Terms of Business

1.  DEFINITIONS AND INTERPRETATION

The following expressions shall have the following meanings:

 

1.1 Any reference to “writing”, or cognate expressions, includes a reference to any communications effected by electronic mail or facsimile transmission.

1.2 For convenience, terms that have a defined meaning are indicated by the use of a capital letter, but the absence of a capital letter shall not alone indicate that the term is to have a meaning other than the defined meaning.

1.3Words importing the singular include the plural and vice versa and words importing a gender
include every gender.

1.4 A reference to a “Party” includes a reference to that Party’s successors and permitted assigns unless the context clearly indicates otherwise.

1.5 Headings are for convenience of reference only and shall not affect the interpretation of these Terms.

1.6 A reference to a “person” shall be construed as including references to an individual, firm, company, corporation, unincorporated body of persons or any sovereign state or any agency thereof unless the context clearly indicates otherwise.

1.7 Any reference to a statutory provision shall include such provision and any regulations made in pursuance thereof as from time to time modified or re-enacted.

1.8 “Agreed Purpose” means to enable the provision of the Services by MCL Medics to the Client.

1.9 “Agreement” means the agreement between MCL Medics and the Client for the supply of Services in accordance with these Terms, the Proposal and any other document expressly agreed by the parties in writing.

1.10 “Business Day” means a day other than a Saturday or Sunday on which banks are ordinarily open for the transaction of normal banking business in Aberdeen.

1.11 “Client” means the person detailed on the New Client Opening Account Form.

1.12 “Client Material” means collectively, the designs, specifications, content, data, and other materials provided by or on behalf of the Client.

1.13 “Consumables” means medical stock items that require to be used within their given expiry date.

1.14 “Data Controller” has the meaning given to it in the Data Protection Legislation.

1.15 “Data Discloser” the party disclosing the Shared Personal Data to the other.

1.16 “Data Processor” has the meaning given to it in the Data Protection Legislation.

1.17 “Data Protection Legislation” (i) the Data Protection Act 2018 (DPA); (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK; (iii) any successor legislation to the DPA and the GDPR; and (iv) all applicable laws and regulations relating to the processing of the personal data and privacy, including where applicable  the guidance and codes of practice issued by the any applicable national data protection authority, and the equivalent of any of the foregoing in any relevant jurisdiction.

1.18 “Data Receiver” the party receiving the Shared Personal Data from the other.

1.19 “Data Security Breach” a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Shared Personal Data.

1.20 “Data Subject” has the meaning given to it in the Data Protection Legislation.

1.21 “Day” means any day whereby an MCL Medics Medic is working on behalf of MCL Medics for the client offshore. A standard day consists of 12 hours and commences and ends at the heliport or nearest point of departure or return.

1.22 “Disposables and Consumables” means items that are customarily discarded after a single use that are not pharmaceuticals, for example, masks, gloves, gowns, needles, paper products, syringes and wipes.working on behalf of MCL Medics for the client offshore. A standard day consists of 12 hours and commences and ends at the heliport or nearest point of departure or return.

1.23 “EEA” means the European Economic Area.

1.24 “General Appointment” means an appointment that can be delivered by a non-specialist medical practitioner.

1.25 “MCL Medics” means The MCL Group (Int) Limited (company registered number: 03858827) t/a MCL Medics.

1.26 “Medical Advisory” means the fees described in the applicable Proposal relating to Medical Advisory Service.

1.27 “Medical Advisory Services” means the medical management and advisory services customized to the requirements of the oil and gas industry and delivered in the Proposal.

1.28 “Medical Equipment” means any equipment that is intended for use by a medical professional for the purpose of carrying out a healthcare related activity.

1.29 “Medical Kits” means pharmaceuticals, Disposables and Consumables that are identified, assembled and suitably packaged together for a particular usage such as a first aid kit or a malaria survival kit.

1.30 “Medical Staffing Services” means the medical staffing services agreed to be provided by MCL Medics and detailed in the Proposal.

1.31 “Medical Supplies” means pharmaceutical, Disposables and Consumables, Medical Equipment, Medical Kits and Modules.

1.32 “Medical Supply Chain Advisory Services” means the advisory services provided by MCL Medics to the Client as specifically set forth in the Proposal.

1.33 “Medical Supply Chain Arrangement Services” means the arrangement services of the procurement and delivery of Medical Supplies provided by the Client on behalf of MCL Medics as specifically set forth in the Proposal.

1.34 “Modules” means pharmaceuticals, Disposables and Consumables and Medical Equipment that are identified, assembled and suitably packaged for a particular usage such as emergency room modules or wound management modules.

1.35 “No Show” means failure to attend an appointment and failure to notify MCL Medics within the Notification Period of a non-attendance.

1.36 “Notification Period” means One (1) Business Day before a General Appointment or three (3) Business Days before a Specialist Appointment, where day 1 or day 3 as applicable is the day before the appointment.

1.37 “Occupational Health Services” means the occupational health services agreed to be provided by MCL Medics and detailed in the Proposal.

1.38 “Parties” means the Client and The MCL Group (Int) Limited t/a MCL Medics collectively; and Party means either the Client or “MCL Medics” individually.

1.39 “Permitted Recipient” the parties to this Agreement, the officers, employees, agents and sub-contractors of each party, and any third-party engaged to perform obligations in connection with this Agreement.

1.40 “Personal Data” has the meaning given to it in the Data Protection Legislation.

1.41 “Proposal” means the proposal provided by MCL Medics to the Client.

1.42 “Scope of Services” means the description or specification of the Services provided in writing in the Proposal by MCL Medics to the Client.

1.43 “Services” means the services requested by Client and agreed to be provided by MCL Medics as set out in the Proposal.

1.44 “Service Fees” the fees payable in accordance with the work performed by MCL Medics as detailed in MCL Medics’ Proposal or as otherwise agreed in writing by the Parties.

