Expert Services Agreement
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/expert-services/v2c
Standard Terms
Background
The Company is an independent intermediary between industry sponsors and expert clinicians and researchers. It contracts with each side as principal: a sponsor contracts with the Company, and the Expert contracts with the Company. The Expert never contracts with a sponsor and owes no contractual duty to one.
The Agreement admits the Expert as one of the Company's independent experts and sets the terms on which the Company may offer, and the Expert may accept, individual Assignments. These Standard Terms are the same for every expert the Company engages.
The obligations the Company owes its sponsors under its client engagement agreements are backed by the corresponding obligations the Expert owes the Company under the Agreement. The two sets of terms are drafted as a pair, and uniformity is what allows the Company to give each sponsor the same undertakings about every expert.
1 INTERPRETATION
Capitalised terms not defined in these Standard Terms have the meaning given in the Order.
In the Agreement:
Assignment: a discrete engagement instructed under a Statement of Work.
Attestation: the written confirmation the Expert gives under clause 6.4.
Background Materials: the materials, methods, know-how and other intellectual property of the Expert that pre-date an Assignment or are developed outside it.
Confidential Information: has the meaning given in clause 11.1.
Deliverables: the outputs the Expert is to produce under an Assignment, as recorded in the Statement of Work.
Expert Entity: where the Order names one, the entity through which the Expert contracts.
Expert Reference: the unique reference code stated in the Order, which the Company uses to identify the Expert to a Sponsor.
FMV Rate: the fair market value hourly rate for the Expert's services, determined under clause 7.1 and stated in the Statement of Work.
Honorarium: the amount payable to the Expert for an Assignment, calculated at the FMV Rate and bounded by the hours cap stated in the Statement of Work.
MNPI: material non-public information relating to a company whose securities are publicly traded.
Order: the document in which the Company and the Expert record the particulars listed in clause 1.8, signed by every party to it or accepted under clause 19, and which incorporates these Standard Terms.
Rate Card: the Company's documented fair market value rate card, which sets a band of rates for each tier of credential and expertise.
Screening: the Company's checks on the Expert, including verification of identity, licence and credentials against primary registers, screening against exclusion, debarment and sanctions lists, and capture of the topics the Expert may not discuss.
Session: a call, meeting, panel or other live interaction forming part of an Assignment.
Sponsor: an industry client of the Company for whom an Assignment is or may be performed.
Statement of Work: a document that records an Assignment, states the particulars clause 5.1 requires, and is signed by every party to it or accepted under clause 19.
These Standard Terms are incorporated into each Order. An Order and the version of these Standard Terms it incorporates together form the Agreement, and a reference to the Agreement includes the Order, those Standard Terms and every Statement of Work. The Order has effect as if set out in full in these Standard Terms; if there is a conflict, the Order prevails as to the values it states but does not otherwise vary these Standard Terms.
A Statement of Work records the particulars of its Assignment only. These Standard Terms prevail over every Statement of Work, and a provision in a Statement of Work that purports to vary them is of no effect.
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 and a reference to a Schedule is to a schedule to them; a reference to a law or code is to it as amended or replaced; “including” does not limit the words before it; “writing” includes email; and “signed” includes signature or acceptance by electronic means as clause 18.10 provides.
Amounts in the Agreement are stated and payable in the Currency, save where the Agreement or a Statement of Work states another currency for a particular amount. Where a conversion is required, it is made at the euro foreign exchange reference rate published by the European Central Bank for the date the amount falls due or, for a claim, for the date the claim is first made in writing.
Each Statement of Work is governed by the Order and the version of these Standard Terms in effect between the parties when that Statement of Work was signed, and a later Order or a later version of these Standard Terms does not affect it.
An Order states the parties, the Expert Reference, the Expert’s practising jurisdiction, the Commencement Date, the version of these Standard Terms it incorporates and where that version is published, each value these Standard Terms require to be stated in it, and, where it replaces an earlier Order, the date of that Order.
A reference to the Order is to the Order in effect between the parties, and a reference to these Standard Terms is to the version in effect between the parties, in each case at the time in question. Where a replacement Order or a new version is accepted under clause 19.10, the Order or version it replaces ceases from that time to have effect between the parties, and clause 1.7 continues to govern each Statement of Work signed before it.
