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Virtuoso Research SaaS Agreement: Terms and Conditions

This Agreement is formed and is binding upon execution of the Details by the Parties and comprises the Details, these Terms and Conditions and includes all attachments and appendices.

Background

A. The Research Organisation is a university, research institution, research company or other organisation engaged in education research requiring access to a software application to support a research study involving invited Research Participants.

B. The Parties have agreed for Cinglevue to make its SaaS application available to the Research Organisation, the Research Organisation’s staff and contractors, the Research Participants and their parents/guardians, on the terms of this Agreement.

1. Interpretation

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

Access Credentials means the username, password and any related information that an individual may be prompted by Virtuoso to enter for the purposes of authenticating that individual and granting him/her access to the Instance via the associated User Account or Super User Account;

Additional Charges are charges incurred by the Research Organisation in relation to Change Requests or otherwise as agreed between Cinglevue and the Research Organisation;

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);

Business Day means a weekday that is not a public holiday in the location of the Research Organisation;

Business Hours means the hours of 8:00am to 5:00pm (in the time zone of the Research Organisation) on a Business Day;

Change Request means a written notice given by the Research Organisation to Cinglevue of a desired change to the features and functionality of Virtuoso;

Confidential Information means in the case of the Research Organisation, Research Organisation Data and, in the case of Cinglevue includes:

(a) information relating to Virtuoso;
(b) information relating to the personnel, policies, business, systems and data of Cinglevue; and
(c) information relating to the terms on which the services are to be provided to the Research Organisation pursuant to this Agreement;

Details refers to the attached pages preceding these Terms and Conditions under the heading Virtuoso SaaS Agreement: Details;

Disaster means any unplanned system failure or data corruption that, if not addressed, would result in the loss of critical functionality or data associated with the Instance;

Force Majeure Event means a circumstance beyond the reasonable control of Cinglevue that results in Cinglevue being unable to observe or perform on time an obligation or obligations under this Agreement including:

(a) any faults, defects, incorrect operation or other circumstance affecting or relating to Research Organisation Access Facilities; and
(b) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires, natural disasters, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution, strikes, famines, large-scale epidemics and pandemics.

GST means the ‘GST’ as defined in the GST Law and any other value-added tax, additional tax, penalty, fine, interest or other charge under the GST Law or any similar law;

GST Law has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Immersive Experiences has the meaning given to that term in clause 12.3(a);

Implementation Services Agreement means an agreement executed between Cinglevue and the Research Organisation, separate to this Agreement, relating to services Cinglevue can provide to assist the Research Organisation with aspects of implementation of Virtuoso not provided as part of this Agreement (e.g. Research Organisation Config Activities) with separate charges applying to such services;

Instance refers to the dedicated instance of Virtuoso as deployed and maintained for use by the Research Organisation and the Users, which will be deployed on multi-tenanted physical server infrastructure;

Intellectual Property Rights means patents, rights to apply for patents, trade marks, 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;

Master Config Activities refers to the configuration activities that Cinglevue must undertake in order to prepare an operational Instance that functions in an ‘off-the-shelf’ manner for use by the Research Organisation;

ML has the meaning given to that term in clause 12.1;

ML Recommendations has the meaning given to that term in clause 12.1

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

Permissible Downtime has the meaning given to that term in clause 4.4;

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

Pre-Release Features refers to Virtuoso functionality that is not part of the latest stable release of the Virtuoso software;

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

Research Datasets has the meaning given to that term in clause 13.1;

Research Organisation Access Facilities means the telecommunications networks, systems and any other facilities used or required by or on behalf of the Research Organisation for accessing and making use of Virtuoso, other than the facilities provided by Cinglevue, from time to time under this Agreement including:

(a) desktop and laptop computers;
(b) smartphone and tablet devices;
(c) broadband service or mobile connections and subscriptions enabling access to the internet from devices on the Research Organisation’s local area network; and
(d) routers, switches and cabling at the Research Organisation’s premises;

