of a
statutory declaration.
10 FORCE MAJEURE
10.1 Neither party is in breach of this Agreement, nor
liable in any way whatsoever, for any failure to perform, or delay
in performing, its obligations under this Agreement to the extent
that the failure or delay results from any cause which is beyond
that party's reasonable control. This Clause 10 does not relieve
the Subscriber from any liability for, or the consequences of, any
failure or delay by the Subscriber to:
(a) pay any charges due under this Agreement
(b) control the Subscriber's representatives
(c) comply with Clause 5.7.
11 NOTICES
11.1 To be valid, any notice given pursuant to this
Agreement must be in writing and must be delivered by hand or sent
by post, e-mail or fax to the relevant party at the contact point
described on the Order Form or such substitute contact point as
that party has notified in accordance with this Clause 11. Notices
served under Clause 9 must be sent recorded delivery.
11.2 A properly addressed notice sent by pre-paid first class
post is deemed to have been served at the start of the first
working day which is at least two clear days after the notice is
posted.
11.3 A notice sent by fax will be of no effect unless the
sender is able to prove that it was sent to, and was received by,
the correct fax number in an uninterrupted transmission.
11.4 Notices may be sent by email to the email address(es) of
the parties set out on the Order Form, or such other addresses as
either party may notify to the other from time to time.
11.5 A notice sent by email will be of no effect unless and
until:
(a) (if that party uses the services of an independent
internet service provider) it is received by that party's internet
service provider;
(b) (if that party does not use the services of an independent
service provider) it is forwarded to that party's own equipment,
whether or not it is received by that equipment.
12 GENERAL
12.1 This Agreement does not confer any right or benefit on
any third party other than the other members of the UBMi Group and
as a result of the extended definition of 'UBMi Group'. In any
event, Barbour and the Subscriber may exercise their respective
rights to rescind, terminate or vary this Agreement without the
consent of any third party.
12.2 Barbour may delegate any obligation it has under these
terms to any person, and may allow any person to exercise any right
it has under these terms.
12.3 The Subscriber's obligation to do something (other than
its obligation to pay any charges due under the Agreement) includes
an obligation to ensure that the End Users and its representatives
do it.
12.4 The Subscriber's obligation not to do something includes
an obligation not to permit it or authorise it, and an obligation
to ensure that the End Users and its representatives do not do it,
permit it or authorise it.
12.5 All acts and omissions of, and use of the Services and/or
the Service Content by, the Subscriber's directors, officers,
employees, End Users and agents are deemed to be those of the
Subscriber. Any facilities for accessing the Services (including
telephone numbers for help lines, accounts, permissions and
passwords) granted by Barbour to the Subscriber's directors,
officers, employees, End Users and agents are deemed to have been
granted to the Subscriber for the Subscriber's use, and their use
of them is deemed to be use by the Subscriber.
12.6 Barbour may suspend the Services or change these terms
with immediate effect if it is reasonably necessary to do so in
order to comply with any applicable law, or with the instruction of
any public or regulatory body.
12.7 This Agreement is subject to English law and the courts
of England and Wales have exclusive jurisdiction in respect of any
dispute arising out of or in connection with this Agreement, the
Services and the Service Content, and their use.
12.8 The failure by a party to exercise a right or remedy does
not constitute a waiver of that or any other right or remedy, and
nor does any delay by a party in exercising any right or remedy.
The other party shall not rely on any such failure or delay as
constituting such a waiver or as preventing the exercise of any
right or remedy.
12.9 If any court or other tribunal of competent jurisdiction
decides that any provision of this Agreement is void or
unenforceable, this Agreement will bind the parties as if that
provision had been omitted.
12.10 Neither party may assign or transfer all or any of its
rights or obligations under this Agreement or dispose of any right
or interest in this Agreement without the prior written consent of
the other party save that Barbour shall be entitled to assign the
benefit and burden of this Agreement in whole or in part to any
member of the UBMi Group or upon undertaking a trade sale.
