DATA PROVIDER AGREEMENTS

INTRODUCTION

The Gateway Data Provider Agreement is a formal agreement between the NBN Trust and anyone making material they control available through the NBN website. The Agreement is required to help the NBN Trust establish a clear and secure position in regard to the right to hold and work with third party material supplied to them. The Agreement helps build clarity which is important in helping people share and exchange wildlife data through the NBN Gateway website.

CONTENTS

DEFINITIONS

In this Agreement the following words have the following meanings:

1.1. ‘Additional Terms of Access’ means the restrictions set by the Data Provider on access to the Material, as set out in Schedule 3.
1.2. ‘Agreement’: refers to this document and any documents attached to or referred to in it.
1.3. ‘the DPA’ means the Data Protection Act 1998 and any legislation amending or replacing that Act and any subsidiary legislation made under it;
1.4. ‘the Gateway Terms’ the terms and conditions for use of the NBN Gateway Website Service and any material, data and/or information made available through it;
1.5. ‘The Material’: all information provided to NBN Trust by the Data Provider under this Agreement including the Wildlife Information and the Metadata, as described in Schedule 1.
1.6. ‘the Metadata’ means contextual information describing the wildlife data that comprises the material provided to NBN Trust by the Data Provider, as described in clause 3.5.
1.7. ‘the NBN Gateway’ means the website with the URL http://data.nbn.org.uk/ or any URL replacing it and associated web-services;
1.8. ‘the Website Host’ means the organisation from time to time appointed by NBN Trust to host the NBN Gateway on behalf of NBN Trust;
1.9. ‘the Wildlife Information’ means the collection or collections of wildlife or biodiversity data owned, collated or managed by the Data Provider contained within the Material provided to NBN Trust.
Definitions set out in the DPA apply to words and phrases appearing in clauses 3.3 and 5 of this Agreement with an initial capital letter and which are not defined in this Agreement.

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THE LICENCE

2.1. The Data Provider grants NBN Trust a non-exclusive licence to access, hold and use the Material, subject to this Agreement.
2.2. NBN Trust is authorised under this licence to:
2.2.1. Access and hold a copy of Material to facilitate its delivery via the NBN Gateway;
2.2.2. Copy and/or process the Material into other formats (including electronic formats) to aid data management and dissemination via the NBN Gateway; and
2.2.3. Facilitate Data Provider controlled data delivery to users in accordance with NBN Trust General Terms and any Additional Terms of Access and / or use identified by the Data Provider.
2.3. NBN Trust may authorise its Website Host to do any of the things permitted by clause 2.2.

RIGHTS AND OBLIGATIONS OF THE DATA PROVIDER

3.1. The Data Provider is free to make available, use or publish the Material elsewhere.
3.2. The Data Provider will notify NBN Trust of any change in copyright ownership affecting the Material.
3.3. The Data Provider will notify NBN Trust of any confidentiality, privacy or data protection issues pertaining to the Material and in particular will identify any items of the Material in respect of which the Data Subject has not consented to its use in the manner permitted by this Agreement.
3.4. The Data Provider will manage availability of their Wildlife Information through the Gateway using the administration controls available to them and will respond to access requests received through the Gateway mechanism in accordance with NBN data exchange principles and policy.
3.5. The Data Provider will provide and maintain Metadata, to the standard promoted by NBN Trust, in support of the Wildlife Information, to allow any potential user to confidently assess its suitability for their proposed use.

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UNDERTAKINGS OF NBN Trust

4.1. Subject to clause 2.1, NBN Trust will make the Material available on the NBN Gateway in accordance with this agreement and subject to the Gateway Terms.
4.2. NBN Trust will provide a framework of access controls with which the Data Provider can administer and regulate user access to the Willdife Information they supply to the NBN Gateway. However, where NBN Trust holds environmental information within the meaning of the Environmental Information Regulations 2004, it may be obliged to disclose that information to any person who makes an application under those Regulations. Each time the Data Provider volunteers a new set of Wildlife Information to the Gateway NBN Trust will negotiate its public availability in accordance with the Environmental Information Regulations. Where agreement is not possible the Data Provider may refuse to submit the Wildlife Information.
4.3. NBN Trust will provide the Data Provider with an opportunity to make any copyright notices and acknowledgements associated with the Material available on the NBN Gateway.
4.4. NBN Trust is not obliged to make the Material available in the same format or resolution as that in which it was provided.
4.5. NBN Trust is not under any obligation to take legal action on behalf of the Data Provider or other rights holders in the event of breach of any intellectual property rights in the Material supplied.

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DATA PROTECTION

Each party (“the Data Processor”) will comply with the following in relation to any Personal Data that it Processes on behalf of any other party to this Agreement (“the Data Controller”). They will:
5.1. Process Personal Data in accordance with the Data Protection Principles under the DPA, affording to Data Subjects the same rights and protections as they would have were their Personal Data to be Processed by the Data Controller;
5.2. Process Personal Data only in accordance with the Data Controller’s instructions from time to time, and will take such technical and organisational measures as may be necessary to ensure the security of the Personal Data and the reliability of the Data Processor’s personnel who may have access to, or be involved in, the processing of any of the Personal Data.  In particular it will keep all Personal Data secure from any unauthorised or accidental use, access, disclosure, damage, loss or destruction;
5.3. Give the Data Controller any information and assistance they may reasonably require in order to enable them to meet their obligations to Data Subjects, in particular, but not limited to, complying with Data Subjects' requests for access to, information about, and the rectification of their Personal Data;
5.4. Not transfer any Personal Data outside the European Economic Area without the consent of the Data Subject;
5.5. Notify the Data Controller immediately should it receive from any Data Subject a request or notice that Personal Data should not be used for the purpose of Direct Marketing; and
5.6. Allow the Data Controller at all reasonable times to inspect and review the steps being taken by the Data Processor to comply with this clause 6, and will give them any assistance they reasonably require with that inspection and review.