Research Organisation Config Activities means any configuration activities that are not required for the Instance to function in an ‘off-the-shelf’ manner but that the Research Organisation may nonetheless wish to undertake to prepare the Instance for the Research Organisation’s specific circumstances, including but not limited to:

(a) data migration;
(b) setting up workflows in the ‘business process management system’ feature of Virtuoso;
(c) setting up authorisation and authentication, Access Credentials for Users and/or optional user account management functionality such as social logins, one-time password (OTP), single sign-on (SSO) and self-service user account management; and
(d) integration of Virtuoso functionality with the Research Organisation’s existing or proposed information technology systems such as Active Directory, an attendance system, timetabling system, intranet and/or email system;

Research Organisation Data means data to which Cinglevue is provided access by or collected from the Research Organisation or its Super Users and/or Users for the purpose of providing Virtuoso to the Research Organisation and which may be or include Personal Information;

Research Participant means a research/study participant recruited by the Research Organisation who has a User Account on the Instance (i.e. is a User) and for whom the Charges are paid by the Research Organisation;

Super Users includes any person nominated by the Research Organisation to have access to the Instance with elevated privileges including the ability to manage accounts for Users;

Support Services are the services described in clause 6;

Term has the meaning given to that term in clause 2.1;

Terms of Use means the terms of use set out in Annexure A to this Agreement;

Uptime means the time during Business Hours in a calendar month that the Instance is fully functional in all material aspects, including being connected to the internet and capable of being accessed via a User Interface by Users and Super Users plus any Permissible Downtime, expressed as a percentage of the total Business Hours available in that calendar month;

Users includes any person nominated by the Research Organisation to have access to the Instance, including but not limited to Research Participants, Research Participants’ parents/guardians, the Research Organisation’s staff, contractors and/or technicians;

User Interface means the visual/graphical and/or tactile interface or dashboard through which an individual interacts with Virtuoso, either through:

(a) (a) the web app, which facilitates interactions through a web browser and is accessible from the internet at the Instance URL through a web browser on either a mobile device or desktop/laptop computer; and
(b) (b) one of the Virtuoso mobile apps, which facilitate interactions through a touch-based smartphone or tablet device and can be downloaded from the relevant links provided on the web app;

Virtuoso means the platform which provides research and educational organisations with a unified suite of configurable tools, processes and capabilities. 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/; and

VRL has the meaning given to that term in clause 12.3(a).

2. Term

This Agreement commences on the Commencement Date and will continue until terminated by either Party in accordance with this Agreement (Term).

3. Implementation and go-live

3.1 The Research Organisation must nominate at least one individual as a Super User.

3.2 After the Commencement Date and prior to the Go-Live Date, Cinglevue will:

(a) create an Instance for the Research Organisation;
(b) undertake the Master Config Activities on the Instance; and
(c) subject to clause 5 and the Terms of Use, create user accounts on the Instance for the Super Users nominated pursuant to clause 3.1,

and notify the Research Organisation Representative on completion of such and the Access Credentials for each Super User.

3.3 The Research Organisation will comply with all reasonable requests of Cinglevue associated with the performance of the Master Config Activities.

3.4 Except as provided in a separate Implementation Services Agreement between Cinglevue and the Research Organisation, performance of Research Organisation Config Activities is the sole responsibility of the Research Organisation.

4. Provision of access to the Instance

4.1 Subject to clause 5, Super Users may register individuals as Users by creating a separate user account for each of those individuals on the Instance.

4.2 Subject to clause 5 and the Terms of Use, Cinglevue will provide the Research Organisation, Super Users and Users with access to the Instance for the Term.

4.3 Cinglevue will use its best efforts to ensure Uptime for the Instance meets the Uptime Target.

4.4 From time to time, the Instance may not be accessible or suffer service degradation due to (Permissible Downtime):

(a) scheduled maintenance such as software patches, platform upgrades and configuration changes, which may last up to 120 minutes;
(b) disaster recovery operations in the event of a Disaster, which may last up to 90 minutes; and/or
(c) failures or service degradation of third party systems outside the Virtuoso infrastructure.

