TERMS & CONDITIONS
COLLABORATION AGREEMENT
INTRODUCTION
The Collaborator has access to and/or responsibility for individuals who may be suitable for and interested in participating in Noise Solution's music mentoring programs and is willing to fund such participation.
Noise Solution wishes to be introduced to such individuals and is willing to provide such music mentoring programs on the terms set out in this agreement.
AGREED TERMS
Definitions and interpretation
Definitions
In this agreement, where the context so admits, the following words and expressions shall have the following meanings:
"Confidential Information" i.means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this agreement), including all information relating to that other's business, operations, systems, processes, products, trade secrets, know-how, contracts, finances, plans, strategies or current, former or prospective clients, Participants, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which:
b.is available to the public other than because of any breach of this agreement;
c.is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;
d.is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or
e.is trivial or obvious.
f. Noise Solution's Confidential Information includes the terms of this agreement;
"Data Protection Legislation" means all applicable legislation for the time being in force pertaining to data protection, data privacy, data retention and/or data security (including the General Data Protection Regulation 2016/679 ("GDPR") and the Privacy and Electronic Communication Directive (Directive 2002/58/EC) and national legislation implementing or supplementing such legislation in the United Kingdom, including the Data Protection Act 2018 ("DPA 2018"), and any applicable member state of the European Union);
"Intellectual Property Rights" means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);
"Introduction" means the provision by the Collaborator to Noise Solution (in such format as Noise Solution may reasonably specify) of the details of a prospective Participant who is willing to be introduced to Noise Solution for the purposes of participation in a Program;
"Introduce", "Introduces" and "Introduced" shall be interpreted accordingly;
"Participant" means an individual referred to Noise Solution by the Collaborator to participate in a Program;
"Program" means a music mentoring program tailored for the Participant as set out in an agreed Program Scope;
"Program Scope" means a document substantially in the form set out in Schedule 2 setting out the agreed scope and fees in relation to a Program and signed by authorised representatives of each party;
"Safeguarding Policy" means Noise Solution's Safeguarding Policy, as amended by Noise Solution from time to time in its sole discretion. Page of 4 17
Interpretation
In this agreement (including the introduction and schedules) unless the context otherwise requires:
• reference to a person includes a legal person (such as a limited company) as well as a natural person;
• reference to this agreement includes any schedules and appendices and other documents attached to it or incorporated by reference into it (all as amended, added to or replaced from time to time);
• clause headings are for convenience only and shall not a ffect the construction of this agreement;
• reference to "including" or any similar terms in this agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words; and
• reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation.
Participant introductions
During the term of this agreement, the Collaborator shall use reasonable endeavours to identify prospective Participants for a Program, who satisfy any eligibility or qualification criteria notified by Noise Solution to the Collaborator from time to time, and introduce them to Noise Solution by way of Introductions (for Noise Solution to accept or decline as Participants in Noise Solution's absolute discretion),
If Noise Solution considers that any prospective Participant referred to it by the Collaborator pursuant to the above clause is appropriate for a Program, the parties shall work together in good faith to agree an appropriate scope and fees for a Program for such prospective Participant in a Program Scope.
Noise Solution responsibilities
Noise Solution shall at all times during the term of this agreement comply with its Safeguarding Policy.
Noise Solution shall use all reasonable endeavours to:
• provide all agreed Programs in accordance with the relevant Program Scope including the provision of access to and use of Noise Solution's participant community programme to the Participant, and to Participant's selected stakeholders;
• supply to the Collaborator such literature and other documentation and information and as Noise Solution may, from time to time, deem reasonable for the purposes of supporting the promoting of Noise Solution and the Programs; and
• inform the Collaborator within a reasonable time if any prospective Participant introduced to it by the Collaborator will not be accepted as a Participant by Noise Solution, and of any reason for such non-acceptance (without prejudice to Noise Solution's absolute discretion).
Safeguarding
Noise Solution takes it’s safeguarding responsibilities seriously, and expects the collaborator to co-operate at every stage of concern. When a safeguarding case is flagged, Noise Solution will initiate contact with the collaborator immediately, through the session reporting process and via a phone call if necessary.
