MEDPRAX TERMS AND CONDITIONS

[The licensee qualifies as a “consumer” in terms of the Consumer Protection Act 68 of 2008 if it is a company, a close corporation, a partnership, an association or a trust whose asset value or annual turnover is less than R2 million or if he or she is a natural person (a human being) who conducts the practice on his or her own, irrespective of his or her asset value or annual turnover.  In what follows “section” refers to a section of the aforesaid Act.]

APPLICATION These conditions of trade shall be deemed to apply to all agreements, as if specifically incorporated therein, in terms of which Medprax (Pty) Ltd (hereinafter referred to as “Medprax”) agrees to supply the licensee with electronic medical data.

GRANT OF LICENCE The rights granted to the licensee shall mean a non-transferable and non-exclusive right to use the electronic medical data, without the right to sub-licence. The licensee shall install and shall be entitled to use the electronic medical data at the installation address/site until this agreement is terminated. During the existence of the agreement Medprax undertakes to supply the licensee with any up date to the electronic medical data.

TERMINATION This agreement is binding for six months commencing from the date of this contract. Thereafter may be terminated by either party on 1 (ONE) calendar months’ written notice.

LICENCE FEE The monthly licence fee payable from time to time is payable monthly in advance, on or before the 3 (THIRD) day of each calendar month with effect from the commencement date. Medprax shall have the right to adjust the licence fee upon 30 (THIRTY) days written notice to the licensee. If the licensee does not terminate this agreement within the aforesaid notice period of 30 (THIRTY) days then the licensee shall be deemed to have accepted the increase.

NATURE OF LICENCE Use of the electronic medical data shall be limited to: the installation of the electronic medical data by the licensee or his agent, supplied by Medprax to the licensee, on a single computer; the accessing of the electronic medical data on a single computer connected to a network, or not, by the licensee or a person authorised by the licensee and who is bound by the terms of this licence agreement; the manipulation of the accessed electronic medical data in such a manner as to conduct the business of the licensee; the licensee shall not have the right to sub-licence or transfer the electronic medical data in any way, either in whole or in part, to any third party; the licensee shall not copy nor permit any party to copy the electronic medical data, except to make sufficient copies for back-up or archival purposes for the conducting of the business of the licensee; the licensee shall not change the electronic medical data in any manner so as to affect the copyright of Medprax in the changed electronic medical data nor merge the electronic medical data so that the electronic medical data ceases to be readily identifiable as that of Medprax; the licensee shall not reproduce or attempt to reproduce the works incorporated in the electronic medical data in any manner or form, publish the works if it was unpublished, perform or broadcast the works in any manner, cause the works to be transmitted in a diffusion service, make an adaptation of the works, or do in relation to an adaptation of the works any of the acts specified above;

The licensee will permit Medprax or its duly authorised agent or representative on reasonable notice and during normal business hours to inspect and audit the licensee’s premises to confirm compliance with the agreement. The licensee acknowledges Medprax as the source of the electronic medical data which it is, in terms of this agreement, permitted to use or reproduce in any manner whatsoever. No transaction related to any of the copyrighted works, or any electronic medical data comprised therein, may be entered into by the licensee with a third party.

INTELLECTUAL PROPERTY RIGHTS The licensee acknowledges that any and all of the intellectual property used or embodied in or in connection with the electronic medical data including any documentation and/or manuals relating thereto are and shall remain the property of Medprax and the licensee shall not during or after expiry or termination of this agreement in any way question or dispute the ownership thereof by Medprax. The intellectual property rights shall remain the sole property of Medprax. The licensee acknowledges that the copyright, trade marks and other rights belonging to Medprax may only be used by the licensee with the agreement of Medprax as contained in this agreement. Upon expiry or termination of this agreement the licensee shall immediately cease to use the intellectual property, without any right of compensation for such seizure. The licensee shall not during or after the expiry or termination of this agreement without the prior written consent of Medprax use or adopt any trade mark, trade name, trading style or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name, trading style or commercial designation used by Medprax. The licensee shall indemnify Medprax fully against all damage, patrimonial or non patrimonial in nature suffered as a result of this clause by the licensee or any of its clients.
Medprax warrants that, to the best of its knowledge, the data does not infringe upon or violate any intellectual property rights of any third party.

