1. Definitions and Interpretation
1.1 In these T&C, the following words shall have the following meanings:
ABPI - the Association of the British Pharmaceutical Industry;
ABPI Code of Practice - the ABPI’s Code of Practice for the Pharmaceutical Industry. The Code sets standards for the promotion of medicines to health professionals and other relevant decision makers in the UK. It includes requirements for the provision of information to patients and the public and relationships with patient groups. The Code also applies to a number of areas that are non-promotional;
Agreement - these T&C govern the application and, if the application is successful, together with the confirmation of acceptance agreement, form a legally binding contract between us and you;
Confidential Information - any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise, relating to (without limitation) the business, finances, affairs, products, services, formulations, formulae, techniques, specifications, reports, test results, statistics, product development, research, plans, personnel, customers, suppliers or methods of one party which is disclosed to or otherwise obtained by the other party in connection with the agreement;
IPR - trade marks, patents, design rights, copyright, database rights, know-how and all other intellectual property rights in any part of the world, whether or not registered or capable of registration, and including (without limit) all goodwill and other associated rights;
Form - this application form which sets out the terms of the Donation;
Donation - the granting of an ArtiQ.Spiro licence and allocated tests for the Objective
Objective - supporting the diagnosis of suspected COPD in patients and as otherwise defined in the Form;
Spend - any reference to spend is a reference to your usage of a test under the ArtiQ Spiro licence and should be construed accordingly;
We, us or our - Chiesi Limited (with registered company number 2140985) of 333 Styal Road, Manchester, M22 5LG;
You or your - the NHS organisation, applying for the Donation.
1.2 In these T&C, unless the context requires otherwise: (a) any reference to a person will be construed as a reference to an individual, firm, company or other person (natural or legal); (b) any reference to any legislation, or legislative provision, will be construed as a reference to that legislation or provision as amended, re-enacted or extended at the relevant time; (c) a reference to the agreement shall include the Form and these T&C; and (d) the expressions including, include, in particular, for example and any similar expression shall not limit the preceding words.
2. Conditions of the Donation
2.1 You warrant that any information that you provide to us is accurate and complete (for example, information about yourself, the Objective for which you require the Donation and any costs or expenses that you will incur or have incurred in connection with this Agreement).
2.2 You must use the Donation solely and exclusively for the Objective. You must not use the Donation for any other purpose without our prior written consent.
2.3 You must not do or omit to do (or permit the doing or omission of) anything which may cause damage to our reputation or cause us to lose any licence, authority, consent or permission upon which we rely for the purpose of conducting our business.
2.4 We and you each acknowledge and agree that nothing in this Agreement (including the provision of any funding) constitutes or is intended to be provided for the promotion of medicines or as an inducement to prescribe, supply, administer, recommend, buy or sell any medicine.
2.5 You will: (a) cooperate with us in all matters relating to this agreement and comply with our reasonable instructions; (b) comply with all applicable laws, rules, regulations and codes of practice including the ABPI Code of Practice; (c) not do or omit to do anything which may cause damage to our reputation or cause us to lose any licence, authority, consent or permission upon which we rely for the purpose of conducting our business.
3.1 Refund / Return of the Donation. You must notify us in writing immediately if any of the following occurs and shall give us full details of the relevant circumstances:
3.1.1 you no longer require the Donation;
3.1.2 the Objective for which we provided the Donation changes. For example, if the event or programme which the Objective relates to has been cancelled or the topic has been varied;
3.1.3 the amount that we have sent to you is greater than the costs that you would incur for the Objective;
3.1.4 you do not spend all of the Donation on the Objective.
3.2 In addition to providing notice to us under clause 3.1, unless we have agreed in writing that you may use the amount provided for another purpose, you must promptly return the Donation to us. Where you have already spent part of the Donation on the Objective, you shall return such proportion of the Donation that has not been spent. You can return the Donation or to us by cheque payable to Chiesi Limited to the address set out in clause 1.1 or by direct payment to our bank account, the details of which we will provide to you upon request.
3.3 We may carry out such checks and/or request such evidence from you or a third party as we believe necessary to verify that you have spent any funding provided solely on the Objective. You will provide us with such information and cooperation as we may request for this purpose. If: (a) we find that you have spent the Donation (or any part of it) on any purpose for which you have not obtained our written consent; or (b) that you have not spent the Donation and the Objective for which you requested it has elapsed or no longer exists then, on request, you will promptly refund to us such proportion of the Donation as has been either spent without our consent or has not been spent on the Objective (as applicable). If you fail to cooperate with us or provide the information that we require to verify your compliance under this clause, then we may request a refund of the full amount of the Donation. You shall pay any such refunds to us in accordance with clause 3.2.
