Part 1 – Premium SOFTWARE terms

1. INTRODUCTION

1.1 Part 1 of these terms sets out the licence terms applicable to any source-available software you download from us unless you have entered into a separate written contract with us. Additional terms are set out in Part 2 below, which only apply to any services we provide in relation to self-hosted software.

1.2 Different terms apply:

a) for our hosted software offering (where you access our software as a service), or we provide you associated services, which are set out at: https://budibase.com/terms-of-service; or

b) where you download and use our open-source software without premium features, and you are not on an enhanced liability package. In that case we provide such open-source software under open-source terms, which are set out at: https://github.com/Budibase/budibase/blob/develop/LICENSE . If you have downloaded our open-source software on that basis, but require services for that software, the terms in Part 2 below shall apply, but this Part 1 will not apply.

1.3 The parties’ agreement for the licensing, download and use of the source-available software and any associated services (if any) is made up of (i) these terms; (ii) the proposal or terms specified by BB during the checkout process; and (iii) any other written document either issued by BB (and expressly referring to and incorporating itself into the agreement) or any amendments or supplements to the agreement signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the agreement and apply to the contract between the parties to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. For the avoidance of doubt, whilst the services and source-available software may be marketed in online marketplaces which purport to allow customers to check out electronically, no agreement for the services or source-available software shall be binding other than as signed or otherwise agreed in writing by an authorised representative of BB.

1.4 These terms are published on our website and you should save a copy of for your records. We may amend them from time to time by publishing a new version on our website. Any changes will not apply retrospectively to software you have already downloaded. This version three of these terms was published on 5th May 2023. You can obtain historic versions by contacting us.

1.5 When construing the meaning of the agreement, the documents listed in clause 1.1 shall be interpreted in a reverse order of priority in the event of any inconsistency or conflict, with documents appearing later in the list taking priority over documents appearing earlier in the list.

1.6 Any order placed by you (including orders for additional user licences or to upgrade access tiers) shall only be deemed to be accepted upon BB’s signature of the proposal, or acceptance of the relevant checkout process submission by you via the BB platform (which acceptance shall be confirmed by email or notification via the platform) at which point, and on which date, the agreement shall come into existence.

1.7 If BB issues a written proposal (which it will not normally do, most / all of the software and services BB provide being made available on a self-service basis via an applicable checkout process) it shall be valid for a period of 30 days (or such longer period specified on the proposal) from the date of issue, if not agreed by you, at which point the offer outlined in the proposal shall lapse.

2. ACCEPTANCE

2.1 By downloading or using our source-available software, you agree to the provisions in Part 1 of these terms and are deemed to have accepted the source-available software.

3. SOFTWARE LICENSE

3.1 BB grants you a non-exclusive, royalty-free, worldwide, non-sublicensable, non-transferable licence to permit your authorised users to use, copy, modify, distribute, make available, and prepare derivative works of our source-available software (based on the premium features available within your relevant access tier) to create your own bespoke software applications for the relevant subscription term, in each case subject to the limitations and conditions in Part 1 of these terms.

3.2 BB additionally grants you a licence, under any legal claims BB can licence, including patent claims, or becomes able to licence, to make, have made, use, sell, offer for sale, import and have imported software application you have created using our source-available software, in each case subject to the limitations and conditions in these terms. This licence does not cover any patent, copyright or other intellectual property claims that you cause to be infringed by modifications or additions to our source-available software. If you or your company make any written claim that the source-available software infringes or contributes to infringement of any patent, copyright or other intellectual property right, your licence for the source-available software granted under these terms ends immediately. If your company makes such a claim, your licence ends immediately for work on behalf of your company.

3.3 BB shall, from time to time, as part of your licence for the source-available software make available new upgrades of the source-available software as it generally releases to all customers (but software containing any substantially new features may be marketed and licensed as a separate product or available under separate access tiers), which you will have the option to download and use. You acknowledge that such updates may impact your use of the source-available software.

3.4 BB does not impose seat limitations on the number of authorised users you may create under your licence to access our source-available software. However, you must act reasonably and in good faith in exercising these rights, and all authorised users must meet the proper criteria and definition for authorised users under these terms, including that they must be using the source-available software for the purpose. However, where you wish to permit authorised users to access our source-available software you must purchase a user licence for each such authorised user. The number of authorised users must correspond to the number of user licences you have purchased at any given time to permit those authorised users access the relevant premium features unlocked within its chosen premium tier for the source-available software.

4. SOFTWARE LICENCE restrictions

4.1 You may not provide our source-available software to third parties as a hosted or managed service, where the service provides users with access to any substantial set of the features or functionality of our source-available software. This includes a restriction on distributing, commercialising or licensing the source-available software or a substantial set or part of its features or functions in any way (whether for payment or otherwise) which might undermine or compete with the software and services offered by BB (i.e., the provision of an open source low-code or no-code platform or product, which provides customers with a means to create their own bespoke software applications). Generally, you must not access any part of the source-available software to build, or to facilitate the building of, a product or service which competes with source-available software (and you may not access the source available software if you, your company or any of your authorised users are, or are planning to, build any such product or service). Further, during the subscription term, and 12 months thereafter (or the longest period enforceable under relevant law), you shall not, or attempt to, build or develop any product or service that commercially competes with or is substantially similar to the source-available software, which you or your company provides or intends to provide to third parties for payment (i.e., which is not solely intended for internal use). This obligation shall cease to apply only where there is no longer a commercial relationship between the parties, and you can demonstrate that (a) an independent third party has licenced or sold some similar software to you on arms’ length terms, and (b) such solutions do not incorporate or contain, are not based upon, and do not rely in any way upon any confidential information made available by BB to you, or to which you or your authorised users otherwise gained access, under these terms or any previous contract between the parties.

4.2 You may not move, change, disable, or circumvent the licence key functionality in the source-available software, and you may not remove or obscure any features or functionality in the source-available software that are protected by the licence key or otherwise attempt to gain unauthorised access to the source-available software (or premium features within same that are not included within your access tier).

4.3 You may not alter, remove, or obscure any licensing, copyright, or other notices of BB in the source-available software.

