Client Engagement Agreement
The version the first Client signed on paper.
This is the version currently in force. If you are already one of our clients or experts, the version that governs your agreement is the one named on your own copy of it, which is not necessarily this one.
Permanent address of this version: agreements.maisonmilentis.com/terms/client-engagement/v1
Standard Terms
Background
The Company is an independent intermediary between industry sponsors and expert clinicians and researchers. It contracts with each side as principal, is the sole payer of the experts it engages, and carries the compliance controls the Agreement describes. There is deliberately no contractual relationship between a sponsor and an expert.
The Client wishes to obtain expert advisory, scientific and diligence services from the Company under this framework, with each engagement recorded in a Schedule.
The termination notice periods at clause 15.2 are tiered by the length of the parties’ relationship and are intended to give each party reasonable notice reflecting that length.
1 INTERPRETATION
Capitalised terms not defined in these Standard Terms have the meaning given on the Cover Page.
In the Agreement:
Admin Fee and Engagement Fee: the fees defined in clause 7.1.
Advance: has the meaning given in clause 8.1.
Confidential Information: has the meaning given in clause 10.1.
Deliverables: the deliverables stated in a Schedule for an Engagement.
Engagement: services to be provided by the Company as recorded in a signed Schedule.
Expert: a clinician, researcher or other expert engaged by the Company under an Expert Services Agreement.
Expert Reference: the unique reference code the Company assigns to an expert and uses to identify that expert to the Client.
Expert Services Agreement: an agreement between the Company and an Expert under which the Expert provides services to the Company as an independent contractor.
Fees: the Admin Fee, the Engagement Fee and the Screening and Verification Fees for an Engagement. Fees exclude Honoraria.
FMV Rate: the fair market value hourly rate for an Expert’s services, determined under clause 7.2 and stated in the Schedule.
Honoraria: the amounts payable to Experts for an Engagement, calculated at the FMV Rate and bounded by the hours cap stated in the Schedule.
Introduction Notice: has the meaning given in clause 4.5.
Register: the Company’s register of Expert References and Introduction Notices.
Schedule: an Engagement Schedule, substantially in the form set out at the end of these Standard Terms, signed by both parties.
Seat Criteria: the objective criteria for a seat stated in the Schedule.
The Cover Page forms part of the Agreement and has effect as if set out in full in these Standard Terms. A reference to the Agreement includes the Cover Page, these Standard Terms and every Schedule. If there is a conflict, the Cover Page prevails as to the values it states but does not otherwise vary these Standard Terms.
A capitalised term describing an amount, percentage, rate, period, date or person that is not otherwise defined in the Agreement has the value or identity stated for it on the Cover Page or, for an Engagement, in the Schedule for that Engagement.
If there is a conflict, these Standard Terms prevail over a Schedule, except that: (a) the particulars a Schedule is required to state under clause 4.1 apply to its Engagement; and (b) a Schedule varies these Standard Terms only as clause 17.2 provides, and an express variation under clause 17.2 prevails for its Schedule.
In the Agreement: headings do not affect interpretation; the singular includes the plural and the reverse; a reference to a clause is to a clause of these Standard Terms; a reference to a law or code is to it as amended or replaced; “including” does not limit the words before it; and “writing” includes email.
2 APPOINTMENT AND STATUS
The Client appoints the Company, and the Company accepts the appointment, to provide services as recorded in Schedules signed under the Agreement. The Company acts as an independent principal: it selects, engages, directs and pays the Experts through which it performs, and it alone is responsible to the Client for performance.
Nothing in the Agreement or any Engagement creates an introduction, placement, employment or agency relationship between the Client and any Expert, or any contract between the Client and any Expert.
For each Engagement:
- the services are defined by the Deliverables and milestones stated in the Schedule;
- the Company, and not the Client, directs and supervises each Expert, and the Client shall not instruct or supervise any Expert;
- the Company may substitute an Expert with another Expert of at least equivalent competence and screening status, on written notice to the Client and, where the Schedule provides a candidate review process for the seat concerned, subject to that same process;
- the Company bears the risk of performance and shall re-perform or correct at its own cost any Deliverable that does not conform to the Schedule; and
- the Fees are payable for Deliverables and milestones, not for the supply of any individual’s time. The FMV Rate and hours cap stated in a Schedule record the documented fair market value basis of the Honoraria and bound the total transfer of value; they do not entitle the Client to direct how any Expert’s time is spent.
