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CONSULTING MEMBER AGREEMENT
This Consulting Member Agreement (the “Agreement”) is a binding contract between Academic Orthopaedic Consortium, Inc. (the “Company”) and the undersigned individual (“Consulting Member”) who, in exchange for being granted and being allowed to maintain AOC Consulting Member status, is agreeing to abide by the terms of this Agreement.
1. Consulting Member Status. An AOC Consulting Member is eligible to participate in certain projects for AOC Clients through AOC’s Consulting Member Network and to be paid for such participation. The “Clients” are participants in the ortho/musculoskeletal surgery and care industry who contract through AOC to obtain the following types of services from Consulting Members: consultations (whether by phone, video, or in person), filling out surveys, drafting white papers, participating in a focus group or think tank, assisting with clinical trials, assisting with creating or presenting educational content, and other such services for projects requested by AOC’s Clients. A Consulting Member whose credentials match those sought by a Client for a project will be eligible to be considered by that Client for that project and may be chosen to participate. A Consulting Member who is chosen to participate in a project will have a set amount of time to opt in to or decline participation. Nothing in this agreement should be construed as inducing Consulting Member regarding what drugs to prescribe, what devices or services to use, or what patient referrals to make.
2. Consulting Member Information. For Consulting Members to be considered for appropriate projects, it is crucial that the information they provide in their profiles is accurate, complete, and up to date. Consulting Member represents and warrants that any information Consulting Member includes on Consulting Member’s Consulting Member profile is and will be accurate, complete, and up to date (at least within the past 30 days when Consulting Member has been chosen for a Client project or is aware that he or she is being considered for a Client project). If AOC determines that it needs to take further steps to verify any information Consulting Member provides, Consulting Member may be required to provide a consent for background checks to obtain or remain eligible to participate in AOC’s Consulting Member Network.
By participating in AOC’s Consulting Member Network, Consulting Member consents to AOC’s contacting Consulting Member by email, telephone, text message, or otherwise, to process and administer details of Consulting Member’s membership in AOC’s Consulting Member Network, to provide Consulting Member with opportunities to participate in projects, and to comply with applicable laws and Client or AOC compliance policies.
3. Consulting Member Representations and Acknowledgements.
(a) Consulting Member represents and warrants that:
(i) The profile information that Consulting Member has provided to AOC and that has been recorded and maintained by AOC is accurate, complete, and up to date.
(ii) Consulting Member is not prohibited by law, regulation, ethics rules, contract, or policies of Consulting Member’s employer, practice group, or institution from participating in AOC’s Consulting Member Network and working on projects for AOC Clients;
(iii) If Consulting Member is limited by law, regulation, ethics rules, or policies of Consulting Member’s employer, practice group, contract, or institution from participating in AOC’s Consulting Member Network or any project in which Consulting Member is asked to participate, Consulting Member will decline such participation;
(iv) If Consulting Member is required to obtain any necessary consent, waiver, or other permission (e.g., from an employer, a practice group, or an affiliated academic or government organization) to participate in AOC’s Consulting Member Network or any project, Consulting Member will obtain it before such participation, and, if Consulting Member is participating in a project, Consulting Member has obtained such consent, waiver, or other permission;
(v) Consulting Member will not, while performing services for an AOC Client, use any trade secrets or confidential information of any current or former employer or other entity without that entity’s specific written permission;
(vi) Consulting Member will decline participation in any project that would involve a conflict of interest for Consulting Member or any organization with which Consulting Member is affiliated;
(vii) Consulting Member will only be paid a rate that is justified when considering fair market value; and
(viii) If a Client’s behavior causes Consulting Member concern about possible illegality or impropriety of the project (e.g., improper pressure or influence on Consulting Member regarding what drugs to prescribe, what devices or services to use, or what patient referrals to make), Consulting Member will contact AOC and report that concern and discontinue working on the project.
(b) Consulting Member further represents:
(i) Consulting Member has not been convicted of or pled guilty or no contest to any criminal offense involving dishonesty or deception (e.g., theft, fraud, etc.) or any crime that may be punishable by a year or more imprisonment; and
(ii) Consulting Member has not been suspended or debarred from participating in contracts or programs with the United States government.
4. Engagement and Payment. Consulting Member’s participation in projects offered through the AOC’s Consulting Member Network is in Consulting Member’s discretion. AOC does not guaranty any number or frequency of project offerings to Consulting Member. Consulting Member will be compensated for participating in projects at Consulting Member’s rate established for that project, and such compensation will not include waiting time or other time not related to actual work on the project. Such compensation will be paid through AOC, and Consulting Member will not accept any compensation other than that provided by AOC for work performed on projects for Clients without first obtaining the written permission of AOC. The timing of payments and any prerequisites for the release of payments will be determined by the terms of the specific project. Once the timing of payments is set and prerequisites are met, AOC will make quarterly payments to Consulting Member for work on Client projects. If there is a dispute between a Client and Consulting Member regarding whether Consulting Member performed the work completely or properly or met any other prerequisites for payment, AOC will be the sole arbiter of that dispute, and its decision on whether payment is due will be binding on both the Client and Consulting Member.