4. Confidentiality
4.1 A party will: (a) only use the other party’s Confidential Information for the purpose of the proper performance of its obligations or exercise of its rights under the Agreement; (b) take reasonable precautions to ensure that the other party’s Confidential Information is treated as confidential and is not disclosed or used other than for the express purpose of the agreement; and (c) protect the other party’s Confidential Information using at least the same standard of care as that party employs in protecting its own Confidential Information.
4.2 The obligations set out in clause 4.1 above will not apply to information which is: (a) or becomes public knowledge other than through breach of the agreement; (b) received from a third party who lawfully acquired the same and, as far as the recipient is aware, is under no obligation restricting its disclosure; (c) independently developed by the other party without access to the Confidential Information; (d) required to be disclosed under applicable law or by order of any court or governmental authority of competent jurisdiction (but only then to the extent so required); (e) permitted to be disclosed under clause 6.
4.3 Notwithstanding anything to the contrary in the Agreement and without prejudice to clause 6 below, we shall be entitled to disclose the details of this Agreement to a third party (including your name and position, the Donation and Objective) where required to do so to comply with all applicable laws, rules, regulations and codes of practice, including the ABPI Code of Practice.
4.4 Each party acknowledges that if it breaches its obligations of confidence under this clause 4, the other party will be entitled to seek equitable relief in addition to any other right available under the Agreement and/or at law.
5. Data Protection
5.1 In addition to the purposes set out in clause 6 below, we will use your personal information set out in the table below for the purposes contained therein and in reliance on the lawful basis for processing stated:
| Purpose of processing your data |
Data |
Lawful basis for processing including basis of legitimate interest (if applicable) |
|
Managing our relationship with you, including:
Notifying you of changes to our privacy policy.
Storing your contact details so that we can contact you.
Replying to any questions, suggestions, issues or complaints you have contacted us about
Keeping a record of your consent; and
helping us to maintain administrative and regulatory records about our business and its activities (including those set out under clause 6 below)
|
Related Personal Data |
Necessary for our legitimate interests (to maintain a record of your contact details in case we need to contact you, e.g. regarding the donation; to keep our records updated). |
| Fulfilling our payment obligations under this Agreement |
Bank/payment details |
Performance of Contract |
| Fulfilling the donation request under this Agreement |
Contact details and Healthcare Organisation which will be shared with ArtiQ.Spiro |
Performance of the Contract |
5.2 Your personal information may be disclosed: to companies within our group; third party companies who host our CRM database; marketing agencies that we engage to market or obtain feedback on our goods and services on our behalf; our contractors and sub-contractors as may be required in furtherance of the objectives of the ABPI Code of Practice; our professional consultants including lawyers and technology consultants when they need to give us their professional advice; and where we are required to do so by law or to comply with regulatory requirements or codes of practice (subject to your right to object to us disclosing details of Transfers of Value we have made to you in accordance with clause 6 below).
5.3 We will handle your personal information in accordance with the ABPI Code of Practice for the Pharmaceutical Industry, the Data Protection Act 2018 and Chiesi’s Privacy Policy, which can be found at chiesi.uk.com or can be provided upon request.
6. Disclosures of transfers of value
6.1 You acknowledge that we are required, by the ABPI Code of Practice, to document and publicly disclose certain transfers of value made to health professionals, other relevant decision makers and healthcare organisations, and these include information about any funding, any expenses and other transfers of value provided to you under this Agreement (Transfers of Value). Accordingly, if you are a healthcare professional or other relevant decision maker and tick the box to provide your consent on the Form, you consent to us and/or our group companies using your personal information to publicly disclose any Transfers of Value made to you in accordance with the ABPI Code of Practice.
6.2 You may refuse to provide your consent to us using your personal information as set out in clause 6.1 at any time. If you do so, your refusal will then apply for the whole of the relevant calendar year and we will not disclose any other Transfers of Value made to you within that year. If you do not provide your consent, you acknowledge that we are still permitted to disclose the Transfers of Value as required by the ABPI Code of Practice but will do so on an anonymised, aggregated basis.
