1.2   Duties of MidVision

1.2.1      The parties agree that the Client has entered into this Contract on the understanding that MidVision will provide the Services (through the Consultancy Staff) at the Place of Performance as described in the SOW.

1.2.2      In the event that any of the Consultancy Staff are not available to provide the Services or such part of the Services, then the Client may require MidVision to supply an alternative person of equivalent or better experience and qualifications.

1.2.3      MidVision shall provide the Client, at the Client’s request, with a written report on the progress of the Services and the Deliverables which shall include the following details:

1. activity undertaken;
2. deliverables produced;
3. summary of charges accrued and expenses incurred;
4. summary of time spent per activity;
5. planned activity; and
6. performance of activities against any key dates.

1.2.4      MidVision shall procure that the Consultancy Staff shall comply with the Client’s policies (if any), copies of which shall be provided to MidVision from time to time.

1.2.5      MidVision shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anticorruption including but not limited to the Bribery Act 2010. Any breach of this obligation by MidVision or the Consultancy Staff shall be deemed a material breach of this Contract.

1.2.6      The Client acknowledges that MidVision shall determine the number of hours required and the times worked to complete the Services, subject to MidVision complying with any reasonable operational requirements of the Client.

1.2.7      The Client is under no obligation to offer further contracts or engagements to MidVision nor is MidVision under obligation to accept such contracts or engagements if offered. MidVision is not obliged to make its services available except for the performance of its obligations under this Contract. Both parties also agree and intend that there is no mutuality of obligations either during or following the Term of this Contract.

1.3   The Services

1.3.1      While this Agreement sets out the general terms upon which MidVision shall supply the Services to the Client and the Client shall pay for such Services, more specific and/or additional details and information regarding such Services may be set forth in the applicable SOW. Each SOW shall reference this Agreement, shall incorporate the terms of this Agreement, and shall come into full force and effect on the Assignment Start Date. In the event of any inconsistency between the terms of this Agreement and the terms set out in any SOW, the terms of this Agreement shall prevail to the extent of such inconsistency.

1.3.2      Each SOW shall:

1. describe the Services to be provided by MidVision to the Client;
2. set out the estimated time frame agreed between the parties for the provision of the Services, including all applicable milestones;
3. set out the basis for the provision of the Services, either fixed price or time and materials;
4. include the cost of the Services and the applicable payment schedule; and
5. set out any other provisions as needed.

1.3.3      MidVision shall perform the Services (including the supply of one or more Consultancy Staff) for the Client.

1.3.4      MidVision shall ensure that the Consultancy Staff are available to provide the Services during the Core Hours and that any requirements for the Consultancy Staff to work outside of the Core Hours or on a day that is not a Business Day which will result in additional Fees payable by the Client is specified in the SOW.

1.3.5      If MidVision or the Consultancy Staff is unable to provide the Services for any reason (including as a result of illness or injury) MidVision shall advise the Client of that fact as soon as reasonably practicable. For the avoidance of doubt no fee shall be payable in respect of any period during which the Services are not provided.

1.3.6      MidVision shall ensure that any Consultancy Staff specifically named in the SOW are available and shall be used by the MidVision in performing the Services. MidVision may substitute the Consultancy Staff with a replacement provided that:

1. the terms of the substitution reflect the terms of this Agreement;
2. the Services remain as detailed in this Agreement;
3. MidVision and the Client are satisfied the replacement Consultancy Staff possesses the necessary skill, expertise and resources to fulfill the necessary Services; and
4. MidVision and the Client are satisfied the replacement Consultancy Staff will comply with all obligations, rules and regulations as specified in this Agreement.

1.3.7      MidVision shall make and retain proper records of the Services provided, including the time spent and tasks carried out by the Consultancy Staff, and shall make such records available to the Client as soon as reasonably practicable upon request by the Client.

1.3.8      Unless MidVision (or the Consultancy Staff) has been specifically authorized to do so by the Client in writing:

1. neither MidVision nor the Consultancy Staff shall have any authority to incur any expenditure in the name of or for the account of the Client; and
2. MidVision shall not, and shall procure that the Consultancy Staff shall not, hold itself out as having authority to bind the Client.

1.4     Status

1.4.1      The relationship of MidVision and the Consultancy Staff to the Client will be that of independent contractors and nothing in this Contract shall render MidVision or the Consultancy Staff as an employee, worker, agent or partner of the Client and MidVision shall not hold itself out as such and shall procure that the Consultancy Staff shall not hold themselves out as such.

1.4.2      This Contract constitutes an agreement for the provision of services and not a contract of employment and accordingly MidVision shall be fully responsible for and shall indemnify the Client for and in respect of any income tax, National Insurance and social security contributions arising from or made in connection with the performance of the Services.