2 ADMISSION
The Agreement admits the Expert as one of the Company's independent experts. Admission is conditional on the satisfactory completion of Screening, and the Company will offer no Assignment before Screening has cleared. Where Screening does not clear, the Company may terminate the Agreement immediately by written notice and without liability, other than payment for any work already performed.
The Expert warrants that the information given to the Company for Screening is accurate and complete in all material respects, and shall notify the Company promptly on becoming aware of any change to it, including a change to the Expert's licence, professional registration, employer or institutional permissions, or the appearance of the Expert on an exclusion, debarment or sanctions list. The Expert consents to the Company repeating Screening at reasonable intervals and before each Assignment begins.
Signing the Agreement obliges neither party to offer, nor to accept, any Assignment. The Company promises no volume of work and the Expert promises no availability.
3 STATUS AND INDEPENDENCE
The Expert is an independent contractor. Nothing in the Agreement or any Assignment creates employment, agency or partnership between the Expert and the Company, or any contract or duty between the Expert and any Sponsor. The Expert contracts with the Company only, and the Company alone instructs and supervises each Assignment; no Sponsor may direct the Expert.
The following are terms of the Agreement and of every Assignment:
- the Expert has no fixed or minimum hours and sets their own working pattern within the timeline in the Statement of Work;
- the Expert owes the Company no exclusivity and remains free to practise, research, teach and take engagements from anyone else, subject only to clauses 5.3 and 11;
- the Expert may decline any proposed Assignment, without giving reasons and without affecting the Expert's standing with the Company or any other Assignment;
- the Company has no disciplinary or sanctioning power over the Expert, and the Company's only remedies are those the Agreement provides; and
- where a Statement of Work states that substitution is permitted, the Expert may perform the Assignment through a suitably qualified substitute who has completed Screening and is bound by terms equivalent to the Agreement.
The Expert shall perform each Assignment with reasonable skill and care and within the scope stated in the Statement of Work, and shall correct, at no additional charge and within the hours cap, any error of fact, omission or presentation in a Deliverable. Nothing in this clause requires the Expert to alter an opinion, finding or conclusion, and a request to do so has no effect.
Where the Order names an Expert Entity: the Expert and the Expert Entity are each a party to the Agreement and each contracts with the Company on these Standard Terms; the Expert shall perform every Assignment personally, subject only to clause 3.2(e); the Expert Entity shall procure the Expert's compliance with the Agreement; every warranty and undertaking in the Agreement is given by the Expert personally and by the Expert Entity; the Expert assigns, and the Expert Entity assigns and shall procure the assignment of, the rights in clause 12; each Honorarium is invoiced by and paid to the Expert Entity, and payment to the Expert Entity discharges the Company's obligation to pay the Expert; and clause 14.5 governs which of them is liable to pay any sum to the Company.
Where the Order names an Expert Entity, Screening applies to the Expert Entity as well as to the Expert, and an Honorarium paid to the Expert Entity is a transfer of value to the Expert for the purposes of clause 10 and of every transparency law and code that applies to it. Interposing the Expert Entity does not change what is reportable, who it is reportable about, or the fair market value basis on which the Honorarium is set.
4 CAPABILITY PROFILES AND RELEASE OF THE EXPERT'S NAME
The Company identifies the Expert to a Sponsor by the Expert Reference.
The Expert authorises the Company to prepare and share with a prospective Sponsor, in each case in a form which does not identify the Expert and does not include a combination of details that would reasonably permit the Sponsor to infer the Expert’s identity:
- a capability card stating the Expert's tier, rate band, availability and capability against the Sponsor's stated need; and
- a fuller capability profile of the Expert's experience and capability against that need.
The Company will not disclose the Expert's name, or any information from which a Sponsor could identify the Expert, without the Expert's specific prior written consent to that disclosure, given for the named Sponsor and recorded in the Statement of Work. The Expert may give or withhold that consent in their absolute discretion. Consent under this clause 4.3 is separate from the authority in clause 4.2 and is never implied.
