Med ResQ Ltd Terms & Conditions of Service

1.                   Interpretation

THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THESE CONDITIONS.

1.1                Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 8 (Charges and payment).

Conditions: these terms and conditions as amended from time to time in accordance with clause 16.7.

Contract: the contract between Med ResQ and the Customer for the provision of the Services in accordance with these Conditions.

Controller, processor, joint controller, data subject, Personal Data, special category Personal Data, Personal Data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.

Customer: the person or firm who purchases Services from Med ResQ.

Customer Default: has the meaning set out in clause 7.2.

Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to Personal Data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

Deliverables: the deliverables prepared by Med ResQ for the benefit of the Customer in the delivery of the Services.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Med ResQ: Med ResQ LTD registered in England and Wales with company number 11563425.

Order Confirmation: formal confirmation from Med ResQ of the terms of its acceptance of a Services Request.

Patient: the person who requires the benefit of some, or all, of the Services.

Permitted Recipients: the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement, and any sub-processors appointed by a party to process Personal Data under this agreement.

Pre-Repatriation Report: where the services involve a Repatriation, the description or specification of the acquired medical information and recommendations provided in writing by Med ResQ to the Customer.

Repatriation: the repatriation of the Patient.

Services: the services provided by Med ResQ under these Conditions, including but not limited to: active case management, any medical advice or recommendations, medical bill negotiation, representation as an agent, the preparation of a Pre-Repatriation Report, the execution of a Repatriation, and/or the creation of the Deliverables, supplied by Med ResQ to the Customer as set out in the Order Confirmation or, where appropriate, the  Pre-Repatriation Report.

Services Request: a request made by the Customer, to Med ResQ, for the performance of any of the Services.

UK Data Protection Legislation : all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

1.2                Interpretation:

(a)             A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

(b)            Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

 

2.                   Commencement and duration

2.1                This agreement shall commence on the date of the first Services Request (the “Commencement Date”) and shall continue, unless terminated earlier in accordance with clause 14 , until either party gives to the other party written notice to terminate. Such notice shall be served no earlier than first anniversary of the Commencement Date and shall expire on the completion of all Orders confirmed before the date on which it is served.

2.2                Once this agreement has commenced in accordance with clause 2.1 these Conditions shall apply to all future Services unless otherwise agreed in writing.

2.3                If there are no uncompleted Orders as at the date notice to terminate is served under clause 2.1, such notice shall terminate this agreement with immediate effect.

2.4                The parties shall not enter into any further Orders after the date on which notice to terminate is served under clause 2.1.

 

3.                   Services Requests and Order Confirmation

3.1                Should the Customer wish for Med ResQ to provide any, or all, of the Services it shall make a Services Request to Med Resq and include with such Services Request the following information, as a minimum:

(a)             The specific Services requested;

(b)            Any dates for the delivery of the Services requested;

(c)             Any Patients for whom the Services are to be provided; and

(d)            Any other information that will assist Med ResQ in assessing the Services Request.

3.2                As soon as reasonably practicable following receipt of a Services Request Med ResQ shall review the same and confirm to the Customer:

(a)             if it is able, and willing, to provide the Services outlines in the Services Request; and

(b)            if so, the Charges and timescales for the provision of the Services, together with any other key terms regarding the provision of the Services, and whether any further information is required prior to the Services being provided.

3.3                Where the Services Request includes a request for the provision of a Repatriation, the provisions of clause 5 of these terms shall apply alongside those in this clause 3.

3.4                Services Requests can be made in any form, including orally or by email.

3.5                Once the parties have agreed the scope of the Services to be provided Med Resq shall issue the Customer with an Order Confirmation.  It is only at this point that a binding Contract for the delivery of the Services is made, subject to these Conditions, and such Order Confirmation shall result in the creation of an Order.

 

4.                   Supply of Services

4.1                Save for any changes made by Med ResQ in accordance with these Conditions, Med ResQ shall supply the Services to the Customer in accordance with the Order Confirmation, and/or Pre-Repatriation Report, as well as any agreed specifications or requirements and these Conditions.

