Last update: 09 March 2021

Where a DXRX Member (or ‘you’ as referred to hereunder) requests for any consulting and/or other professional services (“Professional Services”) from Diaceutics, and Diaceutics is able to provide such Services, the relevant parties shall enter into an Order Form, containing the agreed scope of Professional Services and Deliverables, pursuant to the Professional Services terms and conditions set out hereunder (“Terms”).

These Terms are a set of additional Service-Specific Terms as defined under the DXRX Membership Terms, and together with the DXRX Membership Terms and Related Terms constitute the “Agreement”. Capitalized terms not defined in these Terms shall have the meanings ascribed thereto in the DXRX Membership Terms.

These Terms shall be effective as of the date indicated in the relevant Order Form until terminated in accordance with the provisions hereunder.

1. Diaceutics’ Responsibilities

1.1 Diaceutics shall:

1. use reasonable efforts to provide the Professional Services and deliver the Deliverables to you as set out in an Order Form in all material respects;
2. use reasonable efforts to meet any performance dates or milestones specified in an Order Form but unless otherwise stated in the Order Form, any such dates shall be estimates only and time for performance shall not be of the essence;
3. observe any DXRX Member’s policies and/or requirements relating to healthcare professionals, pharmacovigilance, adverse events reporting, health and safety and security requirements to the extent they are applicable to the Professional Services being provided and have been communicated in advance to Diaceutics in writing; and
4. appoint a project manager in respect of the Professional Services to be performed under each Order Form and such person shall be identified in the Order Form. Diaceutics shall use all reasonable endeavors to ensure that the same person acts as Diaceutics’ project manager during the term of the Order Form but may replace that person from time to time where reasonably necessary in the interests of the Diaceutics’ business.

1.2 Acceptance criteria: Each of the Deliverables listed in an Order Form must be reviewed and accepted by DXRX Member, who will review and respond to each Deliverable within seven (7) calendar days of receipt with either an approval or rejection (with one or more fix requests). If no response is received from DXRX Member after seven (7) calendar days, the relevant Deliverable shall be deemed accepted by DXRX Member. In the event where there is a rejection in respect of a submitted Deliverable, DXRX Member shall provide Diaceutics with clear feedback and Diaceutics will re-submit such Deliverable within five (5) calendar days (or in an alternative mutually agreed timeframe).

2. Your Obligations

2.1 You shall:

1. co-operate with Diaceutics on all matters relating to the Professional Services;
2. if applicable, provide, for Diaceutics and its representatives, in a timely manner and at no charge, access to your premises and accurate DXRX Member Materials as reasonably required in connection with the Professional Services; 
3. obtain and maintain all necessary licenses and consents and comply with all relevant legislation as required to enable Diaceutics to provide the Professional Services, including the use of all DXRX Member Materials as such licenses, consents and legislation related to DXRX Member’s business, premises, staff and equipment, in all cases before the date on which the Professional Services are to start; and
4.  comply with any additional responsibilities as set out in the relevant Order Form.

2.2 If Diaceutics’ performance of its obligations under these Terms is prevented or delayed by your act or omission or that of your agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, Diaceutics shall be allowed an extension of time to perform its obligations at least equal to the delay caused by you.

3. Change Order (CO)

3.1 If Diaceutics recommends a change, or you request a change to e.g., the scope of the Deliverables set out in an Order Form after its effective date, such change(s) shall be authorized by completing a change order.

3.2 Diaceutics may charge you for spending substantial time and resources on preparing and negotiating change orders which implement changes proposed by you on a time and materials basis at rates notified to you in advance of any preparation or negotiation of change orders.

4. Fees, Payment & Insurance

4.1 Fees. Fees shall be incurred from the point of initial delivery of the Services to you which you agree to pay in full without any set-off, counterclaim or deduction and as set out in the relevant Order Form. Unless otherwise agreed in the relevant Order Form, the fees are exclusive of:

1. GST/VAT;
2. any withholding taxes; and/or,
3. the cost to Diaceutics of any materials or services procured by Diaceutics from third parties for the provision of the Professional Services as such items and their cost are set out in the Order Form or approved by you in advance from time to time.

4.2 Expenses. If set out in the applicable Order Form, you will reimburse Diaceutics for its reasonable out-of-pocket travel and related expenses incurred consistent with your travel and expense policy, as communicated in advance to Diaceutics. Diaceutics will include in the Order Form an estimate of any anticipated out-of-pocket travel and expenses.

4.3 Payment schedule. Diaceutics shall invoice you at the intervals specified, or on the achievement of the milestones indicated, in the Order Form. If no intervals or milestones are so specified, Diaceutics shall invoice you at the end of each month for Professional Services performed during that month.

4.4 Payment terms. You shall pay each invoice within thirty (30) calendar days of receipt to a bank account nominated in writing by Diaceutics from time to time. Without prejudice to any other right or remedy that it may have, if you fail to pay any undisputed sum due on the due date:

1. all such sums will bear a rate of interest that is calculated on a daily basis that is the lesser of (i) 4% per month, or (ii) the highest rate permissible under applicable law, starting on the date such payment is due until the overdue amount is paid in full; and,
2. if such failure continues for thirty (30) calendar days after written notice thereof, you will be deemed to be in material breach of these Terms and Diaceutics may immediately:
   1. suspend provision of any Professional Services;
   2. reject or cancel any Order Form; and/or
   3. terminate the Agreement.