Any concerns or incidents should be promptly reported to the designated safeguarding lead (DSL) at Noise Solution CIC. Likewise, we will inform the collaborator’s DSL should a report be made. This ensures a swift response and appropriate action.
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We agree to work collaboratively, ensuring open lines of communication between the collaborator’s safeguarding lead and Noise Solution CIC's safeguarding team, to coordinate actions and responses effectively.
All communications should maintain strict confidentiality, sharing information only with authorised personnel on a need-to-know basis. Noise Solution holds all information securely on any element of concern and or actual referral to child protection services, and agrees to collaborate fully with any investigation where required.
Collaborator responsibilities
The Collaborator shall:
• procure that each Participant signs up to Noise Solution's then current Participant Terms before the commencement of the relevant Program. The Collaborator acknowledges that Noise Solution shall not be obliged to provide a Program for any Participant who has not agreed to the Participant Terms.
• at all times, exhibit positive conduct in all references it makes to Noise Solution and any Program and act conscientiously and in good faith in its dealings with Noise Solution. Without limiting the generality of the foregoing, the Collaborator shall at all times during the term of this agreement:
• act with due care in its relations with potential Participants (including as to assessing their appropriateness for a Program); and
• if the Collaborator receives any expression of interest from a third party for a similar referral arrangement, promptly notify Noise Solution;
• provide all such information in relation to the performance of Collaborator's obligations under this agreement as Noise Solution may reasonably request from time to time; and
• ensure that Noise Solution is informed promptly of anything of which the Collaborator becomes aware that may have an adverse impact on the ability of the Collaborator to fulfil its obligations under this agreement.
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Fees, invoicing and payment
Noise Solution shall invoice the Collaborator for and the Collaborator shall pay Noise Solution all fees as set out in each Program Scope. The Collaborator acknowledges and accepts that Noise Solution may incur costs in relation to the organisation and administration of Programs and agrees that it shall be responsible for the fees set out in any agreed Program Scope irrespective of attendance of the Participant in accordance with the Program Scope.
A minimum charge will apply, subject to the delivery of services provided. This scale covers costs incurred by Noise Solution prior to commencement of the Program Scope. The scale is outlined below:
% of sessions completed
0%
0% - 49%
50% - 100%
Minimum charge applied
3 hours of delivery time
50% of Program Scope
Full charge
Unless otherwise expressly provided in this agreement, all amounts referred to in this agreement are exclusive of value added tax ("VAT") which, where chargeable by Noise Solution, shall be payable by the Collaborator at the rate and in the manner prescribed by law.
Unless otherwise agreed in writing between the parties, the Collaborator must pay each valid and proper VAT invoice within 30 days of the date on which the Collaborator receives it ("Due Date").
Noise Solution may charge interest on all sums outstanding beyond the Due Date of the relevant invoice. Such interest shall be charged from the Due Date until the date of payment (including after any judgment has been obtained) at the rate of 2% per annum above the base lending rate of the Bank of England for the time being.
Warranties
Each party represents and warrants that:
• it has the right to enter into this agreement and its entering into, and the performance of its obligations under, this agreement do not and will not conflict with, or result in the breach of, any agreement or understanding with any third party to which it is party, and no such agreement interferes or will interfere with its performance of its obligations under this agreement;
• it will duly perform its duties under this agreement, with all due care, skill and diligence; and
• in the performance of its obligations under this agreement, it shall comply with all applicable laws, regulatory requirements, mandatory standards and codes of practice of any competent authority for the time being in force.
In the event of any breach of any of the representations and warranties set out in the Warranties clause above, in addition to any other right or remedy available to Noise Solution under this agreement or otherwise, the Collaborator agrees promptly to take (at no additional cost or expense to Noise Solution) whatever action is necessary to remedy such breach, time being of the essence.
Intellectual Property Rights
Nothing in this agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.
The Referring Party hereby grants Noise Solution a non-exclusive, royalty free, worldwide, revocable licence to use its name and logos (including its registered and unregistered trade marks) ("Licensed Rights") in relation to Noise Solution's reporting and promotion of its music mentoring programs. The Referring Party may revoke this licence on written notice to Noise Solution, following which Noise Solution will endeavour to remove the relevant Licensed Rights from its website and other online/editable materials within thirty (30) days of receiving such notice.