Where a Deliverable is to bear the Expert's name, curriculum vitae or professional standing, or the Company is to permit a Sponsor to retain, reproduce or disclose a Deliverable beyond the Assignment, those uses take effect only to the extent the Expert has consented to them in the Statement of Work. The Company shall not grant a Sponsor a use it has not secured under this clause.
5 ASSIGNMENTS
Each Assignment is instructed by a Statement of Work stating the Sponsor by reference code or, where the Expert has consented under clause 4.3, by name; the scope; the Deliverables; the timeline; any Session or other reserved period; any topic exclusion under clause 5.2; whether substitution is permitted; the Expert’s disclosure under clause 5.3 and Attestation; any consent given under clause 4.3 or clause 4.4; the fair market value basis and the Honorarium; the expenses cap; and any filing required before work begins. No work begins, and no Honorarium accrues, until both parties have signed the Statement of Work. By signing a Statement of Work the Expert confirms that the Assignment falls within the Expert's competence and that no topic exclusion, professional obligation or other matter known to the Expert prevents the Expert from performing it.
A Statement of Work lists any topics the Expert must not discuss in that Assignment. The exclusions bind in both directions: the Company will not ask about an excluded topic, and the Expert will not discuss one, whoever asks.
Before accepting an Assignment the Expert shall disclose in writing every financial, professional, institutional or personal interest that a reasonable person would regard as capable of affecting the Expert's independence in it, and shall disclose promptly any such interest arising during it. The Company may decline or end an Assignment on the strength of a disclosure.
The Company may cancel an Assignment, in whole or as to any Session, by written notice at any time. On cancellation the Company shall pay the Expert the Honorarium for work performed and Deliverables completed up to the date of the notice, together with the amounts due under clause 7.5 for reserved time. Where the Expert declines to answer a question or to give an opinion for a reason within clause 6.2 and a Deliverable cannot be produced as a result, the Assignment is treated as cancelled by the Company under this clause 5.4. The Expert may cancel an Assignment by written notice where the Expert can no longer perform it, giving notice as soon as the Expert becomes aware; in that case the Expert is paid for work performed up to the notice and clause 7.5(a) does not apply.
Cancellation of an Assignment does not affect the Agreement or the Expert's standing with the Company.
6 INDEPENDENCE AND HONEST OPINION
The Honorarium pays for the Expert's time and expertise. It is fixed before work begins and is not contingent on any opinion, finding or conclusion the Expert reaches. It is payable on delivery of the Deliverables, subject to clause 5.4: delivery, not content, is the condition of payment.
The Expert may give honest, adverse or qualified opinions, may disagree with the Company or a Sponsor, and may decline to answer a question or to give an opinion where clause 5.2, clause 6.3 or clause 8.1 requires it or where the question falls outside the Expert's competence, in each case without affecting the Honorarium, the Agreement or the Expert's standing with the Company and without being treated as a failure to perform. Nothing in this clause 6.2 relieves the Expert of the obligation in clause 3.3.
Nothing in the Agreement or any Statement of Work requires the Expert to act contrary to the professional, ethical or legal obligations that apply to them. If such an obligation conflicts with the Agreement, the obligation prevails and compliance with it is not a breach.
Before an Assignment begins, and again on its completion where the Company asks, the Expert shall give the Company a written Attestation confirming: the scope of the Assignment as stated in the Statement of Work; that the Expert's participation serves that scope and no other purpose; that the Expert has made the disclosures clause 5.3 requires; that the Expert has received no payment or benefit for the Assignment other than the Honorarium and any expenses reimbursed under clause 7.8; and that the opinions the Expert gives are the Expert's own. The Company may provide an Attestation to the Sponsor for that Assignment and to a regulator, and shall retain it as part of its records.
The Expert shall give the Company the information and records it reasonably requires to maintain the audit trail its agreements with Sponsors require, including a record of hours worked against the hours cap.
An Assignment is consulting and advisory work only. It creates no physician-patient relationship and does not constitute diagnosis, treatment, patient-specific medical care or individualised medical advice, and the Company will not permit a Sponsor to represent or use a Deliverable as diagnosis, treatment, patient-specific medical care or individualised medical advice, or as a substitute for independent clinical judgement.
