Harkness Center for Dance Injuries IPAIRS Project

Terms and Conditions

PARTICIPATION AGREEMENT

THIS AGREEMENTis entered into and made effective by and between New York University School of Medicine, an administrative unit of New York University, on behalf of the Harkness Center for Dance Injuries (“HCDI”) and the “Participant”.

WHEREAS,HCDI, under the direction of Marijeanne Liederbach, PhD, has developed and owns a certain computerized database called the International Performing Arts Injury Reporting System containing information relating to patient injuries arising from dance and other performance arts (“IPAIRS”);

WHEREAS, the successful operation of IPAIRS is dependent in large measure on Participant’s submission of data through a web-based portal designated by HCDI and operated through the REDCap Consortium for IPAIRS (the “IPAIRS REDCap Application”);

WHEREAS, the Participant has expressed an interest in participating in IPAIRS in accordance with its requirements

WHEREAS, the Study is of mutual interest and benefit to the Participant and HCDI, and will further the Participant’s instructional and research objectives in a manner consistent with its status as a non-profit, tax-exempt educational Participant.

NOW THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, the parties hereto agree as follows:

1.         PARTICIPATION IN IPAIRS

A.          The Participant agrees to participate in IPAIRS by transmitting data pertaining to dance injuries through the IPAIRS REDCap Application in accordance with all of the requirements for data collection and submitted outlined in the protocol for IPAIRS attached hereto as Schedule A.   The Participant will comply with the rules and harvest schedules reasonably established by HCDI in connection therewith.  The Participant further agrees to assist and cooperate with HCDI in its efforts to conduct IPAIRS.

B.         The Participant warrants that all data submitted through the IPAIRS REDCap Application for inclusion in IPAIRS will be accurate and complete.  The Participant will use its best efforts to address and correct any data or related deficiencies identified by the Participant after data submission or by HCDI in its data review within three (3) business days of knowledge of such deficiency.  The Participant acknowledges that such data may be subject to independent audit and agrees to cooperate with and assist HCDI and its designees in connection with the performance of any independent audit.

In addition, the Participant warrants that it will take all reasonable steps to avoid the submission of duplicative data for inclusion in IPAIRS.

C.         The Participant agrees and acknowledges that its failure to submit data to IPAIRS, or its submission of data to IPAIRS that does not comply with its requirements, may result in the Participant’s failure to receive one or more reports generated by IPAIRS.

D.        From time to time, HCDI will assign to Participant and/or employees or agents of Participant identification, password, verification code or other electronic signature codes (the “ID/Passwords”) in order to give the Participant and/or such persons access to the IPAIRS REDCap Application for the purposes described herein.  Participant shall cause any person receiving from HCDI the ID/Passwords to maintain them in strictest confidence and to use them solely for purposes of this Agreement.  If Participant or any person who has received the ID/Passwords from HCDI on behalf of Participant believes that another person has obtained or may have obtained access thereto, Participant must immediately notify HCDI.  HCDI may invalidate the compromised or potentially compromised ID/Passwords. The obligation to maintain the ID/Passwords in confidence will survive the term of this Agreement until three (3) years after IPAIRS is discontinued.

E.         The Participant agrees not to submit any protected health informationunder any current and applicable laws, regulations or guidelines concerning privacy and data protection including without limitation the privacy and security standards established under the Health Insurance Portability and Accountability Act of 1996, as amended from time to time (“HIPAA”),or other patient, physician or hospital identifying information, in IPAIRS.

F.         The Participant represents that all of its personnel who are responsible for the collection and submission of data to IPAIRS as contemplated by this Agreement have successfully completed institutional training on human research protection in accordance with any current and applicable laws and regulations.  By way of example, a Participant’s personnel can meet this requirement through completion of a CITI program training on human subjects research.    

G.        Each party agrees that it shall comply with all current and applicable laws and regulations related to the collection and submission of clinical data in its performance of its obligations under this Agreement.

2.         IPAIRS REPORTS

            Provided that the Participant participates in IPAIRS in accordance with its requirements, the Participant will be entitled to receive periodic and annual IPAIRS reports, each of which will include both aggregated data from IPAIRS and Participant-specific information, and such other reports as HCDI may prepare from IPAIRS for Participants.  All reports shall be structured to reflect data of the Participant as directed by the Participant.  Additional reports may be created for the Participant for a fee.  The aggregated data included in any and all reports provided hereunder constitute “IPAIRS Intellectual Property” (as defined herein) and, as such, may not be reproduced, further disseminated or otherwise used except as provided in Section 6.D. of this Agreement.

