NBN MODEL DATA CUSTODIANSHIP AGREEMENT

NOTES FOR USE

1. This data custodianship agreement defines how an individual or organisation (custodian) will hold, maintain and administer third party access to wildlife information resources on behalf of another (supplier), and sets out the terms and conditions under which the custodian is licensed to hold, manipulate and disseminate material on behalf of the supplier.

2. The Model Data Custodianship Agreement is one of a wider framework of agreements and licences prepared by the National Biodiversity Network Trust to facilitate robust delivery of wildlife information resources to improve their availability and use.

3. The NBN Trust policy is that open and free access should be granted to all wildlife information. Restrictions on access should only be imposed where open access would be contrary to the public interest in preserving biodiversity. Any data supply charges should be clearly identified and published.

4. The Model Data Custodianship Agreement is intended to provide a generic example for suppliers and custodians to use. The model may not be sufficiently comprehensive to meet all of your needs, and the NBNT encourages you to adapt and add to this model licence agreement where necessary.  In practice the custodianship agreement may form part of a broader Service Level Agreement, covering other topics such as:

• Data collation activities
• Data Access administration
• Digitisation of paper records
• Finance, accounting and payment
• Performance monitoring
• Technical advice and assistance

5. The arrangements for custodianship are part of a ‘chain’ of licences from the individual who collects the data to the NBN Gateway.  Therefore the NBN Trust requires:

• A licence at least as wide in scope as clause 3
• An identified Access Policy (including any Access Conditions)

INTRODUCTION

This is an agreement between;

_______________________________________________________________________
(‘the Supplier’) and;

_______________________________________________________________________
(‘the Custodian’).

1. Definitions

In this Agreement the following words have the following meanings:
1.1. ‘the Access Policy’ means the policy of the Supplier relating to permitted access to the Material, including any legal restrictions to be imposed on users, as set out or referred to 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 Material’: all information provided to the Custodian by the Supplier under this Agreement including the Wildlife Information and the Metadata, as described in Schedule 1.
1.5. ‘the Metadata’ means information identifying the source of an individual record within the Wildlife Information, as described in clause 4.4.
1.6. ‘NBNT’: refers to the National Biodiversity Network Trust, company number 3963387, registered charity number 1082163.
1.7. ‘the Wildlife Information’ means the collection or collections of wildlife or biodiversity data owned, collated or managed by the Supplier.
Definitions set out in the DPA apply to words and phrases appearing in clauses 4.3 and 6 of this Agreement with an initial capital letter and which are not defined in this Agreement.

2. Appointment of Custodian

2.1. The Supplier will supply the Material to the Custodian in the manner and at the intervals set out in Schedule 1.
2.2. The Supplier appoints the Custodian as its agent to manage the Material on its behalf, and to sign an agreement with NBNT on its behalf for the supply to NBNT of some or all of the Material for use in the NBN Gateway website.
2.3. Unless otherwise specified by the Supplier, the Custodian will act as the first point of contact for all enquiries regarding access to and use of the Material and the primary source of advice and support for users. In particular the Custodian will act as the contact point for questions from NBNT regarding the Material.

3. The Licence

3.1. The Supplier grants the Custodian a non-exclusive licence to use and distribute the Material, subject to this Agreement.
3.2. The Custodian is authorised under this licence to:
3.2.1. access and hold copies of the Material for the purpose of providing a data custodianship service on behalf of the Supplier;
3.2.2. copy and/or process the Material into other formats (including electronic formats) to aid data management and dissemination;
3.2.3. distribute copies of the Material in accordance with their published access policy unless otherwise identified by the Supplier; and
3.2.4. provide copies of the Material to the NBNT in accordance with the agreement referred to in clause 2.2.
3.3. The Custodian may grant licences to others to access and use the Material (to the extent permitted by the Access Policy) but may not sub-contract its obligations under this Agreement or grant any other sub-licences in relation to the Material.

4. Rights and obligations of the Supplier

4.1. The Supplier is free to make available, use or publish the Material elsewhere.
4.2. The Supplier will notify the Custodian of any change in copyright ownership affecting the Material.
4.3. The Supplier will notify the Custodian of any confidentiality, privacy or data protection issues pertaining to the Material and in particular will identify any items of Metadata in respect of which the Data Subject has not consented to use of that Metadata in the manner permitted by this Agreement.
4.4. The Supplier will provide Metadata, to the standard promoted by the NBNT, in support of the Wildlife Information, to allow any potential user to confidently assess its suitability for their proposed use.