7 HONORARIUM AND PAYMENT
The Honorarium for each Assignment is set at fair market value from the Rate Card in force at the date of the Statement of Work. The Statement of Work states the Expert's tier, the band for that tier, the FMV Rate, which falls within that band, and the hours cap; the Honorarium is the FMV Rate multiplied by the hours cap. The FMV Rate is fixed before work begins.
The Company alone pays the Expert. The Company collects each Honorarium from the Sponsor before the Expert begins work, so the funds are in the Company's hands before any work is performed and payment cannot depend on the Sponsor's reaction to the Expert's work. The Company's payment obligation is its own and is not conditional on any further receipt from the Sponsor.
The Company will pay each Honorarium within the Payment Period. Where the Statement of Work apportions the Honorarium between Deliverables or milestones, each part is a separate Honorarium for the purposes of this clause 7. The Payment Period runs from the earlier of:
- delivery of the Deliverables, or of the Deliverable to which the part relates; and
- for an ongoing Assignment, the end of each calendar month, for the work performed in that month.
If the Company pays late, interest accrues on the unpaid amount automatically and without demand, from the due date until payment, at the rate stated in the Order. The Company also pays a fixed sum of EUR 40 towards the Expert's recovery costs for each late payment. Where a mandatory rule of law gives the Expert a higher rate or a larger fixed sum, that rate or sum applies instead.
The Company will also pay:
- for reserved time, at the FMV Rate, where a Session or other period reserved in a Statement of Work is cancelled other than by the Expert; and
- the full amount payable for a Session, where the Company suspends or ends that Session under clause 8.3.
The Expert will not solicit or accept from any Sponsor any payment or other benefit connected with an Assignment. All value owed for the Expert's work flows through the Company, and the Company's terms with each Sponsor prohibit the Sponsor from paying the Expert directly.
Amounts payable under this clause 7 are exclusive of value added tax and equivalent taxes, which the Company shall pay in addition where chargeable. The Expert is responsible for their own taxes, social contributions and any registration their own status requires.
The Company reimburses reasonable out-of-pocket expenditure that it has approved in advance in writing and that the Expert documents, up to the expenses cap stated in the Statement of Work. Reimbursement is in addition to the Honorarium, does not form part of it and does not affect the FMV Rate; but an expense reimbursed is a transfer of value to the Expert for the purposes of clause 10 and of every transparency law and code that applies to it, and reimbursement does not change what is reportable, who it is reportable about, or the fair market value basis on which the Honorarium is set. The Company will pay each reimbursement within the Payment Period, and the Company’s obligation to reimburse is its own and is not conditional on any receipt from the Sponsor.
8 CONDUCT AND THE COMPLIANCE STOP
The Expert warrants and undertakes that, in connection with every Assignment, the Expert will not:
- disclose any Confidential Information of any employer, institution or other third party, or any MNPI;
- disclose any patient-identifiable data; or
- promote any product, engage in off-label promotion, or lend the Expert's name or standing to promotional activity presented as independent advice.
The Expert further warrants that:
- they hold, and will maintain, every permission their employer or institution requires for their work under the Agreement, including any outside-activity, conflict-of-commitment or exclusivity approval; and
- they comply, and will comply, with the professional-ethics and disclosure rules of every regulator and institution to which they answer.
The Company may decline, suspend or end any Assignment or Session, or any part of one, immediately where the Company determines on reasonable grounds that continuing would breach or risk breaching applicable law, an applicable code, the Agreement or the Company's compliance policies. Clause 7.5(b) applies to a Session suspended or ended under this clause and the Expert is paid in full for it; the Company has no other liability to the Expert for a determination under this clause 8.3.
9 REGULATORY FILINGS AND PERMISSIONS
The Expert shall make every filing, and obtain every authorisation and permission, that the Expert's regulator, professional body, employer or institution requires in connection with the Agreement and each Assignment. Schedule 1 states the requirements the Company has identified for the practising jurisdiction stated in the Order; it is a convenience and does not limit this clause 9.1 or move the obligation to the Company.
The Company designs its onboarding and Assignment records so that the Expert can meet those obligations without further work, and shall provide, in good time, any document or confirmation the Expert needs in order to make a filing or obtain an authorisation, including a copy of the Agreement and of the relevant Statement of Work.