4.5 Cinglevue will use its best efforts to schedule maintenance outside of Business Hours and give Super Users notice by email of all scheduled maintenance in advance, notice of the occurrence of a Disaster within a reasonable time of such occurrence and notice of the occurrence of a failure or service degradation of a third party system within a reasonable time after Cinglevue becomes aware of such.

4.6 The Research Organisation acknowledges that it may suffer minor data loss during disaster recovery operations. The Research Organisation, Users and Super Users can avoid data loss during disaster recovery operations by avoiding making changes to or on the Instance data during data recovery operations.

4.7 During the Term Cinglevue may configure and alter its systems, processes, practices and product features associated with Virtuoso at its discretion provided that the substance of Virtuoso and the Support Services is not materially altered from what they are at the Go-Live Date.

5. Use of the Instance by the Customer

5.1 The Research Organisation will use the Instance for the sole purpose of providing the Research Organisation’s staff and contactors and the Research Participants (who are Users or Super Users) with the functionality and tools of a research data collection platform;

5.2 The Research Organisation is solely responsible for the provision and upkeep of its own Research Organisation Access Facilities. The Research Organisation warrants that it will maintain the security of Research Organisation Access Facilities in accordance with accepted industry standards including with respect to:

(a) physical security;
(b) system configuration;
(c) installation of software updates and patches;
(d) identity and authentication management and passwords;
(e) preparedness for cyber-attacks; and
(f) cyber safety considerations and the protection of children.

5.3 The Research Organisation acknowledges that its rights in relation to its use of its own Research Organisation Access Facilities are governed by any contractual arrangements that may exist between the Research Organisation and the providers of those Research Organisation Access Facilities and not by this Agreement.

5.4 The Research Organisation will use its best efforts to prevent all persons, other than Super Users and Users, from accessing the Instance.

5.5 The Research Organisation will:

(a) ensure that all necessary consents from parents/guardians for Research Participants to use and/or be included on the Instance and to collect, use and disclose their Personal Information are obtained;
(b) ensure that only one user account is created per User;
(c) prohibit any Super User or User from sharing their Access Credentials for accessing the Instance;
(d) monitor disk storage used by the Instance and notify the Cinglevue Representative if it believes that the Storage Quota is likely to be exceeded; and
(e) provide and procure agreement to the Terms of Use from all Super Users and Users on the sooner of registration or first access to the Instance.

5.6 The Research Organisation will not make or permit any use of the Instance by any person if:

(a) it is by any person who is not a Super User or User and has not accepted the Terms of Use;
(b) it involves anything false, defamatory, harassing or obscene;
(c) it involves unsolicited electronic messages;
(d) it would involve the contravention of any person’s rights (including intellectual property rights);
(e) it is unlawful; or
(f) it is notified by Cinglevue as unacceptable on reasonable grounds or may otherwise be reasonably regarded by Cinglevue to be unacceptable.

5.7 The Research Organisation will not:

(a) on-sell access to Virtuoso, the Instance or any aspect of the Support Services to any person in whole or part or in any way commercially exploit Virtuoso or the Support Services; or
(b) remove or modify any markings or notices on the Instance of Cinglevue’s rights.

6. Provision of Support Services

6.1 Cinglevue will provide to the Research Organisation via the Super Users the Support Services for the Term in accordance with the Service Level Targets.

Support Services description

6.2 Cinglevue will provide Support Services to the Research Organisation according to the process flow as follows:

The Support Services include:

  • Basic training for Super Users so they know how best to administer the Research Organisation’s instance of Virtuoso.
  • Cinglevue will proactively monitor the health of the Instance through a sophisticated monitoring and alert system and will take corrective measures to support stable operation of the Instance. However, Super Users can report problems relating to the Instance to Cinglevue through the Cinglevue support portal.

6.3 The Super User reporting a problem will specify a Category (as set out below) based on the most suitable Category Definition below.

