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STANDARD TERMS

 

1.  INTERPRETATION

1.1. The terms defined in the Contract shall have the same meanings assigned to them throughout this Agreement.  In addition, the following terms shall have the meanings assigned to them hereunder:

1.1.1. “Agreement” means the agreement embodied in the Contract, Quotation, Standard Terms and any Supplementary Terms, including all annexures to any of the aforegoing;

1.1.2. “Authorised Users” mean users employed by the Customer and which are authorised by the Customer and validly licensed by CGM to use the Products and/or Services, as configured by or on behalf of the Customer. The Customer may also be appointed as a Re-Seller of CGM's Products and Services and Customers of the Re-Seller, may become authorised users of the licensed Products and Services.

1.1.3. “Business Day” means any day which is not a Saturday, Sunday or official public holiday in the Republic of South Africa;

1.1.4. “Business Hours” means 08h00 to 17h00 on Business Days in South Africa

1.1.5. "CGM” means CompuGroup Medical South Africa Proprietary Limited, a private company duly incorporated as such in Terms of the laws of the Republic of South Africa under registration number 2005/023029/07 and with physical address Aurecon West, 1 Century City Drive, Waterford Precinct, Century City, Cape Town, South Africa, 7441, telephone+27 (0)21 886 6160, and e-mail [email protected];

1.1.6. “CGM Group” means the entities affiliated or associated with CGM, as well as holding companies and subsidiaries;

1.1.7. “CPA” means Consumer Protection Act (South Africa), 68 of 2008, as amended;

1.1.8. “CPI Rate” means the rate equal to the publicly quoted consumer price index as published from time to time by Statistics South Africa or any other body which takes over its responsibilities;

1.1.9. “Consumer” means a Customer that qualifies as a consumer in terms of the CPA;

1.1.10. “Customer” means the Party which is the primary signatory to this Agreement and responsible for the payment of the Service and Licence fees. The Customer may or may not be the same entity as the End-user.

1.1.11. “Cybersecurity” means protection from computer viruses, malware, and ransomware.

1.1.12. “Disclosure Document” means the document to be signed by a Customer that is a Consumer in compliance with the CPA;

1.1.13. “Documentation” means the documentation setting out policies, procedures, functional and/or technical specifications, guidelines, user instructions and/or limitations of the Products and/or Services as made available by CGM at http://www.cgmsa.co.za/documentation or otherwise as may be designated and which is incorporated into this Agreement by reference, as amended from time to time;

1.1.14. “ECT Act” means the Electronic Communications and Transaction Act (South Africa), 25 of 2002, as amended;

1.1.15. “End-user” means the beneficiary of the Licence and Services provided by CGM, which are the subject of this agreement. The End-user may or may not be the same entity as the Customer.

1.1.16. “Installation Date” means a date agreed between the Parties in writing when CGM shall initiate installation and training in respect of the Products and Services;

1.1.17. “Intellectual Property” means all intellectual property rights, howsoever arising and in whatever tangible or intangible media, whether or not registered, including (without limitation) copyright, database rights, patents, trademarks, registered designs, unregistered design rights, domain names, software, source code, confidential information, business processes, the Documentation and other manuals, know how, trade secrets and any applications for the protection or registration of those rights and all renewals and extensions thereof throughout the world (if applicable);

1.1.18. “Licence” means the licence for the CGM product specified in the quotation.

1.1.19. “Non-subscription Agreement” means a standard agreement over a Term with upfront costs payable by the Customer at commencement and monthly charges levies for the rest of the 24 (twenty-four) month period, for the use of CGM’s solutions, in South Africa. For Customers and/or End-users located outside of South Africa, the term of the agreement will be as agreed between the parties.

1.1.20. “Parties” mean the parties to this Agreement, being CGM and the Customer, and “Party” refers to one of them;

1.1.21. “Payment Plan” is the payment arrangement defined between the Parties as per the quotation signed between them;

1.1.22. “POPIA” means the Protection of Personal Information Act (South Africa), 4 of 2013, as amended;

1.1.23. “Prime Rate” means the rate of interest per annum which is equal to CGM’s bank’s publicly quoted prime overdraft lending rate from time to time, calculated daily and compounded monthly in arrears on the basis of a 365 (three hundred and sixty‐five) day year, irrespective of whether it is a leap year or not;

1.1.24.“Products” means any product supplied in terms of this Agreement;

1.1.25. “Services” means any services supplied in terms of this Agreement;

1.1.26. “Service Charges” means the sum of all service charges set out in respect of the Products and Services designated in the Contract.

