Terms and Conditions
1. Introduction
This agreement sets forth Axon Advisors LLC's ("Axon Advisors") terms and conditions ("Terms and Conditions") governing your participation as a consultant in paid phone consultations, conference calls, one-on-one meetings, luncheons, dinners and other events ("Consulting Engagements") and in the creation of any intellectual property developed by, through or during Consultation Engagements, surveys, and data collection projects in connection with Axon Advisors' Services pursuant to this Agreement ("Expert Work Product") requested and arranged by Axon Advisors personnel with Axon Advisors' clients ("Clients") in connection with Axon Advisors' healthcare Expert networking services and products. These supersede all prior Terms and Conditions between you and Axon Advisors. By clicking "I Agree to these Terms and Conditions" in the designated section of our website (http://www.axonadvisors.com) prior to a proposed Consulting Engagement, you understand that you are bound by these Terms and Conditions, and all future amendments thereto.
2. Background
Axon Advisors is an expert networking firm that networks global investment managers, corporations, law firms, and other organizations with healthcare industry experts, including business professionals, consultants, academics, and researchers, for phone consultations, conference calls, face-to-face meetings, group events, surveys and proprietary data input.
3. Purpose of Terms and Conditions
These Terms and Conditions describe the relationship between you and Axon Advisors and its Clients, the means of your Consulting Engagements with Clients, remittance of payments for your participation in a Consulting Engagement, and the protection of confidential information. These Terms and Conditions are intended to benefit you, Axon Advisors, and our Clients and enable you, us, and our Clients to satisfy ourselves that all Consulting Engagements will be carried out in accordance with applicable laws and will not lead to the improper disclosure of confidential information, including material inside information within the meaning of U.S. federal securities laws, nor the disclosure of Axon Advisors' or our Clients' confidential information.
4. Restrictions relating to potential conflicts of interest, protections of confidential information and other consulting policies
You may only participate in Consulting Engagements through Axon Advisors if you are permitted to do so by your employer, affiliated institution or previous employer, if applicable, and must obtain any necessary consents or waivers from appropriate parties. It is your responsibility to ensure that you do not violate any law, regulation, agreement or other obligation you may have by participating in any Consulting Engagement or by disseminating any information during a Consulting Engagement. Should you become concerned with the nature of any questions asked in the course of a Consulting Engagement or concerned that your participation in a Consulting Engagement could result in a violation of any law, regulation, agreement, these Terms and Conditions or other obligation you may have, you must discontinue your participation in the Consulting Engagement immediately. Violation by you of any of the policies set forth below will be a breach of these Terms and Conditions and will result in immediate termination of any current and future Consulting Engagement through Axon Advisors.
a. Conflict of interest
You must decline participation in or cease participation in any Consultation Engagement that presents a conflict of interest or causes you to breach any agreement with another entity:
(1) Relating to duties to an employer
You must decline participation in any Consulting Engagement where topics presented to you as subject matter to be discussed directly pertain to the company for which you are currently director, trustee, officer, or employee. You must also decline any Consulting Engagement with Clients who are employed by a direct competitor of your current employer. If a public company for which you are a director, officer, or employee is involved in a takeover offer, you must decline all Consulting Engagements until the offer is resolved.
(2) Relating to clinical trials
If you are involved in a clinical trial, you may not discuss patient experience or trial results not yet in the public domain. If you are a member on the Clinical Trial Steering Committee and Data Safety Monitoring Board, you cannot discuss the active trial or the drug that is the subject of the trial. If you are a Scientific Advisory Board member, you may not discuss a company's ongoing clinical trials.
(3) Relating to FDA Advisory Committee membership
If you are an FDA Advisory Committee member, you may not discuss products or services for which that Committee receives confidential information or makes recommendations.