3.         PARTICIPANT AD HOC QUERIES

            The Participant may submit to HCDI for analysis such requests for ad hoc queries (requiring access to and analysis of aggregate data from the IPAIRS) as the Participant may desire.  All such requests for ad hoc queries shall be submitted with reasonable notice to HCDI and shall be subject to prior approval by HCDI, in accordance with such procedures and other requirements as it may reasonably establish, before effort are undertaken to respond thereto.  In its response to each of the Participant’s ad hoc queries, HCDI shall give due consideration to scientific merit, the funds and other resources available to address ad hoc queries and other pertinent factors; provided however, that if adequate funding is not otherwise available, HCDI may condition its approval of a request for an ad hoc query upon the Participant’s agreement to pay any applicable fees required by HCDI in order to appropriately address the Participant’s ad hoc query.  As a part of its efforts to promote the use of IPAIRS as a tool for the development of beneficial scientific information, HCDI will provide reasonable assistance to the Participant in refining the Participant’s requests for ad hoc queries so as to enhance their potential for approval in light of the pertinent factors noted above.

4.         PARTICIPANT FEES

            Except as noted elsewhere in this Agreement, there are no fees charged to the Participant in connection with their participation in IPAIRS under this Agreement.

5.         CONFIDENTIAL INFORMATION

A.        HCDI acknowledges that the data submitted to IPAIRS by the Participant are deemed confidential. 

B.         HCDI may disclose to the Participant information or documents that are confidential to HCDI and IPAIRS.  During the term of this Agreement and for three (3) years thereafter, the Participant may use such Confidential Information (as defined below) solely in connection with this Agreement  and may disclose it to third parties only on a “need to know” basis in connection with IPAIRS oras required under applicable law.  Any disclosures shall be reported promptly to HCDI, including advance notice wherever reasonably possible.

“Confidential Information” shall mean information in written, oral or tangible form delivered by or on behalf of HCDI for the performance of IPAIRS.  Confidential Information does not include information that:

(1)   is available to the public at the time of disclosure;

(2)   subsequently becomes available to the public, except through breach of this Agreement;

(3)   is obtained from a third party not under a legal or contractual obligation of confidentiality to HCDI;

(4)   was known by the Participant, as evidenced in writing, prior to receipt thereof from HCDI; or

(5)   is hereafter developed by the Participant without the use or benefit of the information provided by HCDI.

6.         INTELLECTUAL PROPERTY

A.                 It is agreed and acknowledged that all data submitted for inclusion in IPAIRS by the Participant are and shall remain the Participant’s proprietary information, and may be used by HCDI and its designees only in accordance with the terms of this Agreement and any subsequent instruction from the Participant with respect thereto.

B.                 The Participant hereby agrees that all data submitted by or on behalf of the Participant to HCDI or HCDI’s designee for purposes of inclusion in IPAIRS may be used by HCDI as part of IPAIRS and any subset thereof that HCDI may choose to create and use as it sees fit for research and education purposes, and other interests of IPAIRS (including, without limitation, publication of such data); provided, however, that no such data shall be used in such a way to identify the Participant or institution of the Participant or any patient of the Participant unless and until the Participant advises HCDI in writing that it has secured appropriate consent therefore.

C.                 The Participant acknowledges that HCDI is and shall be deemed the owner of all rights to IPAIRS (including the aggregate data contained therein and subsets thereof), any and all reports based thereon, all information derived therefrom, and all trademarks, trade secrets and all other intellectual property rights arising from or reflected in IPAIRS (collectively, “IPAIRS Intellectual Property”), with the exception of the Participant’s data.

D.        The Participant acknowledges that it will not be given access to data from IPAIRS except as provided by HCDI as outlined in this Agreement.  The Participant shall not use any IPAIRS Intellectual Property without first obtaining the express written consent of HCDI, provided that the Participant may use aggregated data from IPAIRS that have been previously released to the public by HCDI (e.g., in published reports and slide sets) without first obtaining such written consent.

7.         USE OF NAME

Neither party to this Agreement shall use the name, symbol or marks of any other party, nor any of the other party’s affiliates, nor any abbreviations thereof, nor the name of any staff member, employee or student of any other party, in connection with any products, promotion, financing, advertising, or sales literature or in any form of publicity without the prior written approval of the other party.