1.1.27. “Standard Terms” means the standard terms and conditions set out in this Agreement as amended from time to time;

1.1.28. “Subscription Agreement” means a standard agreement over a fixed Term with upfront costs and monthly charges amortised over the full 24 (twenty-four) month period for the use of CGM’s Products. The Subscription Agreement is only available to Customers with their End-users located in South Africa;

1.1.29. “Term” means a fixed period of 24 (twenty‐four) calendar months from the Commencement Date, unless terminated earlier in accordance with the provisions of this Agreement, for Customer and/or end users in South Africa. For Customers and/or end-users outside of South Africa, the term will be as agreed between the Parties.

1.2. When any number of days is prescribed in this Agreement, these will be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the following Business Day.

1.3. The rule of interpretation that the Agreement shall be interpreted against the Party responsible for the drafting and preparation thereof (the contra proferentem rule) shall not apply.

1.4. Terms and expressions defined in these Standard Terms shall bear the same meaning in all documents comprising the Agreement, unless indicated otherwise.

 

2. PREAMBLE

2.1. The Customer and/or End-user wishes to make use of the Products and/Services for the purposes and on the basis as set out in this Agreement only and CGM is willing to grant the Customer and/or End-user access thereto on the terms and conditions of this Agreement.

2.2. The Parties agree as set out in this Agreement.

 

3. PRODUCTS AND SERVICES

3.1. With effect from the Commencement Date and for the duration of this Agreement, the Customer hereby appoints CGM, which hereby agrees, to license the specific Products and to render the specific Services as set out in the quotation in accordance with and subject to the Documentation against payment of the Service Charges.

3.2. CGM shall render the installation, configuration, and training in respect of the Products and/or Services to the Authorised Users with effect from the Installation Date at the designated terminals on the Customer’s or End-user's premises. This can be done remotely or on site at the Customer’s or End-user's premises as determined. Customers and/or their staff will receive three training sessions included in their quotation. The first will take place on the day of installation. The date of the second training session will be agreed on the date of the first training session. The third will take place when/if requested by the Customer. Any further training sessions requested by the Customer after the third will be charged for at CGM’s listed pric as per a new quotation approved and signed by the Customer before commencement. CGM may postpone the Installation Date to a later agreed date in the event that CGM's operational requirements so require and will advise the Customer and End-user thereof as soon as possible.

3.3. Any act or omission by Authorised Users in respect of the Products and/or Services shall be attributable to and binding on the Customer and/or End-user.

 

4. SUPPORT AND MAINTENANCE SERVICES

4.1. CGM shall operate a help desk to provide remote support by telephone and e-mail to the Authorised Users during South African Business Hours. The aforegoing service shall be rendered on a first‐come first‐served and best efforts basis, unless the Parties agree on a specific service level agreement, which shall constitute and require the entering into of Supplementary Terms.

4.2. To the extent that CGM may provide any remote access support Services in respect of the terminals of the Authorised Users, the Customer and/or End-user hereby acknowledges it shall at all times be responsible for having a suitably qualified and authorised employee or officer to supervise all such remote access sessions.

4.3. CGM may release updated, modified or enhanced versions of its Products from time to time. These are provided to our existing, paid up clients as part of the maintenance and support fee payable by the Customer.

4.4. CGM may release add-ons, plug-ins, or additional modules to existing CGM Products, or new Products from time to time. The Customer and/or End-user may elect to purchase these Products or for which the Customer will be billed on an approved quotation.

4.5. If the Customer and /or End-user fails to obtain and apply any such updated versions of the Products and/or Services as required by the Documentation and continues to use any unsupported version, without limiting the aforegoing and the right of CGM to withhold support or otherwise allow access thereto, CGM may in its sole discretion continue to bill for any support it may provide on unsupported versions.

4.6. The Customer and/or End-user acknowledges that certain Products and/or Services require up to date data files to be installed for such Products and/or Services to function properly. The Documentation may contain specific directions in this regard, which the Customer and/or End-user agrees to follow.

 

5. TECHNICAL REQUIREMENTS

5.1. The Customer and/or End-user acknowledges and agrees that it shall at its own cost be responsible for the supply and maintenance of its technical and computer infrastructure (including hardware, operating systems, electronic connectivity and communication and internet connections and service) in respect of each Authorised User’s terminal and related systems; and it shall at all times comply with minimum specifications as advised by CGM.