3 RELATIONSHIP TO THE PRE-ENGAGEMENT TERMS
The Agreement supersedes the Pre-Engagement Terms in all respects except their confidentiality provisions, which survive and run continuously from the date of the Pre- Engagement Terms.
An expert notified to the Client by reference code under the Pre-Engagement Terms is treated as disclosed under clause 4.4, counting the original notification as its Introduction Notice.
4 ENGAGEMENT PROCEDURE
Each Engagement is recorded in a Schedule signed by both parties stating the Client’s documented needs assessment, the scope, the Deliverables and milestones, the Experts by name or Expert Reference, the fair market value basis and the fees.
Neither party is obliged to propose or to accept any Engagement. No Engagement arises, and no fee or honorarium is payable, until the Schedule for it is signed.
The Company will not select or propose an Expert before the needs assessment for the Engagement is documented.
The Company identifies each expert to the Client by Expert Reference. Before the Schedule for an Engagement is signed, the Company may provide a capability card for a proposed seat: a short statement, from which the expert cannot be identified, of tier, rate band, availability and capability against the Client’s stated need. After the Schedule is signed and the sums due on its signature are paid, the Company provides the full de-identified capability profile for each Company-identified seat, for confirmation against the Seat Criteria within the Review Window. An Expert’s name is released only as clause 10.5 provides.
The Company records each capability card and capability profile it provides under clause 4.4 in the Register by Expert Reference and date (each record an Introduction Notice). The Register is conclusive evidence of the fact, date and content of the disclosure, absent manifest error.
5 COMPANY COMPLIANCE UNDERTAKINGS
The Company shall, for each Engagement:
- verify each Expert’s identity, credentials and professional registration against primary registers, and screen each Expert against applicable sanctions, exclusion and debarment lists, before the Expert begins work;
- engage each Expert under an Expert Services Agreement carrying confidentiality, independence and sole-payer obligations, so that each Expert is paid only by the Company and only at the FMV Rate;
- take and preserve each Expert’s attestation to the specific scope of the Engagement; and
- maintain an audit trail of the needs assessment, screening, fair market value basis, attestations, Deliverables and payments sufficient to evidence after the fact that the Engagement was run as the Agreement requires.
The Company may decline, suspend or halt any Engagement, session or Expert involvement where it determines on reasonable grounds that continuing would breach applicable law, an applicable code, the Agreement or the Company’s compliance policies. The Company has no liability to the Client for a determination under this clause 5.2; clause 9 governs the amounts collected for the affected Engagement.
6 CLIENT WARRANTIES AND UNDERTAKINGS
The Client warrants and undertakes that:
- each Engagement it proposes serves a legitimate, documented business need and is not offered or structured as a reward or inducement for any past or future prescribing, purchasing or recommending decision;
- it will identify and discharge its own transparency and disclosure obligations in respect of transfers of value under the Engagements, and will give the Company the information the Company reasonably requests in support;
- it will not seek, solicit or knowingly accept from any Expert material non-public information, the confidential information of any third party or the confidential information of any competitor, and will notify the Company promptly of, and make no use of, any such information it receives;
- it will not use any Expert, Deliverable or Engagement for the promotion of a product, for unlicensed medical claims, or to present content as independent where the Client has controlled its scientific content;
- the information it provides for needs assessments, screening and restricted-party lists is and will remain accurate and complete in all material respects; and
- it will not, and will ensure that no member of the Client’s group (its subsidiaries, its holding companies and every subsidiary of any such holding company, “subsidiary” and “holding company” having the meanings given in section 1159 of the Companies Act 2006) does, pay or provide any benefit to any Expert in connection with an Engagement otherwise than through the Company.