4.2                Med ResQ shall use all reasonable endeavours to meet any performance dates specified in the Order Confirmation, but the Customer recognises that due to the nature of the Services and their unpredictability any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

4.3                Med ResQ reserves the right to alter and adapt the way in which it delivers the Services, without notice, if necessary, to comply with any applicable law or regulatory requirement, or where the reality of the Services requirements warrants such changes.  The Customer accepts that the Services, and their nature, means they are changeable and that Med ResQ may need to materially alter the way it provides the Services to properly accommodate such changing circumstances and to ensure that it delivers the requisite standard of service as outlined in these Conditions.  Whilst Med ResQ shall use reasonable efforts to communicate any such changes to the Services to the Customer, the Customer acknowledges that this is not always possible.  Furthermore, the Customer accepts that any such changes to the Services may result in changes to the Charges and the Customer agrees to pay any additional Charges that may be incurred in delivering the Services, irrespective of whether or not Med ResQ was able to communicate the changes to the Services to the Customer, subject at all times to such changes to the Services being reasonable and necessary for the execution of the Services in a manner that, in Med ResQ’s opinion, is most likely to result in the success of the Services.

4.4                Med ResQ warrants to the Customer that the Services will be provided using reasonable care and skill and will be performed at all times by appropriately experienced and qualified personnel.

4.5                The Customer acknowledges and agrees that in supplying the Services and, where applicable, executing the Repatriation Med ResQ will be contracting with third parties.  Med ResQ will, where it is able, identify any such third parties in Order Confirmation and/or the Pre-Repatriation Report in advance and shall, where possible, inform the Customer of any contract terms that such third party imposes in respect of the supply of its services.  Where any such terms are provided they shall form part of these Conditions.

 

5.                   REPATRIATIONS

5.1                Each Repatriation shall be agreed in the following manner:

(a)             the Customer shall ask Med ResQ to prepare a Pre-Repatriation Report and shall use its best efforts to provide Med ResQ with as much information as Med ResQ reasonably requests in order to prepare a draft Pre-Repatriation Report, including, but not limited to, and where possible, a medical report in respect of the Patient. Med ResQ shall not be responsible for any act, omission or negligence in the medical report and shall not be liable for any actions or decisions it makes in reliance of such medical report.

(b)            following receipt of the information requested from the Customer Med ResQ shall, as soon as reasonably practicable either:

(i)              inform the Customer that it declines to provide the requested Repatriation; or

(ii)             provide the Customer with a draft Pre-Repatriation Report.

(c)             As part of its work in preparing the Pre-Repatriation Report Med ResQ shall review any medical reports provided and the recommendations made in the Pre-Repatriation Report shall be made to, in Med ResQ’s professional opinion, advise the Customer as to the safest and most practical way of executing the Repatriation.

(d)            if Med ResQ provides the Customer with a draft Pre-Repatriation Report pursuant to clause 5.1(b)(ii), Med ResQ and the Customer shall discuss and agree that draft Pre-Repatriation Report.

5.2                The approval (whether in writing, orally or in any other reasonable form) of a Repatriation following a Pre-Repatriation Report shall amount to the Customer’s approval of the Repatriation which shall then create an Order between the parties in respect of that Repatriation, such Order creating a binding Contract as between the parties, subject to these Conditions.

5.3                If following the submission of a Pre-Repatriation Report, a Repatriation is not approved then Med ResQ shall be entitled to charge the Customer its reasonable fees in having prepared the Pre-Repatriation Report.

 

6.                   Agency Services

6.1                Certain Services involve Med ResQ acting as an agent for the Customer.  Where this is the case it will be made clear on the Order Confirmation.