5. PREMIUM FEATURES

5.1 You may subscribe for premium features either when opening your account for the self-hosted software, or at any time whilst using the free software, by completing the online checkout process on BB’s website or entering into a written proposal with BB (for enterprise customers only) and upgrading its access tier to one including premium features.

5.2 Where you have downloading source-available software with premium features available under any premium access tier, you will be required to purchase user licences for authorised users wishing to access the premium features available in that tier (which as noted elsewhere may vary between tiers). Some tiers may require purchase of a minimum number of user licences (but there is no upper limit on user licences that may be purchased within any relevant tier). Each user licence permits one authorised user access to the source-available software including all premium features within the relevant access tier for which you have subscribed for the relevant subscription term. Our open-source software is available on all access tiers. User licences are personal to you, and whilst they can be used by any of your authorised users (one authorised user per user licence), they cannot be transferred or gifted to third parties. User licences may not be shared between different named authorised users, and sharing credentials for premium user licences constitutes an (irremediable) breach of your agreement with us.

5.3 You may, from time to time during the subscription term, purchase additional user licences (regardless of the premium access tier you have selected) beyond its current number of purchased user licences. This is done on a self-service basis by creating additional authorised users with access to any premium tier or enabling any of your existing authorised users to access to a premium tier, via your account on the platform. You are responsible for setting appropriate administrative access privileges if you wish to restrict which authorised users can purchase additional user licences (or upgrade access tiers) on your behalf. No specific checkout process will occur where you do so (and no warning will be given that additional charges may apply), and a pro-rated licence fee shall be automatically calculated by the platform for the remainder of the initial term or then current renewal period (as applicable) and will normally be automatically debited via your connected payment method at any time of activation (although may also be invoiced in arrears). You can use the usage panel within its account on the source-available software at any time to access details of its current user licences and licence fees.

5.4 When your billing cycle renews for the next month / year (i.e., into the next renewal period), any licence fees will be calculated on the basis of the access tier and number of user licences for which you were subscribing immediately prior to renewal (unless you have elected to downgrade or upgrade into that new billing cycle, as noted below).

5.5 You may, from time to time during the subscription term, upgrade (or downgrade, as further specified in clause 4.6) its access tier. This can be done through a separate checkout process via your account, or for customers on an enterprise tier, may be agreed through a separate written proposal. The agreement will apply to all user licences or access tiers that you activate accordingly.

5.6 If you wish to downgrade your access tier, or reduce your number of authorised users, this can be done at any time (subject always to the minimum number of required user licences for that access tier, and to anything to the contrary specified during the checkout process or in a particular proposal), and your account on the source-available software will be issued with a pro-rata credit to reflect your authorised users’ reduced access to relevant premium features within that access tier over the remainder of the then current initial term or renewal period (as the case may be), or your reduced number of user licences, based on BB’s reasonable and good faith calculations. Such calculations are final and conclusive and may not be challenged. Any such credit can be used to offset future charges payable by you for premium features or services, but for clarity is non-refundable, non-transferable non-exchangeable, has no cash value and is not redeemable for cash or anything else. If not utilised by you such credit may expire at any point from the end of the immediately following renewal period).

6. FREE SOFTWARE AND BETA SOFTWARE

6.1 As a beta software user, you may get access to information that isn’t yet publicly available about new products and features that BB plans to offer. Given the nature of this information, it is important that you keep it confidential. You agree that any beta software information that isn’t yet in the public domain, for example, information about a preview for new beta software, is BB’s confidential information,

6.2 Whether or not expressly labelled as such, you agree only to use such confidential information to test and evaluate the beta software (the purpose), not for any other purpose. You also agree not to disclose, publish, or share any confidential information with or to any third party unless it has set up the beta software in such a way that expressly encourages this (for example, where you are part of a forum BB has organised to trial or discuss new beta software).

6.3 BB’s confidential information relating to beta software does not include information that is: (a) (or becomes) publicly available without breach of these terms through no act or inaction on your part (for example, where previously private beta software is rolled out as regular software by us); (b) independently developed by you without breach of any confidentiality obligation to BB or any third party; or (c) disclosed with your express written permission from BB. If you are required to disclose confidential information according to any order by a court or regulatory authority with jurisdiction over BB, it may do so provided that BB has been given reasonable advance written notice to object (unless prohibited by law) and the disclosure is limited to the maximum extent possible to comply with such an order of law.

6.4 Where the source-available software includes free software (including for the purposes of this clause beta software) you acknowledge that you use same at your own risk. BB gives no warranties whatsoever, and to the extent permitted by law, accept no liabilities whatsoever regarding the Free Software and their use by you or any authorised users. BB DO NOT GUARANTEE THAT THE FREE SOFTWARE WILL BE AVAILABLE OR UNINTERRUPTED. ACCESS TO THE FREE SOFTWARE IS PERMITTED ON A TEMPORARY BASIS AND BB MAY SUSPEND, WITHDRAW, DISCONTINUE OR CHANGE ALL OR ANY PART OF THE FREE SOFTWARE, EITHER GENERALLY, OR SPECIFICALLY FOR YOU OR ANY OF YOUR AUTHORISED USERS, AT ANY TIME, FOR ANY REASON, WITH OR WITHOUT NOTICE. BB WILL NOT BE LIABLE TO YOU OR ANY AUTHORISED USER IF FOR ANY REASON THE FREE SOFTWARE IS UNAVAILABLE AT ANY TIME OR FOR ANY PERIOD. YOU USE FREE SOFTWARE ENTIRELY AT YOUR OWN RISK. BB GIVES NO WARRANTIES WHATSOEVER, AND TO THE EXTENT PERMITTED BY LAW, ACCEPT NO LIABILITIES WHATSOEVER REGARDING THE FREE SOFTWARE AND YOUR USE BY YOU OR ANY AUTHORISED USERS, AND IT IS PROVIDED ENTIRELY ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. THE PARTIES SPECIFICALLY ACCEPT AND AGREE THESE LIMITATIONS TO BE REASONABLE HAVING REGARD TO THE GRATIS NATURE OF THE FREE SOFTWARE.

