DEFINITIONS AND INTERPRETATION
1. In this Agreement the following definitions, as capitalised, shall have the meanings assigned to them:
1.1. “AES” means a Class 4 digital Advanced Electronic Signature certificate managed by the South African Post Office that is issued to each Participating Practitioner after verification and installation of the digital certificate on the Participating Practitioner’s personal computer and issuing a unique password to the Participating Practitioner to use to insert their own digital signature on each prescription issued using the iCanScript™ module.
1.2. “Agreement” means the agreement as set out in these standard terms and the Cover Page;
1.3. “Commencement Date” means the date of signature of this Agreement by the Participating Practitioner, provided that Intermedix accepts the Participating Practitioner’s offer to enter into this Agreement in writing;
1.4. “Cover Page” means the first page of this Agreement where the details of the Participating Practitioner are set out;
1.5. “Cybersecurity” means all physical and electronic measures designed to protect electronic data from malicious attack from third parties, including the employment of anti-virus, antimalware and encryption software.
1.6. “Enabled Pharmacies” means a pharmacy enrolled by Intermedix and enabled to receive electronic scripts via iCanScript™. With Enabled Pharmacist construed accordingly.
1.7. “iCanScript™” means the electronic scripting and/or routing utility as embedded in the Software from time to time. iCanScript™ is a unique, locally developed e-prescribing solution linking the Participating Practitioner, patient, medical scheme and Enabled Pharmacist.
1.8. “iCanScript™ Web App” means Intermedix’s web application which has been developed to allow Participating Practitioners to access iCanScript™ functionality remotely via the internet.
1.9. “Hosted Cloud Solution” means the secure virtual environment on which Intermedix hosts a Participating Practitioner’s patient database. Only the Participating Practitioner can access his/her own patient database, via the iCanScript™ Web App on the internet.
1.10. “Intermedix” means Intermedix SA Proprietary Limited, a private company duly incorporated in terms of the laws of South Africa under the registration number 2017/106762/07;
1.11. “Limited Dataset” means an anonymised dataset created from data generated by the Participating Practitioner via iCanScript™, inclusive of the Practitioner Details;
1.12. “Parties” means Intermedix and the Practitioner, and “Party” refers to either one of them as the context may indicate;
1.13. “Participating Practitioner” means a licensed HPCSA healthcare practitioner who has agreed to participate under this Agreement, provided that such practitioner has been duly activated by Intermedix or its agents in accordance with its prevailing requirements from time to time;
1.14. “POPIA” means the Protection of Personal Information Act 4 of 2013.
1.15. “Practitioner Details” means the name and MP number of a Participating Practitioner;
1.16. “Script” means an electronic prescription generated using iCanScript™;
1.17. “S/he” means she or he;
1.18. “Software” means iCanScript™ software applications licensed by Intermedix or its licensors to the Participating Practitioner.
2. ICANSCRIPT™ WEB APP LICENCE
2.1. Intermedix hereby grantsto the Participating Practitioner the non‐exclusive, non‐transferable and personal right to use the iCanScript™ Web App as a temporary Licence for the term of this Agreement, without the right to sub‐license.
2.2. The iCanScript™ Web App will allow the Participating Practitioner to access Intermedix’s Hosted Cloud Solution. 2.3. All rights not expressly granted by Intermedix to the Participating Practitioner shall be and remain reserved to Intermedix and/or its licensors.
3. TERM AND TERMINATION
3.1. This Agreement shall commence on the Commencement Date and continue indefinitely thereafter on a month-to-month basis, subject to termination by either:
3.1.1. by 20 (twenty) business days’ prior notice in writing or other recorded form by any Party to the other;
3.1.2. in accordance with clause 10 (Breach).
3.2. The termination of this Agreement for any reason shall not affect the data collected by Intermedix from the Participating Practitioner during the term.
3.3. If the Participating Practitioner is a consumer in terms of the Consumer Protection Act, No. 68 of 2008, and this Agreement was concluded by way of direct marketing as defined in the aforementioned Act, then the Participating Practitioner may cancel this Agreement without penalty within 5 (five) business days of the conclusion of this Agreement.