Where a Schedule 1 procedure must be completed before the Expert begins work, the Company coordinates it and the Assignment timetable adjusts so that work does not begin before the procedure permits.
A filing or disclosure the Expert makes under this clause 9 is not a breach of clause 11, and the notice requirement in clause 11.2(b) does not apply to it.
10 TRANSPARENCY
The Expert acknowledges that the Company will disclose transfers of value made under the Agreement where and to the extent disclosure is required by law or by an industry code that applies to the Company, to a Sponsor or to an Assignment, and that the Company may disclose them where no such requirement applies. This clause is not a consent for the purposes of data protection law, and the Company does not rely on the Expert's consent as its basis for making these disclosures.
11 CONFIDENTIALITY AND COMMUNICATIONS
Confidential Information means information disclosed by or for a party or a Sponsor in connection with the Agreement or an Assignment that is identified as confidential or that a reasonable person would treat as confidential, including MNPI, a Sponsor's programme, product and scientific information, and the Company's Rate Card, rate bands, methodology, Expert References and the identity and profiles of the Company's experts.
Each party will keep confidential the Confidential Information of the other and of any Sponsor, use it only for the Agreement and Assignments, and disclose it only:
- to its personnel and professional advisers who need it for those purposes and are bound by a duty of confidence; or
- where disclosure is required by law, a court or a regulator, with prior notice to the other party where lawful.
Clause 11.2 does not apply to information that is or becomes public other than through a breach of the Agreement, that a party can show it held free of any duty of confidence, that is received from a third party free of restriction, or that is developed independently.
This clause 11 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.
The Company operates a compliance wall between Sponsors and experts. All communications concerning an Assignment pass through the Company: the Expert will not communicate with a Sponsor about an Assignment except in a Session arranged by the Company or otherwise through the Company. This clause does not restrict the Expert's dealings with any person on any other matter.
12 INTELLECTUAL PROPERTY AND EDITORIAL INDEPENDENCE
The Expert assigns to the Company all intellectual property rights in the Deliverables (including patents, copyright, database rights, design rights, trade marks and rights in confidential information, registered or not, anywhere in the world), with effect from their creation. Where the law does not permit that assignment, the Expert grants the Company an exclusive, perpetual, irrevocable, worldwide, royalty-free licence over the relevant Deliverables, with the right to sublicense.
The Expert retains the Background Materials and grants the Company a non-exclusive, perpetual, irrevocable, worldwide, royalty-free licence over them, with the right to sublicense to a Sponsor, to the extent needed to use a Deliverable for the purposes the Statement of Work permits. Nothing in this clause 12 restricts the Expert's use of the Background Materials or of the general knowledge and skill they bring to or gain from an Assignment.
The Expert waives, and shall procure the waiver of, moral rights in the Deliverables to the extent the law permits, save that the waiver does not permit the Company or a Sponsor to attribute to the Expert a Deliverable the Expert did not produce, or one that has been altered without the Expert's agreement.
For educational or scientific content, scientific and editorial control rests with the Company and the Expert. As between the Company and the Expert, and in every Deliverable, the Company’s editorial role is limited to form, being format, style, length, consistency, and legal and regulatory compliance, and does not extend to altering the Expert’s opinions, findings or conclusions without the Expert’s prior written approval. No Sponsor may direct the content, emphasis or conclusions of any Deliverable.
13 DATA PROTECTION
The Company processes the Expert's personal data as controller, in accordance with applicable data protection law and with the Company's expert privacy notice, which the Company provides before it collects any of the Expert's personal data, including a curriculum vitae.
The Company shares the Expert's capability card and capability profile with prospective Sponsors under clause 4.2, and the Expert's name only under clause 4.3. A Sponsor receiving that information is an independent controller of it, and the Company's terms with each Sponsor require the Sponsor to use it only for the Assignment concerned, not to add it to any database, and not to attempt to identify the individual behind an Expert Reference.
Each party shall give the other the cooperation reasonably required to respond to data subject requests, supervisory authorities and personal data breaches touching an Assignment.