6.2                Where Med ResQ is acting as an agent on for the Customer:

(a)             the Customer shall be Med ResQ’s principal;

(b)            Med ResQ is authorised to enter into contracts, and commit the Customer to expenditure, in the Customer’s name, in the furtherance of the delivery of the Services;

(c)             Med Resq shall have no liability to the Customer for the actions of the third party with whom Med ResQ is liaising with on behalf of the Customer.  In the event of any claim arising from any services that may be performed by any such third party under any contract between the Customer and that third party, entered into by Med ResQ on the Customer’s behalf, the Customer shall bring such claim against the third party directly.  Med ResQ may, if requested, and subject to the Customer agreeing to cover Med ResQ’s costs, assist the Customer in such claim, such assistance at Med ResQ’s sole discretion;

(d)            Med ResQ’s recommendation of any third parties is made in good faith based on the information available to it at the time.  The recommendation does not amount to a warranty as to the quality of any services that may be provided by any such third party and, as outlined above Med ResQ shall have no liability to the Customer for the same.

6.3                The Charges for any Services that are agency services shall be commission based and will be outlined in the Order Confirmation.

 

7.                   Customer’s obligations

7.1                The Customer shall:

(a)             ensure that any information it supplies to Med ResQ and any information contained in the Order Confirmation and/or Pre-Repatriation Report are complete and accurate;

(b)            co-operate with Med ResQ in all matters relating to the Services;

(c)             provide Med ResQ with such information and materials as Med ResQ may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(d)            comply with any additional obligations as set out in the Order Confirmation and/or Pre-Repatriation Report, or otherwise in writing by Med ResQ.

7.2                If Med ResQ’s performance of any of its obligations under a Contract are prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a)             without limiting or affecting any other right or remedy available to it, Med ResQ shall have the right to alter or suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Med ResQ’s performance of any of its obligations;

(b)            Med ResQ shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Med ResQ’s failure or delay to perform any of its obligations as set out in this clause 7.2; and

(c)             the Customer shall reimburse Med ResQ on written demand for any costs or losses sustained or incurred by Med ResQ arising directly or indirectly from the Customer Default.

 

8.                   Charges and payment

8.1                The Charges for the Services shall be as set out in the Order Confirmation and/or Repatriation Report.  Where the actual delivery of the Services exceeds the estimate outlined in the Order Confirmation and/or Repatriation Report then any additional Charges shall be calculated on a time and materials basis:

(a)             the Charges shall be calculated in accordance with Med ResQ’s hourly fee rates, as set out in the Order Confirmation and/or Repatriation Report; and

(b)            Med ResQ shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Med ResQ engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Med ResQ for the performance of the Services, and for the cost of any materials.

8.2                Med ResQ shall be entitled to charge the Customer for any expenses reasonably incurred, and not reasonably foreseeable when preparing the Order Confirmation and/or Repatriation Report, in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses.

8.3                Unless otherwise stated in the Order Confirmation and/or Repatriation Report, Med ResQ shall invoice the Customer on completion of the Services.

8.4                The Customer shall pay each invoice submitted by Med ResQ:

(a)             within 30 days of the date of the invoice, unless otherwise agreed in writing; and

(b)            in full and in cleared funds to a bank account nominated in writing by Med ResQ, and

time for payment shall be of the essence of the Contract.

8.5                All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Med ResQ to the Customer, the Customer shall, on receipt of a valid VAT invoice from Med ResQ, pay to Med ResQ such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

8.6                If the Customer fails to make a payment due to Med ResQ under any Contract by the due date, then, without limiting Med ResQ’s remedies under clause 14, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

8.7                All amounts due under a Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

 

9.                   Changes to and Cancellations of Services

9.1                If, following an Order Confirmation, the Customer wishes to suspend, materially change the requirements for the Services or terminate the Services as a whole then:

(a)             Where the Customer wishes to suspend or materially change the requirements for the Services, the Customer shall provide Med ResQ with as much notice as reasonably possible of such requirement and shall provide all such information as Med ResQ may require to assess such request and plan for any changes to the Services that may be required;

(b)            Where the Customer wishes to terminate the planned Services, it shall give Med ResQ as much notice of termination as is possible including reasons for the termination.

