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By accepting this Agreement through completing and signing Your Order (downloadable here), You agree to adhere to and be bound by the terms and conditions of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity to the terms and conditions of this Agreement and, in such event, “You” and “Your” as used in this agreement shall refer to such entity. If You do not have such authority, or if You or such entity do not agree to the terms and conditions of this Agreement, You may not use the Services.
This CGM Cloud Services Agreement (this “Agreement”) is between CompuGroup Medical South Africa (Pty) Ltd (“CGM”) and the individual person or legal entity that has executed this Agreement (“You”), (hereinafter collectively referred to as the “Parties”).
This Agreement sets down the terms and conditions that govern orders placed by You for Services under this Agreement.
1.1 “Cloud Services” means the CGM cloud services such as software hosted (e.g., MEDISTAR, CLICKDOC, or other CGM hosted software) listed in Your Order.
1.2 "Practice Data" means Your name, HPCSA number, Identity number, practice number, practice address and contact details.
1.3 “Services” means, collectively, both the Cloud Services and Hosting Services that You have ordered.
1.4 “You” and “Your” refers to the individual or entity that has executed this Agreement.
1.5 “Your Order” is the order completed by You commissioning CGM to provide You with selected Cloud Services at an agreed rate.
1.6 “Your Data” means all text, files, images, graphics, illustrations, information, data (including Personal Information as defined in the Protection of Personal Information Act of 2013), audio, video, photographs, and other content and material in any format, provided by You or Your Patients that reside in, or run on or through, the Services Environment.
2. PURPOSE OF THE AGREEMENT
The purpose of this Agreement is the provision of the Cloud Services by CGM, commissioned by You and for use by You in accordance with this Agreement.
3. USE OF CLOUD SERVICES
3.1 The use of the Cloud Services by You requires that You register on the relevant portal, which is accessible online, or through assistance from an official CGM representative.
3.2 All intellectual property rights to the Cloud Services are owned exclusively by CGM or its licensors.
4. CONTRACT TERM AND TERMINATION
4.1. The Agreement period begins on the 1st of the month following the conclusion of the Agreement and is 12 months for the initial Agreement. If the agreement is not cancelled in writing 3 months before the end of the Agreement period (hereafter the "Term"), the Agreement will automatically extend after the Term on a month by month basis unless cancelled in writing with one month's notice. to CGM South Africa.
4.2. The receipt of the notice of termination by the recipient is decisive for the timeliness of the termination.
4.3. The termination of any ordered Cloud Service does not affect any existing Agreement You may have for any other Cloud Service.
4.4. The termination must be in writing.
4.5. A termination issued by CGM becomes effective when it is sent to the last e-mail address given by You.
4.6. When the termination takes effect, Your ability to use the Cloud Services ends.
4.7. On request, CGM will allow you read-only access to your data after termination, and will extract your data and provide it to You in a readable format at a cost to be determined depending on the size of the database.
4.8. We will save a copy of your data for a maximum of one month post termination before deleting it.
5.1. For the use of the Cloud Services commissioned by You in Your Order, You agree to pay CGM . The payment is for the Services as detailed in clauses 2 and 6 of this Agreement and shall be debited against Your account as authorised in Your Order. The Debit Order direct debit is collected by CGM monthly in arrears.
5.2. CGM can increase payment for the use of the Cloud Services in line with general price developments (consumer price index) and/or due to external costs that are not foreseeable at the moment (e.g. due to procurement costs, a changed legal situation, etc.). Should an increase take place, it shall be not more than once a year and will be announced at least eight weeks in advance. If the fee increases by more than 10% of the previous year's fee, the user can terminate the Agreement within six weeks of receipt of the notification of the increase at the time the increase takes effect.
5.3. The withholding of payments due to counterclaims by the customer is not permitted, unless such counterclaims have been legally established or recognized by CGM. The same applies to offsetting against such counterclaims.
5.4. CGM can suspend the fulfilment of its obligations if You will not or cannot perform a substantial part of Your obligations:
5.4.1. because of a serious lack of Your ability to fulfil the Agreement or Your lack of creditworthiness; or
5.4.2. because of Your behaviour in the preparation for the fulfilment, or in the fulfilment of the Agreement.