BREACH AND TERMINATION Without prejudice to any other remedies which either of the parties may otherwise have in terms of this agreement or at law, Medprax shall be entitled to terminate this agreement forthwith by written notice to the licensee in the event that: the licensee infringes the intellectual property rights of Medprax; the licensee is sequestrated or is liquidated or is placed under judicial management, whether provisionally or finally and whether voluntarily or otherwise; the licensee commits any other breach of the terms and conditions of this agreement. The licensee shall if it receives information concerning any infringement or threatened infringement of any right of copyright in the data by any third party, immediately provide Medprax with full details thereof in writing. The licensee shall, when called upon to do so by Medprax, provide all reasonable information, materials, co-operation and/or assistance to Medprax to enable Medprax to take any action contemplated in clause 7.3. Medprax shall exercise control over all proceedings relating to such rights of copyright and shall in its sole discretion decide what action, if any, to take in respect of any infringement or alleged infringement of the copyright. Medprax shall not be obliged to bring or defend any proceedings whether for infringement or otherwise in relation to the copyrighted works. The licensee shall immediately upon termination of the agreement return to Medprax, all copies of the electronic medical data, the copyrighted works and any derived products, and any and all extracts from the electronic medical data or versions of the electronic medical data in possession or under control of the licensee. Immediately upon receipt of any updated version of the electronic medical data, the licensee shall return any superseded version of the electronic medical data in the possession or under control of the licensee to Medprax. It is recorded that ownership of any and all electronic medical data remains exclusively with Medprax. In the event of Medprax committing a material breach of any of the provisions of this agreement and should Medprax fail to remedy such breach within 14 (FOURTEEN) days after receiving written notice from the licensee requiring Medprax to do so, the licensee shall be entitled to cancel this agreement or claim specific performance of all the Medprax obligations, whether or not due for performance, without prejudice to the licensee’s other rights in law, including the right to claim damages, subject to the limitation of liability provisions below.

DOMICILIUM The parties select the addresses appearing on the application form as their domicilium citandi et executandi and at which address all notices and other communications must be delivered and received for the purposes of this agreement.

ENTIRE AGREEMENT AND VARIATIONS This agreement constitutes the whole agreement between the parties and supersedes all prior verbal or written agreements or understandings or representations by or between the parties regarding the subject matter of this agreement and the parties will not be entitled to rely, in any dispute in this agreement, on any terms, conditions or representations especially contained in this agreement. No variation of or addition to this agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the parties. Neither party to this agreement has given a warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in this agreement.
The licensee shall not be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of this agreement, in whole or in part, to any other party or person.

RELAXATION No indulgence, lenience or extension of a right which either of the parties may have in terms of this agreement, and which either party may grant or show to the other party, shall in any way prejudice the granter, or preclude the granter from exercising any of the rights that it has derived from this agreement, or be construed as a waiver by the granter of that right.

WAIVER No waiver on the part of either party to this agreement of any rights arising from a breach of any provision of this agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.

SEVERABILITY In the event that any of the terms of this agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.

GOVERNING LAW The validity and interpretation of this agreement will be governed by the laws of the Republic of South Africa.

LIMITATION OF LIABILITY Medprax accepts no responsibility for any loss or damage suffered as a result of the reliance upon the information as contained in the electronic medical data. Without limitation to the aforegoing, the electronic medical data does in no way constitute any form of medical advice and no warranty is given as to the accuracy or completeness of the information provided. Medprax will in no circumstances whatsoever be liable for punitive, exemplary, special, indirect, incidental or consequential damages or for lost revenue, profits, business or goodwill sustained by the licensee, whether or not caused by the negligence of Medprax, its agents or employees or arising out of any use of the electronic medical data by the licensee. Medprax gives no warranty as to the rights herein licensed and does not give any warranty as to whether or not the licensee will directly or not infringe the rights of any third party. The licensee hereby indemnifies Medprax against any claims arising from the supply or use by the licensee of the electronic medical data.