Service Level Targets for Support Services

6.4 Cinglevue will respond to and use its best efforts to resolve the problem within the applicable Service Response Time from receiving notice of the problem from a Super User, which is a Service Level Target pursuant to this Agreement. These Service Level Targets do not cover problems relating to other than the Instance (e.g. problems relating to Research Organisation Access Facilities).These Service Level Targets cover problems relating to existing functionality (i.e. included in the most recent stable release) of Virtuoso and do not cover problems that can only be solved by adding new functionality to Virtuoso or the Instance.

Level of Impact Category Category Definition Service Response Time
Critical Level 1 The problem is preventing a User who is a senior member of staff from undertaking a critical task. Response within 30 minutes.

Resolution within 4 hours.

High Level 2 The problem is affecting a staff User’s productivity or part of his/her duties. Response within 2 hours.

Resolution within 8 Business Hours.

Low Level 3 The problem is not urgent and is not having an unduly adverse effect on staff Users carrying out their work duties. Incident resolved or escalated within 48 hours.
Normal Level 4 None of the above. Within a timeframe agreed between Cinglevue and the Super User.

New functionality and Change Requests

6.5 Research Organisations may make recommendations for new or additional functionality for Virtuoso.

6.6 Cinglevue will confirm whether such functionality is already in the backlog of new features to be added to Virtuoso as well as the expected timeframe for incorporation of the suggested new or additional functionality.

6.7 If the suggested new or additional functionality is not in Cinglevue’s product backlog for Virtuoso or the Research Organisation requires a faster timeframe for incorporation of the functionality than is planned for by Cinglevue, the Research Organisation may request such specific new or additional functionality by submitting a Change Request to Cinglevue.

6.8 If Cinglevue agrees to a Change Request, the Parties will agree an Additional Charge for Cinglevue to build and implement the additional functionality.

7. Charges

7.1 The Implementation Fee will be paid within 21 days of the issue to the Research Organisation of a tax invoice for such by Cinglevue. Cinglevue may issue its tax invoice for the Implementation Fee to the Research Organisation at any time after execution of this Agreement.

7.2 The Charges will be payable monthly in arrears by the Research Organisation from the Go-Live Date.

7.3 Within 5 Business Days after the end of each calendar month during the Term, Cinglevue will prepare and issue to the Research Organisation a tax invoice for all Charges and any Additional Charges incurred by the Research Organisation for that calendar month.

7.4 Notwithstanding clause 7.2, Cinglevue may at any time issue to the Research Organisation a tax invoice for any Additional Charges incurred by the Research Organisation.

7.5 The Research Organisation will pay Cinglevue the amount of each invoice issued by Cinglevue pursuant to clauses 7.2 or 7.3 (plus the applicable amount of GST as specified on the tax invoice) in accordance with the Payment Instructions and within 7 days of the date of each tax invoice.

8. Privacy

8.1 All Personal Information of Super Users and Users (including Research Participants) will be the responsibility and under the control of the Research Organisation. The Research Organisation will comply with all applicable privacy laws as regards its collection, use and disclosure of Personal Information.

8.2 Cinglevue is subject to and will comply with the Privacy Act and Cinglevue’s Privacy Policy with respect to its collection, storage, use and disclosure of Personal Information.

8.3 Cinglevue may (but is not bound to) make Personal Information, Research Organisation Data and any other information (in any form) relevant to the Research Organisation’s relationship with Cinglevue under this Agreement available to any person who provides reasonable evidence to Cinglevue of their right to this, including a law enforcement officer, a person representing any professional or industry standards organisation and representatives of any person to whom the Research Organisation Data pertains.

8.4 Unless otherwise required by law, Cinglevue will delete Research Organisation Data:

(a) in the case of Personal Information, when it is no longer required for the purpose(s) for which it was collected; and
(b) in all other cases after a period of approximately 6 years commencing on the date that Research Organisation Data was created.

8.5 It is the responsibility of the Research Organisation to download any Research Organisation Data it wishes to retain a copy of. Cinglevue disclaims all liability for Research Organisation Data deleted in accordance with clause 8.4.

9. Confidentiality

9.1 Research Organisation Data that is or comprises Personal Information will be treated by Cinglevue as the Research Organisation’s Confidential Information.

