Last Updated: 13th September 2024
These terms are intended to go hand in hand with an Earth Cubs Proposal Document which will include the details of the Collaborator, as well as specific details of parties' obligations.
1. Mission and Collaboration
1.1 Earth Cubs provides climate, sustainability and environmental education for children through digital software, content and experiences in order to further children’s education about, and promote the public’s sustainable treatment of, Planet Earth (the Mission).
1.2 Earth Cubs and the Collaborator are entering into this agreement in order to establish a framework for working together in good faith for the purpose of furthering the Mission (the Collaboration).
1.3 The parties agree to use their best endeavours to perform their obligations pursuant to the Collaboration detailed in Schedule 1 (the Collaboration Schedule).
1.4 To enable the parties to maximise the benefits of the Collaboration, each party shall: 1.4.1 engage the other in planning discussions in relation to the Collaboration from time to time; 1.4.2 keep the other party informed about its own progress in relation to the Collaboration; and 1.4.3 facilitate regular discussions between appropriate members of its personnel and those of the other party in relation to the Collaboration, including in relation to: - performance and issues of concern in relation to the Collaboration; - new developments and resource requirements; - compliance with deadlines; and - such other matters as may be agreed between the parties from time to time.
1.5 Each party shall: 1.5.1 supply to the other party information and assistance reasonably requested by it relating to the Collaboration as is necessary to enable that other party to perform its own obligations in relation to the Collaboration; and 1.5.2 review documentation, including draft specifications or service descriptions or other technical documentation, for use when performing its obligations in relation to the Collaboration (if any), as soon as reasonably practicable at the request of the other party, and notify it of any errors or incorrect assumptions made in any such documents so far as it is aware.
2. Commencement and Termination
2.1 This agreement shall commence on the date signed by both parties (Commencement Date) and continue for the period set out in Schedule 1 or as terminated in accordance with this agreement (Collaboration Period).
2.2 Either party may at any time by notice to the other, in writing which includes email, terminate this agreement without having to give any reasons for doing so or incurring any liability to any other party. Such termination shall not affect the continuance in force of clause 4 to clause 11 inclusive.
3. Payment
3.1 If the Collaboration Schedule provides that a party will pay the other party any fees (Fees), the other party may issue invoices for such Fees at the end of each month.
3.2 Unless otherwise provided in the Collaboration Schedule, the Fees are exclusive of VAT, which shall be included in invoices and payable, if applicable, in addition to the Fees.
3.3 A party shall pay an invoice issued to it in accordance with this agreement within 30 days of the date of the invoice.
3.4 If a party fails to make a payment due to the other Party under this agreement by the due date, then the defaulting party shall pay interest (at 4% above the Bank of England’s base rate) on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
4. Confidentiality
4.1 Subject to clause 4.2, each party undertakes that it shall not for a period of two years after the date of this agreement disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other except as permitted by clause 4.2.
4.2 Each party may disclose the other party's confidential information 4.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of the evaluation of the Collaboration. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 4; and 4.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority
4.3 No party shall use the other party's confidential information for any purpose other than the evaluation of the Collaboration.
5. Intellectual property rights
5.1 This agreement does not transfer any ownership in any intellectual property rights, whether registered or unregistered, which include but are not limited to patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) (Intellectual Property Rights).
5.2 All Intellectual Property Rights owned, licenced to or acquired by a party at the Commencement Date (Background IPR) shall not be transferred to the other party.
5.3 All Intellectual Property Rights developed or created pursuant to the Collaboration shall be owned by Earth Cubs (Created IPR).
5.4 Each party grants to the other party a non-exclusive, personal, royalty-free licence to use its Background IPR and Created IPR to the extent necessary to fulfil the Mission. This licence shall take effect on the terms, and subject to any conditions set out in the Collaboration Schedule.
5.5 Each party has the right to revoke the licence granted pursuant to clause 5.4 in the event that the party determines (in its sole discretion) that the Background IPR or Created IPR is being used for a purpose not compatible with the Mission. In this case, the affected party shall, upon notice, cease to use that Background IPR and/or Created IPR and shall return to the other party, destroy and/or delete any physical embodiment of the Background IPR and/or Created IPR (including any copies) in its possession or control.
5.6 Each party shall immediately give written notice to the other party upon becoming aware of any actual, threatened or suspected infringement of any party's Intellectual Property Rights (including Background IPR or Created IPR) used in connection with the Collaboration.
5.7 The Collaborator shall indemnify Earth Cubs against all liabilities, costs, expenses, damages and losses suffered or incurred by Earth Cubs arising out of or in connection with any potential or actual claim made against Earth Cubs for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with Earth Cubs’ use in accordance with this agreement of Intellectual Property Rights licensed to it by the Collaborator under clause 5.4.
6. Non-solicitation of employees and customers
Except with the prior written consent of the other party, neither party shall, for a period of 12 months from the date of this letter, directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of that party, any employee of the other party who is employed or engaged in any services which are relevant to the Collaboration.
7. Limitation of liability
7.1 References to liability in this clause include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort, misrepresentation, restitution or otherwise.
