HBXL Building Software Software Terms

Please make yourself familiar with the Terms & Conditions relevant to your purchase.

If purchasing an Annual Subscription of Full Licence Software, Software Upgrades or Bonus Packs please read:
SUBSCRIPTION TERMS & CONDITIONS

If purchasing Support & Updates please read:
SUPPORT & UPDATES AGREEMENT TERMS & CONDITIONS

HBXL BUILDING SOFTWARE™

SUBSCRIPTION TERMS & CONDITIONS

VERSION 3, 08/04/19

 DEFINITIONS & INTERPRETATION

 

  • Definitions: The definitions and rules of interpretation in this clause apply in this Agreement.
  • “Authorised Users”: those named employees, agents and independent contractors of the Customer who are authorised by the Customer to use the HBXL Building Software Application, as further described in clause 2.
  • “Business Day”: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
  • “Customer”: the person or legal entity identified in the Order Form.
  • “Documentation”: the documentation (1) made available to the Customer by HBXL Building Software online and/or within the HBXL Building Software Application which sets out user instructions for the HBXL Building Software Application; and (2) appended to this Agreement setting out the terms and conditions that apply to HBXL Building Software Applications.
  • “Effective Date”: the date of this Agreement.
  • “GDPR”: Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

         “HBXL Building Software Application”: means the desktop software application as specified (or any part of it) including EstimatorXpress, PlansXpress, Health & Safety Xpert, ContractsXpert, ProjectXpert, Estimate & Take-off Kit and any combined bundles thereof .

  • “HBXL Building Software”: House Builder XL Ltd Limited, a private company incorporated and registered in England and Wales under company number 3959121 having its registered office at Future Space, North Gate (UWE), Filton Road, Stoke Gifford, Bristol, BS34 8RB.
  • “Initial Subscription Fee”: the initial fee payable on the earlier of the Subscription Commencement Date, or the Direct Debit Payment Date, by the Customer for the HBXL Building Software Application as set out on the Order Form.
  • “Initial Subscription Period”: the initial period of the Customer’s subscription to the HBXL Building Software Application as set out on the Order Form commencing on the Subscription Commencement Date.

“Normal Business Hours”: 9am to 5.30pm local UK time, each Business Day.

         “Order Form”: means the software order form attached to this Agreement or made available or provided by HBXL Building Software to the Customer.

  • “Renewal Period”: the period described in clause 1.

“Subscription Commencement Date”: the date on which the HBXL Building Software Application is activated or the date of this Agreement, whichever is earlier.

“Subscription Fees”: the fees payable by the Customer in respect of the HBXL Building Software Application as set out on the Order Form or from time to time payable by the Customer in the event that additional Authorised Users are requested by the Customer.

  • “Subscription Period”: has the meaning given in clause 1 (being the Initial Subscription Period together with any subsequent Renewal Periods).
  • “Support Services”: means the standard email, telephone and remote access support and updates provided by HBXL Building Software to the Customer as part of the HBXL Building Software Application.
  • “Support Services Policy”: In addition to any support expressly agreed between the parties in writing, HBXL Building Software’s policy for providing the Support Services as made available at support.hbxl.co.uk or such other website address as may be notified to the Customer from time to time.

         “Terms”: means these terms and conditions, as may be amended from time to time pursuant to clause 14.2.

  • “User Subscriptions”: the user subscriptions purchased by the Customer pursuant to clauses 3 and 1 which enable one or more Authorised Users to install and use the HBXL Building Software Application.
  • “Virus”: any thing or device which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; or access to or the operation of any programme or data, including the reliability of any programme or data; or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
    • Interpretation: In this Agreement the following rules of interpretation apply:
      • A reference to this Agreement is a reference to these Terms as varied or novated (in each case, other than in breach of these Terms) from time to time.
      • Clause headings shall not affect the interpretation of this Agreement.
      • A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
      • A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
      • Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
      • A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
      • Any obligation on the Customer not to do something includes an obligation not to allow that thing to be done.
      • 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.
      • A reference to writing or written includes e-mail but not fax.