9.2 A Party will not, without the prior written approval of the other Party, disclose the other party’s Confidential Information except:

(a) as required or authorised by law;
(b) to related companies, advisers, contractors, auditors or insurers; or
(c) where the information has become public knowledge other than through the first Party’s act or omission.

10. Pre-Release Features, liability and indemnities

10.1 From time to time the Research Organisation may have the opportunity to trial, use or enable Pre-Release Features on the Instance. Pre-Release Features are offered ‘as is’ and at the Research Organisation’s own risk. The Research Organisation is not obliged to use any Pre-Release Features. To the maximum extent permitted by law, Cinglevue offers no warranties with respect to Pre-Release Features. All inputs, suggestions, recommendations and comments of or by Research Organisation, Super Users and Users on any Pre-Release Features become property of and all Intellectual Property Rights in them vest in Cinglevue on and from creation.

10.2 Cinglevue is not liable to the Research Organisation under this Agreement or otherwise if and to the extent that the Research Organisation’s access to or use of the Instance or of any Support Services is contrary to any existing or future obligations of the Research Organisation, including those owed under contract or any laws.

10.3 The Research Organisation indemnifies Cinglevue against all loss (including costs, expenses, damages and liability, whether actual or prospective) incurred or likely to be incurred as a result of Cinglevue’s collection, holding, use, disclosure or other involvement with Research Organisation Data and any other information (in any form) relevant to the Research Organisation’s relationship with Cinglevue under this Agreement.

10.4 Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this Agreement or protected by law to the extent that such exclusion, restriction or modification would render this Agreement or any provision of this Agreement void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this Agreement or protected by law is excluded.

10.5 The Research Organisation acknowledges and agrees that:

(a) prior to entering into this Agreement it has been given a reasonable opportunity to examine and satisfy itself regarding all goods and services which are the subject of this Agreement and that prior to entering into this Agreement it has availed itself of that opportunity; and
(b) at no time prior to entering into this Agreement has it relied on the skill or judgment of Cinglevue and that it would be unreasonable for the Research Organisation to rely on any such skill or judgment.

10.6 Except in relation to:

(a) liability for personal injury or death;
(b) liability referred to in clauses 10.4 and 11.2; and
(c) liability for Cinglevue’s breach of this Agreement (which the Research Organisation agrees will be limited, for all claims in aggregate, to paying an amount equal to the Charges paid by the Research Organisation applicable to the period in which the first claimed breach occurred),

Cinglevue will be under no liability to the Research Organisation in respect of any loss or damage (including loss of profits, loss of goodwill, loss of data and any special, indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in any way in connection with this Agreement (including in respect of goods or services supplied pursuant to this Agreement).

10.7 Without limiting the following sentence, the Research Organisation warrants that it has not relied on any representation made by Cinglevue which has not been stated expressly in this Agreement or on any descriptions, illustrations or specifications in any way relating to Virtuoso, the Instance and/or the Support Services including brochures, the website or publicity material produced by Cinglevue. The Research Organisation acknowledges that to the extent Cinglevue has made any representation which is not otherwise expressly stated in this Agreement, Research Organisation has been provided with an opportunity to independently verify the accuracy of that representation.

10.8 The Research Organisation will at all times indemnify and hold harmless Cinglevue and its officers, employees, contractors and agents (those indemnified) from and against any loss (including legal costs and expenses and liability) incurred or suffered by any of those indemnified arising from any claims against those indemnified where such loss or liability was caused by a breach by the Research Organisation of its obligations under this Agreement or any wilful, unlawful or negligent act or omission of the Research Organisation.

10.9 In respect of any claim between the Parties under or in connection with this Agreement, the Parties agree that to the maximum extent permitted by law, this Agreement excludes the operation of any laws which would apportion any liability to Cinglevue which would not have been so apportioned but for such laws.

11. Vienna Convention and consumer law

11.1 The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this Agreement (by virtue of any law relevant to this Agreement) is excluded.

