Data Usage Terms
Date: 23rd August, 2017
Terms and Conditions
The National Disability Insurance Scheme Launch Transition Agency trading as National Disability Insurance Agency ABN 25 617 475 104 (Agency) is an independent statutory agency whose function is to implement the National Disability Insurance Scheme (NDIS). As part of this function, the Agency works with service providers to ensure NDIS participants and people with disability have access to disability support services.
The Agency has engaged HealthConsult Pty Ltd ACN 118 337 821 trading as AbleInsight (AbleInsight) to conduct the benchmarking survey for disability service providers (Benchmarking Survey).
The term ‘you’ or ‘the Contributor’ refers to the person accessing or completing the Benchmarking Survey, or the company or organisation on whose behalf that person accesses or completes the Benchmarking Survey.
These Data Usage Terms apply to your completion of the Benchmarking Survey and, accordingly, should be carefully reviewed by you prior to accepting them or completing the Benchmarking Survey.
These Data Usage Terms form a legally binding agreement between AbleInsight, the Agency and you. If you do not agree to these Data Usage Terms, you must immediately exit and not access the Benchmarking Survey. AbleInsight and the Agency reserve the right to modify, alter or otherwise update these Data Usage Terms at any time. Should these Data Usage Terms be modified or otherwise updated, notice(s) of the changes will be prominently posted on the Benchmarking Survey website.
1. Participating in the Benchmarking Survey
1.1 You agree to participate in the Benchmarking Survey and supply information and responses (Survey Data) to AbleInsight in accordance with these Data Usage Terms. You agree to fully cooperate with AbleInsight to verify the accuracy of the information supplied.
1.2 You may withdraw from participating in the Benchmarking Survey at any time by giving two days’ notice in writing to AbleInsight.
1.3 You acknowledge that if you do not submit a completed survey, then you will receive an incomplete Provider Report (as defined in clause 2.1.2(a)).
1.4 You will not be paid for, and you will bear your own costs of, participating in the Benchmarking Survey.
2. Use of data provided
2.1 Outputs from Benchmarking Survey
2.1.1 AbleInsight will collect and hold your Survey Data and is solely responsible for the use, management and control of the Survey Data in its possession or control. AbleInsight will ensure that your Survey Data is secure at all times.
2.1.2 You acknowledge and agree that the Survey Data submitted to AbleInsight may be used:
(a) to develop, publish and provide you with a customised report of the Survey Data showing your position or performance on key metrics relative to the performance of comparable other contributors to the Benchmarking Survey (Provider Report);
(b) to develop, publish and distribute a public report, supported by presentation materials, that includes high-level aggregate results of the Benchmarking Survey (Summary Report);
(c) to produce and provide to the Agency a De-identified Aggregate Data Report (De-identified Aggregate Report); and
(d) for research purposes from time to time, provided that AbleInsight seeks your prior consent to disclosure for such purposes.
2.1.3 AbleInsight will produce a register that contains details of all the De-identified Aggregate Reports produced for the Agency and any other party (Reports Register), and will provide a current copy of the Reports Register to each meeting of the Expert Advisory Group that is overseeing the design and conduct of the Benchmarking Survey.
2.1.4 The Survey Data will solely be used for the purposes specified in clause 2.1.2, except with your prior written consent, and will not be disclosed to any person or organisation other than as permitted under these terms.
2.1.5 You acknowledge and agree that should you withdraw from participating in the Benchmarking Survey (in accordance with clause 1.2) any Survey Data you have provided to AbleInsight prior to your withdrawal will:
(a) be removed from the Survey Database and all copies held by AbleInsight destroyed, so long as the data has not been used in preparing any publicly released Summary Reports; and
(b) be retained in the Survey Database if the data has been used to prepare publicly released Summary Reports, and only further used in the preparation of other Summary Reports that involve longitudinal analysis that include the years in which you provided data.
2.2 Disclosure of Survey Data
You acknowledge that:
2.2.1 any information or data provided to you in respect of any other contributors to the Benchmarking Survey will be De-identified Aggregate Reports;
2.2.2 AbleInsight may disclose (in whole or in part) Survey Data as described in these Data Usage Terms, if you provide your prior written consent to such disclosure or if such disclosure is required by Law;
2.2.3 nothing in these Data Usage Terms restricts or limits the Agency’s obligations at Law in relation to the Survey Data and De-identified Aggregate Reports; and
2.2.4 the De-identified Aggregate Reports may also be shared with the Department of Social Services in its regulatory role, or with any future regulator that may be established by the Commonwealth.
2.3 Change in Survey Manager
You acknowledge and agree that the Agency may change the Benchmarking Survey manager from time to time. The Agency will notify you of any change in the Benchmarking Survey manager as soon as practicable.
3.1 You must keep confidential, and maintain proper and secure custody of, all Confidential Information of the AbleInsight or the Agency except for disclosures permitted under clause 3.2 and, in the case of the Agency, clause 3.3, and must use and reproduce Confidential Information only to exercise your rights and perform your obligations under these Data Usage Terms.