1.45 “Shared Personal Data” the Personal Data to be shared between the parties under clause 9.2.

1.46 “Site” means the specific location where the Services will be performed by MCL Medics as detailed in the Proposal.

1.47 “Specialist Appointment” means an appointment that requires MCL Medics to have a medical practitioner or doctor with additional qualifications relevant to the appointment, available to deliver the service.

1.48 “Sub-Contractor” means MCL Medics team of approved doctors and practitioners appointed by it from time to time.

1.49 “Third Party Providers” mean suppliers (referred by MCL Medics) licensed to wholesale distribute, manufacture or trade medical supplies as specifically set forth in the Proposal.

1.50 “Topside Support Services” means the medical management and advisory services customized to the requirements of the oil and gas industry and delivered via telecommunication means as described in the Proposal.

1.51 “Topside Support Services Fee” means the fees described in the applicable Proposal relating to Topside Support Services.

1.52 “Training Services” means the training services agreed to be provided by MCL Medics and detailed in the Proposal and any training schedule agreed by the parties in writing.

2.  TERM AND TERMINATION

2.1 This Agreement shall commence on the date when it has been signed by both parties (or, where different, on such date as the parties shall agree in writing) and shall continue for the period set out in the Proposal, unless terminated earlier in accordance with clause 2.2, clause 2.3, clause 2.4, clause 3.9 and clause 15.3.

2.2 Subject to clause 2.3, in the event that a Party defaults in the performance or observance of any material covenants or provisions of the Agreement and such Party fails to remedy such default or breach within sixty (60) days from the date of notice thereof from the other Party, the Agreement shall be terminated at the end of such notice period.

2.3 A Party shall be entitled to terminate the Agreement with immediate effect by written notice to the other Party if the other Party: (i) makes an assignment for the benefit of creditors or a resolution is passed or a petition is presented against the other Party for liquidation, winding-up or dissolution or for the appointment of a liquidator, receiver, trustee, judicial manager or similar official of all or a substantial part of its assets or if execution or any form of action is levied or taken against any of its assets; (ii) disposes of a substantial part of its business or assets; (iii) substantially alters the nature of its business existing as at the date of the Agreement; (iv) ceases to or threatens to cease to carry on business; or (v) merges or is acquired by a company that is in competition with the Party entitled to terminate.

2.4 MCL Medics Limite shall have the right to suspend or terminate the Agreement by giving not less than seven (7) days advance written notice to the Client if the Client has failed to pay any sum due and payable to The MCL Group (Int) Limited t/a MCL Medics.

2.5 The provisions of clauses 5, 7, 8, 11, 13, 14, 16 and 20 and any other provisions in the Agreement necessary to interpret the respective rights and obligations of the Parties shall survive the termination or expiry of the Agreement.

2.6 Termination of the Agreement however caused shall be without prejudice to any rights or liabilities of the Parties accruing prior to the date of termination.

2.7  Without prejudice to any other rights and remedies available to The MCL Group (Int) Limited t/a MCL Medics in the event of the suspension or termination of the Agreement, the Client shall pay to The MCL Group (Int) Limited t/a MCL Medics all due or outstanding amounts for: (i) the Services rendered up to the date of suspension or termination; (ii) the cost of medical supplies arranged and purchased by MCL Medics Limited as required for the performance of Services; and (iii) any costs reasonably incurred and substantiated by The MCL Group (Int) Limited MCL Medics arising from or in connection with the suspension or termination.

3.  COMPENSATION

3.1  The Client will pay MCL Medics the Service Fees for the provision of the Services. Unless otherwise agreed between the Parties, MCL Medics will issue monthly invoices to the Client in respect of the Services. Payment terms will be thirty (30) days from the date of the invoice.

3.2  Subject to the provisions of clause 3.3 below, the Client shall procure payment of the Service Fees and any other sums that become due under the Agreement within 30 days of the date of the invoices delivered pursuant to this clause by BACS transfer to a bank account designated by MCL Medics.

3.3  If any invoice is disputed, the Client shall make payment as aforesaid of any undisputed portion and the Parties shall endeavour to resolve the disputed portion as a matter of urgency.

3.4  MCL Medics reserve the right to amend the Service Fees, normally on an annual basis, to make allowances for changes in any or all of the following factors:

3.4.1  the notional level of work; and/or

3.4.2  the Consumer Prices Index; and/or

3.4.3  current Market Rates; and/or

3.4.4  statutory obligations that affects the sustainability of the provision of the services. Notwithstanding clause 3.4.3  special consideration shall be given in respect of the provision of medics and any significant market fluctuations and/or change in role for the medic directed by the client.

3.5  MCL Medics may at any time in the course of the Agreement request a review of the Service Fees if it encounters any significant increase in its costs.3.6 If for any reason MCL Medics should consider it necessary to:

3.6.1 refer any of the Client’s employees to third party specialist practitioners (e.g. chest x-rays);

3.6.2  refer any of the Client’s employees test results (e.g. blood tests, drug and alcohol analyses etc.) to third party providers. MCL Medics shall inform the Client in advance of making such arrangements and the Client shall agree to reimburse MCL Medics at cost plus 10% of such referrals.

3.7  It is agreed that, where applicable, all reasonable travel, living and/or miscellaneous expenses incurred by Trainer(s) in performing the services will be charged back at cost plus 5% to Client and Client agrees to pay or reimburse such expenses upon receipt of MCL Medics invoices.

3.8 For the avoidance of doubt, MCL Medics shall not be obliged to reimburse or refund any payments due to non- attendance of any trainees for the course(s).