9.2                The Customer acknowledges that, upon the Order Confirmation, or the signing of the Pre-Repatriation Report, it is likely that Med ResQ will commit to expenditure with third parties for the purposes of executing the Services.  These may include, but are not limited to, the chartering of aircraft and/or other vehicles, the appointment of medical staff, and the hiring of equipment.  The Customer also acknowledges that any change to, suspension, or termination of any aspect of Services may result in Med ResQ having to still pay such third parties.  The Customer hereby agrees to indemnify, hold Med ResQ harmless, against any costs, or losses, that Med ResQ may incur to third parties committed to after the Order Confirmation, or signing of the Pre-Repatriation Report, and prior to the Customer suspending or terminating the Services outlined in the Order Confirmation and/or Pre-Repatriation Report.

9.3                In addition to the indemnity for costs outlined in clause 9.2 above the Customer shall pay to Med ResQ such cancellation charges as have been outlined in the Order, Order Confirmation and/or Pre-Repatriation Report, agreed between the parties in writing, or that are deemed reasonable by Med ResQ for the Services provided and not yet invoiced prior to cancellation.

9.4                The Customer agrees that the charges outlined in clause 9 are a genuine pre-estimate of the loss that Med ResQ would suffer as a result of any material change to, or suspension, or termination of, the Services and are commercially reasonable and justifiable in light of the Services being provided.

 

10.                Intellectual property rights

10.1             All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Med ResQ or its licensors.

10.2             Med ResQ grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.

10.3             The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 10.2.

10.4             The Customer grants Med ResQ a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Med ResQ for the term of the Contract for the purpose of providing the Services to the Customer.

 

11.                DATA PROTECTION

11.1             Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 11, Applicable Laws means (for so long as and to the extent that they apply to Med ResQ) the law of the European Union, the law of any member state of the European Union and/or domestic UK Law; and domestic UK Law means the Data Protection Legislation from time to time in force in the UK and any other law that applies in the UK.

11.2             The Customer acknowledges and understands that depending on the nature of the Services being provided, in certain circumstances the Customer will be the controller of any Personal Data

 

11.3             Med ResQ as Data Processor

11.4             Where, for the purposes of the Data Protection Legislation, the Customer is the controller and Med ResQ is the processor of any Personal Data (including special category Personal Data) processed by Med ResQ when delivering the Services, the provisions of clauses 11.3  to 11.9 (inclusive) shall apply to such processing.

11.5             The parties may agree to enter into a standalone data processing agreement (DPA) and to the extent of any inconsistency between these Conditions and the DPA, the terms of the DPA shall prevail.

11.6             Without prejudice to the generality of clause 11.1, the Customer will ensure that it has all necessary appropriate consents and  notices in place to enable lawful transfer of the Personal Data to Med ResQ for the duration and purposes of the Contract.

11.7             Without prejudice to the generality of clause 11.1, Med ResQ shall, in relation to any Personal Data processed in connection with the performance by Med ResQ of its obligations under the Contract:

(a)             process that Personal Data only on the documented written instructions of the Customer unless Med ResQ is required by Applicable Laws to otherwise process that Personal Data. Where Med ResQ is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Med ResQ shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Med ResQ from so notifying the Customer;

(b)            ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected;

(c)             ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

(d)            assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(e)             notify the Customer without undue delay on becoming aware of a Personal Data breach;

(f)              at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and

(g)             maintain complete and accurate records and information to demonstrate its compliance with this clause 11 and immediately inform the Customer if, in the opinion of Med ResQ, an instruction infringes the Data Protection Legislation.

11.8             The Customer acknowledges that, due to the nature of the Services, there will be situations where the Personal Data, including special category Personal Data, is transferred outside of the EEA.  It is the Customer’s responsibility to ensure that all consents are in place to allow Med ResQ to transfer this Personal Data outside of the EEA.  Med ResQ will perform all such actions as it is required to protect any such Personal Data and to minimise the amount of Personal Data that is transferred outside of the EEA when performing the Services.

11.9             Where possible and practicable, Med ResQ will pseudonymise, or anonymise, the Personal Data and special category Personal Data that is transferred outside of the EEA and shall destroy any such Personal Data as soon as reasonably practicable following the completion of the Services, save for where it is required to retain such information pursuant to any laws or codes of practice.