Exclusions and limitations
Neither party's liability:
• for death or personal injury caused by its negligence;
• for fraudulent misrepresentation or for any other fraudulent act or omission;
• under any express indemnity contained in this agreement;
• any breach of the Collaborator's obligations under this agreement; or
• for any other liability which may not lawfully be excluded or limited,
• is excluded or limited by this agreement, even if any other term of this agreement would otherwise suggest that this might be the case.
Subject to exclusions and limitations, neither party shall be liable for any loss of profit, loss of business or contracts, lost production or operation time, loss of or corruption to data, loss of goodwill or anticipated savings, or any indirect, consequential or special loss, in each case however arising (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise), whether or not such loss was foreseeable or if the party which would otherwise be liable for such loss was advised of its possibility (and, for the purposes of this clause, the term "loss" includes a partial loss or reduction in value as well as a complete or total loss).
Subject to these clauses, each party's total liability arising out of or relating to this agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited, in aggregate for all claims arising, to 150% of the total of all amounts payable (whether or not yet paid) by the Collaborator under this agreement in the first 12-month period from the Effective Date. The total liability of each party for any specific event will not exceed the total aggregate liability for that party, as calculated above, less any sums payable for previous events giving rise to liability
on the part of such party that have occurred prior to the date of the specific event.
Confidentiality
Each party shall:
• keep confidential all Confidential Information of the other party which it receives in connection with this agreement;
• apply to it no lesser security measures and degree of care than those which it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting its own confidential information;
• only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this agreement;
• not disclose such Confidential Information to any third party (other than its professional advisers, officers, employees, agents, contractors and subcontractors on a 'need to know' basis as strictly required for the purposes of this agreement and subject to each such person being bound by an obligation of confidentiality equivalent to this clause); and
• promptly, upon request and, in any event, upon termination of this agreement (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying or recording any such Confidential Information in its possession or control and, if requested by the other party, certify in writing that it has done so.
Either party may disclose the other's Confidential Information to the extent required by law or by any court, tribunal, regulator or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement). Either party may disclose that the Collaborator has been appointed as an authorised agent of Noise Solution.
Either party may disclose that the Collaborator has been appointed to introduce prospective Participants to Noise Solution.
Data protection
For the purposes of this clause:
• "controller", "processor", "personal data", "process/processing", and "supervisory authority/authority" shall have the meaning as set out in the applicable Data Protection Legislation; and
• "Personal Data" means personal data (as defined in the applicable Data Protection Legislation) which is provided by a party to the other party (directly or indirectly), or accessed, stored or otherwise processed under or in connection with this Agreement.
Each party shall, in its capacity as a controller of the Personal Data:
• at all times during the term of this agreement, comply with all applicable Data Protection Legislation in respect of any Personal Data;
• provide reasonably necessary assistance to allow the other party to comply with any data subject requests (whether in relation to access to Personal Data, rectification, restrictions on processing, erasure or portability) insofar as possible;
• provide reasonably necessary assistance to allow the other party to comply with any other queries or complaints from a supervisory authority (as defined in Data Protection Legislation) insofar as possible;
• promptly notify the other party of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed pursuant to this agreement ("Security Incident"); and
• provide reasonably necessary assistance to enable the other party to notify insofar as possible:
• the relevant supervisory authority, promptly and in any event no later than 72 hours after relevant controller becomes aware of a Security Incident; and
• the relevant data subjects without undue delay (where required) of a Security Incident.
The Collaborator shall have taken all necessary actions so as to ensure that the Collaborator can provide Personal Data to Noise Solution in compliance with applicable Data Protection Legislation.
Termination
Either party may terminate this agreement immediately by giving the other written notice if:
• the other materially breaches any term of this agreement and it is not possible to remedy that breach;
• the other materially breaches any term of this agreement and it is possible to remedy that breach, but the other fails to do so within 30 days of being requested in writing to do so;
• the other becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so; or
• the other is delayed in performing its obligations under this agreement under clause 14 for a period of 30 days or more.
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For the purposes of this clause, in order for it to be possible to remedy a breach it must be possible to take steps so as to put the other party into the same position which (save as to the date) it would have been in if the breach had never occurred.