3.9  If the Client fails to make payment on the due date then, without prejudice to any other rights or remedy available to MCL Medics, MCL Medics shall have the right to: (i) charge the Client interest (both before and after any judgment) on the amount unpaid at a compound rate of one percent (1%) per month calculated on a daily basis until payment in full is made; (ii) terminate or suspend the Agreement in accordance with the provisions under clause 2.1; and (iii) recover from the Client all of its costs and expenses (included legal and other professional fees, administration and personnel costs) suffered or incurred by it in recovering any debt or overdue amount from the Client. In no event shall MCL Medics be howsoever liable to the Client for breach of Agreement due to non-performance of the Services or for any loss, damage or inconvenience of whatsoever nature suffered by the Client and/or its affiliates as the result of suspension of the Services or termination of the Agreement pursuant to the Client’s default in payment.

4.  CANCELLATION POLICY

4.1  MCL Medics retain the right to charge for the postponement, re-scheduling or cancellation of any pre-arranged medical appointment or booked services in line with the following Cancellation Policy.

4.2  Occupational Health Services

4.2.1  In the event of a “No-Show” or cancellation by the Client of an Occupational Health Service without any notification to MCL Medics, Service Fees will be charged at full cost.

4.2.2  In the event of a cancellation an Occupational Health Service due to unforeseeable and unavoidable circumstances beyond the Client’s control, and with notification to MCL Medics of such cancellation within the first 4 hours post any medical appointment time, no Service Fee will be chargeable.

4.2.3  In the event of a notification by the Client requesting to reschedule an Occupational Health Service with less than 24 hours notice to MCL Medics, no Service Fee will be chargeable.

4.2.4  If less than five (5) Business Days’ notice to cancel or reschedule an Occupational Health Service to be delivered on a day that is not a Business Day, the Service Fees will be charged in full.

4.3   Remote Medical and Training Services

4.3.1  In the event Client requests to postpone part or all of the Remote Medical and Training Services, it shall give MCL Medics at least seven (7) calendar days notice in writing prior to the commencement date of Services. If Client fails to give such notice, MCL Medics shall have the right to charge Client the following rescheduling fees:

4.3.1.1 50% of the Service Fee if the written notice is received less than seven (7) calendar days but more than two (2) calendar days prior to the commencement date of the Remote Medical and Training Services, or

4.3.1.2  100% of the Service Fee if the written notice is received less than two (2) calendar days prior to the commencement date of the Remote Medical and Training Services.

4.3.2  In the event Client requests to cancel part or all of the Remote Medical and Training Services, it shall give MCL Medics no less than fourteen (14) calendar days notice in writing prior to the commencement date of Remote Medical and Training Services. If Client fails to give such notice, MCL Medics shall have the right to charge Client the following cancellation fees.

4.3.2.1 50% of the Service Fee if the written notice is received less than fourteen (14) calendar days but more than  [seven (7)] calendar days prior to the commencement date of the Remote Medical and Training Services; or

4.3.2.2 100% of the Service Fee if the written notice is received less than seven (7) calendar days prior to the commencement date of the Remote Medical and Training Services.

4.4  All non refundable expenses (e.g. travel, accommodation, consumables etc.) already incurred in the arrangement of any part of the Remote Medical and Training Services for the Client, will be recharged as per any pre-agreed quotation provided or in the absence of such a quotation at cost plus 10%.

5.  TAXES

5.1  VAT shall be applied to the services at the prevailing rates and rules as set out by HMRC from time to time, applicable to the Services being delivered. If the Client belongs to a member state of the European Community, the Client shall provide its VAT registration number to The MCL Group (int) Limited t/a MCL Medics at the commencement of this Agreement.

5.2  In addition to applicable VAT, the Service Fees are net of any applicable withholding taxes, deductions or other charges imposed on the Service Fees by the tax authorities of the country to which the Client belongs. If such taxes, deductions or charges are payable, MCL Medics shall have the right to charge the Client and the Client shall pay, a sum equivalent to such taxes, deductions or charges.

6.  PROVISION OF SERVICES

6.1 MCL Medics shall use its reasonable endeavours to provide the Services in a proper, timely and efficient manner and in accordance with the Scope of Services (as applicable) and this Agreement in all material respects. For the avoidance of doubt, if any of the provisions detailed in the Scope of Services conflict with any of the provisions set out in these Terms, the provisions of the Scope of Services shall prevail and take precedence.

6.2  Occupational Health MCL Medics shall provide the Occupational Health Services  at:

6.2.1  the most appropriate MCL Medics premises in the UK for the client: or

6.2.2  the Client’s premises: or

6.2.3  a location such as a heliport or other such location not specific to client or MCL Medics but otherwise suitable for the provision of the services as may be agreed between the parties from time to time. Sessions for the provision of the Occupational Health Services can be flexible however the Client’s attention is drawn to our Cancellation Policy in clause 4 above.

6.3 Training Services MCL Medics shall provide for Client’s designated personnel the Training Services including the provision of appropriate personnel (the “Trainer(s)”) and equipment to conduct the course(s). The course(s) shall be conducted by the Trainer(s) at the Training Location(s) according to any agreed schedule. MCL Medics shall abide by Client’s safety policies and procedures in effect at the Training Location(s). Such safety policies and procedures shall be made known to MCL Medics prior to the commencement of Services. MCL Medics shall at all times be subject to the general direction of Company in performance of Training Services thereunder except where such direction would interfere with or prejudice or adversely affect the performance of Training Services.

6.4   The Client warrants that the information it has provided to MCL Medics in relation to the provision of the Training Services is true, complete and accurate in all respects. The Client acknowledges that MCL Medics has relied upon such information in the provision of the Services. The Client shall indemnify MCL Medics Group (as defined in clause 13.3.) against any claim, loss or liability suffered by the Client (whether directly or indirectly) arising out of or in connection with any act, omission or misrepresentation by MCL Medics under the Agreement due to information provided by the Client being inaccurate or misleading in any way whatsoever.

6.5  The Client acknowledges that where MCL Medics provides medical advisory services under the Agreement, the Client shall have sole responsibility and discretion as to whether it follows and implements such medical advice and MCL Medics shall have no liability for any losses, claims or liabilities incurred by the Client where the Client has failed to follow or implement its advice. The Client shall indemnify MCL Medics Group (as defined in Clause 13.3) against any claim, loss or liability incurred by MCL Medics Group (whether directly or indirectly) arising out of or in connection with the provision of the Services where the Client has not followed or implemented MCL Medics medical advice whether in whole or in part.