 

  1. USER SUBSCRIPTIONS

 

  • Subject to the Customer purchasing the relevant number of User Subscriptions, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, HBXL Building Software hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to install on a single desktop or laptop computer and use the HBXL Building Software Application during the Subscription Period solely for the Customer’s internal business operations.
  • A User Subscription shall entitle one named Authorised User nominated by the Customer to install and use the HBXL Building Software Application on a single desktop or laptop computer. If the Customer requires more than one Authorised User to install and use the HBXL Building Software Application, then it must purchase multiple User Subscriptions. Each User Subscription must be authenticated online via the HBXL Building Software Application. Unless the Authorised User confirms that they no longer require access to the HBXL Building Software Application within the HBXL Building Software Application, User Subscriptions may only be assigned to other Authorised Users by HBXL Building Software on request and subject to payment of an additional charge at HBXL Building Software’s discretion.
  • In relation to the Authorised Users, the Customer undertakes that it will not allow or suffer any User Subscription to be used by anyone other than the Authorised User.
  • The Customer shall not and shall procure that the Authorised Users shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the HBXL Building Software Application that:
    • is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
    • facilitates illegal activity;
    • depicts sexually explicit images;
    • promotes unlawful violence;
    • is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
    • in a manner that is otherwise illegal or causes damage or injury to any person or property;

and HBXL Building Software reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

  • The Customer shall not:
    • except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement, attempt to:
      • copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute the HBXL Building Software Application and/or Documentation in any form or media;
      • reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form the HBXL Building Software Application
    • access the HBXL Building Software Application in order to build a product or service which competes with HBXL Building Software ;
    • without HBXL Building Software’s prior written consent and subject to payment of an additional charge, permit the HBXL Building Software Application to be used for the purposes of providing estimation services to third parties;

subject to clause 14.8, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the HBXL Building Software Application available to any third party except the Authorised Users; or attempt to obtain, or assist third parties in obtaining, access to the HBXL Building Software Application, other than as provided under this clause 2.

  • The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the HBXL Building Software Application and, in the event of any such unauthorised access or use, promptly notify HBXL Building Software.
  • The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

 

  1. ADDITIONAL USER SUBSCRIPTIONS & SUBSCRIBED SOFTWARE

 

  • The Customer may, from time to time during the Subscription Period, purchase additional User Subscriptions or upgrades to the HBXL Building Software Application (Upgrades) at the then current rates charged by HBXL Building Software. If the Customer wishes to purchase additional User Subscriptions and/or Upgrades, the Customer shall contact HBXL Building Software by phone.
  • If additional User Subscriptions and/or Upgrades are purchased by the Customer part way during the Subscription Period, the Subscription Fees shall be pro-rated for the remainder of the Subscription Period.

 

  1. ACCESS & SUPPORT SERVICES

 

  • HBXL Building Software shall, during the Subscription Period, provide the HBXL Building Software Application to the Customer on and subject to the terms of this Agreement.
  • HBXL Building Software shall, during the Subscription Period, use commercially reasonable endeavours to make the features of the HBXL Building Software Application requiring access to HBXL Building Software’s servers available 24 hours a day, seven days a week, except for any emergency maintenance which cannot be avoided or maintenance performed outside Normal Business Hours, provided that HBXL Building Software has used reasonable endeavours to give the Customer at least three Normal Business Hours’ notice in advance.
  • HBXL Building Software shall, during the Subscription Period, as part of the HBXL Building Software Application and at no additional cost to the Customer (unless otherwise specified in the Order Form), use its reasonable endeavours to provide the Customer with the Support Services during Normal Business Hours in accordance with HBXL Building Software’s Support Services Policy in effect at the time that the Support Services are provided. HBXL Building Software may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at HBXL Building Software’s then current rates.
  1. DATA PROTECTION

 