7. YOUR GENERAL OBLIGATIONS

7.1 You agree to exercise your rights and comply with your obligations under these terms in accordance with all relevant laws in the UK, USA and the jurisdiction where you are incorporated, registered or reside, including any applicable export control laws, and you must not use the source-available software in any way which (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property.

7.2 Any information you provide us must be complete, accurate and not misleading, and you will inform us if it changes during the term. You acknowledge we may rely on such information without seeking to establish its reliability.

7.3 BB may permit you to issue an unlimited number of licence keys to authorised users. You must act reasonably and in good faith in exercising these rights, and all authorised users must meet the proper criteria for under these terms.

7.4 You undertake that: (a) you shall be responsible for compliance by authorised users and your company with the relevant parts of these terms and that any restrictions or applicable obligations in these terms shall, unless the context requires otherwise, equally apply to any such persons or entities; (b) only a single authorised user, who is legally permitted to access the source-available software in the UK, USA and in the jurisdiction from which they are accessing the source-available software, shall access each account generated using a licence key, and shall keep a secure and confidential password for their use of the source-available software; (c) you shall permit us to audit your use of the self-hosted software and provide all such full, prompt accurate and complete information and assistance as we may reasonably require in order to solely to establish that any authorised users created meet the requirements of these terms; (d) if any audit referred to above reveals that you have underpaid licence fees to us, e.g. by issuing licence in breach of these terms, then without prejudice to our other rights, you shall pay us an amount equal to the amounts that we calculate (in our reasonable discretion) would have been charged to a new user for such use within 10 business days of demand and you shall procure the deletion of any software issued in contravention of these terms.

7.5 You shall use best endeavours to prevent any unauthorised access to, or use of, the source-available software and promptly notify us of any unauthorised access or use.

7.6 You agree you are solely responsible for you and your authorised users’ use of the source-available software, including ensuring that they are adequately trained to use the source-available software, and that your network and systems, software and hardware are all appropriate to enable to them to access and use the source-available software and services.

8. BB’S INTELLECTUAL PROPERTY

8.1 You acknowledge and agree that we own all intellectual property rights in, or arising from, the services, software and documents. All content on our site and the source-available software is copyright © Budibase Limited. The Budibase™ name and brand, as well as any other BB trademarks used by BB. Except as expressly stated herein, these terms do not grant you any rights to, or in, any rights or licences in respect of the services, software, the documents and the BB trademarks.

8.2 You may not use our intellectual property or trademarks save as expressly permitted in these terms, without our permission, save for the purposes of linking third parties to our site or software, as customary when attributing our intellectual property or when providing notices as required by these terms, provided such usage complies with relevant law and does not suggest that we endorse your software, goods or services or imply a link between us and you, and complies with any linking standards we reasonably require. We reserve the right to withdraw such permissions on notice.

8.3 If you or your authorised users provide us with any feedback, you agree such feedback is non-confidential and non-proprietary and we will have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual licence to implement, use, modify, commercially exploit or incorporate the feedback into BB’s products, services, and documentation.

9. THIRD PARTY TERMS, software and services

9.1 our source-available software may from time to time include or feature third party and open-source software components which are subject to certain third party and open source licence terms, and so any terms and conditions set out at https://budibase.com/terms-of-service/ or incorporated into the source-available software codebase, as updated from time to time (without further notice) shall apply to your and your company’s use of the source-available software in addition to the rest of these terms. We do not use any open-source software distributed under copyleft terms, and none of the open-source software we use requires any onwards users of the relevant software to pay a fee, provided you comply with the relevant terms.

9.2 Additionally, where you choose to do so, you may use third-party services when accessing the source-available software, for example where you download an application that integrates with the source-available software. While these terms govern use of the source-available software, other parties’ terms govern the third-party services. BB does not control any third-party services and disclaims and will have no liability regarding such services, or your or your company’s use of same. You agree you and your company will not hold BB responsible for any use of third-party services (or interactions with third parties) and that BB cannot be held responsible for any errors or issues with the source-available software where attributable to such third-party services.

9.3 BB does not control the third party software and the availability of such services does not mean BB endorses, supports or warrants same.

9.4 BB shall not be responsible for any issues with performance of any third- party software or services, and their integration within and functioning through the source-available software at all times is outside BB’s control and is not guaranteed. The third party integrations supported by the source-available software may change from time to time, and you must always have a valid third party account or subscription for any such third party services and pay all relevant fees for same (which are not included as part of the source-available software).

9.5 BB DISCLAIMS AND SHALL HAVE NO LIABILITY TO YOU WHATSOEVER IN RESPECT OF THIRD-PARTY SOFTWARE, SERVICES OR THE CONTENT, MESSAGES OR INFORMATION FOUND IN OR ON OR ACCESSIBLE THROUGH SAME, OR ANY CLAIMS, CAUSES OF ACTION, LIABILITIES OR LOSSES WHICH MAY ARISE IN RESPECT OF, OR IN CONNECTION WITH SAME INCLUDING YOUR AFFILIATES’, SUBSCRIBING ORGANISATIONS’ OR YOUR AUTHORISED USERS’ USE OF THE SAME. THE PARTIES SPECIFICALLY ACCEPT AND AGREE THESE LIMITATIONS TO BE REASONABLE HAVING REGARD TO THE FACT THAT THIRD PARTIES ARE RESPONSIBLE FOR THE THIRD-PARTY SOFTWARE OR SERVICES, NOT BB.

10. NOTICES

10.1 You must ensure that anyone who gets a copy of any part of the source-available software from you also gets an exact copy of these terms and agrees to abide by them (other than the obligations to pay us relevant charges). Each time you do so, the recipient automatically receives a licence from Budibase on the same basis as set out in these terms. You are not responsible for enforcing compliance by third parties with these terms.

10.2 If you modify the source-available software, you must include in any modified copies of the source-available software prominent notices stating that you have modified the source-available software.