7.2 Nothing in this clause shall limit either (a) a party's payment obligations to the other under this agreement (b) the indemnity given under clause 5.7 or (c) a party’s obligations pursuant to Schedule 2 (Data Protection).
7.3 Nothing in this agreement limits any liability that cannot legally be limited, including liability for: 7.3.1 death or personal injury caused by negligence; 7.3.2 fraud or fraudulent misrepresentation; and 7.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title or quiet possession).
7.4 Subject to Clause 7.3, a party's total liability to the other party under or in connection with this agreement shall not exceed the total amount of all Fees payable by the Collaborator under this agreement.
8. Announcements
Neither party shall make, or permit any person to make, any public announcement, communication or circular (announcement) concerning the existence, subject matter or terms of this agreement or the relationship between the parties, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). The parties shall consult together on the timing, contents and manner of release of any announcement.
9. Inadequacy of damages
Without prejudice to any other rights or remedies that either party may have, each party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of clauses 4, 5, 6 or 8 by the other party. Accordingly, the non-defaulting party shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of these clauses.
10. Third party rights
No one other than a party to this letter shall have any right to enforce any of its terms.
11. Governing law and jurisdiction
11.1 This letter, and the negotiations between the parties in connection with the proposed Deal and all disputes or claims (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
11.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this letter or its subject matter or formation.
12. No partnership or agency
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
To be signed by both parties in the Proposal Document.
A description of timeframes, obligations, and fees.
Contained in the Proposal Document.
1. This Schedule sets out the framework for the sharing of Shared Data between the Collaborator and Earth Cubs (the Parties and each a Party) as Data Controllers. It defines the principles and procedures that the Parties shall adhere to and the responsibilities the Parties owe to each other. For the purposes of this Schedule the following defined terms shall have the following meanings (and other terms not defined herein shall have the meaning given in the Data Protection Legislation):
1.1 “Data Protection Legislation”: means (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data
1.2 “EU GDPR”: means the General Data Protection Regulation ((EU) 2016/679).
1.3“UK GDPR”: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
2. Prior to disclosing any Shared Data, the discloser shall inform the Data Subject that they will be providing the Shared Data to the recipient and shall ensure they have a legal basis for doing so.
3. The recipient agrees to only process Shared Data for the purpose(s) of performing its obligations under the Agreement (the “Agreed Purpose”).
4. Each Party agrees to:
4.1 share the Shared Data between them in a secure manner and in accordance with Data Protection Legislation;
4.2 only use the Shared Data for the Agreed Purpose; and
4.3 proactively comply with the Data Protection Legislation in relation to their own processing of the Shared Data.
5. Neither Party shall do or permit anything to be done through any act or omission which would cause the other Party to incur any liability under Data Protection Legislation.
6. Each Party shall be responsible for ensuring that it documents and can demonstrate its own compliance with the Data Protection Legislation, and in particular, any principles set out in the Data Protection Legislation for accountability purposes.
7. The recipient shall not retain or process Shared Data in a form which permits identification of Data Subjects for longer than is necessary to carry out the Agreed Purposes.
8. Notwithstanding paragraph 7, the recipient may continue to retain Shared Data in accordance with any statutory retention periods.
9. Subject to paragraph 8, the recipient shall ensure that any Shared Data is securely deleted in accordance with good industry practice in the following circumstances:
9.1 on termination of the Agreement; and/or
9.2 once processing of the Shared Data is no longer necessary for the Agreed Purposes.
10. Following the deletion of Shared Data, the recipient shall notify the discloser that the Shared Data in question has been deleted, or, if the circumstances set out in paragraph 8 apply, the recipient shall notify the discloser of such circumstances.
11. Having regard to the state of technological development and the cost of implementing such measures, the recipient shall ensure that it and all third-party Data Processors it engages, has in place and maintains appropriate technical and organisational security measures in order to:
11.1 prevent: 11.1.1 unauthorised or unlawful processing of the Shared Data; and 11.1.2 the accidental loss or destruction of, or damage to, the Shared Data;
11.2 ensure a level of security appropriate to: 11.2.1 the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and 11.2.2 the nature of the Shared Data to be protected.
12. In respect of the Shared Data, Collaborator shall notify Earth Cubs immediately and ensure that it provides reasonable and timely assistance, information and cooperation where requested by the Earth Cubs in respect of data protection matters, including;
12.1 if it is contacted or approached in relation to any claim and/or exercise or purported exercise of rights by a Data Subject under the Data Protection Legislation;
12.2 in the event of any investigation or enforcement activity by a Supervisory Authority;
12.3 in the event of any breach of this Schedule and/or any Security Breach; or
12.4 before responding publicly or to a regulator or a third party (provided that such information and/or requests are provided promptly and before any applicable response deadline).
13. When complying with paragraph 12 both Parties agree to take into account any information and/or reasonable requests provided by the other Party.
14. Each Party agrees to indemnify and keep indemnified the other Party against all costs, claims, losses, damages, fines, penalties, loss of or damage to goodwill or reputation, and reasonable and properly incurred expenses (including reasonable legal expenses) arising at any time out of or in connection with any breach of this Schedule by the other Party, its employees, agents and/or sub-contractors.