14 LIABILITY
Subject to clauses 14.2 and 14.3, each party's total aggregate liability to the other under or in connection with the Agreement, however arising, is limited to the greater of:
- the General Cap Floor; and
- the total Honoraria paid and payable to the Expert in the 12 months before the first event giving rise to the liability.
Clause 14.1 does not limit or exclude liability:
- for fraud or fraudulent misrepresentation;
- for wilful misconduct;
- for death or personal injury caused by negligence;
- that cannot be limited or excluded by law; or
- of the Company to pay the Honoraria, reserved time, interest and recovery costs due under clause 7.
Subject to clause 14.2, for liability arising from a breach of clause 4.3 (release of the Expert's name), clause 8.1 (conduct), clause 11 (confidentiality) or clause 12 (intellectual property), the limit in clause 14.1 is replaced by the Company Enhanced Cap where the Company is in breach and by the Expert Enhanced Cap where the Expert or the Expert Entity is in breach.
Subject to clause 14.2, neither party is liable to the other for loss of profit, revenue, anticipated savings or goodwill, or for indirect or consequential loss.
Where the Order names an Expert Entity: every sum payable to the Company under or in connection with the Agreement is payable by the Expert Entity, and the Company shall look to the Expert Entity alone for it; and the Expert and the Expert Entity have a single aggregate liability under clauses 14.1 and 14.3, so that the limits in those clauses apply to the two of them together. This clause 14.5 does not affect any right of the Company to injunctive relief, specific performance, suspension or termination against the Expert, and does not affect any right of the Expert under the Agreement.
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, for any reason or none, on written notice of the Notice Period, save that notice under this clause 15.2 does not take effect before the end of the Minimum Term. The Minimum Term does not restrict clause 15.3 or clause 15.4, and it commits the terms on which the parties deal rather than any period of work: clause 2.3 continues to apply throughout, so neither party is obliged to offer or to accept any Assignment during the Minimum Term.
Either party may terminate the Agreement immediately by written notice if the other commits a material breach. A breach of clause 8.1 is a material breach.
The Company may also terminate the Agreement immediately by written notice where Screening ceases to be satisfied, including where the Expert's professional registration is suspended or withdrawn or the Expert appears on an exclusion, debarment or sanctions list.
On termination for any reason:
- rights accrued before termination survive, including the Expert's right to payment under clause 7 for work performed and for reserved time;
- each Statement of Work already signed continues on the terms of the Agreement until the Assignment completes or is cancelled under clause 5.4, save that on termination under clause 15.3 or clause 15.4 every Assignment ends on the effective date of termination and clause 5.4 applies to it; and
- clauses 1, 4.3, 4.4, 5.4, 6.4, 7 (for amounts accrued), 9, 10, 11, 12, 13, 14, 15.5, 16, 17, 18 and 19 survive, and the authority in clause 4.2 ends on termination.
16 RAISING CONCERNS AND DISPUTES
Either party will first raise a dispute or concern with the other in writing. Where the Expert raises it with the Named Contact, the Company will respond in writing, with reasons, within the Response Period. This step is free, and no mediation or other paid procedure stands between the Expert and a remedy.
Neither party will begin proceedings or arbitration on a dispute before it has been raised under clause 16.1 and the Response Period has expired, except for an application for interim or injunctive relief or a claim under clause 17.3.
17 GOVERNING LAW AND DISPUTE RESOLUTION
The Agreement, every Statement of Work and any non-contractual obligation arising out of or in connection with them are governed by English law, subject always to any mandatory professional or regulatory rule that applies to the Expert where they practise, which prevails to the extent of any conflict.
Subject to clauses 16.2, 17.3 and 17.4, a dispute arising out of or in connection with the Agreement or any Statement of Work, including a dispute as to its 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 English law. The tribunal shall decide the dispute on the parties' written submissions and documentary evidence alone, unless a party shows cause why a hearing is required.
Where the Company has not paid an Honorarium by the date it falls due, and has not within the Honorarium Dispute Period after the Expert's written demand given the Expert written notice that it disputes that Honorarium and the grounds on which it does so, the Expert may bring a claim for that Honorarium in the courts of the place where the Expert is domiciled or in the courts of England and Wales, and the Company submits to the jurisdiction of those courts for that claim. This clause 17.3 permits no other claim to be brought in those courts, and the Company may bring any counterclaim under clause 17.2.