11. WARRANTIES

11.1 BB warrants that the source-available software shall conform in all material respects to the specification for a period of 90 days from the relevant commencement date for your licence (the warranty period). Otherwise, BB gives no warranties in relation to the source-available software. If, within the warranty period, you notify BB in writing of any defect or fault in the source-available software in consequence of which it fails to conform in all material respects to the specification, and the warranty is not excluded under clauses 11.2 or 11.3, we shall, at our option, do one of the following: (a) repair the source-available software; (b) replace the source-available software; or (c) terminate the agreement between us immediately by notice in writing to you and refund any of the charges paid by you as at the date of termination (less a reasonable sum calculated by us in our discretion in respect of your use of the source-available software to the date of termination) on return of the source-available software and all copies thereof, provided always that you provide all the information we reasonably require to assist us in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable us to re-create same. Such remedy shall constitute your sole and exclusive remedy for any breach of such warranty.

11.2 The warranty at clause 11.1 shall not apply to the extent of any non-conformance which is caused by (a) use of the source-available software contrary to BB’s instructions or otherwise than as permitted by these terms, (b) modification or alteration of the source-available software or services by any party other than BB or BB’s duly authorised contractors or agents, without BB’s written consent; (c) use of the source-available software for a purpose or in a context other than the purpose or context for which it was designed (d) issues with your equipment; (e) interaction of the source-available software with other software programmes or plugins not provided by us; or (f) anything otherwise outside our reasonable control. Notwithstanding the foregoing, BB does not warrant that your use of the source-available software will be uninterrupted or error-free.

11.3 The undertaking in clause 11.1 shall not apply to the free software, and you acknowledge that where you use free software it may be subject to change without notice and you do so at your own risk. We give no warranties, and to the extent permitted by law, accept no liabilities regarding the free software and its use by you or any authorised users. Access to the free software is permitted temporarily, and BB may suspend or withdraw your licence or change all or any part of the free software at any time, for any reason, with or without notice. You acknowledge and agrees that access and use of any free software constitutes sufficient consideration in return for which you are willing to adhere to the terms of these terms.

11.4 BB also warrants that the source-available software made available by us for download shall be free from any virus (provided we shall not be responsible for the integrity or security of any networks over which the source-available software may be downloaded).

12. INDEMNITY

12.1 The parties will defend each other against third-party disputes, complaints, claims, actions, proceedings (together claims), as and to the extent set out in this clause 12. They will meet any losses, liabilities, damages, expenses and costs (including without limitation court costs and reasonable legal fees) (together liabilities) resulting from a final adverse judgment or approved settlement in respect of such claims, provided that if any third party makes a claim, or notifies an intention to make a claim, against a party seeking indemnification (via the indemnified party) which may reasonably be considered likely to give rise to a liability under an indemnity, the indemnified party shall: (a) as soon as reasonably practicable, provide written notice of the claim to the party from whom it is seeking the indemnity (via the indemnifying party), specifying the nature of the claim in reasonable detail (provided that failure to do so shall not prejudice the indemnifying party’s obligation to indemnify unless to the extent their defence of any claim is subject to any material prejudice); (b) not make any admission of liability, agreement or compromise concerning the claim without the prior written consent of indemnifying party (not to be unreasonably conditioned, withheld or delayed); (c) give indemnifying party and its professional adviser’s copies (on reasonable prior notice) of any documents and records within the power or control of indemnified party of relevance to the claim to assess the claim; and (d) be deemed to have given to indemnifying party sole authority to avoid, dispute, compromise, or defend the claim, provided that (i) the indemnifying party shall not make any admission of liability or compromise concerning any claim where this entails any liabilities for, or acknowledgement of fault by, the indemnified party without the indemnified party’s prior written consent (not to be unreasonably conditioned, withheld or delayed), and (ii) the indemnified party shall have a right to participate in such defence or dispute of any claim using a legal advisor of its choice, at its own cost and expense, and shall, either way, be kept reasonably appraised as to the progress of the defence of any claim by the indemnifying party or its legal advisor.

12.2 This clause 12 describes the parties’ sole remedies and entire liability regarding any claims as and to the extent set out in this clause 12.

12.3 Subject to clause 12.1, BB will defend you against any claim brought by an unaffiliated third party to the extent it alleges your authorised use of the source-available software infringes a copyright, patent, or trademark or misappropriates a trade secret of an unaffiliated third party. If BB is unable to resolve any such claim under commercially reasonable terms, we may, at our option, either: (a) modify, repair, or replace the relevant infringing element of the source-available software (as applicable); or (b) terminate your licence and refund any prepaid, unused licence fee (less a deduction to reflect usage to date). BB will have no obligation under this clause for any such claim arising from: (i) the modification of the source-available software, or the combination, operation, or use of the source-available software with equipment, devices, software, systems, or data; (ii) your failure to stop using the allegedly infringing software after receiving notice to do so; (iii) a breach your obligations under these terms; (iv) access or use of free software. For purposes of BB’s obligation under this clause, the source-available software includes third-party software components incorporated by BB in its codebase. This clause 12.3 states your sole and exclusive rights and remedies, and BB’s (including its Representatives and Affiliates) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.

12.4 Subject to clause 12.1, you will defend, indemnify and hold harmless BB against any claim brought by a third party against BB, arising from or in respect of (a) your or your authorised users’ breach of these terms; (b) any third party-branded equipment, devices, software, systems, or data that you combine, operate, or use with the source-available software; or (c) any use by you or your authorised users of the source-available software (save to the extent attributable to BB’s breach of these terms); including any additional liabilities you may take on in relation to the source-available software (whether or not consistent with these terms) (in respect of which you may act only on your own behalf and on your sole responsibility, not on our behalf).

THE FOLLOWING CLAUSES APPLY TO BOTH THE SOURCE-AVAILABLE SOFTWARE UNDER PART 1, AND THE SERVICES UNDER PART 2

13. CHARGES AND PAYMENT

13.1 You shall pay any relevant charges to BB in accordance with the payment terms, and keep your contact, billing and credit card information (as applicable) up to date through your account.