(4) Relating to formulary management decision makers
If you are a formulary manager, you may not discuss your company's future formulary decisions.
b. Confidentiality and Exceptions
(1) Confidentiality of Confidential Information
You shall also maintain in confidence any and all confidential or proprietary information of or concerning Axon Advisors' Clients, including information regarding any Client's specific transactions or positions in investment securities and information relating to Consulting Engagements ("Confidential Information"). Confidential information of Client shall include (i) information relating to Consultation Engagement or Expert Work Product; (ii) the existence of the relationship between Client and Axon Advisors; (iii) the existence of the relationship between Client and you; (iv) any documents or information that have been supplied to Client or by Client in connection with any Consulting Engagement or Expert Work Product; (v) the findings, results or conclusions of any Consulting Engagement, survey, or data collection project, including any Expert Work Product; and (vi) any information relating to the business of Client or its clients or any of its affiliates (including, but not limited to, information as to processes, techniques, discoveries, pricing, marketing, methods, know-how, organizational structure, customers and results of operations of Client, Client analysts or any such affiliate).
You may not, without Axon Advisors' and Client's prior written consent or except to the extent required by applicable law (with prior notice to Axon Advisors, if and to the extent permissible), communicate or divulge the contents or existence of any Consulting Engagement, including the name of the Clients that participated, to anyone other than as necessary to secure any third party consent to your participation in a Consulting Engagement. In maintaining the confidentiality of Confidential Information, you shall exercise the same degree of care that you exercise with your own confidential information, and in no event less than a reasonable degree of care. You shall make no use of the Confidential Information other than as permitted under these Terms and Conditions or otherwise required by law.
You shall maintain in confidence any and all confidential or proprietary information of or concerning Axon Advisors, including Axon Advisors' technical and business information relating to proprietary ideas and inventions, ideas, patentable ideas, trade secrets, existing and/or contemplated products and services, research and development, production, costs, profit and margin information, finances and financial projections, customers, Clients, marketing, and current or future business plans and models, regardless of whether such information is designated as "confidential information" at the time of its disclosure.
(2) Exceptions to maintaining confidentiality of Confidential Information
The obligation of confidentiality contained in these Terms and Conditions shall not apply to the extent that:
(a) You are required to disclose information by order or regulation of a governmental agency or a court of competent jurisdiction, provided, however, that you shall not make any such disclosure without first notifying Axon Advisors and/or Bernstein and allowing Axon Advisors and/or Bernstein a reasonable opportunity to seek appropriate relief from such disclosure, or
(b) You can demonstrate that:
(i) the disclosed information was at the time of such disclosure to you already in (or thereafter enters) the public domain other than as a result of actions of you in violation hereof;
(ii) the disclosed information was rightfully known to you prior to the date of disclosure to you; or
(iii) the disclosed information was received by you on an unrestricted basis from a source unrelated to any party to these Terms and Conditions and not under a duty of confidentiality.
5. Ownership and Use of Information Obtained through Expert Work Products.
All Expert Work Product shall be considered work made for hire by Client, and Client shall have exclusive ownership of such Expert Work Product, including any and all copyright and other intellectual property rights in such work. You, on your own behalf and on behalf of any of your agents or employees, assigns to Client any and all rights of copyright and other intellectual property rights in such Expert Work Product. No rights are reserved by you. You agree that Client may use such information in the ordinary course of its business and to publish or reference such information, or portions thereof, in its publications, materials and oral presentations to its actual and potential clients. You represent and warrant that such use will not violate any agreements or understandings you may have. Client may alter Expert Work Product, add to it, or combine it with any other work or works, in its sole discretion.
6. Financial advice
You are expressly prohibited from providing investment judgment or financial advice, including without limitation, rating or recommending any security, providing advice as to the value of any security, or providing any advice regarding the advisability of investing in, purchasing, or selling any security. The information you provide is not and should not be considered a recommendation or prediction.
7. Privacy policy
Axon Advisors will not disclose your name, your contact information, or information relating to any Consulting Engagement or Expert Work Product you have been involved in to any third party, unless you provide prior consent or unless Axon Advisors is so ordered by a governmental agency or a court of competent jurisdiction. Clients are not permitted to publicly divulge your name, opinion, or Consulting Engagement-related work without your written permission.
Axon Advisors will not sell information about you to any third party for any reason.
8. Non-solicitation
You agree not to solicit for employment any employee of Axon Advisors or any Client with whom you have completed a Consulting Engagement for up to two years after the engagement.
