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Virtuoso Data Access Agreement: Terms and Conditions

This Agreement is formed and is binding on the Parties on the execution of the Data Access Agreement Details (DAA Details) by the Parties and comprises the DAA Details and these Data Access Agreement Terms and Conditions and includes all attachments and appendices.

Background

A. Cinglevue makes available its Virtuoso platform to schools, school districts, other education institutions and private enterprises (Customers) and the platform’s primary emphasis is on facilitating improved educational outcomes, supporting teachers and students to achieve continual, measurable, and sustainable learning gains.

B. Cinglevue collates, extracts and/or aggregates in a de-identified form data generated by or on behalf of its Customers and their users of or otherwise associated with Virtuoso, including data stored on any Instance, so as to create de-identified research datasets (Research Datasets). The resulting Research Datasets are not and do not contain Personal Information.

C. Cinglevue may disclose the Research Datasets (or any part of them) to suitably qualified researchers in Australia or elsewhere or apply the Research Datasets (or any part of them) to joint research projects between Cinglevue and suitably qualified researchers in Australia or elsewhere, including for commercial purposes.

D. Cinglevue shares Research Datasets strictly in accordance with the consent given by its Customers and their users or their legal guardians and in accordance with its agreements with its Customers and the Cinglevue Privacy Policy.

E. Cinglevue will provide the Recipient with the Research Datasets for the Purpose.

F. The Recipient has agreed to use the Research Datasets on the terms and conditions of this Agreement.

1. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms in full are defined in the DAA Details or below:

Data Access Agreement Details or DAA Details refers to the attached pages preceding these DAA Terms and Conditions under the heading Virtuoso Data Access Agreement: Details;

Data Breach means the unauthorised access, disclosure or loss of Personal Information;

Instance refers to any dedicated instance of Virtuoso as deployed and maintained for use by a Customer and their users, which will be deployed on multi-tenanted physical server infrastructure;

Intellectual Property Rights means patents, rights to apply for patents, trademarks, trade names, service marks, domain names, copyrights and all applications and registrations of such, schematics, industrial designs, inventions, know-how, trade secrets, computer software programs and other intangible proprietary information;

Party means a party to this Agreement, Parties means both parties to this Agreement;

Personal Information has the meaning given to that term in the Privacy Act;

Privacy Act means the Privacy Act 1988 (Cth) including the Australian Privacy Principles;

Privacy Laws means Commonwealth and/or State and/or Territory legislation, principles, codes and guidelines in relation to the collection, use, storage and security or disclosure of any Personal Information, including the Privacy Act 1988 (Cth);

Results has the meaning given to that term in clause 6.3;

Term has the meaning given to that term in clause 6.1; and

Virtuoso means the platform which provides educational organisations with a unified suite of configurable tools, processes, and capabilities that encompasses the entire education lifecycle. Virtuoso incorporates a full complement of administrative features for effectively managing organisational and stakeholder needs, but its primary emphasis is on facilitating improved educational outcomes, supporting teachers and students to achieve continual, measurable, and sustainable learning gains. The platform is informed by research to ensure that it is continually able to meet the current and future needs of modern educational institutions, based on a rigorous and evidence-based foundation. For further information, please visit https://cinglevue.com/virtuoso/.

2. Interpretation

In this agreement, the following rules apply:

(a) headings are for convenience only and do not affect interpretation;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference time is to time in Western Australia, Australia;
(d) a reference to legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(e)  a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; and
(f) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.

3. Use of Research Datasets

3.1 The Recipient may only, and must ensure that all Authorised Collaborators (other than Cinglevue) and Authorised Users will only, use the Research Datasets for the Purpose and only in a de-identified manner. If the Recipient wishes to use the Research Datasets for a purpose other than the Purpose, the Recipient must obtain the Cinglevue’s prior written consent which may be withheld in Cinglevue’s absolute discretion.

3.2 The Recipient must not, and must ensure the Authorised Collaborators (other than Cinglevue) and the Authorised Users must not, use the Research Datasets or any products containing any part of the Research Datasets or resulting from the use of the Research Datasets for any commercial purposes outside that expressly detailed in the Purpose, without the prior written consent of the Cinglevue.