3.4. On termination for any reason at all, Intermedix will convert the Participating Practitioner’s secure database into an unencrypted, accessible format, and will transfer it to the location communicated to it by the Participating Practitioner in writing.
3.4.1. The Participating Practitioner understands that Intermedix has no right in law to store the Participating Practitioner’s database in an accessible format, and has no wish to do so.
3.4.2. The Participating Practitioner undertakes to provide Intermedix with the details of the location to which Intermedix should transfer the Participating Practitioner’s database as soon as possible after termination, if not before.
3.4.3. Intermedix undertakes to transfer the Participating Practitioner’s database to the identified location as soon as possible after termination.
3.4.4. If the Participating Practitioner has not provided Intermedix with a suitable location within 60 (sixty) days of termination, Intermedix will be obliged to destroy all of the Participating Practitioner’s data that it still has in its possession, in order to protect the privacy of the data subjects.
4. ICANSCRIPT™ ACTIVATION
4.1. The Participating Practitioner hereby agrees to go through the iCanScript™ activation process including the issuing of a SAPO AES and training on use thereof.
4.2. The Participating Practitioner understands and agrees that the use of iCanScript™ is in no way intended to substitute or even inform the Participating Practitioner’s judgement as to the appropriate medical treatment.
4.2.1. iCanScript™ helps the Participating Practitioner to choose the most cost-effective medicine in the patient’s best interest, including routing the Script to Enabled Pharmacies.
4.2.2. iCanScript™ may promote certain medicines or delivery options on the above basis, it being recorded that any promoted item or delivery option in iCanScript™ can easily be overridden and/or changed by the Participating Practitioner.
4.3. The use of iCanScript™ is reserved for licensed HPCSA healthcare professionals entitled to script and/or dispense medicine, lawfully practising as such and in good standing. The Participating Practitioner warrants and represents that S/he shall comply with the aforesaid requirement during the term of this Agreement and agrees to notify Intermedix in writing immediately if the aforesaid is no longer valid, or is likely to no longer become valid in future.
4.4. The Participating Practitioner agrees to secure and maintain such patient and other consents as may be required to lawfully utilise iCanScript™. The Participating Practitioner agrees to provide copies of such consents on reasonable request in writing to Intermedix or any other authorised party. iCanScript™ supports the Participating Practitioner in keeping track of patient consents given and agrees to these being transmitted to an authorised party as part of the iCanScript™ system.
4.5. Once the Participating Practitioner’s iCanScript™ module has been activated, the Participating Practitioner will be entitled to use the following features, as amended from time to time:
4.5.1. Select the patient’s presenting diagnosis, as available;
4.5.2. Link diagnosis to the correct ICD10 coding required by medical schemes;
4.5.3. Benefit from warning alerts displayed to highlight specific PMB conditions (Prescribed Minimum Benefits) to the Participating Practitioner to help ensure the correct clinical protocol is followed to register the patient for the chronic condition, as available;
4.5.4. Select the clinically appropriate medication to treat the presenting diagnosis;
4.5.5. View the cost-effective generic alternatives to the selected medication available in iCanScript™;
4.5.6. View scheme-specific acute and chronic medicine formularies where applicable, to help ensure greater compliance and reducing patient co-payments;
4.5.7. View the full listing of all approved pharmaceutical preparations, their pricing and all the generic and brand name equivalents, as available;
4.5.8. Select the usage and instructions related to the medicine selected;
4.5.9. Route an electronic prescription to an Enabled Pharmacy of patient’s choice and with consent;
4.5.10. If the patient chooses a pharmacy which is not an Enabled Pharmacy, to print out and sign by hand a copy of the electronic prescription for the patient to present at the pharmacy of his/her choice;
4.5.11. Store the patient’s prescription history to ensure future repeat scripts can be easily retrieved and re-issued;
4.5.12. Obtain and record patient consents with prompts from the module, and to store the response to such prompts in a consent log.