6.6  Medical Staffing Services. In relation to Medical Staffing Services, the Client shall be responsible for the provision of adequate facilities, equipment and Medical Supplies to allow MCL Medics’ personnel to perform their duties under this Agreement.

6.7  When making a request for the provision of Medical Staffing Services, the Client shall provide all information necessary to enable MCL Medics to comply with its obligations under regulation 18 of the Conduct Regulations 2003 including but not limited to:

6.7.1  the date on which the Client requires the MCL Medics’ personnel to commence work and the duration, or likely duration, of the work;

6.7.2  the position which the Client seeks to fill, the type of work the MCL Medics’ personnel will be required to do, the location at which, and the hours during which, the MCL Medics’ personnel would be required to work, and any risk to the health or safety known to the Client and what steps the Client has taken to prevent or control such risks;

6.7.3 the experience, training, qualifications and any authorization by which the Client considers are necessary, or which are required by law, or by any professional body, for the MCL Medics’ personnel to possess in order to work in the position;

6.7.4 any expenses payable by or to the MCL Medics’ personnel; and

6.7.5 any information reasonably required by MCL Medics in order for MCL Medics to fulfil its obligations under the Agency Workers Regulations 2010.

6.8 The Client will be responsible for, at its own expenses, transporting MCL Medics’ personnel between the Point of Transfer and the Site at commencement and conclusion of the Medical Staffing Services and each roster or if MCL Medics Personnel has business or bereavement reasons to travel to or from Site. Upon request, MCL Medics may arrange such transport and the Client agrees to reimburse the transport costs. The term “Point of Transfer” shall refer to the specific location as specified in the applicable Proposal where the MCL Medics’ personnel will be made available for service.

6.9 The Client shall ensure that it has obtained and shall properly maintain throughout the term of the Agreement, all necessary licenses, authorisations and permits in connection with the operation of the clinic or medical facility at the Site, and if applicable, including licenses to purchase, handle, store and dispense medical supplies in categories recommended by MCL Medics. The Client shall arrange and pay for appropriate medical waste disposal.

6.10 The Client shall be responsible for providing a healthy and safe work place and working environment for MCL Medics’ personnel during performance of the Medical Staffing Services on the Site and shall comply with all laws regarding the engagement of such MCL Medics’ personnel.

6.11 The Client shall provide MCL Medics with a copy of the Client’s policies relating to health and safety and its business continuity plan applicable to the Site (“Policies”) prior to MCL Medics commencing any of the Medical Staffing Services under this Agreement. If MCL Medics determines that it is unable to comply with any aspect of the Policies, then the Parties shall meet to devise a solution which resolves any area of non-compliance (including a reasonable timeframe that results in compliance). If such solution results in MCL Medics incurring costs and expenses, then the Client shall reimburse MCL Medics such additional costs and expenses accordingly. Provided that the Client has complied with the aforementioned obligation, MCL Medics shall on a reasonable effort basis procure that the MCL Medics’ personnel comply with the Policies.

6.12 MCL Medics shall report all accidents, injuries and near-misses arising out of the performance of the Medical Staffing Services as soon as reasonably practicable to the Client and to governmental authorities as required by law.

6.13 MCL Medics will remove from the Site any of MCL Medics’ personnel whose removal is reasonably and properly requested by the Client and MCL Medics shall use reasonable endeavours to replace such MCL Medics’ personnel with another person acceptable to the within a reasonable time as agreed by both Parties.

6.14 MCL Medics’ personnel requiring medical evacuation from the Site will be transported to a medical facility by means of transportation and under medical escorts deemed appropriate by MCL Medics. The Client shall provide full cooperation to MCL Medics in such event. In the event of a medical evacuation using means of transportation belonging to or chartered by the Client, the Client agrees not to charge MCL Medics for the transportation costs.

6.15 The Client shall at all times comply with its obligations under the Agency Workers Regulations 2010, including but not limited to providing any MCL Medics’ personnel with access to collective facilities and amenities and employment opportunities subject to and in accordance with regulations 12 and 13 of the Agency Workers Regulations 2010.

6.16 The Client shall indemnify MCL Medics against any liability, cost, claim, award or other expenses suffered or incurred by MCL Medics arising out of a breach by the Client, its subcontractors or other representatives of the Agency Workers Regulations 2010 or any other breach of its obligations under clauses 6.6 to 6.15 of the Terms.

6.17 Medical Supply Chain Services.If the Client requires MCL Medics to procure any Medical Supplies, MCL Medics shall use reasonable endeavors to assist the Client to procure such Medical Supplies on Client’s behalf, and use commercially reasonable efforts to arrange for the relevant manufacturer’s warranty/warranties to be issued in the name of the Client or shall obtain the benefit of the same for Client. MCL Medics’ obligation herein shall only be limited to act as Client’s agent and the Client hereby authorizes MCL Medics to act as its agent in this regard.

6.18 All liability for the Medical Supplies and all warranties, conditions and other terms implied by statute or common law (including but not limited to fitness of purpose, correspondence with description, quality or merchantability) in relation to the Medical Supplies are hereby expressly disclaimed and excluded to the fullest extent permitted by law.

6.19 Ownership of the Medical Supplies shall not pass to the Client until the price of Medical Supplies together with interest thereon (if any) has been paid in full. The Client shall not be entitled to pledge or in any way encumber any of the Medical Supplies not paid for, or disposed of or alienate such Medical Supplies. Notwithstanding the foregoing, all other benefits and risks in the Medical Supplies shall pass to the Client on delivery of the Medical Supplies in accordance with the Proposal.