11.2 Pursuant to section 64A of the Australian Consumer Law:

(a) this sub-clause applies in respect of any of the goods or services supplied under this Agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this sub-clause will not apply if the Research Organisation establishes that reliance on it would not be fair and reasonable; and
(b) liability for breach of a guarantee conferred by the Australian Consumer Law, other than those conferred by sections 51 to 53 of the Australian Consumer Law, is limited:

(i) in the case of goods, to any one of the following as determined by Cinglevue:

(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired; and

(ii) in the case of services, to any one of the following as determined by Cinglevue:

(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.

12. Special features of Virtuoso

Artificial intelligence

12.1 Virtuoso and the Instance use machine learning algorithms (ML) to analyse data generated from the use of Virtuoso and the Instance. ML allows Virtuoso and the Instance to provide recommendations to Super Users and Users presented via the User Interface (ML Recommendations). The Research Organisation acknowledges that ML Recommendations are:

(a) generated by ML and not by any person;
(b) not checked, moderated or vetted by Cinglevue;
(c) offered ‘as is’ and without warranty; and
(d) used at the Super User’s or User’s own risk.

12.2 To the maximum extent permissible by law, Cinglevue disclaims all liability for damages arising from reliance on ML Recommendations by the Research Organisation, a Super User, User or any other person affiliated with the Research Organisation.

Immersive experiences

12.3 Virtuoso and the Instance include some functionality that allows the Research Organisation, Super Users and Users to:

(a) download three-dimensional models and simulations (Immersive Experiences) as software from the Virtuoso Resource Library accessible via the User Interface (VRL); and/or
(b) develop their own Immersive Experiences using a software development kit (SDK) which can be provided by Cinglevue and, once developed, uploaded as software to the VRL.

12.4 The Research Organisation allows its Super Users and Users to download, use, create and upload Immersive Experiences at the Research Organisation’s own risk. Cinglevue is not responsible for the content of Immersive Experiences downloaded, used, created and/or uploaded in connection with Virtuoso or as developed using the SDK.

12.5 Unless otherwise noted, Immersive Experiences downloaded by Super Users or Users and used in conjunction with Virtuoso are not owned by Cinglevue. Intellectual Property Rights in an Immersive Experience on the VRL may belong to the creator of the Immersive Experience or the creator’s employer. In some cases, this may be the Research Organisation.

12.6 When the Research Organisation or a person on behalf of the Research Organisation uploads an Immersive Experience to the VRL, the Research Organisation:

(a) grants to Cinglevue a perpetual, worldwide, non-exclusive, sub-licensable licence to copy and redistribute the Immersive Experience;
(b) warrants that the Research Organisation is the owner of or has been granted the relevant Intellectual Property Rights in the Immersive Experience; and
(c) indemnifies Cinglevue against any claims for infringement of Intellectual Property Rights in the Immersive Experience against Cinglevue.

13. Pedagogical research and statistical analysis

13.1 The Research Organisation warrants that it will only use the Instance for Research Participants who have agreed to participate, will at all times fully comply with all Privacy Act requirements relating to such research and has sought and obtained all necessary ethics approvals for any research activities it wishes to conduct using or in connection with the Instance.

13.2 Cinglevue may collate, extract and/or aggregate in a de-identified form data generated by Research Organisations, Super Users and Users of or otherwise associated with Virtuoso, including data stored on the Instance, so as to create de-identified research datasets (Research Datasets) provided that the resulting Research Datasets are not and do not contain Personal Information.

13.3 Cinglevue may:

(a) apply the Research Datasets (or any part of them) to its own research projects and initiatives;
(b) disclose the Research Datasets (or any part of them) to suitably qualified researchers in Australia or elsewhere, other than those associated with the Research Organisation, under terms prohibiting them from re-identifying any of the data in the Research Datasets; or
(c) apply the Research Datasets (or any part of them) to joint research projects between Cinglevue and suitably qualified researchers in Australia or elsewhere, other than those associated with the Research Organisation, under terms prohibiting them from re-identifying any of the data in the Research Datasets,

including for commercial purposes.