4.6. The Participating Practitioner hereby notes that certain functionalities and features are dependent on third-party participation and/or services.
5. COLLECTION OF LIMITED DATASET
5.1. The Participating Practitioner hereby grants to Intermedix the irrevocable right to obtain, process, extract and commercialise the Limited Dataset generated during the term of this Agreement by the Participating Practitioner, including for use by Intermedix and its customer in data analytics, quality assurance studies, market research and other campaigns agreed with the Participating Practitioner on a case-by-case basis.
5.2. The Participating Practitioner warrants and represents that S/he is entitled to supply the Limited Dataset to Intermedix in the manner set out in this Agreement and moreover that in doing so, S/he is not contravening any law, regulation, directive or other provision or requirement binding on the Participating Practitioner in any way.
5.3. It is a material term of this Agreement that the Participating Practitioner hereby freely and voluntarily consents to the inclusion and processing of the Practitioner Details in the Limited Dataset for the aforesaid purposes.
5.4. For clarity, the Parties record and agree that the Limited Dataset which Intermedix purchases from the Participating Practitioner in terms of this Agreement will contain no personal information of the Participating Practitioner’s patients.
5.5. The Participating Practitioner hereby irrevocably assigns the copyright in and to the compilation of the Limited Dataset to Intermedix. On request the Participating Practitioner agrees to execute any further documents required to give effect hereto.
6. AES ACTIVATION
6.1. The Participating Practitioner understands and agrees that in order for it to be able to issue legally valid e-scripts, S/he will need to be issued with his/her own, individual AES by the South African Post Office SOC Ltd (hereinafter “SAPO”). In terms of the Electronic Communications and Transactions Act 25 of 2002 an AES is deemed at law to be the functional equivalent of a handwritten signature.
6.3. The Participating Practitioner is hereby granted the right to be issued with, and to use a SAPO AES by Intermedix.
6.4. The right of use granted herein shall be for an initial term of 3 (three) years from the Commencement.
6.5. Intermedix will, as a value-add service, procure and assist the Participating Practitioner with the set-up of AES in the normal course, as well as pay the associated once-off installation and activation fees and/or any further ongoing or renewal fees on behalf of the Participating Practitioner.
6.6. The Participating Practitioner hereby agrees that S/he is the sole authorised user of the AES issued in his/her name, and that S/he will at all times remain solely responsible and liable for any use thereof and hereby undertakes to:
6.6.1. not share his/her password or otherwise allow access by another person to his/her personal computer containing the AES;
6.6.2. ensure the AES and his/her personal computer containing the AES are not compromised in any manner whatsoever;
6.6.3. indemnifies Intermedix and its respective officers, employees and representatives against any claim, action or damage relating to to his/her entering into this Agreement and their access to and use of the AES.
6.7. The AES is provided by SAPO and Intermedix assumes no liability whatsoever for any act or omission by SAPO.
6.8. The Participating Practitioner hereby acknowledges that S/he will be required to provide certain of his/her personal information and documentation to SAPO, which data may need to be collected, stored and processed to activae the AES as uniquely identifiable to the Participating Practitioner and for allowing recipients to verify that such AES was applied by or originated from their personal computer.
6.9 The Participating Practitioner hereby voluntarily consents for the term of this Agreement to the storing, processing and transfer of his/her details for the aforesaid purposes.
6.10 Intermedix reserves the right to revoke the AES issued to the Participating Practitioner by SAPO and terminate all rights granted in terms of this Agreement with immediate effect from the giving of a cancellation notice if Intermedix becomes aware that the AES is being abused by the Participating Practitioner or any other person.
6.11. This Agreement is provided to the Participating Practitioner for and on behalf of SAPO and shall be directly binding between the Participating Practitioner and SAPO.
6.12. SAPO, Intermedix and their respective officers, employees and representatives hereby accept the offer to enter into this Agreement and all benefits conferred on them respectively.