  • In this clause 5, the terms controller, processor, personal data, processing and process shall, before 25 May 2018, have the meanings given in section 1 of the DPA 1998 and on and after 25 May 2018, the meanings given in article 4(1) of the GDPR.
  • If and to the extent that HBXL Building Software processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and HBXL Building Software shall be a data processor and HBXL Building Software agrees and undertakes that it shall:
    • only process personal data as contemplated by this Agreement and only on the Customer’s written instructions (provided that if HBXL Building Software is required to process personal data by law it shall, where permitted, inform the Customer of such legal requirement before processing any personal data for such purposes);
    • ensure that each person authorised by HBXL Building Software to process personal data is informed of the confidential nature of the personal data and has entered into a written agreement with HBXL Building Software imposing confidentiality obligations on them; and
    • implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of processing personal data under this Agreement and to safeguard against the unauthorised or unlawful processing of personal data and against the accidental loss or destruction of, or damage to, personal data.
  • The Customer acknowledges and agrees that:
    • HBXL Building Software shall be generally authorised to engage third parties in connection with its processing activities under this Agreement (sub data processor), provided that:
      • HBXL Building Software enters into a written agreement with each sub data processor on terms which are substantially the same as, and not less onerous than, those set out in this clause 9 and as required by the GDPR;
      • HBXL Building Software shall remain responsible to the Customer for the performance of its obligations under this Agreement notwithstanding the appointment of any sub data processor and shall be liable for the acts, omissions and neglects of each sub data processor; and
      • in the event that HBXL Building Software wishes to make any changes concerning the addition or replacement of any sub data processor, it shall give the Customer not less than 60 days’ written notice of the proposed change including details of the identity of such sub data processor and a description of the nature and extent of the processing to be undertaken by them and if the Customer objects to such change, it shall notify HBXL Building Software with the grounds for such objection in writing and the parties shall use their respective reasonable endeavours to address and resolve those grounds of objection failing which this Agreement may be terminated by HBXL Building Software.
    • personal data may be transferred or stored by HBXL Building Software and its sub data processors outside the EEA or the country where the Customer and the Authorised Users are located in order to provide the HBXL Building Software Application and perform HBXL Building Software’s other obligations under this Agreement and the Customer shall ensure that it is entitled to transfer the relevant personal data to HBXL Building Software so that HBXL Building Software may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf.
  1. HBXL BUILDING SOFTWARE’S OBLIGATIONS

 

  • HBXL Building Software undertakes that the HBXL Building Software Application will perform substantially in accordance with the Documentation and that the Support Services will be provided with reasonable skill and care.
  • The undertaking at clause 1 shall not apply to the extent of any non-conformance which is caused by use of the HBXL Building Software Application contrary to HBXL Building Software’s instructions, or modification or alteration of the HBXL Building Software Application by any party other than HBXL Building Software or HBXL Building Software’s duly authorised contractors or agents. If the HBXL Building Software Application does not conform to the foregoing undertaking, HBXL Building Software will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
  • Notwithstanding the foregoing, HBXL Building Software:
    • does not warrant that the Customer’s use of the HBXL Building Software Application will be uninterrupted or error-free; or that the information obtained by the Customer through the HBXL Building Software Application will meet the Customer’s requirements or the requirements of the Customer’s end users;
    • does not warrant that any pricing information provided to the Customer is accurate or up-to-date; and
    • is not responsible for any delays, delivery failures, loss of functionality or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the HBXL Building Software Application may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  • This Agreement shall not prevent HBXL Building Software 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 this Agreement.

 

  1. CUSTOMER’S OBLIGATIONS

 

  • The Customer shall:
    • provide HBXL Building Software with:
      • all necessary co-operation in relation to this Agreement; and
      • all necessary access to such information as may be required by HBXL Building Software;

                      in order to provide the HBXL Building Software Application, including but not limited to Customer Data, security access information and configuration services;

  • comply with all applicable laws and regulations with respect to its activities under this Agreement;
  • ensure that the Authorised Users use the HBXL Building Software Application in accordance with these Terms and shall be responsible for any Authorised User’s breach of this Agreement;
  • ensure that any device used by the Authorised Users to access the HBXL Building Software Application and its network and systems comply with the relevant specifications provided by HBXL Building Software from time to time;
  • be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to HBXL Building Software’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
  • be solely responsible for training its Authorised Users in the proper use of the HBXL Building Software Application and for taking out and maintaining adequate professional indemnity and other insurance policies in respect of all insurable risks relating to the provision of its estimating services to the Customer’s end users through use of the HBXL Building Software Application.