7. Termination
7.1 We may terminate the Agreement immediately upon written notice if you commit a material breach of the Agreement which is either irremediable or (if remediable) is not remedied within 14 days of a written request to do so. If we terminate under this clause 7.1 then you shall refund to us any funding provided.
7.2 On termination of the Agreement for any reason: (a) each party shall promptly return or destroy, at the other’s request, all Confidential Information belonging to the other party in its possession or control; (b) the accrued rights and remedies of the parties as at termination shall not be affected; and (c) clauses which expressly, or by implication, have effect after termination shall continue in full force and effect including the following clauses: 2.5, 4, 5, 6, 7, 11 and 12.
8. Anti-bribery
8.1 You shall: (a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010; (b) comply with our Code of Ethics and anti-bribery and anti-corruption policies in each case as we may update them from time to time; (c) not provide any financial advantage to any person in return for the improper performance of their or another person’s duties; and (d) where permitted by law, notify us of any request for any undue financial or other improper advantage that you receive.
9. Conflict of Interest
9.1 In providing the Services in accordance with this Agreement, you shall ensure that no conflict of interest arises which will or may be likely to prejudice your independence and objectivity or otherwise detrimentally affect your ability to perform your obligations under the Agreement or cause embarrassment to Chiesi Limited and/or its affiliates.
9.2 Upon becoming aware of any such conflict of interest during the performance of its obligations under the Agreement (whether the conflict existed before the commencement date or during the term) you shall immediately notify us in writing of the same, giving particulars of its nature and the circumstances in which it exists or arises and shall furnish such further information as we may require.
9.3 Where, in our sole opinion, a conflict of interest notified under clause 9.2 is capable of being ameliorated by you, we may require you to take such reasonable steps as will, in our opinion, avoid or remove the conflict.
9.4 Without prejudice to our rights or remedies at law or under Clause 7, we may terminate this Agreement immediately by notice in writing to you and recover from you the amount of any losses incurred by us arising from such termination if:
9.4.1 you fail to comply with the requirements notified to you by us in accordance with clause 9.3; or
9.4.2 in our opinion, it is not possible to avoid or remove the conflict of interest; or
9.4.3 in our opinion, a conflict of interest existed at the commencement date and you should reasonably have discovered it with the application of due diligence and ought to have disclosed it to us at that time.
10. Warranties
10.1 By signing this Agreement, you warrant, represent and undertake on an ongoing basis that:
10.1.1 you have and shall continue to have full capacity and authority to enter into and properly perform your obligations under this Agreement;
10.1.2 there are no actions, proceedings or regulatory investigations commenced, pending or, to the best of your knowledge, threatened against or affecting you and which might affect your ability to properly perform your obligations under this Agreement;
10.1.3 you are not a party to any contracts or arrangements with third parties which would prevent or hinder the performance of your obligations under this Agreement; and
10.1.4 you have and shall continue to hold all necessary approvals from each and any authority which are necessary in connection with the proper performance of your obligations under this Agreement.
11. Audit
11.1 You agree to provide, to us or to our representatives, access on reasonable notice, to any and all data, records, documents and other materials in any media or format within your possession or control which relate to this Agreement and/or your obligations under the Agreement.
12. General
12.1 Neither party shall be liable to the other for any delay or failure in performing its obligations under the Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party (a Force Majeure event).
12.2 You will promptly at our request, do (or procure to be done) all such further acts and things and the execution of all such other documents as we may from time to time require for the purpose of securing for us the full benefit of the Agreement.
12.3 No variation to the Agreement will be valid unless in writing signed by both parties.
12.4 You may not assign, transfer or subcontract your rights or obligations under the Agreement without our prior written consent.
12.5 No person other than a party to the Agreement shall have any rights to rely upon or enforce any term of the Agreement.
12.6 If a court or other regulatory body finds that any part of the Agreement is invalid or unenforceable, the remainder of the Agreement shall not be affected and shall be construed as if such invalid or unenforceable part did not exist.
12.7 A waiver of any right or remedy under the Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
12.8 The Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes and extinguishes all previous drafts, agreements, arrangements and understanding between them whether written or oral relating to its subject matter. Each party acknowledges that in entering into the Agreement it has not relied upon any matter not set out within it. Nothing in this clause will operate to exclude or limit any liability for fraud or fraudulent misrepresentation.
12.9 The Agreement and any disputes in connection with it (contractual or otherwise) are subject to the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.