14. Termination

14.1 When the Research Organisation has concluded the research study for which the Instance was set up, either Party may terminate this Agreement by giving the other Party 15 Business Days’ notice in writing.

14.2 In addition to any other right to terminate in this Agreement, Cinglevue may terminate this Agreement or suspend performance of its obligations under this Agreement immediately by notice to the Research Organisation in writing if:

(a) the Research Organisation is in breach of any term of this Agreement and such breach is not remedied within 7 days of it receiving notice of such breach from Cinglevue;
(b) the Research Organisation becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or
(c) the Research Organisation ceases or threatens to cease conducting its business in the normal manner.

14.3 On termination of this Agreement:

(a) Cinglevue may:

(i) repossess any of its property in the possession, custody or control of the Research Organisation;
(ii) retain any moneys paid by the Research Organisation to Cinglevue; and
(iii) continue to issue tax invoices under clause 7.3;

(b) the Research Organisation’s rights in respect of access to the Instance and receipt of Support services will end; and
(c) if the Research Organisation requests and subject to the Research Organisation having discharged all of its obligations under this Agreement, Cinglevue will, within 1 month after termination or expiry of this Agreement, provide Research Organisation with a file containing the Research Organisation Data.

14.4 Clauses 1, 7, 8, 9, 10, 11, 14, 15, 17 and 18 will survive termination of this Agreement.

15. Force majeure

15.1 Cinglevue will not be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to a Force Majeure Event. If a delay or failure is caused or anticipated due to a Force Majeure Event, Cinglevue’s obligations will be suspended until such time as the Force Majeure Event has ended. If a delay or failure by Cinglevue to perform its obligations due to a Force Majeure Event exceeds 60 days, Cinglevue may immediately terminate the Agreement on providing notice in writing to the Research Organisation.

16. General

16.1 Assignment: The benefit of this Agreement may not be assigned by Research Organisation without Cinglevue’s prior written consent.

16.2 Entire agreement: This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, relating to the subject matter of this Agreement.

16.3 Severability: If any provision of this Agreement is held invalid, unenforceable or illegal for any reasons, the Agreement will remain otherwise in full force apart from such provisions which will be read to the extent reasonably appropriate to remove the invalidity, unenforceability or illegality.

16.4 Subcontracting: Cinglevue may subcontract its obligations under this Agreement to third Parties.

16.5 Variation: The provisions of this Agreement will not be varied, except by agreement in writing signed by both Parties.

16.6 Waiver: No right under this Agreement will be deemed to be waived except by notice in writing signed by each party. A waiver by Cinglevue will not prejudice its rights in respect of any subsequent breach of the Agreement by Research Organisation. Any failure by Cinglevue to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by Cinglevue to Research Organisation, will not be construed as a waiver of Cinglevue’s rights under this Agreement.

16.7 Execution: This Agreement may be executed in counterparts by the Parties, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and same agreement, provided that this Agreement will have no force or effect until the counterparts are exchanged between the Parties.

17. Governing law and disputes

17.1 This Agreement is governed by the laws of the State of Western Australia.

17.2 Subject to clause 17.3, the Parties submit to the jurisdiction of the courts of Western Australia including courts of appeal.

17.3 Any dispute arising between the Parties in connection with this Agreement that cannot be settled by negotiation between the Parties within 21 days may only be submitted (by either Party) to arbitration at the Australian Centre for International Commercial Arbitration in accordance with its ACICA Rules 2016.

17.4 Nothing in this clause will prevent a Party from seeking urgent equitable relief before an appropriate court.

18. Notices

18.1 Notices under this Agreement may be delivered by hand, by mail, by email to the relevant Party’s Address for Notices.

18.2 Notice will be deemed given:

(a) in the case of hand delivery, on written acknowledgement by an officer or other duly authorised employee, agent or representative of the receiving Party;
(b) in the case of posting, three days after despatch; and
(c) in the case of email, at the time of receipt of the email, specifically when that email enters the receiving party’s information systems.

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