5. Undertakings of the Custodian

5.1. The Custodian will comply with the data security policy set out in Schedule 2.
5.2. The Custodian will make the Material available in accordance with their published access policy (unless otherwise identified by the Supplier) and may use a variety of means, including the NBN Gateway. [However, the Supplier acknowledges that the Custodian will need to set the access controls in the copy of the Material provided to the NBN Gateway in the format provided to it by the NBNT.]
5.3. In addition to the obligations in clauses 5.1 and 5.2, the Custodian will not make any part of the Material available to any person or for any use if it would be contrary to the public interest for that Material to be made available to that person for that use.
5.4. The Custodian will make the Metadata available to all potential users of the Wildlife Information to enable them to assess its suitability for their proposed use.
5.5. The Custodian will ensure that any copyright notices and identification of the author of records within the Wildlife Information are included in all copies.
5.6. The Custodian will not sell, or permit sale by others of any of the Material without first obtaining the written agreement of the Supplier, but the Custodian may make appropriate administration charges to cover the cost of supply.
5.7. The Custodian will ensure that in all contracts for use of the Material there is a disclaimer of liability at least as comprehensive as that contained in clause 7.2.
5.8. The Custodian is not under any obligation to take legal action on behalf of the Supplier or other rights holders in the event of breach of any intellectual property rights in the Material.

6. Data Protection

6.1. 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:
6.2. 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;
6.3. 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;
6.4. 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;
6.5. Not transfer any Personal Data outside the European Economic Area without the consent of the Data Subject;
6.6. 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
6.7. 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.

7. Warranties of the Supplier and Limitations of Liability

7.1. The Supplier warrants to the Custodian that each of the statements in this clause 7.1 is true.
7.1.1. It is either the owner of the copyright and all other intellectual property rights in the Material or that it has the necessary rights and licences to grant the licence to the Custodian as set out in clause 3.
7.1.2. It 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.
7.1.3. 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.
7.1.4. It has taken reasonable steps to maximise the quality of the Material.
7.2. Owing to the dynamic and judgemental nature of information relating to wildlife and the environment, except as set out in clause 7.1.4, the Supplier disclaims, to the extent permitted by law, any responsibility for the accuracy or comprehensiveness of the Material, and accepts no liability for any indirect, consequential, or incidental damages or losses arising from use of the Material.

8. Termination and withdrawal of data

8.1. Either party may terminate this Agreement at any time by giving not less than three months’ notice to the other.
8.2. The Supplier may by giving notice to the Custodian require the Custodian to cease use or distribution of identifiable parts of the Material without terminating this Agreement, and clause 8.3 will apply to that Material.
8.3. On termination of this Agreement, or withdrawal of Material as described in clause 8.2, the Custodian will make no further use or distribution of the Material, and will delete and destroy all copies that it holds. However, the Custodian may keep the Material in its back-up copies until they are used, and any copies of the Material distributed before the Supplier’s notice takes effect may be made available indefinitely. The Custodian’s licence to use and distribute the Material will continue indefinitely in respect of that Material.

9. 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.
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.
9.3. 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.
9.4. 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.
9.5. No agency etc.  Except as expressly set out in this Agreement, neither party has any authority to make any representation or commitment or incur any liability on behalf of the other.
9.6. 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 which 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.
9.7. Variations. No variation of this Agreement will be effective unless it is made in writing and signed by each party or its authorised representative.
9.8. 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.
9.9. 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.
 

SIGNED BY AUTHORISED REPRESENTATIVES OF THE PARTIES

Name of institution……………………………………………………….. (the Supplier)

Signed ………………………………………………………..
Printed name:
Date  ………………………………………………………..
Position  …………………………………………………………
Address  …………………………………………………………
…………………………………………………………
…………………………………………………………
Telephone  ………………………….. Fax ………………….. E-mail ……………….

Name of institution……………………………………………………….. (the Custodian)
Signed ………………………………………………………..
Printed name
Date   ………………………………………………………..
Position  …………………………………………………………
Address  …………………………………………………………
…………………………………………………………
…………………………………………………………
Telephone  ………………………….. Fax ………………….. E-mail ……………….

SCHEDULE 1

The Material

Title/s of the resources and/or general description of the Material, together with details of how and when it is to be supplied to the Custodian:
<provide blank page for completion>

SCHEDULE 2

Data Security Policy

Example:

1. The Custodian will make regular robust back-up copies of the Material to safeguard its longevity.
2. The Custodian will archive version-controlled copies of the Material at regular intervals. Determining the frequency of data archiving is the responsibility of the Supplier.
3. The Custodian will create and maintain a catalogue of the Material to provide a serviceable index of key resources and individual data records to aid their location and dissemination.
4. The Custodian will maintain and where appropriate add to any relevant data management audit trials for the Material to clearly document and illustrate the data management processes undertaken.
5. The Custodian will take reasonable measures to prevent unauthorised access to, duplication of, or distribution of the Material whilst in its possession.

SCHEDULE 3

Access Policy

If no access policy is attached the Custodian agrees to make the Material available in line with its own published access policy

– See more at: https://nbn.org.uk/Share-Data/Managing-Permissions/Model-Agreements/Model-Data-Custodian-licence.aspx#sthash.vmdcgeI2.dpuf