3.2 You may disclose Confidential Information to your employees, officers, agents, consultants, contractors, sub-contractors, auditors, advisors and other personnel (Personnel) on a 'need to know' basis, provided that, before disclosure, those persons are directed to retain the confidentiality of the information.
3.3 You consent to the Agency at any time using and disclosing your Confidential Information as may be required to satisfy the requirements of parliamentary accountability, pursuant to policies of the government or any Commonwealth department or agency.
3.4 You must immediately, on request or on expiry or termination of these Data Usage Terms, return all Confidential Information of AbleInsight or the Agency to AbleInsight or the Agency (as the case may be) except the Survey Data retained in the Survey Database in accordance with clause 2.1.5(b).
3.5 The obligations in this clause 3 do not apply to any Confidential Information which:
3.5.1 you are required by Law to disclose;
3.5.2 at the time of its first disclosure under these Data Usage Terms, was already in the public domain or, after disclosure under these Data Usage Terms, comes into the public domain other than by disclosure in breach of these Data Usage Terms; or
3.5.3 was already lawfully in your possession or knowledge without restriction prior to its disclosure under these Data Usage Terms.
You agree to be bound by the Australian Privacy Principles set out in Schedule 1 of the Privacy Act 1988 (Cth) and any applicable Code of Practice (as defined in, and approved under, the Privacy Act 1988 (Cth)) (Principles) with respect to any act done or practice engaged in by you for the purposes of these Data Usage Terms in the same way and to the same extent as AbleInsight and the Agency would have been bound by the Principles in respect of that act or practice had it been directly done or engaged in by AbleInsight or the Agency.
5. Intellectual Property Rights
5.1 All Intellectual Property Rights in the Survey Data will be owned by the Contributor.
5.2 You agree that the Agency is, and will at all times remain, the legal and beneficial owner of all rights, title and interest in the Provider Reports, the Summary Reports and the De-identified Aggregate Reports (Reports) (other than the Survey Data) created or developed under these Data Usage Terms and all Intellectual Property Rights created as a result of any development, modification or adaptation of the Reports (Developed IP).
5.3 The Agency grants to you a non-exclusive, revocable, worldwide and royalty free licence for you to use the Developed IP in the Provider Reports.
5.4 You grant to the Agency a perpetual, non-exclusive, irrevocable, worldwide, transferable and royalty-free licence for the Agency to use, copy, modify, adapt, reproduce and publish the De-identified Aggregate Reports for its internal business purposes including a right to sub-license to Commonwealth departments or agencies to use the De-identified Aggregate Reports for their internal business purposes.
5.5 You grant to AbleInsight a perpetual, non-exclusive, irrevocable, worldwide and royalty free licence to use, copy, modify, adapt, reproduce, create and publish the Survey Data to the extent necessary to allow AbleInsight to create, publish and distribute the Reports.
6. Limitation of Liability
6.1 You agree that to the extent permitted by Law, neither AbleInsight, the Agency nor their Personnel will be liable to you for any Claims for any loss or damage however caused whether based in tort, contract or otherwise (Loss) in connection with or arising out of your participation in the Benchmarking Survey, the provision of the Survey Data or the performance of these Data Usage Terms.
6.2 AbleInsight and the Agency do not accept any liability or responsibility for any Loss arising out of your use of or reliance on the information or advice contained in the Reports. The information provided in each Report is provided on the basis that you will be responsible for assessing the relevance, suitability, completeness and accuracy of its content.
7. Dispute Resolution
7.1 If you claim that a dispute in relation to these Data Usage Terms (Dispute) has arisen, you must promptly give AbleInsight and the Agency a written notice setting out details about the Dispute (Dispute Notice).
7.2 Subject to clause 7.4, the parties must attempt to resolve all Disputes under this clause before starting any court proceedings, other than court proceedings for interlocutory relief.
7.3 Within one month of the Dispute Notice date, the parties' representatives must attempt to resolve the Dispute by negotiation in good faith. If a Dispute cannot be resolved, AbleInsight may elect, within one month of the Dispute Notice date, to refer the Dispute for attempted resolution by mediation administered by the Australian Disputes Centre (ADC) according to its mediation guidelines. Each party will pay its own costs of the mediation and the cost of ADC and the appointed mediator will be shared equally between the parties.
7.4 If a Dispute remains unresolved three months after the Dispute Notice date, any party may commence court proceedings in relation to the Dispute.
8. Termination and effect of Termination
8.1 AbleInsight will give you written notice of termination of the Benchmarking Survey and these Data Usage Terms.
8.2 You acknowledge that, subject to clause 2.1.5(a), any Reports already published and any De-identified Aggregate Data supplied under these Data Usage Terms will not be destroyed or deleted and will survive termination of these Data Usage Terms.
8.3 Neither AbleInsight nor the Agency will be liable to you for any costs in connection with termination (including any Loss or Consequential Loss incurred or suffered by you).