1.5     Warranties

1.5.1      Each party agrees that it has power to enter into this Contract and confirms that it has obtained all necessary approvals to do so.

1.5.2      MidVision warrants, represents and undertakes that:

1. it shall procure that the Consultancy Staff will carry out the Services with the highest level of professional skill, care and diligence and at all times in accordance with best industry practice and with this Contract and in particular in accordance with any agreed delivery dates as set out in the SOW or as agreed by the parties from time to time;
2. the Deliverables will comply with any agreed specifications and in all respects with any applicable laws, regulations and codes of practice;
3. the Deliverables will be original works and will not knowingly infringe any third party Intellectual Property Rights;
4. it has all necessary consents, permits, licenses and authorizations to enable it to perform its obligations under this Contract;
5. it shall work and co-operate in good faith with the Client’s personnel and with any other entities and personnel notified to it by the Client; and
6. it shall, and shall procure that Consultancy Staff visiting the Place of Performance shall, comply with all applicable health and safety regulations, policies, instructions and security arrangements and that it, and the Consultancy Staff, shall take all reasonable care for their own health and safety.

1.6     Other Services

Nothing in this Contract shall prevent MidVision from seeking, applying for and accepting other contracts to supply services to other parties during the Term of this Contract, provided that such activity does not materially reduce the performance of the Services under this Contract.

1.7     Invoices and Expenses

1.7.1      Except where otherwise specified in the SOW:

1. the Services shall be performed and Deliverables provided on a time and materials basis at the Fees specified in the SOW;
2. MidVision or its agent shall submit invoices on or around the last working day of each month or on the completion of the relevant SOW; and
3. the Client shall pay each invoice within 30 calendar days of receipt of the invoice.

1.7.2      The Fees are exclusive of any Value Added Tax (“VAT“), Sales, State or similar taxes.

1.7.3      All Fees and expenses payable pursuant to this Agreement must be paid together with VAT, Sales or similar tax (if any) properly chargeable thereon in any jurisdiction. Any VAT chargeable in respect of any Services supplied by MidVision under this Agreement shall, on delivery of the VAT invoice, be paid in addition to any sum agreed to be paid hereunder.

1.7.4      All invoices, where applicable, shall show MidVision’s VAT, Sales or similar tax registration number.

1.7.5      The Client shall pay the Consultancy Staff’s expenses, properly agreed in advance and in writing, incurred in the course of provision of the Services.

1.7.6      MidVision agrees not to retain any external services at additional cost to the Client unless this is expressly agreed with the Client in writing.

1.7.7      If the Client fails to make any payment due to MidVision under this Contract by the due date for payment then, without limiting any other remedies available to MidVision under this Contract, the Client shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount (including interest).

1.7.8      In addition to any other rights and remedies available to MidVision, if the Client fails to make any payment due to MidVision within 30 calendar days after the due date then MidVision may suspend provision of the Services, without liability to MidVision, until actual payment of the overdue amount (including interest).

1.8     Data Protection

1.8.1      In this Section 1.8 the terms data processor, data subject, personal data and process shall have the meanings given to them in the Data Protection Act 2018 (the UK implementation of GDPR).

1.8.2      Each party shall comply with the provisions of the Data Protection Act 2018 (and any other applicable statute, rule or regulation in force from time to time that amends, appeals or replaces such act) in relation to its use of any personal data concerning the other party.

1.8.3      Where MidVision is processing personal data of the Client as a data processor:

1. MidVision shall only act on instructions regarding the processing of personal data under this Contract;
2. MidVision shall ensure that appropriate technical and organisational measures shall be taken against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, having regard to the state of technological development and the cost of implementing the measures, so as to ensure a level of security appropriate to (i) the harm that may result from breach of such measures and (ii) the nature of personal data to be protected; and
3. MidVision shall comply with any reasonable request made from time to time by the Client to ensure compliance with the measures mentioned in this Section.

1.8.4      The Client hereby instructs MidVision to carry out any processing of personal data reasonably necessary for the performance of this Contract.

1.8.5      Each party shall provide to the other party full co-operation and assistance in allowing data subjects to access their rights under the Data Protection Act 2018 at no charge to the other party.

1.9     Intellectual Property rights

1.9.1      Unless otherwise agreed in the Contract, title to, and all Intellectual Property Rights in, any and all Deliverables are to be the exclusive property of the Client. MidVision agrees to do everything necessary and execute all such documents as may from time to time be necessary to vest all Intellectual Property Rights in the Deliverables in the Client. MidVision hereby assigns (by way of present assignment of future rights) with full title guarantee all copyright that exist or may arise in the Deliverables.