Nothing in this clause 17 prevents either party from applying to any court of competent jurisdiction, at any time, for interim or injunctive relief, and clause 16.2 does not apply to such an application.
The parties shall keep confidential the existence and content of an arbitration and every document and award in it, except so far as disclosure is required by law or a regulator, is necessary to enforce or challenge an award or to exercise a right under this clause 17, or is reasonably necessary to obtain legal, tax, insurance or other professional advice, and a person receiving information under the last of those exceptions shall be subject to obligations of confidence where appropriate.
This clause 17 is separable from the rest of the Agreement and survives its termination and any finding that the Agreement is void or was never concluded.
18 GENERAL
The Agreement is the entire agreement between the parties for its subject matter. Neither party relies on any statement not set out in it, but nothing in this clause limits liability for fraud.
A variation of the Agreement is valid only in a written document, signed by every party to it, that states expressly that it varies the Agreement. A Statement of Work does not vary the Agreement.
A notice under the Agreement must be in writing and delivered by hand, by courier or by email to the address stated in the Order or later notified in writing, and each party shall keep its notice addresses current. A notice takes effect on the day after it is sent, provided that no notification of non-delivery is received by the sender. This clause does not apply to the service of proceedings.
The Expert may not assign or transfer the Agreement, or any right under it, without the Company’s prior written consent. The Company may assign or transfer the Agreement to a member of the Company’s group, or to a successor to all or substantially all of its business, in each case without consent and provided the assignee assumes the Company’s obligations under the Agreement in writing; no such assignment or transfer reduces any accrued right of the Expert or expands the rights of any Sponsor or assignee in relation to the Expert, the Expert’s identity, a Deliverable or the Background Materials. The Company may not otherwise assign or transfer the Agreement without the Expert’s prior written consent. A member of the Company’s group means a company that controls, is controlled by, or is under common control with the Company.
No person other than the parties, and no Sponsor, has any right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce the Agreement.
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.
A failure or delay in exercising a right is not a waiver of it. A waiver is effective only in writing.
The rights and remedies under the Agreement are cumulative and do not exclude rights and remedies provided by law.
The Agreement may be executed in counterparts, each of which is an original.
The Agreement, a Statement of Work and any other document to be signed under the Agreement may be signed or accepted by electronic means as clause 19 provides, and acceptance by those means has the same effect as a handwritten signature.
Each party warrants that it has full power and authority to enter into and perform the Agreement and that the person signing or accepting the Agreement on its behalf is authorised to bind it.
19 ACCEPTANCE AND FORMATION
The Company offers the Agreement by making the Order and any Statement of Work available to the Expert through a link the Company issues for the Expert alone, together with the version of these Standard Terms identified in the Order, which the Company publishes and which is displayed in full with them (together the Offer). The Offer is capable of acceptance only in the form presented, and the Company’s system refuses the acceptance of any version or particulars other than those offered.
The Expert accepts the Offer by completing the acceptance process the Company presents through that link. That process requires a confirmation code, which the Company sends, when the Expert asks for it, to the email address the Company recorded for the Expert when it issued the Offer, and which the Expert can neither choose nor change. The Agreement is formed when the Company’s system records the acceptance, and not before. The Company is bound by the Agreement from formation and no further act by the Company is required.
Where the Order names an Expert Entity, acceptance by the Expert is acceptance both personally and on the Expert Entity’s behalf, and the Expert and the Expert Entity are bound as clauses 3.4 and 14.5 provide. The acceptance process requires the Expert to confirm that they are authorised to accept on the Expert Entity’s behalf, and that confirmation is the warranty the Expert Entity gives under clause 18.11.
The Offer lapses, and is no longer capable of acceptance, on the earliest of the Offer Expiry stated in the Order, the Company withdrawing the Offer by written notice to the Expert, and the link ceasing to operate by the Company’s act. An acceptance the Company’s system records after the Offer has lapsed forms no agreement, and the Company will tell the Expert so.
A purported acceptance on terms that differ from the Offer is a rejection of it, and neither party is bound unless the Company issues a further Offer which is accepted under this clause 19.