11.10          The Customer consents to Med ResQ appointing its third-party contractors used to deliver the Services as sub-processors. Med ResQ confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 11 and in either case which Med ResQ confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and Med ResQ, Med ResQ shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11.

 

Med ResQ as Controller

11.11          Where Med ResQ is acting as a controller of any Personal Data under this agreement it shall handle such Personal Data in accordance with the Data Protection Legislation, and in accordance with its then in force privacy policy, a copy of which can be found here: https://www.medresq.com/privacy-policy/.

11.12

11.13           Med ResQ and the Customer as joint controllers

11.14          Clauses 11.11 to 11.14 (inclusive) sets out the framework for the sharing of Personal Data between the parties where they are acting as joint controllers. Each party acknowledges that one party (referred to in this clause as the Data Discloser) will regularly disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.

11.15          Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation.

11.16          Each party shall:

(a)             ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;

(b)            give full information to any data subject whose Personal Data may be processed under this agreement of the nature of such processing. This includes giving notice that, on the termination of this agreement, Personal Data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;

(c)             process the Shared Personal Data only for the Agreed Purposes;

(d)            not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;

(e)             ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;

(f)              ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

(g)             not transfer any Personal Data received from the Data Discloser outside the [UK] OR [EEA] unless the transferor ensures that (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.

11.17          Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

(a)             consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;

(b)            promptly inform the other party about the receipt of any data subject rights request;

(c)             provide the other party with reasonable assistance in complying with any data subject rights request;

(d)            not disclose, release, amend, delete or block any Shared Personal Data in response to a data subject rights request without first consulting the other party wherever possible;

(e)             assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, Personal Data breach notifications, data protection impact assessments and consultations with the Information Commissioner or other regulators;

(f)              notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;

(g)             at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the Shared Personal Data;

(h)            use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from Personal Data transfers;

(i)              maintain complete and accurate records and information to demonstrate its compliance with this clause 11.14; and

(j)              provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.

 

12.                Non-solicitation

12.1             The Customer shall not, without the prior written consent of Med ResQ, at any time from the Commencement Date to the date 24 months following the termination or expiry of this agreement, solicit or entice away from Med ResQ or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Med ResQ in the provision of the Services.

12.2             Any consent given by Med ResQ in accordance with clause 12.1 shall be subject to the Customer paying to Med ResQ a sum equivalent to 20% of the then current annual remuneration of Med ResQ’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.

 

13.                Limitation of liability

13.1             Med ResQ has obtained insurance cover for medical malpractice and public liability for individual claims not exceeding £5,000,000. The limits and exclusions in this clause reflect the insurance cover Med ResQ has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.

13.2             Nothing in these Conditions limits any liability which cannot legally be limited, including liability for:

(a)             death or personal injury caused by Med ResQ’s negligence; or

(b)            fraud or fraudulent misrepresentation by Med ResQ.

13.3             Subject to clause 13.2, Med ResQ’s liability to the Customer shall not exceed £5,000,000. Med ResQ’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.

13.4             This clause 13.4 sets out specific heads of excluded loss and exceptions from them:

(a)             Subject to clause 13.2, the types of loss listed in clause (c) are wholly excluded by the parties, but the types of loss and specific losses listed in clause (d) are not excluded.

(b)            If any loss falls into one or more of the categories in clause (c) and also falls into a category, or is specified, in clause (d), then it is not excluded.

(c)             The following types of loss are wholly excluded:

(i)              Loss of profits

(ii)             Loss of sales or business.

(iii)           Loss of agreements or contracts.

(iv)            Loss of anticipated savings.

(v)             Loss of use or corruption of software, data or information.

(vi)            Loss of or damage to goodwill.

(vii)          Indirect or consequential loss.

(viii)         Losses in relation to any services provided by third-party subcontractors that are not covered by Med ResQ’s insurance cover.

(d)            The following types of loss and specific loss are not excluded:

(i)              Sums paid by the Customer to Med ResQ pursuant to the Contract, in respect of any Services not provided in accordance with the Contract.