1.9.2      Each party shall retain all right, title and interest in and to all Intellectual Property Rights owned by or licensed to that party in existence prior to the Assignment Start Date.

1.9.3      MidVision shall indemnify, and keep indemnified, the Client against any and all liability, loss, damage, costs and expenses which the Client may suffer as a result of or in connection with a successful claim that any Intellectual Property Rights in any Services or Deliverables produced or supplied by MidVision under this Contract infringes the intellectual property rights of a third party, providing that the Client:

1. as soon as is reasonably practicable gives written notice of the claim to MidVision specifying in reasonable detail the nature of the relevant matter and shall use its reasonable endeavours to avoid and mitigate the losses it incurs;
2. shall not make any admission of liability, or enter into any agreement or compromise in relation to the matter in respect of which it seeks to be indemnified without the prior written consent of the indemnifying Party (such consent not to be unreasonably withheld or delayed); and
3. provides MidVision with conduct of the proceedings relating to the claim (and cooperates with MidVision in relation to all such proceedings, at MidVision’s cost), and MidVision shall at its sole discretion decide what action (if any) to take in respect of the claim and shall not be obliged to bring or defend any such proceedings if it decides in its sole discretion not to do so.

1.10 Acceptance

1.10.1   Where any Deliverables are supplied to the Client, MidVision shall deliver the Deliverables for the Client’s inspection and approval in accordance with and by any milestones and milestone dates specified in the SOW.

1.10.2   Where a Deliverable is software (the “Developed Software”), if an acceptance test procedure is not specified in this Contract the parties shall use their reasonable endeavors to agree acceptance tests, which show that the Developed Software complies with the functional specification.

1.10.3   On request and at the Client’s cost, MidVision shall deposit into escrow the source code for any Developed Software in accordance with the NCC’s standard single license agreement or such other agreement as the parties may agree in writing.

1.11  Viruses

1.11.1   MidVision warrants and undertakes that no viruses, Trojan horses, worms software bombs or similar items will be introduced by MidVision or its Consultancy Staff into the Client’s systems.

1.12  Liability

1.12.1   Nothing in this Contract shall be interpreted or construed as excluding or limiting liability for MidVision’s breach of Section 1.2(5) (anti-bribery), Section 1.8 (Data Protection) and Section 1.14 (Confidentiality), or for either party’s liability for:

a)    death or personal injury resulting from negligence;

b)    fraud or fraudulent misrepresentation; or

c)     any other matter which cannot be excluded or restricted by law.

1.12.2   Subject to Section 1.12(1):

a)    neither party shall be liable to the other party for any loss of goodwill, reputation or opportunity, loss of profit, loss of revenue, loss or corruption of data, or any account of profits, arising out of or in connection with this Agreement or any breach or nonperformance of it no matter how fundamental (including by reason of that party’s negligence), in each case whether direct or indirect;

b)    neither party shall be liable to the other party for any indirect or consequential loss arising out of or in connection with this Agreement or any breach or non-performance of it no matter how fundamental (including by reason of that party’s negligence.

1.12.3   Subject to Sections 1.12(1) and 1.12(2), the total aggregate liability of either party to the other under or in connection with this Contract for any loss or damage of whatsoever nature and howsoever caused shall be limited total Fees paid or payable under this Contract.

1.13  Insurance

MidVision agrees that it that it shall obtain and maintain the insurances required, as specified in the SOW, with reputable UK insurers in respect of its obligations under this Contract during the Term and for one year afterwards with a limit of indemnity in respect of any one occurrence or series of occurrences of not less than £1 million per year or more where required by law. MidVision shall on Client’s request, provide Client proof of such insurance policies and evidence of payment of last premium for such insurance policies maintained by MidVision.

1.14  Confidentiality

1.14.1   Each Party shall (and shall procure that its employees, contractors and consultants shall) at all times keep confidential and shall not disclose to any person any Confidential Information and will not use or disclose such Confidential Information without prior written consent of the disclosing Party, except where the Confidential Information:

a)    is required by a person employed or engaged by the receiving Party in connection with the proper performance of this Contract; or

b)    is required to be disclosed by law or by regulation, provided that the receiving Party shall notify the disclosing Party of the information to be disclosed and of the circumstances in which the disclosure is alleged to be required as early as reasonably possible before such disclosure must be made and shall take all reasonable action to avoid and limit such disclosure.

1.14.2   Any disclosure of Confidential Information permitted under Section 1.14.1 shall be in confidence, shall only be to the extent that any persons to whom the information is disclosed need to know the same for the performance of their duties and receiving Party shall be obliged to procure that all such persons are aware of the obligation of confidentiality and undertake to comply with it.