5. Protection of Confidential Information.
(a) Non-Disclosure of Confidential Information. To enable Consulting Member to participate in AOC’s Consulting Member Network and to effectively perform projects, AOC and AOC Client’s may share with Consulting Member certain confidential information. Consulting Member will not use or disclose that Confidential Information (as defined below) other than as required to for participation in AOC’s Consulting Member Network and the provision of services to a Client through such participation.
(b) Definition of Confidential Information. The term “Confidential Information” includes, all information, whether constituting a trade secret or not, in any form or medium, that relates to (1) the identity of Clients; (2) information about Client’s projects, including invitations to participate in the projects; (3) information about actual or potential business decisions or transactions of any Client; and (4) non-public information and materials provided to Consulting Member by AOC or a Client. Consulting Member’s obligation not to use or disclose Confidential Information will survive the termination of this Agreement. Notwithstanding the foregoing, Consulting Member may disclose the topic and Client description of any project to the appropriate party when necessary to obtain any required consent for participation in AOC’s Consulting Member Network or a specific project.
6. Return of Property. Consulting Member agrees that, upon the request of AOC or its Client, Consulting Member will return to AOC or its Client the property of AOC or its Client, including but not limited to all Confidential Information in whatever form it exists in Consulting Member’s possession or control.
7. Assignment of Intellectual Property. “Intellectual Property” means the entire right, title, and interest in and to all proprietary rights of every kind and nature, including all rights and interests pertaining to or deriving from (a) patents, inventions, technology, formulae, know-how, trade secrets, and Confidential Information, (b) trademarks, service marks, trade names, trade dress, brand names, internet domain names, together with associated goodwill, (c) copyrights, maskworks, designs, and websites, (d) software, programming, code, databases, algorithms, and data, (e) rights of privacy and publicity, moral rights, and other intellectual property and proprietary rights, including all registrations and applications related to the foregoing. All Intellectual Property developed or provided by Consulting Member for a project in accordance with this Agreement (collectively, “Consulting Member’s Work”) will be owned exclusively by the Client for whom it was developed or provided and to the extent applicable, will be deemed a “work made for hire” for that Client. In the event and to the extent that any Consulting Member’s Work or any part or element thereof is not, or his held by a court not to be, a “work made for hire,” Consulting Member hereby agrees to assign and, upon their authorship, preparation, production, conception, design, development, or creation, expressly, does hereby automatically and irrevocably assign, to the relevant Client and its successors and assigns, without additional consideration, any and all rights, title, and interest in perpetuity in and to such Consulting Member’s Work, including but not limited to all adaptations, derivations, and versions thereof, and the unencumbered right to exercise such rights in all media and by any manner or means, whether now or hereafter devised, as well as the sole and exclusive right, title, and interest in the ownership of the Intellectual Property rights therein in the United States and worldwide, and all renewals and extensions thereof, and any moral rights therein. Consulting Member agrees to waive, and hereby waives, all moral rights relating to such Consulting Member’s Work, including but not limited to any and all rights of identification of authorship and any and all rights of approval, restriction or limitation on use or subsequent modifications. Consulting Member further agrees, during and after the project and/or term of engagement with AOC, to cooperate with the Client in connection with perfecting and protecting the Client’s exclusive right and title in and to the Consulting Member’s Work and to execute any assignments or other documents as requested by the Client or AOC to vest full and exclusive ownership in the Client.
Consulting Member represents, warrants, and agrees that Consulting Member (i) has not provided, and will not provide, AOC or any Client with access to, or use of, any inventions that Consulting Member made or conceived or first reduced to practice alone or jointly with others prior to engagement on a project (“Pre-Engagement Inventions”), (ii) has not utilized, and will not utilize, any Pre-Engagement Inventions in the development of any work product for a Client project, (iii) has not incorporated or integrated, and will not incorporate or integrate, any Pre-Engagement Inventions into the work product for a Client project, except to the extent that the Pre-Engagement Inventions are in the public domain or are for use by the Client through a license from Consulting Member; and (iv) will not take any actions in the performance of work on a project that would result in the infringement, misappropriation, dilution, or other violation of any other person or entity’s intellectual property rights.
Upon Consulting Member’s ceasing to perform services on a project for any reason or at a Client’s request, Consulting Member will deliver all Consulting Member’s Work on that Client’s project, including all copies thereof and extracts therefrom, to the Client. Consulting Member’s obligation to assist the Client in obtaining and enforcing its rights hereunder will survive termination of this Agreement. If the Client is unable to secure Consulting Member’s signature for any reason, Consulting Member agrees to irrevocably designate and appoint the Client and its duly authorized officers and agents as Consulting Member’s agents and attorneys-in-fact, to act for and in Consulting Member’s behalf and to execute and file any such application(s) and to do all other lawfully permitted acts to further the prosecution and issuance of all intellectual property rights in Consulting Member’s Work with the same legal force and effect as if executed by Consulting Member.