9.1 These Data Usage Terms contain the entire understanding between the parties as to the subject matter contained in them. A right relating to these Data Usage Terms may only be waived by a written notice signed by the party waiving the right. A single or partial exercise or waiver of a right relating to these Data Usage Terms does not prevent any other exercise of that right or the exercise of any other right.
9.2 AbleInsight and the Contributor must not assign, novate or otherwise transfer or encumber any of their rights or obligations under these Data Usage Terms without the prior consent of the Agency, which must not be unreasonably withheld. The Agency may assign, novate or otherwise transfer or encumber any of its rights or obligations under these Data Usage Terms without the consent of AbleInsight or the Contributor. AbleInsight and the Contributor must execute such documents and do such things as the Agency may reasonably require to give effect to any such assignment, novation or transfer by the Agency.
9.3 No party has the power to obligate or bind any other party. Nothing in these Data Usage Terms is to be construed or deemed to constitute a partnership, joint venture or employee, employer or representative relationship between any of the parties. Nothing in these Data Usage Terms is to be deemed to authorise or empower AbleInsight or the Contributor to act as an agent of the Agency.
9.4 The rights and remedies conferred on a party by these Data Usage Terms are in addition to all other rights and remedies of that party.
9.5 The following provisions of these Data Usage Terms survive the termination or expiry and may be enforced at any time: clauses 2.4, 3, 4, 5, 6, 7, 9.1 and this clause 9.5 and any other provision which is stated, or by its context is required, to survive termination.
9.6 These Data Usage Terms are governed by, and are to be construed under, the laws of Victoria.
10. Notices and Questions
All notices or any questions about these Data Usage Terms are to be directed in writing to Joe Scuteri, Managing Director, AbleInsight, Level 3 86 Liverpool St Sydney NSW 2000, phone 02 9264 6050 or by email at email@example.com.
In these Data Usage Terms, unless otherwise indicated:
Claim includes actions, proceedings, suits, causes of action, arbitrations, verdicts and judgments either at law (including negligence) or in equity or arising under a statute, debts, dues, demands, claims of any nature, costs and expenses.
Confidential Information means all information and data in any form, which are disclosed by or on behalf of a party under these Data Usage Terms, or of which a party becomes aware or acquires in connection with these Data Usage Terms, all information and data about or relating to a party or its business, operations or strategies and all information or data marked by or on behalf of a party as confidential.
Consequential Loss means any loss or damage which does not naturally or directly result in the ordinary course of events from the breach, action or inaction in question, whether or not a party has been advised of or is aware of that loss or damage, including any loss of revenue, profit, data, opportunity, business, contracts, goodwill or future reputation, any failure to realise anticipated savings, any downtime costs, any damage to credit rating and any penalties payable under contracts other than these Data Usage Terms.
De-identified Aggregate Reports means reports constructed from the Survey Data in such a way as to not directly identify the Contributors whose data has been used to prepare the report, and to ensure that there is no reasonable prospect of Contributors being re-identified by the Agency or any other party. in accordance with the De-identification of Data and Information Policy issued by the Office of the Australian Information Commissioner see https://www.oaic.gov.au/information-policy/information-policy-resources/information-policy-agency-resource-1-de-identification-of-data-and-information.
Expert Advisory Group means a group, established by the Benchmarking Survey manager (AbleInsight) to provide advice on the design and conduct of the Benchmarking Survey. Membership of the Expert Advisory Group will include, but not be limited to, representatives of the Agency, National Disability Services and Mental Health Australia.
Intellectual Property Rights means all and any patents, patent applications, trademarks, service marks, trade names, domain names, registered designs, unregistered design rights, copyrights, know how, trade secrets and rights in confidential information, URLs and all and any other intellectual property rights, whether registered or unregistered, and including all applications and rights to apply for any of the same.
Law includes any law in force applying to the Survey Data, Provider Reports, Summary Reports, De-Identified Aggregate Reports or these Data Usage Terms, including the common law and equity.
User Guide means the guide to completing the Benchmarking Survey that is issued with the Benchmarking Survey and sets out the minimum requirements for returning a Completed Survey.
12.1 In these Data Usage Terms, a reference to (i) a person includes a firm, partnership, joint venture, association, corporation or other corporate body and any government agency; (ii) a person includes the legal personal representatives, successors and permitted assigns of that person; (iii) any body which no longer exists or has been reconstituted, renamed, replaced or whose powers or functions have been removed or transferred to another body or agency, is a reference to the body which most closely serves the purposes or objects of the first-mentioned body; (iv) a reference to this or other document includes the document as varied or replaced regardless of any change in the identity of the parties; (v) a reference to a statute, code or other Law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; (vi) a reference to the singular includes the plural and vice versa; (vi) headings and sub-headings are inserted for convenience only and do not affect the interpretation of these Data Usage Terms; and (vii) the words including or includes mean 'including but not limited to' or 'including without limitation'.
12.2 If a provision in these Data Usage Terms is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down a provision as required in this clause, that provision is severable without affecting the validity or enforceability of the remaining part of that provision or the other provisions in these Data Usage Terms.