6.20  The Client shall be responsible for the payment of the Medical Supplies arranged by the MCL Medics and all clearances, shipping, permits, licenses (including clinic licensing), taxes, duties, insurance and transportation charges relating to the importation of the Medical Supplies to the Site.

6.21  Client shall ensure the necessary authorisations and permits are obtained and properly maintained in connection with the operation of the clinic or medical facility at the Site.

6.22  The Client shall provide all necessary Medical Supplies at the Site to allow MCL Medics to perform the Services at the level agreed in accordance with the Agreement and/or Proposal. The Medical Supplies will be under the control of MCL Medics but will be owned by the Client.

6.23  The Client shall ensure that there are at all times sufficient quantities of the Medical Supplies of suitable quality (as would be sold by a licensed wholesaler in a highly regulated country covered by a participating medicines regulatory authority, such as the Pharmaceutical Inspection Co-operation Scheme or The International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use) at the Site. In the event the Client fails to provide or maintain sufficient Medical Supplies, MCL Medics shall have the right to arrange for the necessary Medical Supplies to be provided on behalf of the Client and invoice the Client for the actual costs plus the handling and administrative fee as determined by MCL Medics.

6.24  The Client will also provide the necessary equipment to properly store the Medical Supplies, such as refrigerators and locking cabinets as advised by MCL Medics.

6.25  Upon request from the Client to arrange Medical Supplies on its behalf, MCL Medics will source a quotation from third party medical supplies providers for such requests (provided such requests are for orders of USD 5000 and above). The Client will provide confirmation, through a purchase order or faxed confirmation letter to proceed or otherwise.

6.26  MCL Medics, based on the confirmation of quotation, will arrange the purchase of the Medical Supplies from a third party medical supplies provider on behalf of the Client and the Client shall be liable to pay the full amount of such Medical Supplies once ordered or purchased by MCL Medics and shall not be entitled to request cancellation of such orders once placed.

6.27  MCL Medics will maintain the records of the consumption and dispensing of the Medical Supplies during the term of the Agreement.

6.28  The Client shall indemnify MCL Medics in full and on demand against all claims, losses, damages, costs (including legal and other professional fees) and liabilities suffered or incurred by MCL Medics as a result of or connected to a breach by the Client of any of its obligation under clauses 6.13 to 6.27 inclusive.

6.29  Topside Support Services. MCL Medics shall use reasonable endeavours to provide Client with 24/7 remote access to one or more of MCL Medics Response Centre to seek medical advice in line with Client’s and industry’s work-health rules and regulations.

6.30 
The Client shall be responsible for providing adequate information technology and telecommunications support services, at its own cost, to MCL Medics Personnel to maintain 24-hour communication links between Client and MCL Medics. Such information technology and telecommunications support services shall include telephones with international calling facility, a dedicated computer and Wi-Fi/internet service of at least 256kbs (384kbs or greater is ideal) capable of supporting live video streaming and email.

6.31  Medical Advisory Services

6.32  The Client shall be responsible for providing all accurate and up-to-date information and documents as requested by MCL Medics to help support the advice.

6.33 Regardless of any advice provided to the Client by the relevant MCL Medics’ medical advisors (including guidance regarding how to implement advice provided), final decisions and implementation of advice provided remains the responsibility of the Client.

6.34  While the MCL Medics’ medical advisor will give advice based on current industry best practice and their own experience, final liability for any action taken by the Client based on the medical advice provided by MCL Medics in its capacity as medical advisor rests with the client. This statement makes the assumption that the medical advisor has given the advice in good faith, does not exceed the limits of his/her competence, offers advice based on the information available at the time and provided by the Client, and within current guidelines and practice within the occupational health specialty.

7.  INTELLECTUAL PROPERTY

7.1  MCL Medics shall own all rights in the methodologies, processes, procedures, records, patient records, trade and design rights (whether or not registered), training materials (regardless of format e.g. electronic or hard copy), copyrights, patents, trade secrets, other intellectual property rights, programs or systems (hereinafter collectively referred to as the “Intellectual Property”) that will be utilised or created during the provision of the Services. To the extent deemed necessary by MCL Medics for the delivery of the Services to the Client, the Client will be granted for a limited term as specified in this Agreement, a revocable, non-transferable, non-sub licensable, free-of-charge, non-exclusive right to use, for the purposes of the Services for which they will be provided, the materials or items that MCL Medics will deliver to the Client in connection with Services to be provided. The Client shall, and shall procure that their respective employees, affiliates and agents shall, cease using the Intellectual Property of MCL Medics upon the suspension, termination or expiration of this Agreement. For avoidance of doubt, MCL Medics shall have the sole discretion as to which Intellectual Property it provides to the Client.

7.2  Intellectual Property vested in a Party prior to and during the performance of the Services shall remain the exclusive property of the entitled Party and shall not be appropriated or used without the prior written consent of that Party.

7.3  In the event there is any ambiguity in the ownership of any Intellectual Property by either Party, MCL Medics shall have the sole right to determine the ownership of any such Intellectual Property.

8. CONFIDENTIAL INFORMATION

8.1  Each Party undertakes to the other:

8.1.1  to keep confidential all information (written or oral)concerning the business and affairs of the other that it shall obtain or receive as a result of the performance of the Agreement (“the Information”);

8.1.2  not disclose the Information, without the other’s written consent, in whole or in part to any other person save those of its employees, agents and sub-contractors who have a need to know the same; and

8.1.3  to use the Information solely in connection with the Services and not for its own benefit or the benefit of any third party.

8.2 The provisions of clause 8.1 above shall not apply to any Information to the extent that it is:

8.2.1  In the public domain other than as a result of a breach of this clause;

8.2.2  required to be disclosed by law or by order of any court, regulatory or government authority; or

8.2.3  received from a third party who is not bound by any obligation of confidentiality.

9.  DATA PROTECTION

9.1  Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

9.2  The parties acknowledge that in performing their respective obligations hereunder they shall be sharing Personal Data between themselves as Data Controllers, and also there may be circumstances where one party may act as the Data Processor of the other.