 

  1. CHARGES AND PAYMENT

 

  • The Customer shall pay the Subscription Fees to HBXL Building Software for the User Subscriptions in accordance with this clause 8.
  • The Subscription Fees shall be due on the earlier of the Subscription Commencement Date, or the Direct Debit Payment Date.
  • The Customer shall provide to HBXL Building Software valid, up-to-date and complete bank account details acceptable to HBXL Building Software and any other relevant valid, up-to-date and complete contact and billing details. In providing such details to HBXL Building Software, the Customer hereby authorises HBXL Building Software to bill such bank account by direct debit:
    • for the Subscription Fees payable in respect of the Initial Subscription Period; and
    • subject to clause 1, on each anniversary of the Subscription Commencement Date for the Subscription Fees payable in respect of the next Renewal Period.
  • If paying by monthly Direct Debit, the first monthly payment of the Initial Subscription Fee will be collected by direct debit on or about the First Monthly Direct Debit Payment Date and, thereafter, the Subscription Fees will be collected on or about the same date in each calendar year (for 12 month subscriptions) or every 2 calendar years (for 24 month subscriptions) during the Subscription Period.
  • In the event that a direct debit payment fails, HBXL Building Software may charge an administration fee of ten pounds (£10) which will be added to the next direct debit payment for the Subscription Fees.
  • In relation to all charges payable by the Customer under this Agreement, the Customer shall pay any invoices within 14 days of the date of such invoices. The 14th day shall be referred to as the “Due Date”.
  • If HBXL Building Software has not received payment of any amounts and fees under this Agreement within ten days after the Due Date, then without prejudice to any other rights and remedies:
    • HBXL Building Software may, without liability to the Customer, disable the Customer’s (and any Authorised Users’) password, account and access to the HBXL Building Software Application while the invoice(s) concerned remain unpaid; and
    • interest shall accrue on a daily basis on such due amounts at an annual rate equal to three per cent (3%) over the then current base lending rate of HSBC Bank PLC from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
  • In relation to payments disputed in good faith, interest under clause 7.2 is payable only after the dispute is resolved on sums found or agreed to be due, from the due date until payment.
  • If, following expiry of the period referred to in clause 7, HBXL Building Software has not received payment of any overdue amounts and fees, then without prejudice to any other rights and remedies, the total amount due shall become payable on demand. If the Customer wishes to regain access or use of the HBXL Building Software Application, this will be subject to an administrative surcharge of 10% of the current 12 month subscription fee, or 10% of the current 24 month subscription fee if applicable.
  • If, having served notice on the Customer under clause 9, HBXL Building Software is required to instruct a debt collection agency or solicitor to recover the debt, the Customer shall be liable to reimburse HBXL Building Software for all costs and expenses reasonably and necessarily incurred by HBXL Building Software in recovering the debt being a sum not less than the amounts specified in section 5A(2) of the Late Payment of Commercial Debts (Interest) Act 1998, by reference to the total value of the debt (including interest) on the date when such notice is given to the Customer.
  • All amounts and fees stated or referred to in this Agreement:
    • shall be payable in pounds sterling;
    • are, subject to clause 4.2, non-cancellable and non-refundable;
    • are exclusive of value added tax, which shall be added to HBXL Building Software’s invoice(s) at the current rate.
  • HBXL Building Software shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 45 days’ prior notice to the Customer.

 

  1. PROPRIETARY RIGHTS

 

  • The Customer acknowledges and agrees that HBXL Building Software and/or its licensors own all intellectual property rights in the HBXL Building Software Application and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the HBXL Building Software Application or the Documentation.
  • HBXL Building Software confirms that it has all the rights in relation to the HBXL Building Software Application that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
  • HBXL Building Software shall defend the Customer, its officers, directors and employees against any claim that the HBXL Building Software Application or Documentation infringes any United Kingdom patent effective as of the Subscription Commencement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
    • HBXL Building Software is given prompt notice of any such claim;
    • the Customer provides reasonable co-operation to HBXL Building Software in the defence and settlement of such claim, at HBXL Building Software’s expense; and
    • HBXL Building Software is given sole authority to defend or settle the claim.
  • In the defence or settlement of any claim, HBXL Building Software may procure the right for the Customer to continue using the HBXL Building Software Application, replace or modify the HBXL Building Software Application so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement on two Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
  • In no event shall HBXL Building Software, its employees, agents and sub-contractors be liable to the Customer under clause 3 to the extent that the alleged infringement is based on:
    • a modification of the HBXL Building Software Application by anyone other than HBXL Building Software; or
    • the Customer’s use of the HBXL Building Software Application or Documentation in a manner contrary to the instructions given to the Customer by HBXL Building Software; or
    • the Customer’s use of the HBXL Building Software Application or Documentation after notice of the alleged or actual infringement from HBXL Building Software or any appropriate authority.