7 FEES
The consideration for each Engagement has the following parts, each stated in the Schedule:
- the Honoraria, which the Company bills to the Client at cost, one to one, with no margin or mark-up to the Company;
- the Admin Fee, being the amount stated in the Schedule, calculated as a percentage of the Honoraria;
- the Engagement Fee, being the Base Fee plus the Per-Seat Component for each seat, each as stated in the Schedule; and
- the Screening Fee for each Company-identified seat and the Verification Fee for each Client-identified seat.
The Company sets each FMV Rate within a documented fair market value band built from published wage and payment data and logged arm’s length comparators, tiered by credential and expertise, and records the basis for each Engagement. The Schedule states the tier, the band, the FMV Rate and the hours cap, so the total transfer of value for the Engagement is bounded and reportable. Honoraria are fixed before work begins and are not contingent on any conclusion an Expert reaches.
All amounts are exclusive of value added tax and equivalent taxes, which the Client shall pay in addition where chargeable.
In clause 7.1: a Company-identified seat is a seat for which the Company identifies the expert, and a Client-identified seat is a seat for which the Client identifies the expert and the Company screens, contracts and pays them.
8 ADVANCES AND PAYMENT
The Client shall pay the Honoraria in advance (each payment an Advance):
- for a one-off Engagement, in full before the Expert begins work; and
- for an ongoing Engagement, monthly in advance.
Each Advance is payable in the amount and by the date stated in the Schedule. The Company is not obliged to instruct an Expert to begin, or to continue into a further period, before the corresponding Advance is received in full.
The Company pays each Expert at the FMV Rate from funds already received, whatever conclusion the Expert reaches; no payment to an Expert is contingent on the outcome of an Engagement.
The Company invoices the Fees on signature of the Schedule, and the Client shall pay them in full before the first Expert begins work. Any other invoice under the Agreement is payable within 30 days of the invoice date.
Overdue amounts bear interest at 4% a year above the Bank of England base rate, accruing daily from the due date until payment.
9 CANCELLATION AND REFUND
The Client may cancel an Engagement at any time by written notice.
Where an Engagement is cancelled, is halted under clause 5.2 or ends under clause 15.5, the Company shall refund the balance of the Advances held for that Engagement after deducting:
- the Honoraria for work performed and Deliverables completed up to the effective date;
- the amounts the Company is committed to pay Experts under the Expert Services Agreements for time reserved for the Engagement; and
- the amounts payable to an Expert in full for a session halted on compliance grounds.
The Admin Fee remains payable on the Honoraria deducted under clause 9.2, and, save as clause 9.6 provides, the Engagement Fee and the Screening and Verification Fees remain payable in full, because they pay for the per-engagement screening, fair market value documentation and contracting largely performed before and at signature of the Schedule.
On completion of an Engagement, the Company shall return to the Client, or credit against the next Advance falling due, any balance of the Advances held for that Engagement after deducting the Honoraria and any other amounts payable for it under the Agreement.
The Company shall pay a refund, return or credit due under this clause within 30 days.
Where the Schedule states Seat Criteria for a seat and the Company has not, within the Review Window, put forward an expert meeting them, the Company shall continue sourcing for that seat at no additional charge for the Extended Sourcing Period stated in the Schedule. If the seat remains unfilled at the end of that period, or at the end of the Review Window where no Extended Sourcing Period is stated, the Client may by written notice cancel the seat or proceed with the remaining seats, and in either case the Company shall refund the Screening Fee or Verification Fee for the unfilled seat and its Per-Seat Component of the Engagement Fee, with the Deliverables adjusted accordingly; the Base Fee remains payable. The Client may decline an expert put forward for a seat only where the expert does not meet a stated Seat Criterion or has a conflict disclosed under the Schedule’s review process.
10 CONFIDENTIALITY AND INFORMATION BARRIER
Confidential Information means information disclosed by or for one party to the other in connection with the Agreement, the Pre-Engagement Terms or any Engagement that is marked confidential or would reasonably be regarded as confidential, including the Client’s programme, product, scientific and restricted-party information, and the Company’s Expert identities and profiles, Expert References, Register, methodology and rate bands.