6. HOSTING SERVICES
6.1. As part of the use of the Cloud Services, CGM will provide You access to the Cloud Services and the CGM servers ("Hosting") via the Internet to the extent agreed in this Agreement.
6.2. Handover for the contractual hosting service is the router exit of the computer centre used by CGM. Your connection to the Internet, the maintenance of the network connection as well as the procurement and provision of the hardware and software required by You - subject to the provision of the Cloud Services – is independent of this Agreement.
6.3. The availability of the CGM server averages 95% per month ("Operating Time"). CGM regularly carries out maintenance work (“General Maintenance Work”) on its server to ensure the security of network operations, to maintain network integrity, interoperability of services, and data security. If possible, CGM will carry out the General Maintenance Work during periods of low usage (i.e. at night and on weekends). The time for General Maintenance Work is a maximum of one (1) hour per month and a maximum of twelve (12) hours per year. The times for General Maintenance Work do not count as a failure of availability, but as Operating Time. CGM will notify You of its plans to carry out the General Maintenance Work - as far as possible - in good time beforehand.
6.4. CGM will provide You with storage space as part of the Hosting, and will take over the backup of transferred data. CGM will use encryption techniques to prevent unauthorized access to Your data, as far as this is possible with reasonable economic and technical effort. You are aware and hereby acknowledge that complete protection against harmful data is not possible. You shall ensure that only virus-free data and content are transmitted. If a risk to the system cannot be eliminated technically and/or economically in any other way, CGM is entitled to delete any data with damaging content, including Your Data.
7. RIGHTS OF USE
You receive the non-exclusive right, limited in time to the term of this Agreement and not sub-licensable, to use the Cloud Services according to the agreed scope.
7.1. In the event of an unauthorised transfer of use, You must immediately provide CGM with all information required to assert claims against the unauthorised user, in particular his/her name and address.
7.2. If the authorised use of the Cloud Services is impaired by third party property rights through no fault of CGM, CGM is entitled to offer an alternative or to refuse the services affected thereby. CGM will inform You of this immediately and enable You to access Your data in a suitable manner. If CGM does not offer You an equivalent alternative, You will not be obliged to pay. Your other claims and rights remain unaffected.
8. YOUR DUTY TO CO-OPERATE
8.1. You are obliged to immediately use any changed program versions ("Updates") made available to You that represent an improvement or further development of the Cloud Services. The Updates to Cloud Services are automatically made available to You.
8.2. When reporting defects or using the hotline, You must describe Your error messages and questions in as much detail as possible.
8.3. You must follow the instructions given by CGM in the event of error messages. In addition, program errors, the need for changes and other circumstances indicating the need for maintenance measures must be reported by You to CGM immediately in writing or by e-mail.
8.4. If a third party asserts against You that the Cloud Services violates his/her rights, You are obliged to inform CGM of this immediately and to hand over the documents on which this claim is based to CGM. Insofar as this is permissible, You shall leave it to CGM to address the asserted claims at its own expense.
9. YOUR FURTHER OBLIGATIONS
You are obliged to fulfil Your statutory retention requirements outside the Cloud Services.
10.1. The Cloud Services and the related updates have been tested under representative circumstances. Nevertheless, according to the state of the art, errors in the process or in the results cannot be ruled out with special combinations of data or functions.
10.2. Obvious errors by CGM in the maintenance and care of the Cloud Services must be reported to CGM by You within two weeks of their discovery. If this period is not met, Your warranty claims with regard to the respective error expire.
10.3. Defects in a software maintenance service will be remedied by CGM within a reasonable time after You have notified CGM of the defect. The elimination of defects is carried out at the discretion of CGM through free repair.
11.1. Liability is limited to wilful and grossly negligent behaviour by CGM, its legal representatives and vicarious agents.
11.2. CGM's liability for damage is limited to the annual remuneration of the paid version of the CGM product specified in the Order. In the case of negligence which is not wilful or gross, Your claim for compensation for the damage caused by delay is limited to 10% of the annual remuneration of the paid version.
11.3. Liability for data loss is limited to the typical restoration effort that would have occurred if backup copies had been made regularly and in accordance with the risk. In any case, the obligation to pay compensation is limited to foreseeable damage.
