Med-e-Mass grants the User a non-exclusive and non-transferable licence to use the software (supplied in terms of the foregoing Quotation) subject to the following terms and conditions:
1. GRANT AND TERMS OF LICENCE
1.1 Med-e-Mass retains ownership and all the intellectual property rights in or relating to the software and any copy thereof. The software is not sold and the User is only entitled to use it under licence while paying the agreed fees.
1.2 This agreement shall commence on the commencement date, and shall remain in force until terminated by either the User or Med-e-Mass by giving the other party at least 90 (ninety) days’ written notice of such termination; provided that if the User selected the Mastermed Premier software, the User shall not be entitled to terminate the agreement before 24 (twenty-four) months after the commencement date.
1.3 On termination of this agreement, for whatever reason, the User shall forthwith cease to use the software and return the software and any copy thereof to Med-e-Mass, failing which, Med-e-Mass shall be entitled to have unhindered access at any reasonable time to the User’s premises and computers in order to remove the software. The User qualifies as a “consumer” in terms of the Consumer Protection Act 68 of 2008 (“CPA”) 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 CPA.
OBLIGATIONS OF THE USER
1.4 The User shall pay Med-e-Mass the fees (payable in terms of the Quotation) in advance before or on the 7th day of each month. The User authorises Med-e-Mass, in terms of the foregoing debit order, to withdraw all the amounts due by the User in terms of this agreement from the relevant account. If the User should fail to pay any amount due in terms of this agreement timeously:
1.4.1 Med-e-Mass shall be entitled forthwith to withdraw the use of the software by withholding access thereto;
1.4.2 the unpaid amount or amounts shall bear interest at a rate two percentage points above the prime rate charged by Standard Bank of South Africa from time to time; and
1.4.3 Med-e-Mass shall be entitled to re-submit any debit order or cheque that is returned “unpaid” by the bank and all the resulting bank charges will be debited to the User’s account.
1.5 If it should become necessary for Med-e-Mass to institute legal proceedings to recover fees from the User, the User shall be liable for tracing fees, collection commission and legal costs (on the attorney and own client scale) reasonably incurred by Mede-Mass.
1.6 Irrespective of the foregoing, Med-e-Mass shall be entitled to cancel this agreement and terminate its services forthwith if the User should fail to pay the fees timeously, or if the debit order given by or on behalf of the User is not honoured.
1.7 Med-e-Mass may from time to time increase the fees by an amount which is fair and reasonable in view of:
1.7.1 any enhancement of the services that Med-e-Mass renders to the User; or
1.7.2 any increase in the CPI since the previous fixing of the fees; provided that Med-e-Mass gives the User 30 (thirty) days’ notice of its intention to do so. If the User does not terminate this agreement within the aforesaid notice period of 30 (thirty) days, it shall be deemed to have accepted the increase.
1.8 The User shall, subject to the provisions of clause 1.11.3 below, not at any time use or attempt to use the software on a stand-alone basis at more than one site.
1.9 All persons attached to the User, who will be using the software, shall undergo initial basic training in its use.
1.10 The User undertakes to abide by the terms and conditions of the User Guide (which the User acknowledges it has received) and as displayed on program installation, and to observe the instructions given during the initial basic training.
1.11 The User shall notify Med-e-Mass in writing:
1.11.1 timeously if it should wish to change its selected service level;
1.11.2 at least 30 (thirty) days in advance of any change of its physical or postal address;
1.11.3 timeously if it should wish to have the software installed at an additional site; and
1.11.4 forthwith if there is an increase in the number of doctors attached to the User’s practice.
In any of the events referred to in clauses 1.11.1, 1.11.3 or 1.11.4 above the fees payable in terms of this agreement will be adjusted accordingly.
1.12 The User shall at all times maintain a full set of current backup data and Med-e-Mass shall not be responsible for any loss or damage howsoever arising from the loss of data.
1.13 The User may not make copies of the software save as required in terms of clause 1.12 above and shall not distribute copies of the software to others or electronically transfer the software from one computer to another over a network, modem or in any other way whatsoever.
1.14 The software contains copyrighted material, trade secrets and other proprietary effects. The User shall not merge, modify, alter or adapt the software in any way, including disassembling, de-compiling or otherwise reducing the software to human perceivable form, or permit any third party to modify or alter or adapt the software in any way.
1.15 The User shall give auditors or representatives of Med-e-Mass at any time during business hours full and unfettered access to its records at any of its sites and allow Med-e-Mass to inspect them, take extracts from them or make copies of them for the purposes of establishing whether the User has paid and is paying Med-e-Mass the fees due in terms of clause 1.1 above. The User shall co-operate fully with the auditors or representatives of Med-e-Mass when they carry out an inspection as aforesaid.
2. OBLIGATIONS OF MED-E-MASS OR ITS ACCREDITED DEALER
Med-e-Mass, or its accredited Dealer designated to service the User, shall, before or on the commencement date install the software at the site or sites of the User and for the duration of this agreement maintain the software, provided always that Med-eMass’s obligation to maintain the software shall be limited to, and comprise only the examination and testing of the software and effecting adjustments thereto necessitated by the normal use of the software within the specifications of the software.
Consumers’ attention is specifically drawn to the foregoing clause in compliance with the provisions of section 49(1)(a) of the CPA.