3.3 In relation to the use of the Research Datasets, the Recipient must, and must ensure the Authorised Collaborators (other than Cinglevue) and the Authorised Users will, comply with:

(a) all applicable laws (including, without limitation, any applicable Privacy Laws);
(b) the Cinglevue Privacy Policy and all other Cinglevue policies as notified by Cinglevue from time to time; and
(c) any applicable data standards developed by any of the Commonwealth or State Department(s) of Education;
3.4 The Recipient must not, and must ensure the Authorised Collaborators (other than Cinglevue) and the Authorised Users will not, use the Research Datasets:
(a) for any improper or unlawful purpose;
(b) in a manner that breaches any Privacy Laws;
(c) in a manner that infringes the Intellectual Property Rights of the Cinglevue or any third party; or
(d) in a manner that is likely to cause offence or otherwise have a negative impact on any third party, including any member of Cinglevue.

3.5 The Recipient must not, and must ensure the Authorised Collaborators (other than Cinglevue) and the Authorised Users will not, re-identify or attempt to re-identify any of the Research Dataset such that a user, student, Customer or any individual is identified or could be reasonably identified and, if the Recipient becomes aware of any occurrence or such or any attempt to do so (including by any of the Authorised Users or the Authorised Collaborators), the Recipient must immediately notify Cinglevue by sending an email to: contracts@cinglevue.com.

4. Data Security and Protection

4.1 The Recipient must, and must ensure the Authorised Collaborators (other than Cinglevue) and the Authorised Users will, in additional to requirements under any Privacy Laws, use best practice methods to keep all Research Datasets which are in the possession or control of the Recipient, the Authorised Collaborators (other than Cinglevue) or the Authorised Users secure and protected from unauthorised access, misuse, damage, destruction, unauthorised disclosure or modification.

4.2 Subject to clause 4.3 below, the Recipient must not, and must ensure that all the Authorised Collaborators (other than Cinglevue) and the Authorised Users will not, distribute or release the Research Datasets to any third party and must make sure that no one is allowed to take or send the Research Datasets to any location other than a location under the control of the Recipient without Cinglevue’s prior written permission.

4.3 The Recipient may disclose the Research Datasets to:

(a) those of its employees and contractors who:

(i) have a need to access the Research Datasets for the Purpose;
(ii) are named in the DAA Details; and

who have agreed to use the Research Datasets in accordance with the terms of this Agreement;

(b) an Authorised User in accordance with the terms of this Agreement; and
(c) an Authorised Collaborator on condition that Cinglevue has confirmed in writing to the Recipient that the Authorised Collaborator has executed a Data Access Agreement with Cinglevue which governs the Authorised Collaborator’s use of the Research Datasets for the Purpose.

4.4 The Recipient is responsible for monitoring and ensuring that all Authorised Users comply with the terms of this Agreement and Recipient will be liable for any breaches by the Authorised Users as if they were the breaches of the Recipient.

4.5 The Recipient must immediately notify Cinglevue if any Authorised User ceases to have a legitimate reason to continue to access the Research Datasets under the terms of this Agreement (whether due to cessation or transfer of employment, change of duties or project or any other reason).

4.6 If the Recipient wishes to disclose the Research Datasets to a person or third party who is not an Authorised User or an Authorised Collaborator, the Recipient must obtain Cinglevue’s prior written consent to such disclosure of the Research Datasets.

4.7 In the event that Recipient becomes aware of a Data Breach (or suspected Data Breach) or any other use or disclosure of the Research Datasets that is inconsistent with this Agreement, whether or not caused by or contributed to by the Recipient, the Authorised Collaborators (other than Cinglevue) or the Authorised Users, the Recipient must:

(a) notify Cinglevue immediately by email to: [contracts@cinglevue.com]; and
(b) comply with the procedures set out in the Data Breach Response Plan, as applicable.

4.8 Without limiting the Recipient’s obligation to comply with the procedures set out in the Data Breach Response Plan, the Recipient must cooperate with Cinglevue and provide all reasonable assistance which Cinglevue may request in order to remedy and otherwise manage any Data Breach, whether or not caused by or contributed to by the Recipient (or any Authorised Collaborator or any Authorised User). Cinglevue will have the final determination on whether any such Data Breach is notified to any person, whether under any Privacy Laws or otherwise, and the contents of any such notice.

5. Intellectual Property

5.1 No rights, interest or title in the Intellectual Property Rights in any of the Research Datasets is transferred to the Recipient under this Agreement.

5.2 Cinglevue grants to the Recipient a non-exclusive, non-transferable, royalty-free limited right to use, adapt, reproduce and exploit the Research Datasets for the Purpose on the terms of this Agreement for the Term.

5.3 The Recipient will, as soon as practicable, inform Cinglevue in writing of and make available to Cinglevue any and all findings (including results of potential significance to any research participant) or other information it has derived from the Research Datasets (Results) and of any new Intellectual Property Rights developed from its use of the Research Datasets.