13.2 If you are paying by direct debit, credit card, or other online payment methods, you authorise BB to charge any relevant card or account for all charges payable. You further authorise BB to use a third party to process payments, and consent to the disclosure of your payment information to such third party. BB may update the accepted payment mechanisms from time to time and cannot guarantee any payment mechanism that might have applied when you first signed up will always remain an option. You can update its details associated with the relevant payment mechanism at any time by logging into your super admin account, or any connected third party payment account (e.g. Stripe), where the source-available software offers that functionality.

13.3 Where BB use a third party payment processor (e.g. Stripe, a payment service provided by Stripe Inc), you will be required to accept the terms and privacy policy of that provider to use the source-available software. This payment processor will collect and hold your financial details, not us, although BB will obtain details of your username via the relevant API.

13.4 If BB has not received payment of any charges due and owing under these terms within ten (10) days after the due date, without prejudice to any of its other rights and remedies: (a) BB may suspend provision of services while the invoice(s) remain unpaid; and (b) interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of HSBC plc at the date the relevant invoice was issued, compounded monthly, commencing on the due date and continuing until fully paid, whether before or after judgment (or the highest rate permitted by applicable law). BB also reserves the right to charge you reasonable administration costs, including charges for failed payments and/or its costs in relation to pursuing outstanding amounts (including legal fees and expenses), where we are not satisfied (in our sole discretion) that you have not acted reasonably and in good faith in disputing any amount due and owing.

13.5 All amounts and fees stated or referred to in these terms: (a) shall be payable in pounds sterling (unless another currency is denominated in the proposal or as part of the checkout process); (b) are non-cancellable and non-refundable; (c) are exclusive of taxes or duties payable under these terms as specified below (including VAT or GST), which shall be added to BB’s invoice(s) at the appropriate rate; and (d) be paid by bank transfer in full and cleared funds to the account specified on BB’s invoice, by such other payment method (which must be kept up to date and accurate) as BB may accept from time to time.

13.6 You are solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on BB’s net income or gross revenue) imposed or become due in connection with the provision of source-available software or services to you under these terms. If you are located in the EU, you must provide BB with the VAT registration number under which you are registered in your member state. If you do not provide BB with a VAT registration number prior to your transaction being processed, BB will not issue refunds or credits for any VAT that was charged.

13.7 If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay BB an additional amount so that BB receives payment in full as if there were no deduction or withholding.

13.8 Other than the documents, which BB makes available for all users, no training shall be provided in respect of the source-available software, other than as a chargeable consultancy service.

13.9 BB shall be entitled to increase the charges (including for any enhanced tiers or additional credits) or its rate for consultancy charges or support charges, at any time having given at least fourteen (14) days’ prior notice to you, (including by email or via any pop-up notification on the source-available software) and the charges set out in the proposal or amended accordingly with effect from the start of the next renewal period (unless you object to such increase within fourteen (14) days of notice from BB, in which case the agreement shall not renew into any renewal period, unless the parties agree otherwise in writing).

14. TERM AND TERMINATION

14.1 The agreement between the parties on the basis of these terms shall commence on the earlier of (a) the date the proposal is agreed or signed by both parties, or you complete the relevant checkout process and we confirm your order; or (b) the commencement date for any applicable source-available software or services, and shall (unless terminated earlier in accordance with these terms) continue in full force and effect until the end of the subscription term.

14.2

14.3 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the agreement between the parties if: (a) the other party commits a material breach of any of the terms of these terms and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (b) an order is made or a resolution is passed for the winding up of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or if such an administrator is appointed or if documents are filed with the court for the appointment of an administrator or if notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder, or if a receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitle the court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt; or (c) the other party ceases, or threatens to cease, to trade.

14.4 BB may also terminate the agreement between the parties: (a) for cause on fourteen (14) days’ notice if BB reasonably determines that you are acting, or have acted, in a way that has or may negatively reflect on or affect BB, BB’s prospects, or BB’s customers; (b) immediately, if you have persistently breached these terms.

14.5 Save as specified in these terms, and to the extent permitted by law, these terms may not otherwise be terminated prior to the end of the subscription term.

14.6 The subscription term for any free trial shall continue from the relevant commencement date, unless and until terminated at any time by either party on written notice to the other, or automatically on expiry of the period specified for the free trial in the proposal or during the checkout process (provide that where you have subscribed for premium features the subscription term shall continue until the relevant subscription term for such premium features has expired). You make no commitment to purchase services or source-available software from BB by availing of a free trial (unless otherwise agreed by during the checkout process or in a proposal).

14.7 As regards premium features, following expiry of the initial term or (as applicable) any following renewal period for specific premium features, the subscription term shall automatically renew over subsequent renewal periods unless and until either party gives notice to the other in writing (including by email) that it does not wish the agreement to continue beyond the then current renewal period or initial term (as applicable), such notice to expire no later than 14 days prior to the end of the then current renewal period or initial term (as applicable).

14.8 Expiry or termination of the agreement for any reason shall not impact the accrued rights of the parties as at expiry or termination, or the continuation after expiry or termination of any provision expressly stated to survive herein.

14.9 On expiry or termination of the agreement for any reason, or where you use the source-available software in violation of these terms, your licences hereunder will automatically terminate and BB shall no longer have any obligation to provide the services.

14.10 If you have validly and lawfully terminated the agreement for cause in accordance with clause 14.2, we will promptly refund any prepaid but unused charges after termination up to the end of any prepaid subscription term for source-available software and/or any applicable services. Fees are otherwise non-refundable.

14.11 If BB has terminated the agreement for cause, you shall promptly pay all unpaid fees due through the end of any prepaid subscription term for source-available software and/or any applicable services.

15. DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY, AND ACCEPTING ADDITIONAL LIABILITY – IMPORTANT

15.1 This clause sets out BB’s (including its employees, agents and sub-contractors) entire financial liability to you in respect of: (a) any breach of these terms (including without limitation, any claim by you under clause 12); (b) any use made by you of the self-hosted software, services or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with these terms.

15.2 Except as expressly provided in these terms: (a) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these terms, including without limitation any warranty of merchantability, fitness for a particular purpose, title, security, accuracy and non-infringement; (b) the services, documents and all other goods provided by BB, including any data output from same, are provided on an “as is” and “as available” basis; and (c) you assume sole responsibility for the use of the self-hosted software by you and your authorised users, and for conclusions drawn from such use, including any software you develop using the self-hosted software. We shall have no liability for any damage caused by errors or omissions in any information, instructions or data provided by you hereunder, or any actions taken by us at your direction.