5.2. The Customer and/or End-user agrees that the proper functioning of the Products and/or Services may require manual interventions of the Customer and/or End-user from time to time (for example to apply updates), as more fully set out in the Documentation. The Customer agrees to promptly attend to any such manual interventions.

5.3. The Customer and/or End-user shall allow CGM, during ordinary South African Business Hours, all required remote and physical access to such Authorised User’s terminals and/or other necessary computing infrastructure, as well as any such information as may be reasonably required by CGM, in order to supply the Products and render the Services.

 

6. PROVISION OF THIRD-PARTY PRODUCTS AND SERVICES

6.1. The Customer and/or End-user acknowledges and agrees certain Products and/or Services may require third‐party Products or Services to be procured, as set out in this Agreement.

6.2. The Customer and/or End-user acknowledges and agrees that any third‐party Products or Services provided by CGM to the Customer in terms of this Agreement are subject to the terms, conditions and requirements under which such third parties supply, provide and/or render their Products or Services, and that the Customer and/or End-user shall be responsible therefore in order to use the Products and/or Services. CGM can provide the Customer and/or End-user with a copy of any particular third-party provider’s terms and conditions on request.

6.3. Specifically, any warranties associated with third-party Products and Services are offered by such third parties, the Customer and/or End-user agreeing to seek recourse only against such third parties.

6.4. CGM reserves ownership of all goods to be supplied until they are fully paid for.

 

7. MEDICAL CLAIM SUBMISSION

7.1. If selected as part of the Products and/or Services, CGM will endeavour to submit claims for Services rendered by the Customer and/or End-user to its patients to the applicable medical scheme on the patient’s behalf for payment by the scheme.  In doing so, the Parties record and agree that CGM is acting as a mere conduit and does not assume any responsibility in respect of the claim, and that it remains the sole responsibility of the Customer and/or End-user to verify the correct processing and receiving of claims and payments.

7.2. CGM can only render such claim submission Services in respect of medical schemes with whom it has an interchange arrangement in place from time to time as may be set out in the Documentation.

7.3. CGM's will use its best endeavours to host accurate third‐party tariffs and rates for claim submissions in the Products and/or Services, but the Customer and/or End-user remains solely responsible to verify that any claim is accurate before submitting it.

7.4. The Customer and/or End-user hereby acknowledges that the aforesaid claim submission Services shall be billed on the basis of a minimum number of monthly claim submissions and thereafter at the prevailing rate per claim.

7.5. The Customer and/or End-user may not utilise the aforesaid claim submission Services for the benefit of any healthcare provider who is not registered under the Customer’s practice/entity with the Health Care Professions Council of South Africa (HCPSA) or any equivalent National association in the country where the practice/entity is located.

 

8. TERM AND TERMINATION

8.1. This Agreement and the obligations of the Parties hereto shall commence on the Commencement Date and endure for the duration of the Term, being 24 (twenty-four) months, or such term as agreed between the Parties in writing.

8.2. During this initial Term either Party may cancel the contract by sending 3 (three) calendar months’ written notice to the other Party. The Customer will be liable for the cost of all Products and Services supplied up to the end of the notice period.

8.3. For Non-Subscription Agreements as defined in section 1. above, CGM has the right to charge a reasonable cancellation fee for such early cancellation.

8.4. For Subscription Agreements as defined in section 1. above, CGM has the right to claim that the Customer settle the outstanding balance for all amortised upfront costs as determined by CGM.

8.5. At the end of the Term, the contract for CGM’s Services and the use of its Products will continue on a month to month basis, with one calendar months' written notice required by either Party for termination (applicable to South African customers and/or End-users only).

8.6. Upon the termination of this Agreement for any reason, the Customer and/or End-user and its Authorised Users shall no longer have any right to use or access the Products and/or Services and CGM shall be entitled without prior notice to terminate such use and suspend or revoke access thereto (including in respect of any Licence key) without any claim from the Customer.

 

9. PAYMENT

9.1. South African Customers shall pay CGM via debit order (without deduction, set‐off or any other cost). Should the Customer terminate the debit order authorisation or CGM be otherwise unable to debit the Customer’s designated bank account on the due date therefore for whatever reason, CGM shall be entitled to charge the collection charges for the internal processing, collecting and verifying of such other method of payment.