Each party shall keep the other’s Confidential Information confidential, use it only for the purposes of the Agreement, and disclose it only to its personnel and advisers who need it for those purposes and are bound to keep it confidential, or as required by law, a regulator or a court, with prompt notice to the other party where lawful.
Confidential Information does not include information that is or becomes public other than through a breach of this clause, was lawfully held before disclosure, is received from a third party free of restriction, or is developed independently.
This clause 10 applies during the term of the Agreement and for the Confidentiality Period after termination, and for as long as a trade secret remains a trade secret. For information first disclosed under the Pre-Engagement Terms the obligation runs continuously from the date of those terms.
The Company operates an information barrier between the two sides of each Engagement: the Client’s commercial objectives are not passed to any Expert as instructions, and an Expert’s confidential inputs, and identity until the Expert consents to its release, are not disclosed to the Client except as the Schedule provides. The Client acknowledges that the Company instructs every Expert not to disclose material non-public information or any third party’s confidential information in any Engagement.
11 FRENCH HEALTHCARE LAW PROCEDURES
Where an Engagement engages a healthcare professional practising in France for the benefit of an identifiable company producing or marketing health products, the parties shall complete the convention, declaration or prior authorisation procedure that French health law requires before the Expert begins work. The Company coordinates the procedure; the Client shall promptly provide the information, and execute the documents, that the procedure requires of it; and the Engagement timetable adjusts so that work does not begin before the procedure permits.
The Client acknowledges that transfers of value under an Engagement may be publicly disclosable under applicable transparency laws and codes. The Company will obtain the Expert consents required for those disclosures, and each party makes the disclosures its own obligations require.
The Client acknowledges that an Expert may be required to file consultancy contracts with the Expert’s professional order, and that such a filing is not a breach of confidentiality.
12 DATA PROTECTION
Each party is an independent controller of the personal data it processes in connection with the Agreement and shall comply with applicable data protection law, including the EU General Data Protection Regulation. The Company’s lead supervisory authority is the CNIL (France).
The Client shall process personal data of Experts received from the Company only for the Engagement concerned; shall not add it to any database of experts or contacts; shall not retain any capability card or capability profile beyond the Engagement except as law requires; shall not use it to identify, or attempt to identify, the individual behind an Expert Reference whose name the Company has not released under clause 10.5; and shall not use it to contact an Expert otherwise than through the Company during an Engagement involving that Expert. Where the Company has released an Expert’s name under clause 10.5 and every Engagement involving that Expert has ended, this clause 12.2 does not restrict the Client from contacting that Expert. Personal data contained in a Deliverable may be retained and processed by the Client as the Schedule provides.
Each party shall give the other the cooperation reasonably required to respond to data subject requests, supervisory authorities and personal data breaches touching an Engagement.
13 INTELLECTUAL PROPERTY AND EDITORIAL INDEPENDENCE
On payment in full of all sums due for an Engagement, intellectual property rights in the Deliverables vest as the Schedule states or, where the Schedule is silent, are assigned by the Company to the Client, with the materials, methods and know-how of the Company and the Experts that pre-date or are developed outside the Engagement licensed to the Client on a non- exclusive, perpetual basis to the extent needed to use the Deliverables. Use of every Deliverable remains subject to clause 6.1(d).
Where the Schedule identifies a Deliverable as educational content, scientific and editorial control rests with the Company and the contributing Experts. The Client may fund the content and propose topics, and shall not control its scientific content nor present it as independent after altering it.
14 LIABILITY
Nothing in the Agreement limits or excludes liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, for wilful misconduct, or for any liability that cannot be limited or excluded at law; and nothing limits the Client’s obligations to pay the Honoraria, Advances and Fees due under the Agreement.
Subject to clauses 14.1 and 14.3, each party’s total aggregate liability arising out of or in connection with the Agreement, however arising, is limited to the greater of: (a) the Fees paid and payable for the 12 months preceding the first event giving rise to the liability; and (b) the General Cap Floor. Fees for this purpose exclude the Honoraria, which are a pass-through.
Subject to clause 14.1, for liability arising from a breach of clause 10 (confidentiality) or clause 12 (data protection) the limit in clause 14.2 is replaced by the Enhanced Cap.