7. LEGAL COMPLIANCE
7.1. The Parties agree that it is their fullest intent to comply with all applicable laws and regulations, specifically POPIA in relation to their handling of personally identifiable information, in relation to the entering into and performance of this Agreement.
7.2. The Parties agree to co-operate in good faith to the extent that it may be required to give effect to the aforegoing.
7.3. The Parties record and agree that in the course of their business in terms of this Agreement personally identifiable information (hereinafter “Personal Information”) will be processed. Each Party agrees to take all required steps to comply with its obligations in terms of applicable law in this regard, including specifically POPIA, once in force, where applicable.
7.4. The Participating Practitioner undertakes to let Intermedix know in writing as soon as:
7.4.1. S/he has any reason to believe that a contravention of Applicable Law has occurred or is likely to occur;
7.4.2. any of the details on the Cover Page changes.
7.4.3. The Participating Practitioner hereby indemnifies Intermedix from all claims as a result of a breach by the Participating Practitioner of its obligations in terms of this clause
7. 8. PROVISION OF LAWFUL DATASETS
8.1. The Participating Practitioner may request Intermedix in writing from time t o time to deliver to his/ hers el f lawful datasets including personally identifiable information relating to the Participating Practitioner’s own patients.
8.2. The Participating Practitioner may also request Intermedix in writing from time to time to deliver datasets such as those indicated in
8.1. above to a third party nominated by the Participating Practitioner. The request must include confirmation that the Participating Practitioner has obtained special prior consent from the patients to whom the information relates for Intermedix to provide such personally identifiable information to the specific third party.
9. DATA SECURITY
9.1. Intermedix warrants that its in-house software products are supplied to the Participating Practitioner virus-free.
9.2. The Participating Practitioner accepts that S/he alone is responsible for the content, integrity, and security of his/her own and his/her patients’ data on the Participating Practitioner’s computer systems.
9.3. The Participating Practitioner accepts that S/he is responsible for doing daily back-ups of his/her data, at least one of which should be stored off-site, and on a different network from the system used on a daily basis.
9.4. The Participating Practitioner accepts responsibility for ensuring that his/her database security and Cybersecurity software is up to date and functioning correctly.
9.5. The Participating Practitioner indemnifies Intermedix from responsibility for any Cybersecurity breach of the Customer and/or End-user’s computer system.
9.6. Intermedix does not accept liability for the Cybersecurity status of any software products or storage plug-ins which the Participating Practitioner may purchase from a third party.
9.7. If the Participating Practitioner has opted for Intemedix’s hosted cloud-based option with back-ups and Cybersecurity, it acknowledges that Intermedix will use its best efforts to ensure accurate, valid back-ups are made of the files specified in writing by the Participating Practitioner and to protect the Participating Practitioner’s data from Cybersecurity attacks. However, Intermedix (like any other company) cannot guarantee 100% (one hundred per cent) protection from sophisticated Cybersecurity attacks which are evolving on a daily basis in the current information technology environment.
9.8. To ensure the security of any Participating Practitioner’s data while it stored or transmitted by Intermedix, Intermedix has installed the latest secure SSL 128-bit encryption.
9.9 Intermedix has strict service level agreements with its service providers to ensure best possible uptime for its Cybersecurity.
10.1. If a Party:
10.1.1. breaches any provision of this Agreement and remains in breach for 20 (twenty) business days after the other Party has given written notice to rectify that breach; or
10.1.2. breaches a material term or warranty set out in this Agreement that is not capable of remedy; or
10.1.3. repudiates this Agreement by acting in a manner that evidences the intent not to be bound to this Agreement, then, subject to clause 13, the other Party shall be entitled without prejudice to any other rights or remedies which such Party may have in law or otherwise (including the right to claim damages) to sue for the immediate specific performance of any of its obligations under this Agreement or to cancel this Agreement, which cancellation shall take effect on the giving of the notice of cancellation.
10.2. Any contravention or breach by a Participating Practitioner of the terms pertaining to the Software, including the terms of the licence and use thereof or in the participation of the supply of data as contemplated in clause 5 shall constitute a material breach of the terms of this Agreement and entitle Intermedix to the above remedies, without prejudice to any other rights or remedies available in law or otherwise.