9. Independent contractor
At all times during which you are a consultant, in relation to a Consulting Engagement arranged by Axon Advisors, you shall be a non-agent independent contractor of Axon Advisors, and in that capacity shall not be acting on behalf of Axon Advisors in a fiduciary capacity and shall not have any authority to act on behalf of Axon Advisors.
Your participation in a Consulting Engagement is at your discretion. You understand and confirm that you are not speaking about or acting on behalf of your employer or other entity, including Axon Advisors, in connection with Consulting Engagements.
10. Payment
You will be paid in US dollars by check based on your hourly rate and the length of the Consulting Engagement, unless a set fee is agreed to beforehand and is documented in an email exchange. You will be paid at 50% of your hourly rate for travel to and from a Consulting Engagement in-person. You will only be paid for time spent on research or preparation of any additional work outside the scope of the Consulting Engagement if it is agreed to beforehand and documented in an email exchange. You will not disclose your rate of pay to Clients at any time. Payment will be made within 4-6 weeks of the Consulting Engagement.
11. Your responsibilities
a. General liability
You will be expected to provide information during any Consulting Arrangements in good faith and to the best of your ability and at all times consistent with these Terms and Conditions. It is your responsibility to ensure that you do not violate any law, regulation, agreement or other obligation you may have by participating in any Consulting Arrangement or by disseminating any information during such Consulting Arrangements. Should you become concerned with the nature of any questions asked in the course of a Consulting Arrangement or concerned that your participation in a Consulting Arrangement could result in a violation of any law, regulation, agreement, these Terms and Conditions or other obligation you may have, you must discontinue your participation in the Consulting Arrangement immediately.
b. Indemnification
Axon Advisors and Client will not hold you liable for indemnification against claims, demands, and causes of action asserted by any third party in connection with your participation in a Consulting Engagement unless they relate to any breach by you of the agreements under these Terms and Conditions or your gross negligence or willful misconduct. In the event of a breach by you of the agreements under these Terms and Conditions or your gross negligence or willful misconduct during the scope of a Consulting Engagement, you shall indemnify, defend, and hold harmless Axon Advisors and Client, and their respective directors, trustees, officers or employees, and their respective successors against any claims, demands, or causes of action arising thereof.
c. Regarding professional or legal investigations
If you have been convicted of or charged with a felony or have been subject of a business-related investigation or regulatory or enforcement proceeding brought by any institution or securities, commodities or other financial regulatory authority or self-regulatory organization, this must be communicated to Axon Advisors prior to any Consulting Engagement or Expert Work Product.
12. Miscellaneous Terms
a. Liability Limitations
In no event shall Axon Advisors and/or its successors be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever arising out of your participation in a Consulting Engagement.
b. Modifications
We may modify these Terms and Conditions from time to time by posting the modifications on our website, www.axonadvisors.com. Unless otherwise specified by us when posted, all modifications will be effective upon posting. If you do not agree to a modification, your only recourse will be to decline participation in a Consulting Engagement or Expert Work Product. If you continue to participate in a Consulting Engagement or Expert Work Product after any modification becomes effective, then your participation will constitute acceptance of such modification.
c. Copyright.
All materials set forth on Axon Advisors' website, regardless of whether they are specifically marked, are protected by copyright and other intellectual property laws. You may not use such materials in any way other than for your personal use in connection with your Consulting Engagements, without the express written permission of Axon Advisors.
d. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules. The parties to this Agreement hereby submit to the non-exclusive jurisdiction of the state and federal courts of the State of New York located in New York, New York for the resolution of any and all disputes arising under or relating to this Agreement.
e. Arbitration
Any controversy arising in relation to the interpretation and of these Terms and Conditions shall be solely and finally settled by binding arbitration under the rules of the American Arbitration Association ("AAA"), and judgment on the award rendered in the arbitration may be entered in any court having jurisdiction thereof. Arbitration shall be in New York, New York, and shall be submitted to a single arbiter mutually appointed by both parties or by application of any party to the AAA. The arbiter shall be authorized to apportion fees and expenses as the arbiter deems appropriate.
f. Severability
Any invalid or unenforceable provision in these Terms and Conditions does not alter the validity or enforceability of any other provision.