4.5 Insurance: Each party shall maintain, throughout the Term of the Agreement (and for a minimum of three (3) years thereafter), appropriate insurance cover with a reputable insurance provider to cover any potential contractual claims hereunder and shall provide the other with written evidence of the same upon request.

5. Intellectual Property

Newly developed Intellectual Property Rights: Subject to all undisputed fees due and payable having been received by Diaceutics in full and cleared funds, it is agreed that save for:

1. Third-Party Materials (licensed under a Third-Party License);
2. Diaceutics Materials; and,
3. DXRX Member Materials (owned by, or licensed to, you and provided to Diaceutics by you for use or incorporation in the Deliverables);

all newly developed Intellectual Property Rights in all other aspects of the Deliverables are hereby assigned to you absolutely with full title guarantee by way of present and future rights and interest in the Intellectual Property Rights subsisting in the Deliverables.

5.2 Diaceutics Materials and Diaceutics Warranty: Diaceutics Materials shall remain the sole property of Diaceutics. You will not obtain any rights in such Diaceutics Materials other than a non-exclusive and non-transferable right to access or use such Diaceutics Materials for the sole purposes of utilizing the Deliverables for your internal business. Such right shall not be transferable except in connection with a merger or the sale or other transfer of a business to which such Deliverables relate. Diaceutics warrants that it has obtained all necessary approvals, authorizations, licenses, consents and waivers necessary for you to use the Diaceutics Materials. You agree not to sell, publish, disclose or otherwise transfer, make available or distribute Diaceutics Materials, in whole or in part, or sublicense the rights granted pursuant to an Order Form to any other party.

5.3 DXRX Member Materials and DXRX Member Warranty: DXRX Member Materials shall remain your sole property and Diaceutics will not obtain any rights in the DXRX Member Materials other than a non-exclusive, royalty-free license to use the DXRX Member Materials (including any Third-Party Materials contained therein) as is necessary for Diaceutics to perform the Professional Services. You warrant that you have obtained all necessary approvals, authorizations, licenses, consents and waivers necessary for Diaceutics to use all DXRX Member Materials (including any Third-Party Materials contained therein) provided by you as intended by these Terms and associated Order Form.

5.4 Third-Party Materials: All Third-Party Materials are the exclusive property of their respective owners. Diaceutics shall inform you of any need to obtain a Third-Party License, at your expense, and unless otherwise provided for by Diaceutics in agreement with you or on your behalf, you shall obtain the license(s) necessary to permit your use of the Third-Party Materials consistent with the usage rights required.

5.5 You shall promptly give notice in writing to Diaceutics if you become aware of:

1. any infringement or suspected infringement of any Diaceutics’ Intellectual Property Rights;
2. any claim that any Diaceutics’ Intellectual Property Rights in the Deliverables infringes the rights of any third party; and/ or,
3. any claim that any of your Intellectual Property Rights in the DXRX Member Materials infringe the rights of any third party.

5.6 In the case of any matter falling within clauses 5.5(a) and 5.5(b), Diaceutics shall:

1. in its absolute discretion, determine what action if any shall be taken;
2. have sole authority to conduct, defend or settle the claim; and,
3. indemnify you for and against any Losses incurred by you as a result of such claim. In the defense or settlement of any claim by Diaceutics under clause 5.6(b), Diaceutics may procure the right for you to continue using the Deliverables, replace or modify the Deliverables so that they become non-infringing.

5.7 In the case of any matter falling within clause 5.6(c), you shall indemnify Diaceutics for and against all Losses incurred by Diaceutics if any part of the DXRX Member Materials supplied by you during the course of Diaceutics providing the Professional Services infringes the Intellectual Property Rights of a third party. Diaceutics may choose to terminate the Agreement immediately without any liability or obligation to pay liquidated damages or other additional costs to you.

5.8 This clause 5 states your sole and exclusive rights and remedies and the entire obligations and liability of Diaceutics, for infringement of any Intellectual Property Rights.

6. Data Protection

6.1 Each party shall, at its own expense, ensure that it complies with all Applicable Data Protection Laws and Processes Personal Data as necessary for the purposes contemplated under an Order Form.

6.2 To the extent that the nature of the Professional Services pursuant to an Order Form requires Diaceutics to Process Personal Data on your behalf, Diaceutics will act as a Data Processor for the purposes of the Applicable Data Protection Laws and the terms of the DXRX Data Processing Addendum shall apply.

7. Term and Termination

7.1 Unless otherwise stated in an Order Form and/or these Terms, neither party shall be entitled to cancel (in whole or part) an Order Form for Professional Services.

7.2 Without affecting any other right or remedy available to it, either party may cancel an Order Form for Professional Services with immediate effect by giving written notice to the other party if:

1. the other party commits a breach of any other term herein (or in the relevant Order Form) which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of sixty (60) calendar days after being notified in writing to do so; or,
2. if the other party suspends, or threatens to suspend, payment of its debts or is (potentially as determined by the non-defaulting party) unable to pay its debts as they fall due (in any jurisdiction to which it is subject) or admits inability to pay its debts.

7.3 On termination of an Order Form, you shall immediately pay Diaceutics in respect of all work performed, non-refundable expenses incurred up until the termination date and all of Diaceutics’ outstanding unpaid invoices and interest. In respect of any Professional Services supplied but for which no invoice has been submitted, Diaceutics may submit an invoice, which shall be payable immediately on receipt.

8. Definitions and Interpretation

The definitions and rules of interpretation in this clause apply to these Terms. Please refer to the DXRX Membership Terms for capitalized terms used within the meanings below but not defined hereunder.