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WARRANTIES OF THE DATA PROVIDER

6.1. The Data Provider warrants to NBN Trust that each of the statements in this clause 6.1 is true.
6.1.1. The Data Provider is either the owner of the copyright and all other intellectual property rights in the Material or that it has the necessary rights to grant the licence to NBN Trust as set out in clause 3.
6.1.2. The Data Provider is not under any obligation or disability created by law, contract or otherwise, which would in any manner or to any extent prevent or restrict it from entering into and fully performing this Agreement.
6.1.3. Release of the Material in accordance with the terms of this Agreement does not and will not contravene any laws, including but not limited to the law relating to defamation, or obscenity.
6.1.4. The Data Provider has taken reasonable steps to maximise the quality of the Material.

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LIMITATIONS OF OUR LIABILITY

7.1. NBN Trust does not guarantee the availability of the NBN Gateway. NBN Trust may deny access to the NBN Gateway to any person at any time at its discretion. NBN Trust will not be liable to the Data Provider for any failure of the NBN Gateway or for the inability of any person to access it whether or not that person is authorised to access the material on NBN Gateway.
7.2. NBN Trust will take every care to preserve the physical integrity of the Material but will have no liability for the Material or for the loss of or damage to the Material.
7.3. The NBN Gateway Terms & Conditions contain provisions designed to prevent any claim being made against NBN Trust or the Data Provider in respect of any of the Material. However, if a claim is made against NBN Trust then the Data Provider will meet in full the cost of that claim and any expenses that NBN Trust has reasonably incurred in dealing with it. NBN Trust will allow the Data Provider to take charge of the claim so that the Data Provider can mitigate its level of exposure under this clause and NBN Trust will give the Data Provider all reasonable assistance in dealing with the claim.
7.4. NBN Trust excludes, to the fullest extent permitted by law, any liability that it may have to the Data Provider under this Agreement or in respect of the use of the Material on the NBN Gateway.
7.5. Neither party will be liable to the other for any failure to perform or for delay in performing this obligation if the failure or delay is caused by circumstances beyond its reasonable control.

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TERMINATION AND WITHDRAWAL OF DATA

8.1. Either party may terminate this Agreement at any time by giving not less than six months’ notice to the other.
8.2. In addition to any other remedy which either party may have, either party may terminate this Agreement with immediate effect by giving notice to the other party if the other party has committed a breach of this Agreement which cannot be remedied or is not remedied within 30 days after a notice from the first party specifying the breach and requiring its remedy.
8.3. The Data Provider may, by giving notice to NBN Trust, require NBN Trust to cease use or distribution of identifiable parts of the Material without terminating this Agreement, and clause 8.4 will apply to that Material.
8.4. On termination of this Agreement, or withdrawal of Material as described in clause 8.2, NBN Trust will remove the Material from the NBN Gateway and will delete and destroy all copies that it holds. However, NBN Trust may keep the Material in its back-up copies until they are used.

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GENERAL

9.1. Notices. Any notice to be given under this Agreement must be in writing, may be delivered to the other party by any of the methods set out in the left hand column below and will be deemed to be received on the corresponding day set out in the right hand column.

9.2. Headings.  The headings in this Agreement are for ease of reference only and do not affect the interpretation of this Agreement.
9.3. Assignment etc.  No party may assign or otherwise transfer this Agreement or any of its rights or obligations under it, whether in whole or in part.
9.4. Illegal/unenforceable provisions. If the whole or any part of any provision of this Agreement is void or unenforceable in any jurisdiction, the other provisions of this Agreement, and the rest of the void or unenforceable provision, will continue in force in that jurisdiction, and the validity and enforceability of that provision in any other jurisdiction will not be affected.
9.5. Waiver of rights. If a party fails to enforce or delays in enforcing an obligation of any other party, or fails to exercise or delays in exercising a right under this Agreement, the failure or delay will not affect their right to enforce that obligation or constitute a waiver of that right. Any waiver by a party of any provision of this Agreement will not, unless expressly stated to the contrary, constitute a waiver of that provision on a future occasion.
9.6. No agency etc.  Nothing in this Agreement is intended to create a joint venture between the parties or the relationship between them of principal and agent. Neither party has any authority to make any representation or commitment or incur any liability on behalf of the other.
9.7. Entire agreement. This Agreement and any Schedule or Schedules (which are incorporated into and made a part of this Agreement) constitute the entire agreement between the parties relating to its subject-matter.  Each party acknowledges that it has not entered into this Agreement on the basis of any warranty, representation, statement, agreement or undertaking except those expressly set out in this Agreement.  Each party waives any claim for breach of, or any right to rescind this Agreement in respect of, any representation that is not an express provision of this Agreement.  However, this clause does not exclude any liability which any party may have to any other (or any right which any party may have to rescind this Agreement) in respect of any fraudulent misrepresentation or fraudulent concealment prior to the execution of this Agreement.
9.8. Variations. No variation of this Agreement will be effective unless it is made in writing and signed by each party or its authorised representative.
9.9. Third parties. No person who is not a party to this Agreement has any right to prevent the variation or cancellation of any provision of this Agreement or its or termination, and no person who is not a party to this Agreement may enforce any benefit conferred upon them by this Agreement, unless this Agreement expressly provides otherwise.
9.10. Governing law, etc.  This Agreement will be governed by and construed in accordance with English law.  The English Courts will have exclusive jurisdiction to deal with any dispute which has arisen or may arise out of or in connection with this Agreement, except that any party may bring proceedings for an injunction in any jurisdiction.

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August 2009