8. Non-Circumvention. Consulting Member will not, while a member of AOC’s Consulting Member Network and for 12 months after that membership ends for any reason, work directly with a Client outside of AOC’s Consulting Member Network if Consulting Member worked on a project for that Client, or was introduced to that Client because of AOC’s Consulting Member Network, within the preceding 12-month period. The clause will not apply if it is prohibited the law of the jurisdiction where and from which Consulting Member will provide services.
9. Non-Solicitation of Company Employees and Consulting Members. Consulting Member will not, while a member of AOC’s Consulting Member Network and for 12 months after that membership ends for any reason, on Consulting Member’s own behalf or on behalf of another individual or entity, (a) solicit (nor direct or supervise anyone else to solicit), a Restricted Person (as defined below) for the purposes of employing or engaging the Restricted Person to provide services and products that could have been provided through AOC’s Consulting Member Network or (b) inducing the Restricted Person to leave his or her relationship with AOC. The clause will not apply if it is prohibited the law of the jurisdiction where and from which Consulting Member will provide services. For purposes of this Agreement, “Restricted Person” means:
(a) Any member of AOC’s Consulting Member Network, except such members with whom Consulting Member had a pre-existing relationship;
(b) Any individual who was employed or engaged by AOC at any time during the twelve (12) month period immediately prior to the date Consulting Member’s membership in AOC’s Consulting Member Network ended (or if it has not ended, within the 12 months prior to the solicitation);
(c) Any individual who was employed or engaged by AOC at any time during the twelve (12) month period immediately prior to the date Consulting Member’s engagement with AOC ended with whom Consulting Member had contact or about whom Consulting Member learned because of Consulting Member’s engagement with AOC (or if it has not ended, within the 12 months prior to the solicitation).
10. Termination. Either party may end this Agreement at any time for any or no reason. If Consulting Member ends this Agreement, Consulting Member will remain obligated to complete any projects in which Consulting Member is then engaged for any Clients. Upon termination, Consulting Member will be removed from AOC’s Consulting Member Network.
11. No Assignment by Consulting Member. Neither this Agreement nor any duties, obligations, or rights under it may be assigned by Consulting Member without AOC’s prior written consent. Any attempted assignment or delegation of this Agreement or any work to be performed in accordance with it by Consulting Member without the express written consent of AOC will be void. This prohibition on assignment without written permission extends to any work to be performed by Consulting Member on any projects.
12. Independent Contractor Status. It is the express intention of the parties that Consulting Member is an independent contractor of AOC and its Client and is not an employee, agent, joint venturer, or partner of AOC and its Client. Nothing in this Agreement will in any way be interpreted or construed as creating or establishing the relationship of employer and employee between the Consulting Member and AOC or its Client. Consulting Member will retain the right to perform services for others during the term of this Agreement so long as those services are not inconsistent or incompatible with Consulting Member’s obligations under this Agreement.
13. Third Party Beneficiary. Any AOC Client who engages Consulting Member for a project through AOC’s Consulting Member Network is an intended third-party beneficiary of this Agreement and is relying on Consulting Member’s complying with its terms. Consulting Member acknowledges and agrees that either AOC or the relevant Client can enforce the terms of this Agreement and require Consulting Member’s compliance.
14. Survival and Reasonableness of Restrictions. The covenants in this Agreement regarding Confidential Information, intellectual property, non-circumvention, and non-solicitation will survive the termination of Consulting Member’s engagement and this Agreement. Consulting Member acknowledges that the restrictive covenants included in this Agreement are necessary to effectuate Consulting Member’s promise to hold Confidential Information in trust for AOC and its Clients, as well as protecting AOC’s member and Client relationships and good will. Consulting Member further acknowledges that the restrictive covenants are drawn only as broad as reasonably necessary to protect these legitimate business interests of AOC. Consulting Member further agrees that the restrictions are reasonable in scope, area, and time, and will not unreasonably prevent Consulting Member from pursuing other business ventures or otherwise cause a financial hardship to Consulting Member.
15. Breach and Remedies. Consulting Member acknowledges that the breach or threatened breach of any of the covenants regarding confidential information, Company property, intellectual property, non-competition, non-solicitation, and non-interference will result in immediate and irreparable injury to AOC. In addition to any other rights or remedies available, AOC will be entitled to injunctive relief to enforce the obligations of Consulting Member contained in such Sections. Nothing herein will be construed as prohibiting AOC from pursuing any other legal or equitable remedies that may be available to it for any such breach or threatened breach, including the recovery of damages.
16. Severability. If any of the provisions of this Agreement are held to be unenforceable or void (either in whole or in part), then the offending portion will be construed as valid and enforceable only to the extent permitted by law and the balance of this Agreement will remain in full force and effect.
17. Entire Agreement of the Parties. Except as otherwise indicated, this Agreement contains all the terms of the agreement between AOC and Consulting Member with respect to its subject matter. No representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not contained in this Agreement. Any modification of this Agreement will be effective only if it is in writing and signed (physically or electronically) by the party against whom it is being enforced.
18. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the United States and the state of North Carolina. The parties hereby submit to the personal jurisdiction of the state and federal courts sitting in North Carolina.
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