TERMS AND CONDITIONS
TERMS AND CONDITIONS
"Commencement Date” means the commencement date stated on the Order Form;
"Contract” means the contract between Biodiversify Limited and the Customer comprised of (i) (Subscription Model) the Order Form, these Terms(ii) (PAYG Model) the account you create with us on our website (https://tool.bngscreeningtool.com/) and these Terms.
"Customer” means the customer named on the Order Form.
“Order Form” means the Order Form signed by the parties which forms part of the Contract;
"Term” the duration of the Contract as set out in clause 5;
“Terms” these terms and conditions;
YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 13 (LIMITATION OF LIABILITY).
2. ABOUT US
2.1 Company details. BIODIVERSIFY LTD (company number 11352631) (we and us) and our registered office is at 6 Great North Road, Cromwell, Newark, Nottinghamshire, NG23 6JE. We operate the website https://biodiversify.com, https://bngscreeningtool.com and https://tool.bngscreeningtool.com/.
2.2 Contacting us. To contact us, email our customer service team at firstname.lastname@example.org. How to give us formal notice of any matter under the Contract is set out in clause 15.2.
3. OUR CONTRACT WITH YOU
3.1 Our contract. These Terms and the Order Form provided apply to the order by you and supply of Services by us to you (Contract). They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3.2 Entire agreement. The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
3.3 Language. These Terms and the Contract are made only in the English language.
3.4 Your copy. You should print off a copy of these Terms or save them to your computer for future reference.
4. PLACING AN ORDER AND ITS ACCEPTANCE
4.1 Placing your order. You may only submit an order using the method set out on the site. Each order is an offer by you to buy, through the payment method offered to you, the services specified (i) (Subscription Model) in the Order Form (Services) or (ii) (PAYG Model): as selected onscreen, subject to these Terms (as described in more detail below). (i) (Subscription Model): we will send you an Order Form for you to sign and send back to us. (ii) (PAYG Model): Please follow the onscreen prompts to place your order.
The output of the Services is (i) (Subscription Model) the site allowance in the Order Form and as notified to you from time to time and up to the number of users stated in the Order Form and as agreed between us in writing (email) from time to time (ii) (PAYG Model) a Report detailing biodiversity information related to the area selected by you when making your order (Report) that you can print off or otherwise share with others or.
4.2 Acknowledging receipt of your order. After you place your order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 4.3.
4.3 Accepting your order. (i) (Subscription Model)we will have sent you a pre-signed Order Form. When you countersign via a third party provider, the Contract between you and us will come into existence. The Contract will relate only to those Services confirmed in the Order Confirmation. (ii) (PAYG Model): point at which you when you confirm your order on the check out screen on the checkout screen at which point and on which date (Commencement Date) the Contract between you and us will come into existence.
5.1 PAYG Services: The Contract permits you to create one Report for the area you select in the Order Form after which it automatically ends without need to serve notice. We have no liability if you fail to ensure that your order is complete and accurate, including that the area you select the Report for is accurate.
5.2 Subscription Service: The Contract commences on the Commencement Date and continues for 12 months. Thereafter, it will automatically renew for 12 months (“Renewal Term”) unless you give us written notice of termination of at least 30 days prior to expiration of the Initial Term or Renewal Term.
6. OUR SERVICES
6.1 Descriptions and illustrations. Any descriptions or illustrations on our site are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.
6.2 Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill.
6.3 Time for performance. We will use all reasonable endeavours to meet any performance dates agreed with you, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract.
7. YOUR OBLIGATIONS
7.1 It is your responsibility to ensure that:
7.1.1 you provide us with such information we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects.
7.2 You must keep your account details safe. If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party.
If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us at email@example.com.
7.3 No text or data mining, or web scraping. You shall not conduct, facilitate, authorise or permit any text or data mining or web scraping in relation to our site or any services provided via, or in relation to, our site. This includes using (or permitting, authorising or attempting the use of):
any "robot", "bot", "spider", "scraper" or other automated device, program, tool, algorithm, code, process or methodology to access, obtain, copy, monitor or republish any portion of the site or any data, content, information or services accessed via the same.
any automated analytical technique aimed at analysing text and data in digital form to generate information which includes but is not limited to patterns, trends and correlations.
The provisions in this clause should be treated as an express reservation of our rights in this regard, including for the purposes of Article 4(3) of Digital Copyright Directive ((EU) 2019/790).
This clause shall not apply insofar as (but only to the extent that) we are unable to exclude or limit text or data mining or web scraping activity by contract under the laws which are applicable to us.
7.4 You may use the Services solely for your own internal business purposes, during the Term. You may only sell, resell, transfer, distribute, rent or otherwise allow access to the Services if given prior written consent by us.