Subject to clause 14.1, neither party is liable for loss of profit, revenue, anticipated savings or goodwill, or for indirect or consequential loss.
The Client shall indemnify the Company against losses, and third party and regulatory claims, arising from a breach of clause 6.1 or from use of a Deliverable in breach of the Agreement. The Company shall indemnify the Client against third party claims that a Deliverable, as delivered and used as permitted, infringes intellectual property rights. Each indemnity is subject to clause 14.1 and is limited by the Enhanced Cap in place of the limit in clause 14.2, save that no limit in this clause 14 applies to the Client’s indemnity so far as it arises from a breach of clause 6.1 or from use of a Deliverable in breach of clause 6.1(d).
15 TERM AND TERMINATION
The Agreement begins on the Commencement Date and continues until terminated under this clause 15.
Either party may terminate the Agreement by written notice of: (a) one month, where notice is given within the first twelve months from the Commencement Date; and (b) three months, where notice is given after that period. The tiered periods are intended to give each party reasonable notice reflecting the length of the relationship at the time notice is given.
Either party may terminate the Agreement immediately by written notice if the other party:
- commits a material breach that is incapable of remedy or is not remedied within the Remedy Period after written notice requiring remedy; or
- becomes insolvent, enters administration, liquidation or an equivalent procedure in any jurisdiction, or stops or suspends payment of its debts.
The Company may also terminate the Agreement, or any Engagement, immediately by written notice where the Client breaches clause 6.1, or where continuing would breach applicable law, an applicable code or the Company’s compliance policies.
On termination of the Agreement each Engagement in progress ends on the effective date, unless the parties agree in writing that it continues to completion, and clause 9 applies to it.
Termination does not affect accrued rights and obligations. Clauses 3, 9, 10, 11.2, 12, 13, 14, 21, 23, 33 and 34, and every accrued payment obligation, survive termination.
16 ENTIRE AGREEMENT AND EXCLUSION OF CLIENT TERMS
No terms in the Client’s purchase order, order confirmation or standard terms apply to the Agreement or any Engagement, even if issued later, and even if the Company invoices against or otherwise references a purchase order, whose number is an administrative reference only.
The Agreement is the entire agreement between the parties for its subject matter, without prejudice to the provisions of the Pre-Engagement Terms that survive under clause 3.1. Each party confirms that it has not relied on, and has no remedy in respect of, any statement or representation not set out in the Agreement, but nothing excludes liability for fraud.
17 VARIATION
A variation of the Agreement is valid only if in writing and signed by both parties.
Every clause of these Standard Terms, including clauses 33 and 34, applies to every Schedule, save that where a Schedule expressly states that it varies a named clause of these Standard Terms, the variation applies to that Schedule and its Engagement alone and does not amend the Agreement for any other purpose.
18 NOTICES
A notice under the Agreement must be in writing, in English, and delivered by hand, by courier or by email to the addresses stated on the Cover Page. A notice is received on delivery (if delivered by hand or courier) or at the time of transmission (if sent by email), save that a notice delivered or transmitted after 5.00 pm is received at 9.00 am on the next day. This clause does not apply to the service of proceedings.
19 ASSIGNMENT AND SUBCONTRACTING
The Client may not assign or transfer the Agreement, or any right under it, without the Company’s prior written consent, not to be unreasonably withheld.
The Company may assign the Agreement to a successor to all or substantially all of its business, and may subcontract performance to Experts as the Agreement contemplates, in each case without consent. The Company remains responsible for performance as clause 2 provides.
20 NO SET-OFF
The Client shall pay every amount due under the Agreement in full, free of set-off, counterclaim, deduction or withholding, save for a deduction or withholding required by law.
21 CONDUCT OF INDEMNITY CLAIMS
A party claiming under an indemnity in clause 14.5 shall:
- notify the other party promptly of the claim, describing it in reasonable detail;
- allow the indemnifying party, at the indemnifying party’s cost, to conduct the defence and settlement of any third party claim, and give the reasonable assistance it requests;
- not admit liability in, settle or compromise any third party claim without the indemnifying party’s prior written consent, not to be unreasonably withheld; and
- take reasonable steps to mitigate its loss.