9.3  The Parties agree to only process Shared Personal Data for the Agreed Purpose, and shall not process Shared Personal Data in a way that is incompatible with the Agreed Purpose.

9.4  Information, notices and consents

9.4.1 The Data Discloser shall ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Data Receiver for the Agreed Purposes.

9.4.2  The Data Discloser shall, in respect of Shared Personal Data, ensure that their privacy notices comply with the Data Protection Legislation, and without prejudice to the generality of the foregoing, are clear and provide sufficient information to the Data Subjects for them to understand which specific personal data the Data Discloser is sharing with the Data Receiver, the circumstances in which it will be shared, the purposes for the data sharing and either the identity of the Data Receiver or a description of the type of organization that will receive the personal data, together with, if applicable, giving notice that, on the termination of this Agreement, Personal Data relating to them may be retained by the Data Receiver, its successors and assignees.

9.4.3 Where required under the Data Protection Legislation, the Data Receiver undertakes to inform the Data Subjects, of the purposes for which it will process their Personal Data and provide all of the information that it must provide to ensure that the Data Subjects understand how their Personal Data will be processed by the Data Receiver.

9.4.4 Neither Party shall be required to share any personal Data with the other Party where the Data Subject has expressed a wish for such Personal Data not to be shared.

9.5  Data quality

9.5.1  The Data Discloser shall ensure that before disclosing any Personal Data to the Data Receiver that it is accurate.

9.5.2  Shared Personal Data must be limited to the Personal Data described in Schedule 1. The Shared Personal Data must not be irrelevant or excessive with regard to the Agreed Purposes.

9.6  Data retention and deletion

9.6.1  The Data Receiver shall not retain or process Shared Personal Data for longer than is necessary to carry out the Agreed Purposes, which shall be no longer than the retention period specified in Schedule 1.

9.6.2  Notwithstanding clause 9.6.1, the Parties shall be entitled to retain Shared Personal Data in accordance with any statutory or professional retention periods applicable in their respect countries and/or industry provided that such retention periods are notified to the Data Discloser.

9.6.3  The Data Receiver shall ensure that any Shared Personal Data are returned to the Data Discloser or destroyed in accordance with the Data Discloser’s reasonable requirements in the following circumstances:

9.6.3.1 on termination of this Agreement;

9.6.3.2 once processing of the Shared Personal Data is no longer necessary for the Agree Purposes.

9.6.4 Following deletion of the Shared Personal Data in accordance with clause 9.6.3, the Data Receiver shall notify the Data Discloser that the Shared Personal Data in question has been deleted.

9.7  International Transfers

9.7.1  For the purposes of this clause, transfers of Personal Data shall mean any sharing of Personal Data by the Data Receiver with a third party, and shall include, but is not limited to, the following:

9.7.1.1 storing Shared Personal Data on servers outside the EEA;

9.7.1.2 sub-contracting the processing of Shared Personal Data to data processors located outside the EEA; and

9.7.1.3 granting third parties located outside the EEA access rights to the Shared Personal Data.

9.7.2 The Data Receiver shall not disclose or transfer the Shared Personal Data to a third party data controller located outside the EEA unless:

9.7.2.1 such international transfer is stated as permitted in Schedule 1, or it has the express written consent of the Data Discloser; and

9.7.2.2 it complies with the provisions of Article 26 of GDPR (in the event the third party is a joint controller); and

9.7.2.3 it ensures that: (A) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of GDPR; (B) there are appropriate safeguards in place pursuant to Article 46 of GDPR; or (C) one of the derogations for specific situations in Article 49 of GDPR applies to the transfer.

9.8 Confidentiality. The Data Receiver shall ensure that all Permitted Recipients who have access to and/or process the Shared Personal Data are obliged to keep the Shared Personal Data confidential.

9.9 Data Processors

9.9.1 Where the Data Receiver is acting as a data processor on behalf of the Data Discloser, then without prejudice to the generality of clause 9.1, the Data Receiver shall:

9.9.1.1  process that Shared Personal Data only on the written instructions of the Data Discloser;

9.9.1.2  at the written direction of the Data Discloser, delete or returned the Shared Personal Data and copies thereof to the Data Discloser on termination of the Agreement unless required by any applicable law to store the Shared Personal Data; and

9.9.1.3  maintain complete and accurate records and information to demonstrate its compliance with this Agreement and allow for audits by the Data Discloser or the Data Discloser’s designated auditor upon reasonable notice and during normal business hours of the Data Receiver.

9.10  Security and training

9.10.1  Having regard to the state of technological development and the cost of implementing such measures, the Parties have in place appropriate technical and organizational security measures including as a minimum any requirements set out in Schedule 1 in order to:

9.10.1.1  prevent: (A) unauthorized or unlawful processing of the Shared Personal Data; and (B) the accidental loss or destruction of, or damage to, the Shared Personal Data;

9.10.1.2 ensure a level of security appropriate to: (A) the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction or damage; and (B) the nature of the Shared Personal Data to be protected.

9.10.2    It is the responsibility of each party to ensure that its staff members are appropriately trained to handle and process the Shared Personal Data.

9.10.3  The level, content and regularity of training referred to in clause 9.10.2 shall be proportionate to the staff members’ role, responsibility and frequency with respect to their handling and processing of the Shared Personal Data.

9.11 Data security breaches and reporting procedures

9.11.1 Having considered the Data Protection Legislation and any relevant guidance, the Parties have in place their own policies and procedures that must be followed in the event of a Data Security Breach.

9.11.2 Data Receivers are under a strict obligation to notify any potential or actual losses of the Shared Personal Data to the Data Discloser, and Data Disclosers must notify any Data Receivers of such Shared Personal Data, as soon as possible and, in any event, within 2 Business Days of identification of any potential or actual loss to enable the Parties to consider what action is required in order to resolve the issue in accordance with the Data Protection Legislation.