1.14.3   The obligations contained in this Section 1.14 will not extend to Confidential Information:

a)    which is or becomes public knowledge other than through any act or omission constituting a breach of the receiving Party’s obligations under this Contract;

b)    which the receiving Party can prove by documentary evidence was already in its possession and at its free disposal before the disclosure hereunder;

c)     received in good faith from a third party having no obligation of confidentiality and which is free to disclose such Confidential Information; or

d)    which the receiving Party is required to disclose by order of a court of competent jurisdiction.

1.14.4   The provisions of this Section 1.14 shall remain in full force and effect notwithstanding termination of this Contract

1.15  Force Majeure

Neither party will have any liability under or be deemed to be in breach of this for any delays or failures in performance of this Contract which result from circumstances beyond the reasonable control of the party affected. Each party will promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than one month, either Party may terminate this Contract by written notice to the other Party.

1.16  Term and Termination

1.16.1   This Contract shall commence on the Assignment Start Date and shall continue in full force and effect until completion of all pending SOW‘s (on the last Assignment Completion Date) unless terminated earlier in accordance with this Contract.

1.16.2    This Agreement may be terminated by either party:

1. With immediate effect, by notice given in writing by means of communication ensuring evidence of date of receipt (e.g. registered mail with return receipt, special courier), in case of substantial breach by the other party of the obligations arising from the Contract, or in case of exceptional circumstances justifying the earlier termination; or
2. As a result of any failure by a party to carry out all or part of his obligations under the Agreement resulting in such detriment to the other party as to substantially deprive him of what he is entitled to expect under the Contract, shall be considered as a substantial breach for the purpose of section 1.16.2.1, above. Circumstances in which it would be unreasonable to require the terminating party to continue to be bound by this Contract shall be considered as exceptional circumstances for the purpose of article 1.16.2.1, above; or
3. Immediately for cause, if the other party becomes insolvent, institutes a composition with its creditors, suffers or permits the appointment of a receiver for its business or assets, or filed or is forced into bankruptcy or dissolution.

1.16.3   At the end of this Contract (whether by termination or expiry) MidVision shall immediately return to the Client all documents, software, photographs, or other material belonging to the Client, including any Confidential Information provided in accordance with Section 1.14.

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

1.16.5 Either party may terminate this Contract for convenience by giving the other party written notice of a period equal to the Notice Period set out in the SOW. 

1.17  Amendment to this contract

MidVision may, from time to time amend this Contract. MidVision will notify the Client before such amendments apply to to them, such as before the commencement of a new SOW.

1.18  Waiver

Any waiver or relaxation either partly, or wholly of any of the terms and conditions of this Contract will be valid only if it is communicated to the other party in writing and expressly stated to be a waiver. A waiver of any right or remedy arising from a breach of contract will not constitute a waiver of any right or remedy arising from any other breach of this Contract.

1.19  Entire Agreement

1.19.1   This Contract (and any associated SOW’s) constitutes 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.

1.19.2   Each party agrees that it 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 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.

1.20  Notices

Any notice given under this Contract shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally, or sending it by pre-paid recorded delivery or registered post to the relevant party at its registered office for

the time being or by sending it by fax to the fax number notified by the relevant party to the other party or by sending it by email. Any such notice shall be deemed to have been received if delivered personally, at the time of delivery or in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting or in the case of fax, at the time of transmission or in the case of email, when sent unless an error message is received.

1.21  Severance

If any provision of this Contract is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Contract and rendered ineffective as far as possible without modifying the remaining provisions of this Contract, and will not in any way affect any other circumstances of or the validity or enforcement of this Contract.

1.22  Third Party Rights

No one other than a party to this Agreement shall have any right to enforce its terms.

1.23  Non-solicitation

The Client warrants that it shall not, during the Term of this Agreement and for a period of 6 months immediately following the Assignment Completion Date, whether on its own behalf or in conjunction with or on behalf of any other person, company, business entity, or other organization whatsoever, directly or indirectly induce, solicit, or entice, or procure, any person who is a consultant, employee or director with whom the Client had material dealings while providing Services, to leave MidVision’s employment.

1.24  Counterparts

This Contract may be executed in any number of counterparts, each of which shall constitute an original, and all the counterparts shall together constitute one and the same contract.

1.25  Cumulative Rights

The rights, powers, privileges and remedies provided in this Contract are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law.

1.26  Governing Law and Jurisdiction

The parties agree to the application of the laws of England and Wales to govern, interpret, and enforce all of the parties respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this contract, without regard to conflict of any specific country law principles in which the party operates. The United Nations Convention on Contracts for the International Sale of Goods does not apply. The English version of this Agreement shall be the version used when interpreting or construing this Agreement.