The indemnifying party shall not settle a third party claim in a way that imposes an admission, liability or obligation on the indemnified party without the indemnified party’s prior written consent, not to be unreasonably withheld.
22 WARRANTY OF AUTHORITY
Each party warrants that it has full power and authority to enter into and perform the Agreement and that its signatory is authorised to bind it.
23 INJUNCTIVE RELIEF
The parties acknowledge that damages alone would not be an adequate remedy for a breach of clause 10 or of clause 12.2, and that either party may seek injunctive or other equitable relief for a breach or threatened breach of either clause without proof of special damage.
24 ANTI-BRIBERY
Each party shall comply with all applicable anti-bribery and anti-corruption laws, including loi n° 2016-1691 (Sapin II), the Bribery Act 2010 and their equivalents, and shall not offer, give, solicit or accept any undue advantage in connection with the Agreement.
The Client acknowledges that the Company operates a documented anti-corruption programme, including the fair market value controls and screening described in these Standard Terms, and that the Company may act under clause 5.2 where continuing an Engagement would compromise that programme.
25 FORCE MAJEURE
Neither party is liable for a failure or delay in performing an obligation under the Agreement, other than an obligation to pay money, caused by an event beyond its reasonable control. The affected party shall notify the other promptly and resume performance as soon as it can. Where such an event halts an Engagement for longer than the Force Majeure Period, either party may cancel that Engagement by written notice and clause 9 applies.
26 FURTHER ASSURANCE
Each party shall, at the other’s reasonable request and cost, do what is reasonably necessary to give full effect to the Agreement, including under clause 12.
27 CUMULATIVE REMEDIES
The rights and remedies under the Agreement are cumulative and do not exclude rights and remedies provided by law.
28 NO PARTNERSHIP OR AGENCY
Nothing in the Agreement creates a partnership or agency between the parties.
29 SEVERANCE
If a provision of the Agreement is or becomes invalid or unenforceable, it applies with the minimum modification needed to make it valid and enforceable, and the rest of the Agreement is unaffected.
30 WAIVER
A failure or delay in exercising a right is not a waiver of it. A waiver is effective only in writing.
31 THIRD PARTY RIGHTS
No person other than the parties has any right under the Contracts (Rights of Third Parties) Act 1999 to enforce the Agreement.
32 COUNTERPARTS
The Agreement may be executed in counterparts, each of which is an original.
33 GOVERNING LAW
The Agreement, every Schedule and any non-contractual obligations arising out of or in connection with them are governed by the law of England and Wales.
34 DISPUTE RESOLUTION AND ARBITRATION
A party with a dispute arising out of or in connection with the Agreement or any Schedule shall refer it in writing to the Senior Contacts, who shall attempt in good faith to resolve it within 21 days of the referral.
If the dispute is not resolved within that period, either party may refer it to mediation under the CEDR Model Mediation Procedure, with the mediation seated in London. Referral to mediation is a condition precedent to arbitration: neither party may commence arbitration until the earlier of the termination of the mediation and the expiry of 30 days after service of the mediation notice.
Subject to clauses 34.1 and 34.2, any dispute arising out of or in connection with the Agreement or any Schedule, including any dispute as to their existence or validity and any non-contractual dispute, shall be referred to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce for the time being in force, which are deemed incorporated by reference into this clause. The number of arbitrators is one, the seat of the arbitration is London, England, the language of the arbitration is English, and the law of this arbitration agreement is the law of England and Wales.
The tribunal shall decide the dispute on the basis of the parties’ written submissions and documentary evidence alone, unless a party shows cause why a hearing is required.
The parties shall keep confidential the existence and content of the arbitration and every document and award in it, except to the extent disclosure is required by law or a regulator, or is necessary to enforce or challenge an award or to exercise a right under this clause 34.
Nothing in this clause 34 prevents either party from seeking interim or injunctive relief in any court of competent jurisdiction at any time, and clauses 34.1 and 34.2 do not apply to such an application.