Noise Solution may terminate this agreement immediately by giving the Collaborator written notice if:
• the Collaborator is in persistent or repeated breach of any of its obligations under this agreement (whether or not it is the same obligation that is breached and whether or not such breaches are remedied);
• the Collaborator breaches any of its obligations under this agreement;
• the Collaborator has done or omitted to do anything that, in the reasonable opinion of Noise Solution, harms or may harm the name, reputation or business of Noise Solution; or
• required due to a change in the rules or requirements of any regulator, in which case Noise Solution shall give the Collaborator such period of notice as may be reasonably practicable in the circumstances.
Consequences of termination
Termination of this agreement for any reason will not affect:
• any accrued rights or liabilities which either party may have by the time termination takes effect; or
• the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after termination. Without prejudice to the foregoing, some clauses shall survive termination of this agreement where this is just and proportionate.
Force majeure
Neither party will be liable to the other for any failure or delay in performing its obligations under this agreement which arises because of any circumstances which it cannot reasonably be expected to control (including any fire, flood, earthquake, elements of nature or acts of God, acts of war (whether or not war is declared), terrorism, riots, civil disorders, rebellions or revolutions, strikes, lock outs or other form of industrial action all occurring in the place from where the obligations of the party whose performance is affected are performed provided that it:
• notifies the other in writing as soon as reasonably practicable about the nature and extent of the circumstances and likely effects;
• uses all reasonable efforts to mitigate the effects of the circumstances so as to minimise or avoid any adverse impact on the other;
• uses all reasonable efforts to resume performance as soon as reasonably practicable; and
• could not have avoided the effects of the circumstances by taking steps that it ought reasonably to have taken in light of the matters known to it before the circumstances arose.
General
Noise Solution may sub-license, sub-contract, delegate or assign any or all of its rights or obligations under this agreement, without the Collaborator's consent, provided it notifies the Collaborator in writing if it does so.
All notices and consents relating to this agreement must be in writing (including email). Notices must be sent to the address of the recipient set out in this agreement or otherwise notified by the relevant party in accordance with this agreement. Notices shall be sent by email or by hand or by first class recorded delivery or registered post or other form of certified or registered mail (and sent by air mail if posted to or from a place outside the United Kingdom) and shall be treated as having been delivered:
• if sent by email or other electronic communication, at the time of transmission if sent during normal business hours (that is 9.30 to 17.30 local time) in the place from which it was sent to and if not sent during such normal business hours at the beginning of the next business day in the place from which it was sent;
• if sent by hand, when delivered; and
• if sent by registered mail, two days after the date of posting (or, if sent by air mail, seven days after the date of posting).
Unless the parties expressly agree otherwise in writing: if a party:
• fails to exercise or delays exercising or only exercises partially any right or remedy provided under this agreement or by law; or
• agrees not to exercise or to delay exercising any right or remedy provided under this agreement or by law, then that party shall not be deemed to have waived and shall not be precluded or restricted from further exercising that or any other right or remedy; and no right, power or remedy under this agreement or otherwise available to a party is exclusive of any other right, power or remedy under this agreement or otherwise available to that party.
If any provision of this agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this agreement or this agreement as a whole. If any provision of this agreement is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it effective and enforceable.
All variations to this agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.
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Except to the extent that this agreement expressly provides otherwise, nothing in this agreement shall or is intended to create a partnership or joint venture between the parties, or give either party authority to make or enter into commitments, assume liabilities or pledge credit on behalf of the other party. Neither party may act as if it has, or represent (expressly or by implying it) that it has, such authority.
Except as expressly set out in this agreement, a person who is not a party to this agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
This agreement may be entered into in any number of counterparts all of which, taken together, shall constitute one and the same instrument. Either party may enter into this agreement by signing any such counterpart. This agreement sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it, and supersedes all previous agreements between the parties relating to such subjects. Provided always that nothing in this clause will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, no other representations or terms shall apply or form part of this agreement. Each party acknowledges that it has not been influenced to enter this agreement by, and shall have no right or remedy (other than for breach of contract) in respect of, anything the other party has said or done or committed to do, except as expressly recorded in this agreement. This agreement is governed by English law. The parties submit to the exclusive jurisdiction of the English courts in relation to any dispute or difference between the parties arising out of or in connection with this agreement, its interpretation or subject-matter.