15.3 BB does not warrant that the self-hosted software or services will meet your requirements; that your use of same will be uninterrupted, timely, secure, or error-free; that the information provided through the self-hosted software is accurate, reliable or correct; that any defects or errors will be corrected; or that the self-hosted software or output of services are or will be free of viruses or other harmful components. BB will not be responsible for any risk of loss resulting from your downloading or using files, information, data or other material obtained using the self-hosted software.

15.4 Nothing in these terms excludes our liability: (a) for death or personal injury caused by BB’s negligence; or (b) for fraud or fraudulent misrepresentation; or (c) any other liability which cannot strictly be excluded or limited by relevant law.

15.5 Subject to clauses 15.2 and 15.4, BB shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or any other kind of legal claim, howsoever arising in connection with the performance or contemplated performance of these terms, even if we have been advised of the possibility of such damages: (a) 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 these terms; (b) for an aggregate liability in excess of (i) the total charges paid during the 12 months immediately preceding the date on which the claim arose; or (ii) zero, in respect of any free software or third-party services only, having regard to the free of charge nature of the free software, and the fact that we do not provide the third-party services.

15.6 You acknowledge and accept that: (a) the source-available software and services have not been developed to meet your requirements, and that it is your sole responsibility to ensure that the functions of both meet such requirements (including any legal requirements to which your company, or the software tools and protocols (collectively tools) you develop using the source-available software, may be subject). In particular, you acknowledge that the self-hosted software simply provides a platform permitting your authorised users to develop such tools for your company’s purposes; (b) we shall have no liability or responsibility for such tools, (c) the outcomes of your use of the source-available software and services cannot be guaranteed and you shall be solely responsible for same; (d) we do not warrant or represent that the source-available software or services are compliant with, or which may be relevant to the purposes for which the tools may be used or intended; (b) the nature of the self-hosted software is such that it attempts to assist you in software development processes, but results and outcomes cannot be in any guaranteed, and these outcomes or results are entirely outside of BB’s control, and something for which you, not BB, is solely responsible and liable; (c) the self-hosted software and their BB is not responsible or liable for human error and negligent or fraudulent use of the self-hosted software and the use and interpretation of the self-hosted software requires specialist skill and knowledge. You warrant and undertakes that its authorised users have and will exercise same, and appropriate judgment, when using the self-hosted software.

15.7 You acknowledge and accept that the above limitations, and those outlined elsewhere in these terms, are fair, proportionate and reasonable in light of, among other things, the nature of the self-hosted software (including the acknowledgements outlined in this clause).

15.8 If the disclaimers of warranty and limitations of liability outlined in clause 15 above cannot be given local legal effect according to their terms, any relevant court shall apply local law that most closely approximates the waiver(s) of all civil liability outlined above.

16. GENERAL TERMS

16.1 We shall have no liability to you if we are prevented from or delayed in performing our obligations under these terms, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of BB or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.

16.2 A waiver of any right under these terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

16.3 Unless specifically provided otherwise, rights arising under these terms are cumulative and do not exclude rights provided by law.

16.4 If any provision (or part of a provision) of these terms 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.

16.5 These terms, and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to their subject matter, to the exclusion of any terms introduced by you, through custom, dealing or otherwise. Our obligations are not contingent on the delivery of any future functionality or features of the source-available software or services or dependent on any oral or written public comments made by BB regarding same.

16.6 You shall not, without our prior written consent (not to be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under these terms. BB shall be free to assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms without your consent but providing notice of any assignment or transfer. We may also appoint a suitably qualified sub-contractor to perform or provide certain services on its behalf. You shall not be liable directly for any of the subcontractor’s fees or expenses and we shall remain responsible for the performance by our sub-contractor of any sub-contracted services.

16.7 Nothing in these terms 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).

16.8 Notwithstanding any other provisions of these terms, nothing in these terms confers or purports to confer any right to enforce any of its terms on any person who is not a party to it, and any such person shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 (or otherwise) to enforce any term of these terms.

16.9 Any notice required or permitted to be given under these terms shall be in writing and shall be delivered or transmitted to the intended recipient’s address as specified in these terms or such other address as either party may notify in writing to the other from time to time for this purpose. It may also, in the case of notice served by us to you only, be notified to you via your account on our website or notified by way of email to the email address BB has on account for you. Any notice shall be deemed served on delivery if delivered by hand or 4 business days after posting if sent by pre-paid first-class post. In the case of notice served by posting on the website or by email, the notice shall be deemed given at the time such upload goes live onto the website and at the time of transmission of the email (respectively).

16.10 The construction, validity and performance of these terms shall be governed by the laws of Northern Ireland, and the parties submit any dispute regarding the construction, validity and performance of these terms, or its subject matter, or any non-contractual disputes, to the exclusive jurisdiction of the courts of Northern Ireland.

16.11 Where any proposal is issued or signed it may be executed in any number of counterparts, each of which will be considered an original, but all of which together will constitute the same agreement. The exchange of a fully executed valid proposal (in counterparts or otherwise) by electronic transmission, or signature via DocuSign or other EIDAS compliant signature platform, or your confirmation by email of its agreement to the terms of a valid proposal, shall be sufficient to bind the parties to the terms and conditions of these terms.

16.12 Similarly, the completion of the checkout process by you or on your behalf (including by click- through or other acceptance method) and acceptance of your proposal by BB (either or by email confirmation) shall also be sufficient to bind the parties to the terms and conditions of these terms. The provisions of the Uniform Commercial Code, the Uniform Computer Information Transaction Act, or any substantially similar legislation as enacted and the United Nations Convention on Contracts for the International Sale of Goods shall not govern these terms or the rights and obligations of the parties under them.

16.13 All services, these terms and any correspondence between the parties regarding their subject matter (including any dispute) shall be exclusively in the English language. BB might make versions of these terms available in languages other than English. If it does, the English version will govern the parties’ relationship. The translated version is provided for convenience only and will not modify the English version.