8.         LIMITATION ON LIABILITY

The Participant acknowledges that HCDI is not responsible for the performance of IPAIRS REDCap Application or the continued certification thereof, or for the operation of IPAIRS, and hereby waives, and covenants not to sue HCDI for, any and all possible claims that it might have against HCDI arising out of, or resulting from, the performance of any IPAIRS REDCap Application, the revocation of its certification for purposes of use in conjunction with IPAIRS and the operation of IPAIRS, absent gross negligence or willful misconduct of HCDI.  Similarly, the Participant hereby waives, and covenants not to sue, any independent data warehouse service provider retained by HCDI for any and all possible claims that it might have against HCDI arising out of, or resulting from, the performance of the IPAIRS REDCap Application, the revocation of its certification for purposes of use in conjunction with IPAIRS and the operation of IPAIRS, absent gross negligence or willful misconduct of independent service provider.

9.         TERM AND TERMINATION

A.        Subject to the terms of Section 9.B., this Agreement shall be effective until discontinuation by HCDI of IPAIRS.  HCDI may discontinue IPAIRS at any time for any reason.  HCDI will notify the Participant in the event IPAIRS is discontinued .   

B.         Either party may terminate this Agreement upon ninety (90) days’ written notice to the other party.   In addition, in the event that either party hereto shall commit any breach or default in any of the terms or conditions of this Agreement, and also shall fail to remedy such default or breach within thirty (30) days after receipt of written notice thereof from the other party hereto, the party giving notice may terminate this Agreement, effective as of the date of receipt of such notice.

C.         Upon termination of this Agreement for any reason other than the discontinuation by HCDI of IPAIRS, HCDI will disable the Participant’s access to the IPAIRS REDCap Application and the Participant’s use of the IPAIRS REDCap Application shall simultaneously cease.

D.        The Participant will notify HCDI immediately if any member of the Participant’s team with access to the IPAIRS REDCap Application should no longer be a part of IPAIRS for immediate removal of the member from the project and discontinuation of that member’s access to the IPAIRS REDCap Application.

10.       SURVIVAL

Articles 5 through 16 and 19 of this Agreement shall survive expiration or termination of this Agreement.

11.       AMENDMENTS

This Agreement may only be amended by the mutual written consent of authorized representatives of both HCDI and the Participant.                       

12.       ENTIRE AGREEMENT

This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof, and supersedes and terminates all prior agreements and understandings between the parties with respect to the specific subject matter hereof.

13.       HEADINGS

The descriptive headings contained in this Agreement are included for convenience and reference only and shall not be held to expand, modify or aid in the interpretation, construction or meaning of this Agreement.

14.       SEVERABILITY

If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, for any reason, the remaining provisions shall continue in full force and effect.

15.       ASSIGNMENT

The Participant shall have the right to assign, delegate or transfer at any time to any party, in whole or in part, any or all of the rights, duties and interests herein granted without first obtaining the written consent of HCDI to such assignment.

16.       WAIVER

No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of the same term, provision or condition, or of any other term, provision or condition of this Agreement.

17.       FORCE MAJEURE

Neither party shall be liable for any failure to perform as required by this Agreement to the extent such failure to perform is due to circumstances reasonably beyond such party’s control, including, without limitation, labor disturbances or labor disputes of any kind, accident, failure to obtain any government approval required for full performance, civil disorders or commotions, acts of aggression or terrorism, acts of God, energy or other conservation measures imposed by law or regulation, explosions, failure of utilities, mechanical breakdowns, material shortages, disease, or other such occurrences.

18.       RELATIONSHIP OF THE PARTIES

HCDI and the Participant are independent contractors and neither party shall hold itself out to third parties as purporting to act as, or on behalf of, the other party hereto.  This Agreement shall not be construed to constitute a partnership or joint venture between HCDI and the Participant or to make either party the agent or employee of the other.

19.       NOTICES

Any notice required or permitted hereunder shall be in writing and shall be addressed to the party to receive such notice at the address set forth below, or such other address as is subsequently specified in writing.  Notice shall be deemed given as of the date it is (A) delivered by hand, (B) received by Registered or Certified Mail, postage prepaid, return receipt requested, or (C) received by Federal Express or an equivalent overnight delivery service.