The Company records, for each Offer accepted: a cryptographic hash of the version and the particulars offered and accepted; the email address to which the Offer and the confirmation code were sent; the name given by the person accepting; the capacities in which the Offer was accepted; the time the confirmation code was completed and the time of acceptance; the internet protocol address and browser identification from which the acceptance was made; anything the Expert entered; and the confirmations the Expert gave. Acceptance under this clause 19 has the same effect as signature of the Agreement by every party to it. On formation the Company sends the Expert the particulars accepted, the version accepted and the means of obtaining that version and the certificate of acceptance, and gives the Expert a copy of the Agreement as accepted and of that certificate on request.
This clause 19 applies to each Statement of Work offered under the Agreement as it applies to the Agreement, reading a reference to the Agreement as a reference to that Statement of Work.
The Company may instead offer the Agreement or a Statement of Work for signature. Where it does, the Agreement or that Statement of Work is formed when every party to it has signed it, and clauses 19.1 to 19.7 do not apply to it.
To the extent that article 1127-1 or article 1127-2 of the French Code civil, or §312i(1) of the German Bürgerliches Gesetzbuch, would otherwise apply to the Agreement or to its formation, each party agrees for the purposes of article 1127-3 of that Code and §312i(2) of that Gesetzbuch that the requirements of points 1° to 5° of article 1127-1, of article 1127-2 and of numbers 1 to 3 of the first sentence of §312i(1) do not apply between them. Nothing in this clause 19.9 affects the second paragraph of article 1127-1.
The Company may offer a replacement Order, a new version of these Standard Terms, or both, by notice identifying what is offered, what it replaces and what has changed between them. Clauses 19.1 to 19.8 apply to that offer, reading a reference to the Agreement as a reference to what is offered, and the notice and the acceptance process state expressly that acceptance varies the Agreement. The Company’s issue of a replacement Order, and its publication of a new version of these Standard Terms, are the Company’s signature of them for the purposes of clause 18.2.
Acceptance under clause 19.10 varies the Agreement from the time the Company’s system records it or, where what is offered is signed under clause 19.8, from the date of the last signature. The Agreement continues as one agreement, as varied, and nothing offered or accepted under clause 19.10 forms a new agreement, replaces the Agreement or terminates it. From that time the replacement Order and the version accepted are the Order and these Standard Terms for the purposes of the Agreement; rights and obligations accrued before that time are unaffected; and clause 1.7 governs each Statement of Work signed before that time.
Schedule 1: Regulatory Requirements
This Schedule records the filings, authorisations and permissions the Company has identified for each practising jurisdiction. The Part for the jurisdiction stated in the Order applies to the Expert. Clause 9.1 governs, and this Schedule does not limit it.
Part A: France
Filing with the Ordre: the Expert files the Agreement, and each Statement of Work to which the requirement applies, with the Expert's Ordre within one month, under article L.4113-9 of the Code de la santé publique
Convention, declaration or prior authorisation: where an Assignment is for the benefit of an identifiable company producing or marketing health products, the procedure French health law requires must be completed before the Expert begins work. Clause 9.3 applies
Public-hospital practitioners: the cumul d'activités authorisation required for outside work
Part B: United States
Requirements identified: none that fall on the Expert personally as a precondition to an Assignment. The Expert's obligations under clause 8.2 (every permission the Expert's employer or institution requires, and the professional-ethics and disclosure rules of every institution to which the Expert answers) and under clause 9.1 apply in full, and are met in practice through the Expert's own institutional outside-activity approval and conflict-of-interest disclosure
Public reporting: a Sponsor may be required to report transfers of value publicly. Clause 10 governs the Expert's consent to that reporting, and clause 3.5 applies where an Honorarium is paid to an Expert Entity
Federally employed practitioners: an Expert employed by a federal body, including the National Institutes of Health and the Department of Veterans Affairs, must obtain the outside-activity approval that body requires before beginning an Assignment. Clause 8.2(a) applies
Part C: Other jurisdictions
Requirements: Clause 9.1 applies in full. The Company will identify the requirements for the jurisdiction and add a Part to this Schedule before the first Assignment in it