9.11.3 Clause 9.11.1 also applies to any breaches of security which may compromise the security of the Shared Personal Data.

9.11.4 The Parties agree to provide reasonable assistance as is necessary to each other to facilitate the handling of any Data Security Breach in an expeditious and compliant manner.

9.12 Data Subjects’ rights

9.12.1 Data Subjects have the right to obtain certain information about the processing of their Personal Data through a Subject Access Request. In circumstances where the processing of a Data Subject’s Personal Data is not in compliance with applicable Data Protection Legislation, Data Subjects may also request rectification, erasure or blocking of their Personal Data.

9.12.2 The Parties are responsible for maintaining a record of individual requests for information, the decisions made and any information that was exchanged. Records must include copies of the request for information, details of the data accessed and shared and where relevant, notes of any meeting, correspondence or phone calls relating to the request.

9.12.3 The Parties agree to provide reasonable assistance as is necessary to each other to enable them to comply with Data Subject Requests and to respond to any other queries or complaints from Data Subjects.

9.13 Indemnity

9.13.1 Each party undertakes to indemnify each other and hold each other harmless from any cost, charge, damages, expense or loss which the cause each other as a result of their breach of this clause 9, except to the extent that any such liability is excluded clause 14.

9.13.2 Indemnification hereunder is contingent upon:

9.13.2.1  the party to be indemnified (indemnified party) promptly notifying the other party (indemnifying party) of a claim:

9.13.2.2  the indemnifying party having sole control of the defence and settlement of any such claim; and

9.13.2.3  the indemnified party providing reasonable cooperation and assistance to the indemnifying party in defence of such claim.

10. INDEPENDENT CONTRACTOR

10.1  Nothing in the Agreement shall have the effect of creating the relationship of employer and/or employee or of agency or partnership between the Client and MCL Medics.

10.2  At no time either during the continuance of the Agreement or after its termination shall the Client or MCL Medics have the authority to represent itself as the agent of the other or as being empowered to bind (whether contractually or otherwise) the other in any way.

10.3  In the event that any provision of the Agreement is held to be void, invalid, illegal or unenforceable it shall be ignored and shall not affect the other provisions of the Agreement.

11. NON-SOLICITATION OF MCL MEDICS’ PERSONNEL

During the term of the Agreement and for a period of one (1) year after the termination or expiration of the Agreement, the Client shall not without the prior written approval of MCL Medics, directly or indirectly enter into any Agreement or arrangement with and shall not actively solicit any of MCL Medics personnel who work or have worked in the course of the Agreement (“MCL Medics’ Personnel”) or any extension or renewal thereof. Without limiting the intents and purposes of this obligation, the Client further agrees that should it engage or employ the services of any labour agency, person or service provider (“Agency”), then it will instruct the Agency not to enter into arrangements to employ or provide MCL Medics Personnel. In the event the Client does offer employment to MCL Medics’ Personnel or engages an Agency who employs or provides MCL Medics’ Personnel, the Client shall pay to MCL Medics as a fee for human resources services an amount equal to twelve (12) times any agreed monthly fee for MCL Medics’ Personnel. The Client acknowledges that any breach or violation of its obligation under this clause 11 will cause MCL Medics to incur or suffer substantial losses and loss of business opportunities.

12. INSURANCE

12.1 MCL Medics will at its expense effect and maintain throughout the duration of the Agreement the following insurances:

12.1.1 Employers’ Liability

12.1.2 Offshore

12.1.3 Onshore

12.1.4 Medical Malpractice and General Liability

13. INDEMNIFICATION

13.1   Indemnity by Client The Client shall be responsible for and shall save, indemnify, defend and hold harmless MCL Medics Group from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities suffered or incurred by the MCL Medics Group (or any member thereof) in respect of:

13.1.1 loss of or damage to property of MCL Medics Group arising from or relating to the performance of the Agreement and/or any breach of the Agreement by the Client;  and

13.1.2 personal injury including death or disease to any person employed by MCL Medics Group arising from or relating to the performance of the Agreement.

13.2 For the purposes of this clause 13, “MCL Medics Group” shall mean MCL Medics, its subcontractors, its and their respective affiliates, its and their respective directors, officers and employees (including agency personnel).

13.3 All exclusions and indemnities in and this Agreement shall apply irrespective of cause and notwithstanding the negligence or breach of duty (whether statutory or otherwise) of the indemnified party or any other entity or party and shall apply irrespective of any claim in delict, tort or under contract or otherwise at law.

14. EXCLUSION OF LIABILITY

14.1 Notwithstanding any other provisions herein to the contrary, MCL Medics shall not in any way howsoever be liable towards the Client for any damage or liability, including out of negligence or wilful default and whether or not MCL Medics ought to have known that such damage would result, in respect of the following:

14.1.1 any consequential or indirect loss, or damage, loss or injury of whatsoever nature which does not flow directly from an actor omission in question but only from a consequence or result of such actor omission;

14.1.2 loss or anticipated loss of profit, loss or anticipated loss of revenue and economic loss, whether or not flowing directly or indirectly from an act or omission in question;

14.1.3 business interruption, loss of use of any equipment, loss of contract or loss of business opportunity; or

14.1.4 special, contingent, punitive or penal damages relating to or in connection with the performance or non performance of the Agreement whether or not foreseeable at the time of entering into the Agreement, whether in delict, breach of statutory duty, negligence or otherwise.

14.2 Except as set forth herein, MCL Medics makes no warranties to the Client, express or implied, with respect to any of the Services, training materials or deliverables that will be provided. All warranties, conditions and other terms implied by statute or common law (including but not limited to fitness of purpose or merchantability) shall be expressly disclaimed and excluded to the fullest extent permitted by law.