16.14 Unless otherwise stated in these terms, no amendment or variation of these terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives). This notwithstanding, BB may update and change any part or all of these terms (other than those relating to fees and charges) at any time. If we update or change these terms or any other document comprising part of these terms, and the updated document will be posted at the URL at which you originally accessed it and BB will let you know via email or through a pop-up notification when using the self-hosted software. The updated document will become effective and binding on the next business day after notice of any update is so given. When we change any document, the “Last Updated” date and version reference in the relevant document (e.g., clause 1.3 of these terms) will be updated to reflect the date of the most recent version. BB encourages you to review the documents forming part of these terms periodically. Every time you complete the checkout process, or sign a new proposal, the terms applying to these terms between the parties shall be as outlined in the relevant version of these terms at the time.

16.15 Each party (including in your case, the person completing the checkout process or signing the proposal in their individual capacity) represents and warrants to the other that it has full power and authority to enter into these terms (or to act on behalf of the party on whose behalf it purports to act) and that it is binding upon such party and enforceable in accordance with its terms.

17. DEFINITIONS

17.1 agreement has the meaning given to it in clause 1.3;

authorised users means your company’s (and any subscribing oragnisations’) employees, representatives, consultants, contractors, or agents only, who are authorised by you and issued a licence key to download and use the source-available software for the purpose, and for whom you have purchased a user licence (where applicable);

BB, we, us means the licensor of the source-available software, Budibase Limited, a company incorporated in Northern Ireland under registered company number NI662141, our shall be interpreted accordingly;

beta software means any feature of our software identified as beta, preview or similar;

business day means any day which is not a Saturday, Sunday, bank or public holiday in Northern Ireland or the jurisdiction in which you are incorporated or registered;

charges means the relevant charges payable under these terms, including consultancy charges, support charges, or licence fees.

checkout process means the online subscription process (if applicable) by which you may agree to purchase any source-available software and/or services;

commencement date means, as applicable, the start date for your licence to the source-available software (or the relevant access tier for same), or the provision of the services, as specified in the proposal or during the checkout process. There may be a different commencement date for particular access tiers, where you upgrade your access tier during the subscription term;

documents means the standard user documentation BB may provide relating to the source-available software;

enhanced liability package means a contract where we have agreed to provide you with our software without any premium features but on the basis of the enhanced liability terms specified herein;

feature means a specific feature or function of the software;

feedback means any ideas, know-how, algorithms, code contributions, suggestions, enhancement requests, recommendations or any other feedback on BB products or services;

free software means any premium features of the source-available software to which you might be given access to on a free-of-charge or trial basis;

initial term means the initial term for the source-available software or services (as applicable) for which you subscribe, as selected by you during the checkout process or in the proposal. A perpetual licence may be specified in the proposal, in which case your licence shall be indefinite, subject only to termination for breach of these terms;

licence fee means the total amounts for licensing of the source-available software specified in the proposal or during the checkout process;

open-source software means the software we made available on an open-source basis, where it does not include any premium features and isn’t provided under an enhanced liability package;

payment terms means the payment terms for payment of any charges. These shall require consultancy charges being paid up-front in advance (based on allocated time for specified consultancy services), and any relevant licence fee for user licences (within applicable access tiers) being paid monthly or yearly in advance based on the initial term selected by you during the checkout process or within a written proposal;

purpose means approved authorised users accessing and using the functionality offered by the self-hosted software (including that contemplated within the documents) as they are functionally contemplated to operate, namely to develop software applications to meet your legitimate internal business purposes, in accordance with these terms;

premium features means any premium features of the self-hosted BB software which we do not make available on an open-source basis. Premium features available will vary depending on the access tier for which you have subscribed;

proposal means (if applicable) a written quotation for provision of services and/or source-available software, provided by BB;

renewal period means successive rolling terms (each the same length as the agreed initial term) for the source-available software (or user licences for premium features / source-available software) or services you have subscribed for;

self-hosted software means any software BB makes available for download, including both our source-available software and our open-source software;

source-available software means any software BB makes available for download or onwards distribution under Part 1 of these terms, where it includes any premium features, or is provided under an enhanced liability package;

services means the paid support, consultancy services and any other services we may provide you pursuant to Part 2 of these terms;

specification means the document detailing the specification of the source-available software set out at https://budibase.com/self-host-specification

subscribing organisations means, in addition to you, those other organisations for whom you shall be responsible whose authorised users are permitted to use the self-hosted software;

subscription term means any term over which you subscribe for the self-hosted software generally beginning on the Commencement Date and continuing indefinitely unless and until these terms is terminated in accordance with its terms, and the term also includes specified terms for additional premium features for which you may subscribe from time to time, which shall commence on and continue for the applicable initial term and any applicable renewal period thereafter;

term means the term of the agreement as defined in clause 14.1;

third-party services means software or services provided by third parties;

tier means a subscription tier for access to different versions of the BB source-available software. Different subscription tiers allow your authorised users access to different premium features and (may) also require you to purchase different minimum numbers of user licences. Current access tiers, the premium features available under each, and the minimum numbers of user licences (if any) required under each, will be specified during the checkout process or in any written proposal for enterprise customers, but may change from time to time (for example, as new premium features are added, premium features are removed or changed). The applicable tier may also dictate the price payable for any relevant user licences paid for by you;

you refers to the individual or entity agreeing to / entering into these terms, as identified in the proposal, during the checkout process, or applicable account record or billing statement where the checkout process is unclear and your shall be construed accordingly;

your company is any legal entity, sole trade or proprietorship, partnership or other kind of organisation that you work for, plus all organisations that have control over, are under the control of, or are under common control with that organisation. control means ownership of substantially all the assets of an entity, or the power to direct its management and policies by vote, contract, or otherwise. Control can be direct or indirect;

your licences are all the licences granted to you for the freeware under these terms;

use means anything you do with the freeware requiring one of your licences;

trademark means trademarks (registered or unregistered), service marks, and similar rights, in words or pictures;

user licence means a chargeable user licence which is required for each authorised user created by you where that authorised user is permitted to access and use premium features under any premium access tier in accordance with the agreement;

virus means anything (including any software, code, file or program) which is designed or intended to prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, including worms, trojan horses and viruses.