11.4. CGM is not liable if third parties assert claims against You because You have not obtained any required declaration of consent from a patient. If damage is claimed by third parties in this respect, You shall indemnify CGM in this respect.
12. FORCE MAJEURE
12.1. CGM is released from the obligation to perform under this Agreement if and to the extent that the non-performance of Services is due to circumstances of force majeure after the conclusion of the contract.
12.2. Force majeure circumstances include wars, strikes, unrest, expropriations, changes in law, storms, floods and other natural disasters as well as other circumstances for which CGM is not responsible.
12.3. Each contracting Party must inform the other contracting Party immediately and in writing of the occurrence of force majeure.
13. DISPUTE RESOLUTION
13.1. Any dispute, question or difference arising at any time between the Parties regarding:
13.1.1. the rights and duties of either of the Parties herein;
13.1.2. the interpretation of;
13.1.3. the termination of;
13.1.4. any matter arising out of the termination of; or
13.1.5. the rectification of this Agreement,
shall be discussed between the Parties who will attempt, in good faith, to resolve such dispute.
13.2. Should the Parties fail to resolve the dispute, it may be referred to arbitration as set out below.
13.3. Any such arbitration shall be held in Cape Town in accordance with the provisions of the Arbitration Act No. 42 of 1965, as amended.
13.4. The arbitrator shall be appointed by the Parties, and failing agreement, shall be nominated by the Chairman for the time being of the Cape Town Bar Council.
13.5. The arbitrator shall be entitled to:
13.5.1. determine and settle the formalities and procedures, which shall be in an informal and summary manner, that is, it shall not be necessary to observe or carry out either the usual formalities or procedure or the strict rules of evidence;
13.5.2. investigate or cause to be investigated any matter, fact or thing which the arbitrator considers necessary or desirable in connection with any matter referred to him for decision;
13.5.3. decide the matters submitted to the arbitrator according to what he or she considers just and equitable in all the circumstances, having regard to the purpose of this Agreement; and
13.5.4. make such award, including an award for specific performance, an interdict, damages or a penalty or the costs of arbitration or otherwise as the arbitrator in his or her discretion may deem fit and appropriate.
13.6. The arbitration shall be held as promptly as possible after it is agreed between the Parties, with a view to it being completed within 30 (thirty) days.
13.7. The Parties agree that the decision of the arbitrator shall be final and binding.
13.8. Nothing contained in this clause shall preclude either Party from seeking relief of an interim or urgent nature in any Court of competent jurisdiction.
13.9. This clause is severable from the rest of the Agreement and shall therefore remain in effect even if this Agreement is terminated.
14. GOVERNING LAW
This Agreement shall in all respects (including its existence, validity, interpretation, implementation, termination and enforcement) be construed and governed in accordance with the laws of South Africa.
15.1. The Parties irrevocably agree that the High Court of South Africa (Western Cape Division) shall have jurisdiction to hear and settle any dispute which may arise out of or in connection with the Agreement and for such purpose irrevocably submit to the jurisdiction of the High Court of South Africa.
15.2. The submission to the jurisdiction of the court referred to above shall not be construed so as to limit the rights of either Party to take proceedings against the other Party in any other court of competent jurisdiction for the purposes of obtaining urgent or interdictory relief.
16.1. By being a Party to this agreement You consent to the Practice Data being transmitted, stored, and processed outside South Africa. CGM warrants that no patient data will be transmitted, stored, or processed outside South Africa.
16.2. You consent to CGM forwarding Your Practice Data to a credit bureau to obtain a credit report about You, and to CGM having the right to refuse to accept this Agreement if You do not pass CGM's credit check.
16.3. Should any provision of these General Terms and Conditions be or become void, the validity of the other provisions shall remain unaffected.
16.4. CGM can make changes to these General Terms and Conditions in accordance with the following provisions. Changes to these General Terms and Conditions by CGM become effective and binding upon You if CGM sends the changed General Terms and Conditions to You for information and You have not raised an objection to their contractual inclusion within eight weeks.
16.5. Changes and additions to the Agreement including the General Terms and Conditions must be made in writing. Changes and additions to the terms and conditions can also be agreed in electronic form via the CGM portal, whereby the changes or additions in this case become effective when You accept the respective changes.
16.6. In addition, any special conditions for the individual online services booked by You according to the specifications of this framework Agreement apply.