14.3 Where applicable and to the extent permitted by applicable law, the Client and its employees, personnel, insured, users or members, as may be applicable, shall waive all claims against MCL Medics, MCL Medics’ personnel, its affiliates, representatives and agents for any loss resulting from any advice given, services provided or any acts or omissions of any third party service provider including, without limitation, providers of medical services, transportation, security personnel or legal services who are referred or arranged by MCL Medics.

14.4 The total aggregate liability of MCL Medics arising out of or in connection with the Agreement and the Services provided by MCL Medics shall be limited to the total value of the Agreement, whether in contract, tort, breach of statutory duty, negligence or otherwise.

15. FORCE MAJEURE

15.1 MCL Medics shall not be liable for failure to provide the Services and/or delays caused by any event occurring outside its reasonable control or of its employees, agents or representatives (“Force Majeure”), which includes without limitation acts of God such as natural disasters (hurricanes, tornadoes, landslides, earthquakes, volcanic eruptions, tsunamis, floods, lightning, explosions), wars, whether declared or not, use of or release or the threat thereof of any nuclear weapon or device or chemical or biological contamination or sonic boom, epidemic or pandemic, any law or any action taken by a government or public authority, collapse of buildings, fire, explosion or accident, interruption or failure of utility service and terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations.

15.2MCL Medics shall notify the Client of such Force Majeure event as soon as reasonably practicable. The Client’s obligation to pay for any amounts that are due to MCL Medics shall not be affected by any Force Majeure event.

15.3 Where the Force Majeure event lasts fora period of more than sixty (60) days after the occurrence commences, either Party will have the right to terminate this Agreement by giving written notice to the other Party, such notice to have immediate effect.

16. BUSINESS ETHICS

MCL Medics’s Anti-Bribery Policy, in compliance with The Bribery Act 2010 and which is available if requested shall be upheld by both Parties to the agreement.

17. GOVERNING LAWS

The Agreement is governed by and shall be construed in accordance with the laws of England and Wales. Subject to the provisions of clause 18 the parties submit to the exclusive jurisdiction of the English Courts.

18. SETTLEMENT OF DISPUTES

Any and all disputes, controversies and conflicts which arise from or in relation to the Agreement or provision of the Services shall, to the extent possible, be settled amicably by the Parties. Failure to make amicable settlement of any dispute shall be settled by arbitration. Unless specifically stated otherwise, the arbitration shall be held in the London Court of International Arbitration (“LCIA”) pursuant to the Rules of LCIA. The number of arbitrators shall be three, with each Party appointing an arbitrator and the third arbitrator shall be appointed by the two arbitrators appointed by the Parties. Arbitration shall be conducted in the English language. The decision of the arbitration shall be fully binding and final and neither Party has the right to carry out any action before any court on any dispute except for the enforcement of the decision of the said arbitration.

19. ENTIRE AGREEMENT

The Agreement constitutes the entire agreement between the Parties in relation to the provision of the Services, and supersedes all previous communications, negotiations, understandings and agreements, whether oral or written, between the Parties with respect thereto.

20. SEVERABILITY

If any of these provisions (or part of a provision) is declared invalid by any tribunal or competent authority, then such provision (or part of a provision) shall be deemed automatically adjusted to conform to the requirements for validity as declared at such time and as so adjusted, shall be deemed a provision hereof as though originally included. If the provision (or part of a provision) invalidated is of such a nature that it cannot be so adjusted, the provision (or relevant part of the provision) shall be deemed to have been deleted as though the provision (or part of that provision) had never been included, in either case, the remaining provisions shall remain in full force and effect.

21. REMEDIES AND WAIVER

21.1 All rights granted to the parties shall be cumulative and no exercise by either of the Parties of any right under the Agreement shall restrict or prejudice the exercise of any other right granted by the Agreement or otherwise available to it.

21.2  The failure by either Party to enforce at any time or for any period anyone or more of the terms or conditions of the Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of the Agreement.

22. BINDING AGREEMENT AND RIGHT OF ENFORCEMENT

22.1  This Agreement shall be binding upon the Parties hereto and their legal successors and subject to clause 22.2 below, neither Party shall assign or transfer this Agreement without the written approval of the other Party, which shall not be unreasonably withheld. Upon any assignment or transfer, this Agreement shall bind and inure to the benefit of any such assignee or transferee, and such assignee or transferee shall be substituted for the assignor or transferor in all respects under this Agreement. The merger of the Client’s business with another entity or the acquisition of a controlling interest in the Client’s business by another entity shall be deemed an assignment under these general terms.

22.2  MCL Medics may at any time assignor transfer its rights under the Agreement and may subcontractor delegate in any manner any or all of its obligations under the Agreement, upon notice to the Client, to a subsidiary, parent, related company or affiliate of MCL Medics

22.3  A person who is not a Party hereto has no right under applicable law or statute to enforce or enjoy the benefit of any term herein except as expressly provided herein.

22.4  Any and all legal actions and claims arising under this Agreement shall be time barred unless written notice thereof is received by MCL Medics within one (1) year of the date of the event giving rise to such actions or claims.

23. AMENDMENTS

No supplement, modification, amendment or waiver of Agreement shall be binding unless it is in writing and signed by authorized agents of MCL Medics.

24. AGREEMENT TO PREVAIL

Unless expressly stated in a set of separate terms and conditions forming part of this Agreement executed by both Parties, this Agreement shall prevail to the extent that there is any inconsistency or ambiguity between this Agreement and the provisions of any other document (including any subsequent Purchase Order or similar documents) forming part of the Agreement.

25. NOTICES

All notices under the Agreement shall be in writing. A notice to a Party shall be sufficient in all respects if delivered by hand, sent by registered mail or facsimile to the other Party’s authorized address set forth above in this Agreement, or such other address as the Party may notify to the other in writing. Any notice so given shall be deemed to have been received on the date of delivery in case of delivery by hand, upon receipt if by registered mail (receipt confirmed upon signature of the addressee or any employee thereof), or upon transmission if by facsimile (receipt confirmed by addressee’s record of confirmed transmission), whichever first occurs.

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