(ii)             Losses incurred by the Customer arising out of or in connection with any third party claim against the Customer which has been caused by the act or omission of Med ResQ. For these purposes, third party claims shall include but not be limited to demands, fines, penalties, actions, investigations or proceedings, including but not limited to those made or commenced by subcontractors, Med ResQ’s personnel, regulators and customers of the Customer.

13.5             Unless the Customer notifies Med ResQ that it intends to make a claim in respect of an event within the notice period, Med ResQ shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 24 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

13.6             This clause 13  shall survive termination of the agreement.

 

14.                Termination OF THE AGREEMENT

14.1             Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a)             the other party commits a material breach of any term of this agreement, or any Contract, and (if such a breach is remediable) fails to remedy that breach within seven days of that party being notified in writing to do so;

(b)            the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c)             the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)            the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

14.2             Without affecting any other right or remedy available to it, Med ResQ may terminate this agreement, and any Orders that have not yet been commenced, with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this agreement on the due date for payment.

14.3             Without affecting any other right or remedy available to it, Med ResQ may suspend the supply of Services under any Contract if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause (b) to clause (d) or Med ResQ reasonably believes that the Customer is about to become subject to any of them.

 

15.                Consequences of termination

15.1             On termination of this agreement, howsoever effected:

(a)             save for where termination or suspension of the Services has arisen due to circumstances outlined in clause 14, all current and agreed Orders shall continue and be executed by Med ResQ in accordance with the terms of this agreement: and

(b)            the Customer shall immediately pay to Med ResQ all of Med ResQ’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Med ResQ shall submit an invoice, which shall be payable by the Customer immediately on receipt.

15.2             Termination or expiry of this agreement, or any Contract, shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this agreement or any Contract which existed at or before the date of termination or expiry.

15.3             Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

 

16.                General

16.1             Force majeure. Neither party shall be in breach of this agreement or any Contract nor liable for delay in performing, or failure to perform, any of its obligations if such delay or failure result from events, circumstances or causes beyond its reasonable control.

16.2             Assignment and other dealings.

Neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement or any Contract without the prior written consent of the other party.

16.3             Confidentiality.

(a)             Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract (or in perpetuity where required to do so in respect of medical information and advice), disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause (b).

(b)            Each party may disclose the other party’s confidential information:

(i)              to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 16.3; and

(ii)             as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c)             Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

16.4             Entire agreement.

(a)             These Conditions and any Contract, including the Order Confirmation and/or Pre-Repatriation Report, constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b)            Each party acknowledges that in entering into this agreement and any Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement or any Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement or any Contract.

(c)             Nothing in this clause shall limit or exclude any liability for fraud.

16.5             Conflict of Terms.  In the event of any conflict between the terms in these Conditions, anything in the  Order Confirmation and/or Pre-Repatriation Report, and any third-party terms incorporated into the  Order Confirmation and/or Pre-Repatriation Report then the order of precedence of the terms shall be as follows:

(i)              The Pre-Repatriation Report;

(ii)             The Order Confirmation

(iii)           These Conditions

(iv)            Any third-party terms and conditions.

16.6             Compliance with Laws. In performing its obligations under this agreement and any Contract, Med ResQ shall comply with the Applicable Laws.

16.7             Variation. Except as set out in these Conditions, no variation of the agreement or any Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.8             Waiver. A waiver of any right or remedy under this agreement, or any Contract, or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or default. A failure or delay by a party to exercise any right or shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.9             Severance. If any provision or part-provision of this agreement or any Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the agreement and/or Contract.

16.10          Notices.

(a)             Any notice or other communication given to a party under or in connection with this agreement or any Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case), or by email;

(b)            Any notice shall be deemed to have been received:

(i)              if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(ii)             if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or

(iii)           if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c)             This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

16.11          Third party rights.

(a)             Unless it expressly states otherwise, neither this agreement or any Contract gives rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the agreement and/or Contract.

(b)            The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

16.12          Governing law. This agreement, and any Contract formed under it, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

16.13          Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement and/or any Contract or their subject matter or formation.