5.4 Cinglevue has the right to use, adapt, reproduce and exploit the Results as part of Virtuoso provided that in any such use, adaptation, reproduction and exploitation the Recipient is attributed.

6. Term and Limitation, Suspension and Termination

6.1 This Agreement will remain in effect from the Commencement Date until such time as the Agreement is terminated in accordance with this clause 6.

6.2 Cinglevue may by written notice limit or suspend the Recipient’s right to access the Research Datasets (or to access a particular Virtuoso data repository) and/or terminate this Agreement with immediate effect, in any of the following circumstances:

(a) where the Recipient is in breach of this Agreement or any Authorised Collaborators (other than Cinglevue) or any Authorised Users do anything that would amount to a breach of the Agreement if done by the Recipient;
(b) if Cinglevue becomes aware that the security of any the Research Datasets or Virtuoso or any Instance has been compromised;
(c) to comply with any legal requirement or any request or direction by a law enforcement agency;
(d) where Cinglevue, acting reasonably, determines that access or use of the Research Datasets should be limited, suspended or terminated for any other reason; or
(e) on [30] days written notice to the Recipient.

6.3 The Recipient may terminate this Agreement at any time on [30] days written notice to Cinglevue.

6.4 In the event of termination of this Agreement, Cinglevue will immediately terminate the Recipient’s access to the Research Datasets and any data repository and the Recipient must follow Cinglevue’s instructions in relation to the destruction or return of any local copies of the Research Datasets in the possession or control of the Recipient or any of the Authorised Collaborators (other than Cinglevue) and the Authorised Users.

6.5 Termination of this Agreement does not affect any accrued rights or remedies which a Party may have or Cinglevue’s rights under clause 5.4 of this Agreement.

7. Liability and Indemnity

7.1 To the extent permitted by law:

(a) Cinglevue gives no guarantee, warranty or representation in relation to the Research Datasets, including in relation to its availability, quality, fitness of purpose or security or in relation to the non-infringement of any third party Intellectual Property Rights. Any warranties or guarantees that may be implied or conferred by statute, custom or the general law are expressly excluded;
(b) the Recipient assumes all liability for damages which may arise from its and the Authorised Collaborators and the Authorised Users’ use, storage or disposal of the Research Datasets (including any decision made, or action taken, in relation to or in reliance upon the Research Datasets);
(c) Cinglevue will not be liable to the Recipient for any loss, claim or demand made by the Recipient or the Authorised Collaborators (other than Cinglevue) or the Authorised Users, or made against the Recipient or the Authorised Collaborators (other than Cinglevue) or the Authorised Users, by any other party, due to or arising from the use of the Research Datasets by the Recipient, the Authorised Collaborators (other than Cinglevue) or the Authorised Users, except when caused by the gross negligence or wilful misconduct of Cinglevue.

7.2 The Recipient agrees to indemnify Cinglevue against any loss, claim or demand that the Cinglevue may sustain or incur in connection with:

(a) a breach by the Recipient, the Authorised Collaborators (other than Cinglevue) or the Authorised Users (for their acts or omissions such that if done by Recipient would be breach) of this Agreement;
(b) any Data Breach which is caused or contributed to by the Recipient, or the Authorised Collaborators (other than Cinglevue) or the Authorised Users;
(c) any unlawful or negligent act or omission of the Recipient, the Authorised Collaborators (other than Cinglevue) or the Authorised Users under this Agreement;
(d) any breach by the Recipient, the Authorised Collaborators (other than Cinglevue) and or the Authorised Users of any third party’s Intellectual Property Rights,

except to the extent (and, in that case, only to the extent) that Cinglevue caused or contributed to such loss, claim or demand.

8. General

8.1 Clauses 1, 2, 5, 6.4, 7 and 8 will survive termination of this Agreement.

8.2 This Agreement may be executed in any number of counterparts. All counterparts will constitute one instrument. The Parties agree that facsimile or email signatures will be accepted as originals.

8.3 This Agreement may not be amended or varied other than with the written agreement of the Recipient and Cinglevue.

8.4 The Recipient must not assign or otherwise transfer any or all of its rights arising out of this agreement without the written consent of Cinglevue.

8.5 This Agreement constitutes the entire agreement between the parties with respect to the Recipient’s access to and use of the Research Datasets.

8.6 These terms are governed by the laws of the State of Western Australia, Australia. The Parties submit to the non-exclusive jurisdiction of its courts.

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