 

  1. PUBLICITY

 

  • The Customer agrees to grant HBXL Building Software a non-exclusive, non-transferable licence to use its name and logo for HBXL Building Software’s marketing and promotional purposes during the Subscription Term and for a period of 12 months’ after the expiry or termination of this Agreement. The Customer shall not make, or permit any person to make, any public announcement concerning this Agreement without HBXL Building Software’s prior written consent (not to be unreasonably withheld) except as required by law, any governmental or regulatory authority, any court or other authority of competent jurisdiction.
  • This clause 10 shall survive termination of this Agreement, however arising.

 

  1. LIMITATION OF LIABILITY

 

  • This clause 11 sets out the entire financial liability of HBXL Building Software (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
    • arising under or in connection with this Agreement;
    • in respect of any use made by the Customer of the HBXL Building Software Application; and
    • in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
  • Except as expressly and specifically provided in this Agreement:
    • the Customer, as a professional user, assumes sole responsibility for results obtained from the use of the HBXL Building Software Application by the Customer for and on behalf of its end users, and for conclusions drawn from such use. HBXL Building Software shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to HBXL Building Software by the Customer in connection with the HBXL Building Software Application, or any actions taken by HBXL Building Software at the Customer’s direction;
    • 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 this Agreement; and
    • the HBXL Building Software Application is provided to the Customer on an “as is” basis.
  • Nothing in this Agreement excludes the liability of HBXL Building Software:
    • for death or personal injury caused by HBXL Building Software’s negligence; or
    • for fraud or fraudulent misrepresentation.
  • Subject to clause 2 and clause 11.3:
    • HBXL Building Software 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 this Agreement; and
    • HBXL Building Software’s total aggregate liability in contract (including in respect of the indemnity at clause 3), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

 

  1. TERM AND TERMINATION

 

  • This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Subscription Commencement Date and shall continue for the Initial Subscription Period and, thereafter, this Agreement shall be automatically renewed for successive periods equal in duration to the Initial Subscription Period (each a Renewal Period”), unless:
    • either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Period or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Period or Renewal Period; or
    • otherwise terminated in accordance with the provisions of this Agreement;

         and the Initial Subscription Period together with any subsequent Renewal Periods shall constitute the Subscription Period”.

  • If any functionality of the HBXL Building Software Application is suspended under clause 7.1 and the Customer subsequently pays any overdue sums and interest in full, the HBXL Building Software Application shall be reactivated for the remainder of the Subscription Period.
  • Without affecting any other right or remedy available to it, HBXL Building Software may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.
  • Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
    • the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
    • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership)is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
    • the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
    • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
    • an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
    • the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
    • the other party (being an individual) is the subject of a bankruptcy petition or order;
    • any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 4.2 to clause 12.4.7 (inclusive); or
    • the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
  • On termination of this Agreement and with effect from expiry of the Subscription Period or the effective date of termination (as applicable):
    • all licences granted under this Agreement shall terminate (subject to clause 1);
    • the Customer’s and Authorised Users’ access to the HBXL Building Software Application shall cease;
    • HBXL Building Software shall not be obliged to provide the Customer with copies of any files or documents uploaded to or produced using the HBXL Building Software Application, but may do so at its sole discretion and subject to payment of HBXL Building Software’s reasonable fees for providing the same;
    • any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

 

  1. NOTICES

 

  • Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand, sent by pre-paid first-class post or recorded delivery post or sent by e-mail to the other party using the details set out on the Order Form (or such other details as may have been notified by that party for such purposes).
  • A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by e-mail shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

 

  1. GENERAL

 

  • Force majeure: HBXL Building Software shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes or other industrial disputes (whether involving the workforce of HBXL Building Software or any other party), failure of a utility service 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 the Customer is notified of such an event and its expected duration.
  • Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  • Waiver: No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
  • Rights and remedies: Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
  • Severance: If any provision (or part of a provision) of this 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.
  • Entire agreement: This 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. In the event of conflict between these Terms and Conditions, Documentation, and any other document incorporated into this Agreement or otherwise governing the relationship between HBXL Building Software and the Customer, these Terms and Conditions shall prevail.
  • Non-reliance: Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
  • Assignment: The Customer shall not, without the prior written consent of HBXL Building Software, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. HBXL Building Software may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
  • No partnership or agency: Nothing in this 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).
  • Third party rights: This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
  • Governing law: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
  • Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). 