3. SOFTWARE MAINTENANCE AND SERVICES
Med-e-Mass or the Dealer shall, render maintenance and support services to the User at the service level indicated in the Quotation and as specified more fully in Appendix “A” hereto (hereinafter referred to as the “selected service level”).
3.1 General services
Med-e-Mass shall, irrespective of the selected service level, provide the following to the User:
3.1.1 telephonic support provided the call is made by the User and does not exceed 10 (ten) minutes;
3.1.2 software enhancements, which will comply with all legal requirements as well as the requirements of SAMA and BHF;
3.1.3 new releases of the software; and
3.1.4 customized developments requested by the User, which will be charged on a time and material basis at Med-eMass’s ruling rate.
3.2 Corrective maintenance
On notification of a breakdown or deterioration in service due to a fault in the software, Med-e-Mass or the Dealer shall, in accordance with the selected service level, carry out repairs including the replacement of software, if necessary, and restore service.
3.3 Fault Reporting
The User shall report a breakdown of the software to Med-eMass or the Dealer. Med-e-Mass or the Dealer shall respond to such report in accordance with the selected service level.
Med-e-Mass shall provide training, in accordance with the selected service level, to the User’s members of staff who operate the software. The User shall ensure that every operator completes the Med-e-Mass basic training course on the use of the software. It is also the continued responsibility of the User to keep its staff trained in the use of the software. Med-e-Mass will evaluate the competency level of operators from time to time (in line with Med-e-Mass’s records of support required by the User or by on-site spot checks) to ensure effective use of the software.
3.5 Availability of support services
The telephonic and on-site support referred to in clauses 3.1.1 and 3.2 above shall be available between 08:30 and 17:00 from Mondays to Fridays, excluding Public Holidays.
4. USE OF THE SOFTWARE
The User shall be fully responsible for the supervision, use, care and control of the software, including operating procedures of the designated computer. The software shall be used on a computer system approved for that purpose by Med-e-Mass, failing which; any warranties given by Med-e-Mass will lapse.
Consumers’ attention is specifically drawn to the provisions of this clause 5 in compliance with the requirements of section 49(1)(a) of the CPA. The support and maintenance services do not include the following:
5.1. maintenance or repairs of electrical works or telecommunication lines, computing equipment, hardware, circuits and apparatus connected to computers or any accessories or devices;
5.2. all items of any nature not forming an integral part of the software;
5.3. the repair of equipment or software data corruption due to virus attack, User interference, User generated errors, failure to do back-ups, failure to do month-end routines, ignoring unbalanced or error reports or allowing an inadequately trained operator to use the system;
5.4. the repair of damage to the equipment or software or the restoration of lost service or data resulting from vis major or causus fortuitus, such as, but not limited to, strike, natural disaster, riot, flood, act of war, terrorism, accident, failure of transport, theft, fire, water, smoke, lightning, earthquake, neglect or misuse, including surge or outage of electrical power or the unavailability of water supply or means of communication or changes to the specified environment or any similar events which cannot, according to objective standards of reasonable conduct, be prevented or avoided by Med-eMass;
5.5. the supply of consumable items, such as cassettes, disks, batteries, lamps and ribbons;
5.6. repair of damaged equipment or restoration of service impaired directly or indirectly by the connection of accessories, attachments, devices or software, without the prior written consent of Med-e-Mass;
5.7. alterations or additions to the equipment or the service of operator facilities;
5.8. services necessitated by relocation or removing the equipment or any part thereof;
5.9. the cost incurred as a result of a request by the User to attend to an apparent fault or the restoration of service apparently lost or impaired due to misuse, malicious damage, incorrect operation or negligence or the failure of lines or other equipment or apparatus either directly or indirectly connected to the equipment, whether due to the User, its employees, gents, contractors, anyone on the User’s premises or any other person or cause beyond the control of Med-e-Mass; or additional assistance if the User employs untrained staff or staff is on leave or sick.
6. WARRANTY AND LIMITATION OF LIABILITY
6.1 Med-e-Mass warrants that the software will perform substantially in accordance with its published specifications, which the User acknowledges it has received, provided always that the software is used.
6.2 on computer hardware, and in conjunction with an operating system, for which the software is designed.
6.3 Med-e-Mass or its accredited Dealer shall not be liable for any fault in the computer hardware or the software nor does Med-eMass warrant the integrity of any third-party data or electronic information, including but not limited to converted data. Med-eMass or its accredited Dealer shall, in particular, not be liable for any consequential loss which the User may suffer as a result of any fault in the software and its aggregate liability arising from breach of this agreement will, in any event, not exceed the fees charged by Med-e-Mass for 1 (one) month.
6.4 Med-e-Mass gives no undertakings or warranties in addition to the undertaking and warranty respectively contained in clauses 3 and 7.1 above. Consumers’ attention is specifically drawn to clauses 7.2 and 7.3 in compliance with the requirements of section 49(1)(a) of the CPA.
7.1 The User shall not, without Med-e-Mass’s prior written consent, cede, assign, delegate or otherwise transfer its rights in terms of this agreement to any third party nor shall it allow any third party to use the software.
7.2 The licence will ipso facto lapse if there is a change in the membership, ownership or control of the User. In such event the User will have to apply for a new licence and pay the applicable registration fees.