11. LIMITATION OF LIABILITY AND INDEMNITY
11.1. Intermedix, its officers, employees and agents, shall not be liable to the maximum extent permitted by law for any claim, cost, damage, injury or other adverse consequence arising from this Agreement.
11.2. The Participating Practitioner indemnifies Intermedix and its respective licensors and associated companies, as well as their respective directors, employees and agents, from any claim, cost, damage, injury or other adverse consequence arising from the Participating Practitioner’s breach of this Agreement.
12.1. Save as otherwise specifically provided elsewhere in this Agreement or where any competent consumer tribunal or other authority has jurisdiction, any dispute arising out of this Agreement shall be finally resolved by arbitration in Cape Town in accordance with the Expedited Rules of the Arbitration Foundation of South Africa (hereafter “AFSA”) by an arbitrator or arbitrators agreed to between the Parties to the dispute, or failing such agreement within 7 (seven) working days of demand in writing, as appointed by AFSA.
12.2. Notwithstanding the provisions of clause 10. above, any Party may approach a court on an urgent basis for interim relief or for such other relief not capable of being obtained by way of arbitration proceedings in general.
13. FORCE MAJEURE Intermedix and its respective licensors and associated companies shall have no liability to the Participating Practitioner under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, failure of telecommunications networks, compliance with any law or governmental order, rule, regulation or direction or the default of Intermedix’s agents and/or network partners, provided that the Participating Practitioner is notified of such an event and its expected duration as soon as possible.
14.1. Assignment. Intermedix shall be entitled to cede and assign this Agreement, either in whole or in part, to a third party on notice in writing to the Participating Practitioner.
14.2. Amendment. The Parties agree that Intermedix may amend this Agreement from time to time by 40 (forty) business days’ prior notice in writing or other recorded form. In that event, the continued use of iCanScript™ after the aforesaid period has elapsed shall be deemed to constitute an acceptance of such amendments, which shall become binding on the Parties immediately after expiry of the aforesaid notice period.
14.3. Applicable law. This Agreement shall be governed by and interpreted in accordance with the law of the Republic of South Africa. The Parties agree that the High Court of South Africa, Western Cape Division, shall have jurisdiction to hear any disputes that may arise from this Agreement.
14.4. Independent contractors. The Parties agree and acknowledge that the relationship between the Parties is that of independent contractors. This Agreement shall accordingly not create a partnership or joint venture, nor constitute any Party as the other’s agent, partner, employee or representative.
14.5. Independent advice. Each of the Parties acknowledges that they have been free to secure independent legal advice and that they have either taken such independent legal advice or dispensed with the necessity of doing so at its own risk.
14.6. Third-party rights. All benefits conferred on Intermedix, the Software Vendor and their respective licensors and associated companies, as well as all their respective officers, employees and agents under this Agreement shall be deemed to have been accepted on the Commencement Date.
14.7. Whole Agreement. This Agreement constitutes the whole agreement between the Parties as to the subject matter hereof. None of the Parties shall have any claim or right of action arising from any undertaking, representation or warranty not included in this Agreement.
14.8. Variation. No addition, change or supersession of this Agreement, nor any waiver of any right arising from this Agreement, shall be of any force or effect unless reduced to writing and signed by all the Parties with a wet ink signature.
14.9. Addresses for notices. The Parties choose as their addresses for notices the addresses recorded on the Cover Page.
14.10. Relaxation. No failure on the part of any Party to enforce its rights shall in any circumstances be construed as a consent, election, limitation or waiver of rights by such Party.
14.11. Cost of legal services. Each Party will pay its own costs and expenses incurred by it in connection with this Agreement.
14.12. Authority to sign. The persons signing this Agreement expressly warrant their authority to do so.
14.13. Communication. The Participating Practitioner permits Intermedix to contact him/her from time to time regarding Intermedix’s existing and new products and services.
DEFINITIONS AND INTERPRETATION