 

SUPPORT & UPDATES AGREEMENT TERMS & CONDITIONS, VERSION 5.0, 09/04/19

 

  1. These terms and conditions (“S&U Terms”) set out the basis on which the Customer will pay HBXL for the Services described above and/or any order form.

 

  1. Use of the Services is subject to your agreement to the relevant terms and conditions for the Services. These S&U Terms prevail over any inconsistent terms and conditions contained in or referred to in any order form, purchase order or invoice or the terms and conditions relating to the Services.

 

  1. The payment arrangement is non-cancellable and any Payments are non-refundable. All fees are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Customer additionally at the rate and in the manner from time to time prescribed by law.

 

  1. The Customer may pay the total amount outstanding to HBXL at any time without penalty.

 

  1. Where the Customer is a partnership, limited company, limited liability partnership or any other incorporated or unincorporated entity, the Individual signing for and on behalf of the Customer guarantees to HBXL that whenever the Customer does not pay any fees or charges due under these S&U Terms when payable, to pay such sums to HBXL on demand.

 

  1. The Individual as principal obligor and as a separate and independent obligation and liability agrees to indemnify HBXL in full and on demand from and against all and any losses, costs, claims, liabilities, damages, demands and expenses suffered or incurred by HBXL arising out of or in connection with any sums not being recoverable for any reason or any failure of the Customer to perform or discharge any of its obligations in respect of these S&U Terms. Upon receipt in full of all sums due and payable to HBXL under these S&U Terms, the Individual shall be released and discharged from his obligations under this clause.

 

  1. Nothing in clauses 5 or 6 shall operate to exclude or limit any other right or remedy which HBXL may have against the Customer (including in the case of a partnership, jointly against the partners) for the discharge of its obligations under these S&U Terms.

 

  1. The Customer shall pay the Support & Update Fees to HBXL Building Software for the Support & Updates in accordance with this
    1. The Support & Update Fees shall be due on the earlier of the Commencement Date, or the Direct Debit Payment Date.
    2. The Customer shall provide to HBXL Building Software valid, up-to-date and complete bank account details acceptable to HBXL Building Software and any other relevant valid, up-to-date and complete contact and billing details. In providing such details to HBXL Building Software, the Customer hereby authorises HBXL Building Software to bill such bank account by direct debit or Card:
      1. for the Support & Updates Fees payable in respect of the Initial Subscription Period; and
      2. subject to clause 14, on each anniversary of the Commencement Date for the Subscription Fees payable in respect of the next Renewal Period.
    3. If paying by monthly Direct Debit or recurring payment on card, the first monthly payment of the Initial Subscription Fee will be collected by direct debit or recurring payment on card on or about the First Monthly Direct Debit or Recurring payment on card Payment Date and, thereafter, the Support & Update Fees will be collected on or about the same date each month. If paying for 12 or 24 month Support & Updates Fee upfront by Direct Debit the first monthly payment of the Initial Subscription Fee will be collected by direct debit on or about the First Monthly Direct Debit Payment Date and, thereafter, in each calendar year (for 12 month subscriptions) or every 2 calendar years (for 24 month subscriptions) during the Subscription Period.

 

  1. If the Customer fails to make any payment under these S&U Terms by the due date for payment, HBXL may at its sole and absolute discretion:

 

  1. demand payment of the total amount due by the Customer in full;

 

  1. charge interest on the overdue amount at the rate of 4% per annum above base rate of the Bank of England from time to time (interest shall accrue on a daily basis from the due date until actual payment of the overdue amount together with all interest, whether before or after judgment);

 

  1. suspend the Customer’s licence to the software to which the S&U Plan relates and take or implement technical measures to prevent or restrict the Customer’s access to the whole or any part of the functionality of such software until payment in full of the overdue amount and interest; and/or

 

  1. suspend provision of the S&U Plan until payment in full of the overdue amount and interest.