12.11 In relation to the use of BRE content:
(a) Use, duplication, or disclosure of data and/or software by
the U.S. Government is subject to the restrictions as set forth in
the Rights in Technical Data and Computer Software clause at FARS
12.211 and 12.212(a) and/or Commercial Computer Software at DFARS
227.7202-1(a) or subparagraphs (c)(1) and (2) of the Commercial
Computer Software-Restricted Rights at 48 CFR 52.227-19, as
applicable. Manufacturer is Information Handling Services Inc. 15
Inverness Way East, Englewood, Colorado.
(b) The Service Content may contain technical data (eg.
Encryption technology) the export, re-export, transfer or sale of
which is controlled by U.S. export control laws. The Subscriber
shall comply with all U.S export control laws, and acknowledges (on
behalf of itself and its End Users) that the diversion of the
Service Content by the Subscriber or its End Users in contradiction
to U.S. law is prohibited. In addition, the Subscriber acknowledges
(on behalf of itself and its End Users) that other nations' laws
may apply to the Service Content. Accordingly, in express
consideration for receipt of the Service Content, the Subscriber
agrees (on behalf of itself and its End Users) that it and the End
Users will comply with all applicable laws that may impose
registration, reporting, licensing, or other requirements on
sublicensing of the Service Content.
13 INTERPRETATION
13.1 In this Agreement:
'this Agreement' means these Barbour Service Terms and Conditions
and the Order Form.
'Barbour' is a division and trading name of UBMi, and references to
Barbour are references to UBMi.
'British Standards' means material identified as having been
supplied by or on behalf of the British Standards Institution.
'End User' means an individual accessing or using the
Services and/or the Service Content through any account or other
facility made available to the Subscriber by Barbour.
'Fault' means a technical fault affecting the delivery of the
Services constituting a material deviation from the performance
criteria described in the Specification.
'Initial Term' means the subscription period starting on the Start
Date and lasting for the period specified on the Order Form. If no
period is specified, the Initial Term is one year.
'Irish Standards' means material identified as having been supplied
by or on behalf of the National Standards Authority of Ireland.
'Order Form' means the order or services agreement form to which
these terms and conditions are attached or linked (in the case of
on-line registration).
'Payment Date' means the date upon which payments of the Total Cost
shall be due, as set out on the Order Form and subject to Clause 6
of this Agreement.
'person' means any individual, firm, association, corporation or
other body or legal entity.
'Service Content' means the content of the Services, including all
spoken information, text, data, diagrams, images, computer
programs, thesauruses, metadata and other works, including any
physical media used to carry the same.
'Services' means the information services offered by Barbour which
are identified on the Order Form and described in the
Specification.
'shall' denotes an obligation of a party.
'Site' means each and any geographical site (or the number of
sites, as the case may be) listed on the Order Form and under the
control of the Subscriber, at which the Subscriber may use the
Services and the Service Content.
'Specification' means the specification for individual services set
out on the Barbour website at www.barbour.info
'Start Date' means the earlier of (i) the date the Order Form has
been signed by Barbour, and (ii) the first day of the subscription
month (if any) specified on the Order Form.
'Subscriber' means the person identified as such on the Order
Form.
'Total Cost' means the total annual sum (exclusive of VAT) payable
in respect of the Services identified as such on the Order Form, or
any other amount substituted in accordance with this Agreement.
'UBMi' means UBM Information Ltd of Ludgate House, 245 Blackfriars
Road, London SE1 9UY.
'UBMi Group' means UBMi, any holding company from time to time of
UBMi and any subsidiary or subsidiary undertaking from time to time
of UBMi or such holding company, as such terms are defined in the
Companies Act 1985.
In any provision of this Agreement which excludes or restricts the
liability of the UBMi Group, the reference to UBMi Group in that
exclusion or restriction includes the directors, agents, officers
and employees of the members of the UBMi Group to the extent they
are acting in the course of their duties.
13.2 The use of the word 'including', the phrase 'in
particular', and cognate expressions is only intended to illustrate
particular examples. Their use, and the use of such examples, is
not intended to limit in any way whatsoever the interpretation or
construction of this Agreement or any other words in this
Agreement.
13.3 This Agreement is not to be interpreted in a particular
way just so as to avoid any overlap between the various exclusions
and restrictions of liability.
13.4 The singular includes the plural and vice versa, and
references to any gender include all genders.
13.5 Headings are for ease of reference only and are not to be
used for the purpose of interpreting these terms.
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