8. SERVICES IN RELATION TO ENGLAND ONLY
8.1 We are unable to perform the Services in respect of areas outside of England.
8.2 Reports can only be generated with regard to land in England.
9.1 In consideration of us providing the Services you must pay our charges (Charges) in accordance with this clause 9 and as described in the Order Form.
9.2 (i) (Subscription Model): In relation to the Initial Term, the Charges are the prices as quoted on the Order Form on the date you sign this. In relation to Renewal Terms, the Charges are the prices quoted on our website https://bngscreeningtool.com 60 days prior to the start of the Renewal Term.
(ii) (PAYG Model): The Charges are the prices displayed at checkout at the time you submit your order.
9.3 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
10. HOW TO PAY
10.1 Payment for the Services is in advance.
10.2 (i) (Subscription Model): You must pay for the Services as described in the Order Form.
(ii) (PAYG Model): you must pay for the Services as described at checkout.
10.3 If you fail to make timely payment, in addition to any other of our rights or remedies:
10.3.1 interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England at the date the relevant payment was due, commencing on the due date and continuing until fully paid; and
10.3.2 we reserve the right to withhold or suspend your access and use of the Services until payment of all Charges are made.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 All intellectual property rights in or arising out of or in connection with the Services, including but not limited to the contents of the Report and how it looks will be owned by us.
11.2 We agree to grant you a licence during the term of the Contract to copy the Report.
You may not sub-license, assign or otherwise transfer the rights granted in this clause 11.2.
12. DATA PROTECTION
13. LIMITATION OF LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1.1 Reports are generated using third party data and therefore rely on the accuracy of that data as at the time the report is produced. As a result of our reliance on third party data, such data may be out of date by the time we produce the report.
13.1.2 Reports indicate areas where biodiversity is potentially located and we are not liable for any loss arising out of your reliance on a report.
13.1.3 The reports do not replace the need to obtain specific local advice or ecological surveys and subsequent calculation or purchase of biodiversity units or credits.
The reports do not in any way bypass, circumvent or relinquish any obligations under planning policy or legislation.
13.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
13.2.1 death or personal injury caused by negligence;
13.2.2 fraud or fraudulent misrepresentation; and
13.2.3 breach of the terms implied by section 13 of the Supply of Goods and Services Act 1982 (Implied term about care and skill).
13.3 Subject to clause 13.2, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
13.3.1 loss of profits;
13.3.2 loss of sales or business;
13.3.3 loss of agreements or contracts;
13.3.4 loss of anticipated savings;
13.3.5 loss of use or corruption of software, data or information;
13.3.6 loss of or damage to goodwill; and
13.3.7 any indirect or consequential loss.
13.4 Subject to clause 13.2, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to (i) PAYG: the total Charges which you have paid for the Services under the Contract; or (ii) Subscription Services: the Charges paid by you during the contract year to which the claim relates.
13.5 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
13.7 This clause 13 will survive termination of the Contract.
14.1 We each undertake that we will not at any time disclose to any person any confidential information concerning one another's business, affairs, customers, clients or suppliers, except as permitted by clause 14.2.
14.2 We each may disclose the other's confidential information:
14.2.1 to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 14; and
14.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 Each of us may only use the other's confidential information for the purpose of fulfilling our respective obligations under the Contract.
15. TERMINATION, CONSEQUENCES OF TERMINATION AND SURVIVAL
15.1 Termination. Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to you if we are unable to process your order, in which case we will refund the sums paid by you in respect of that order.
15.2 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:
15.2.1 the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
15.2.2 the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this Clause 15.2.2;
15.2.3 the other party suspends or ceases, or threatens to suspend or cease, carrying on business.
15.3 Without limiting any of our other rights, we may terminate the Contract with immediate effect by giving written notice to you if you fail to pay an 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.
15.4 Consequences of termination
15.4.1 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
15.4.2 Any intellectual property licences granted by one party to the other pursuant to clause 11 or otherwise in relation to this agreement shall terminate.
15.4.3 Termination of the Contract will not affect your or our rights and remedies that have accrued as at termination.
15.5 Survival. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
16. EVENTS OUTSIDE OUR CONTROL
16.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
16.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
16.2.1 we will contact you as soon as reasonably possible to notify you; and
16.2.2 our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.
17. COMMUNICATIONS BETWEEN US
17.1 When we refer to "in writing" in these Terms, this includes email.
17.2 Any notice or other communication given under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
17.3 A notice or other communication is deemed to have been received:
17.3.1 if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
17.3.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
17.3.3 if sent by email, at 9.00 am the next working day after transmission.
17.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
17.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
18.1 Assignment and transfer
18.1.1 We may subcontract, assign or transfer our rights and obligations under the Contract to another entity in whole or in part.
18.1.2 You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in advance in writing.
18.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
18.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
18.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
18.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
18.6 Governing law and jurisdiction. The Contract is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the English courts.