 

  1. In the event that a direct debit payment fails, HBXL may charge an administration fee of ten pounds (£10) which will be added to the next Monthly Payment.

 

  1. The Customer shall pay all amounts due under these S&U Terms in full without set-off, counterclaim, deduction or withholding (unless required by law).

 

  1. HBXL may terminate the agreement with the Customer as set out in these S&U Terms with immediate effect by giving notice to the Customer if the Customer:

 

  1. fails to pay any amount due under these S&U Terms on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment;

 

  1. (being an individual) suspends or threatens to suspend payment of his debts or is unable to pay his debts as they fall due; admits inability to pay his debts or as having no reasonable prospect of so doing (within the meaning of section 168 Insolvency Act 1986); makes any voluntary arrangement with his creditors; or becomes bankrupt;

 

  1. (being a partnership) has any partner to whom any of the events or circumstances in clause 12b apply;

 

  1. (being a company) suspends or threatens to suspend payment of its debts or is unable to pay its debts or as having no reasonable prospect of so doing (within the meaning of section 268 Insolvency Act 1986); becomes subject to an administration order or notice of an intention to appoint an administrator is given or a notice is given, resolution passed or order made for or in connection with the winding up of the Customer (in either case otherwise than for the purposes of solvent amalgamation or reconstruction);

 

  1. a creditor or encumbrancer takes possession of, or a receiver is appointed over any of the property or assets of the Customer;

 

  1. the Customer ceases, or threatens to cease, to carry on business; or

 

  1. HBXL reasonably anticipates that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

 

  1. In the event of termination by HBXL under clause 12:

 

  1. the Customer shall pay to HBXL on demand all Monthly Payments and other sums due but unpaid at the date of such demand together with any interest accrued under clause 1b and any costs and expenses incurred by HBXL in recovering such sums;

 

  1. all licences to the Software shall be terminated and HBXL may take or implement technical measures to prevent or restrict the Customer’s access to the whole or any part of the Software’s functionality;

 

  1. HBXL will cease to provide the Services (including any updates to the Software provided as part of the Services).

 

  1. Upon expiry of the Initial Period, the Customer will continue to take and pay for the Services for successive periods equal in duration to the Initial Subscription Period (each a “Renewal Period”) unless the Customer notifies HBXL in writing not less than thirty (30) days before expiry of the Initial Period and each Renewal Period that it no longer wants to take and pay for them.

 

  1. In respect of each Renewal Period, HBXL reserves the right to increase its fees and charges for the Services or alter any terms of this agreement by providing you with notice in writing not less than sixty (60) days before expiry of the relevant Renewal Period.

 

  1. General:

 

  1. Entire agreement: These S&U Terms constitute the entire agreement between HBXL and the Customer and supersede any previous arrangement, understanding or agreement relating to the subject matter contained in these S&U Terms. The Customer acknowledges that, in entering into these S&U Terms, it does not rely on any statement, representation, assurance or warranty of any person (whether a party or not) other than as expressly set out in these S&U Terms.

 

  1. Notices: Any notice to be given under or in connection with these S&U Terms shall be made in writing and delivered by hand, send by pre-paid first class post or sent by email (provided a hard copy has also been delivered by hand or sent by pre-paid first class post). Notices shall be deemed to have been received if delivered by hand, at the time the notice is left at the proper address; if sent by pre-paid first class post, at 9am on the second business day after posting; or if sent by email, one hour after the email has been sent. This clause does not apply to the service of any proceedings or documents in any legal action.

 

  1. Severance: If any provision or part-provision of these S&U Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these S&U Terms.

 

  1. Waiver: No failure or delay by a party to exercise any right or remedy provided under these S&U Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

  1. Variation: No variation of these S&U Terms shall be effective unless made in writing and signed by the parties.

 

  1. Assignment and other dealings: HBXL may at any time assign, transfer or otherwise deal with its rights and obligations under these S&U Terms. The Customer may not assign, transfer or otherwise deal with its rights and obligations under these S&U Terms without HBXL’s prior written consent.

 

  1. Rights and remedies: The rights and remedies provided under these S&U Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

 

  1. Third party rights: No one other than a party to this agreement shall have any right to enforce any of its terms.

 

  1. Governing law and jurisdiction: These S&U Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales and the Courts of England and Wales shall have exclusive jurisdiction to settle the same.