17.2 Clause headings shall not affect the interpretation of these terms.

17.3 References to clauses are to the clauses of these terms.

17.4 Words in the singular shall include the plural and vice versa.

17.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

17.6 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

PART 2 – PREMIUM services TERMS

18. INTRODUCTION

18.1 This Part 2 of these terms sets out the additional terms which apply to any services BB provide you as a you, and apply together with clauses 1 and 13 - 17 (inclusive) of Part 1 of the terms, and the documents referenced herein.

18.2 If BB issues a proposal it shall be valid for a period of 30 days (or such longer period specified on the proposal) from the date of issue, if not agreed by you, at which point the offer outlined in the proposal shall lapse.

18.3 Any order placed by you shall only be deemed to be accepted upon BB’s signature of the proposal, or acceptance of the relevant checkout process submission by the you via our website (which acceptance shall be confirmed by email or notification via our website) at which point and on which date these terms shall come into existence. For the avoidance of doubt, whilst the services and our source-available software may be marketed in online marketplaces which purport to allow customers to check out electronically, no agreement shall be binding other than as set out above.

19. ADDITIONAL DEFINITIONS AND RULES OF INTERPETATION

19.1 In this Part 2 of these terms the following definitions and rules of interpretation shall apply in addition to those set out in Part 1:

confidential information means in relation to either party, any or all information of a confidential nature (whether in oral, written or electronic form) including trade secrets and information (whether or not of commercial value) known and belonging to that party and concerning its business, suppliers, customers, products or services (including without limitation in BB’s case, the software and the confidential pricing offered by BB) and any other information which the recipient knows or is notified or has reason to believe is confidential to the disclosing party;

consultancy charges means the charges for any consultancy services purchased via BB’s website;

consultancy services means any chargeable consultancy services to be provided by BB to you (as purchased by the you from time to time), other than the support, including, for example, technical assistance, training and you on-boarding, as specified in a proposal or during the checkout process;

SLA means any service level agreement BB may agree with you for paid support services;

support charges means any charges for the support specified in a proposal or during the checkout process;

support means the support services to be provided by BB in relation to each authorised user, for the relevant subscription term, and made available, unless otherwise specified, during BB’s standard business hours (9am to 5.00pm UK time on business days) via the means specified in any support services policy BB may offer from time to time. Authorised users may need to provide their screens or accounts where required in order to provide remote support. BB may also provide an online forum for authorised users.

20. SERVICES

20.1 BB shall, during the relevant subscription term, subject to payment of any charges, provide any agreed services to you on and subject to the terms of these terms.

20.2 You may purchase consultancy services or support by subscribing for these via the checkout process on our website or in a proposal. Unless BB otherwise agrees in writing (including during the checkout process), the consultancy services BB provide are described in the platform. Consultancy charges may be separate from licence fees or support charges. All consultancy services shall be performed remotely and may be delivered via hourly slots, or service call time.

20.3 Any agreed support shall also be delivered remotely in accordance with any SLA in place between the parties and any additional support services beyond the standard support will be treated as a chargeable consultancy service. Your authorised users must be available to interact with our support term where they have any queries regarding a particular support ticket.

20.4 Unless otherwise specified in any SLA or Proposal, any chargeable support shall only be provided to the named authorised users set out within the SLA or Proposal and shall be subject to fair usage. BB is a UK based company and typically deals with Support tickets between 9 am and 5 pm UK time on business days in the UK. For clarity, subject to fair usage, there are no limitations on the number of support tickets or requests that may be raised by you, provided that your named authorised users must raise any support tickets and must be available to interact with BB’s support team where they have any queries regarding a particular request, including to provide demonstrable or repeatable evidence of any alleged bugs or defects. You shall also procure that your authorised users provide access to BB to their accounts where required to provide remote support. All support shall be delivered remotely.

21. WARRANTY

21.1 We undertake that the services will be provided with reasonable skill and care expected of a suitably skilled person engaged in the same type of business as BB. Otherwise, we give no warranties in relation to the services.

21.2 The undertaking at clause 21.1 shall not apply to the extent of any non-performance which is caused by acts or omissions otherwise attributable to you, your authorised users or your company and/or outside BB’s reasonable control. If the services do not conform to the undertaking in clause 21.1, BB will, at its expense, use all reasonable commercial endeavours to correct any such non-performance within a reasonable timeframe, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of such undertaking.

21.3 We will maintain all necessary licences, consents, and permissions necessary for the performance of the services. Timing for performance of the services shall not be of the essence.

22. DATA PROTECTION

22.1 Both parties will comply with all applicable requirements of data protection law but acknowledge that it shall not obtain access to any other party’s personal data in respect of which it would act as a data processor, and BB not have access to any data stored on your servers in connection with the self-hosted software.

22.2 The parties acknowledge that they may process limited personal data relating to the others’ employees when providing or receiving services, for example names and email addresses of employees with whom BB interacts. When doing so each shall act as a data controller in relation to such personal data and only process it in accordance with that party’s privacy policy for the purposes of contract administration or otherwise in its own legitimate interests, as permitted under applicable laws. BB’s privacy policy is available at: https://budibase.com/privacy .

23. CONFIDENTIALITY

23.1 Neither party will use the other’s confidential information except as permitted under these terms. Each party agrees to maintain in confidence and protect the other party’s confidential information using at least the same degree of care as it uses for its information of a confidential and proprietary nature but in any event at least a reasonable degree of care. Each party agrees to take all reasonable precautions to prevent any unauthorised disclosure of the other party’s confidential information, including, without limitation, disclosing such confidential information strictly only to those of its or its company’s employees, representatives, consultants, contractors or agents (together representatives) who need to know such information, are subject to restrictions around the use of such confidential information substantially similar to those set out in this clause. Each party shall be liable and responsible for its representatives’ adherence to such terms. The preceding obligations will not restrict either party from disclosing confidential information of the other party under the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable such party to contest such order or requirement (to the extent permitted by law).