This Data Use and Confidentiality Agreement (the “Agreement”) is made by and between the PAIP Committee and on behalf of itself and its affiliates (collectively, “Committee”) and “Data User”
Whereas, the Committee operates the PAIP (the “PAIP”); and
Whereas, the Committee controls certain patient-level data (the “Data”) in the form of pathologic scan images from its clinical information systems, which data have been separated from the patients’ database and are maintained as such; and
Whereas, the Committee has an interest in supporting the research and development of computer vision tools and analytics of artificial intelligence that may advance the automatic diagnostic assistance of pathologic images; and
Whereas, to the extent permitted by its institutional review board and institutional policies, the Committee now wishes to make the Data, in the form of one or more “Datasets,” available to Data User for the purpose of conducting such independent research and development (the “Purpose”), and Data User wishes to receive the Datasets for this Purpose under the terms and conditions of access set forth herein;
Now, therefore, in consideration of the mutual promises and covenants set forth below, the parties hereby agree as follows:
1. Data User shall describe to the Committee via the electronic registration process for Data access at www.wisepaip.org the specific computer vision research and development use for the Data / Datasets proposed by Data User (the “Specific Purpose”). For avoidance of doubt, permissible uses may include use of the Data / Datasets for evaluation and testing of a computer vision tool or technology of artificial intelligence but shall not extend to proposals that include or incorporate the Data / Datasets into such product. The Committee will provide the Data / Datasets requested by the Data User upon the Committee’s approval, in its sole discretion, of the Specific Purpose.
2. Any Data/Datasets provided to Data User under this Agreement shall be separated from the patients’ database. Data User agrees that Data User shall not attempt to link or re-link the Data / Datasets to any individual patient or group of patients from the Data / Datasets.
3. Data User agrees that Data User shall use the Data / Datasets solely for the Specific Purpose and for no other purpose.
4. Data User understands and agrees that the Data / Datasets are proprietary and confidential to the Committee and agrees that Data User shall not disclose, disseminate, or otherwise share the Data / Datasets to or with any other person or entity, including any subcontractor, for any purpose, without the prior written consent of the Committee. To the extent the Committee agrees in writing to permit such further access, the Data User shall ensure that such further recipient of the Data / Datasets agrees in writing to all of the same restrictions, conditions and obligations that apply to Data User with respect to the Data / Datasets, and shall make the Committee a third-party beneficiary of such agreement.
5. If the Data User determines that it is required by law (as that term is defined in the Personal Information Protection Law (“PIPL”) of Korea and its related privacy regulations) to use or disclose the Data / Datasets other than as provided for in this Agreement, Data User shall provide prompt written notice of such determination to the Committee so that the Committee may have an opportunity to take measures to protect the Data / Datasets as appropriate.
6. Data User shall take appropriate technical and administrative measures in accordance with the requirements of PIPL to prevent use or disclosure of the Data / Datasets other than as provided for by this Agreement, and Data User shall report immediately to the Committee in writing any use or disclosure not provided for by this Agreement of which it becomes aware. The Data User acknowledges that any use or disclosure of the Data / Datasets that is inconsistent with the terms of this Agreement may cause irreparable injury to the Committee and agrees that the Committee will be entitled to seek injunctive relief with respect to such use and/or disclosure, in addition to seeking any other remedy available at law or in equity.
7. All Data / Datasets disclosed pursuant to this Agreement, including without limitation all written and tangible forms thereof, shall be and remain the property of the Committee and the Committee shall at all times retain all rights, title and interest in and to the Data / Datasets. Upon the expiration or earlier termination of this Agreement as provided in Section 15 below, the Data User shall cease using the Data / Datasets and shall destroy (or return if so requested by the Committee) all of the Data / Datasets received in tangible form, including notes, reports, and other information to the extent it contains the Data / Datasets, and shall keep no copies, except to the extent specifically required by law(s) made known to the Committee by the Data User.
8. The Data / Datasets are provided “as is.” The Committee makes no representations or warranties of any kind, express or implied, concerning the Data or Datasets or the rights granted herein, including, without limitation, warranties of merchantability, fitness for a particular purpose, noninfringement, and the absence of latent or other defects, whether or not discoverable, and hereby disclaims the same.
9. In no event shall the Committee or any of the Committee’s respective trustees, directors, officers, medical or professional staff, employees and agents be liable to the Data User for direct, indirect, special, incidental, punitive or consequential damages of any kind arising in any way out of this agreement or rights granted herein, however caused and on any theory of liability, including without limitation, economic damages or injury to property or lost profits, regardless of whether the Committee shall be advised, shall have other reason to know, or in fact shall know of the possibility of the foregoing.
10. Data User agrees not to use the name or logo of the Committee or any of its affiliates or any of their respective trustees, directors, officers, staff members, employees, students or agents for any purpose without the Committee’s prior written approval; provided, however, that Data User shall acknowledge the Committee as the source of the Data / Datasets in any publication or presentation arising from the Specific Purpose.
11. Data User agrees to submit reports of using the Data / Datasets to the Committee. The specifics which the report should contain and when Data User should submit the report are to be determined by the Committee and notified to the Data User.
12. Data User shall indemnify, defend and hold harmless the Committee and its affiliates and their respective trustees, directors, officers, medical and professional staff, employees, and agents and their respective successors, heirs and assigns (the “Indemnities”), against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Indemnitees or any one of them in connection with any claims, suits, actions, demands or judgments arising out of any theory of product liability (including, but not limited to, actions in the form of contract, tort, warranty, or strict liability) concerning any product, tool, technology, process or service made, used, or sold or performed pursuant to any right granted under this Agreement. Data User agrees, at its own expense, to provide attorneys reasonably acceptable to the Committee to defend against any actions brought or filed against any party indemnified hereunder with respect to the subject of indemnity contained herein, whether or not such actions are rightfully brought; provided, however, that any Indemnitee shall have the right to retain its own counsel, at the expense of Data User, if representation of such Indemnitee by counsel retained by Data User would be inappropriate because of conflict of interests of such Indemnitee and any other party represented by such counsel. Data User agrees to keep the Committee informed of the progress in the defense and disposition of such claim and to consult with the Committee prior to any proposed settlement.
13. Data User shall maintain insurance sufficient to meet its obligations under Section 13 of this Agreement.
14. This Agreement shall become effective upon the Committee’s release of Data / Datasets to Data User and shall expire upon Data User’s completion of the Specific Purpose. The Committee may terminate the Agreement and Data User’s access to Data / Datasets hereunder at any prior time and for any reason upon written notice to the Data User.
15. To the extent Data User is permitted under the terms of this Agreement to retain any portion of the Data / Dataset, or any copies thereof, upon the expiration or termination of the Agreement, the Data User’s obligations under the Agreement with respect to such Data / Datasets shall survive such expiration or termination for as long as Data User retains the Data / Datasets.
16. This Agreement may be modified or amended only in a writing signed by duly authorized representatives of both the Data User (where Data User is an organization) and the Committee. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea. Any claim or action brought under this Agreement shall be brought in the judicial courts of Republic of Korea.
17. All notices required by this Agreement shall be provide dto the signatory for each party at the address identified below.
18. Sections 2 through 13 and Sections 15, 16, and 17 of this Agreement shall survive its expiration or termination.