9.2. Customers outside South Africa, or Customers with End-users outside of South Africa, will use a payment mechanism agreed with CGM in writing.

9.3. The Service Charges shall automatically escalate at the beginning of each calendar year by a rate oriented at but not exceeding the increase in the South African CPI Rate plus 3% (three per cent), notwithstanding the Commencement Date or the date on which any additional Products or Services commenced.

9.4. Unless agreed otherwise in writing, CGM will furnish the Customer with an itemised tax invoice at the end of each month in respect of the Service Charges due in respect of the month in question and any other fees due and owing at such date as per the signed quotation.

9.5. All overdue amounts from time to time shall attract interest at the South African Prime Rate plus 2 (two) per cent following 30 (thirty) days from the date of invoice.

9.6. All amounts stated in this Agreement are exclusive of value‐added tax, unless expressly stated otherwise.

9.7. Any records of CGM which fairly record work durations and activities in relation to professional Services rendered or other transactional costs, materials and fees shall constitute adequate proof of the contents of any invoice, unless proven otherwise by the Customer, and shall be payable in arrears in the succeeding calendar month.

9.8. For Non-Subscription Agreements:

9.8.1. all activation and up‐front Licence fees 14 (fourteen) days after the Commencement Date or in the month following the Commencement Date;

9.8.2. all other initiation fees, including professional Services fees for installation, configuration and training on or after the Installation Date. In the event that the Customer and /or End-user postpones the Installation Date or otherwise causes a delay hereto, CGM shall be entitled to still process payment for the once‐off initiation fees on or after the original Installation Date.  Should CGM postpone the Installation Date for whatever reason, such fees shall become due and owing on or after the postponed Installation Date as agreed between the Parties; and

9.8.3. all other Service Charges and monthly fees will be due and payable in arrears between the 7th (seventh) and 10th (tenth) Business Day of the calendar month following that in which such Products or Services were provided to the Customer.

9.9. For Subscription Agreements:

9.9.1. these Agreements are fixed for the Term.

9.9.2. all upfront costs are amortised over the Term.

9.9.3. The Customer will be liable for settling the outstanding balance of amortised upfront costs as determined by CGM and will pay CGM in full at the termination or cancellation of the Agreement before the expiry of the Term.

 

10. INTELLECTUAL PROPERTY LICENCE AND RIGHTS

10.1. Subject to clause 14, and for as long as all payment obligations of the Customer are up to date, CGM hereby grants to the Customer the non‐exclusive, non‐transferable and personal right to use the designated Products and/or Services as a temporary Licence for the Term (or as renewed from time to time), without the right to sub‐license, provided that such use shall be for the internal business purposes of the Customer only and in accordance with the Documentation.

10.2. All rights not expressly granted by CGM to the Customer and/or Authorised Users shall be and remain reserved to CGM and/or its licensors.

10.3. The Parties agree that all Intellectual Property vesting in or arising from the Products and Services shall be owned exclusively by CGM (and/or its licensors, as the case may be) and neither the Customer nor any of its Authorised Users shall obtain any claim thereto.

10.4. The Products and Services may not be used as a bureau or agency for the benefit of other healthcare providers, unless such use is authorised by way of Supplemental Terms.

 

11. PERSONAL INFORMATION

11.1. General.  The Parties record and agree that in the use of the Products and/or Services, 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, as amended and where applicable. The Customer and/or End-user agrees to co‐operate with CGM to enable the provision of the Products and/or Services in a legally compliant manner and to take all steps required to do so, including (without limitation) to procure and record evidence of the required specific, voluntary and informed consents from patients for the purposes of this Agreement and any Supplementary Terms, as may be further specified by CGM in its reasonable discretion, without CGM incurring the obligation to so specify, CGM being entitled to rely on the Customer and/or End-user being in compliance herewith, and the Customer and/or End-user remaining solely responsible for compliance with all statutory and professional obligations.

11.2. Processing under mandate. Insofar as sections 19 to 21 (both inclusive) of POPIA apply in South Africa and require the Customer and /or End-user to obtain certain undertakings from CGM in respect of the handling of Personal Information under mandate from the Customer and/or End-user, CGM undertakes to comply with such requirements and will further procure that any third parties rendering Services by or on behalf of CGM likewise do so.

11.3. Consent to use practice /entity details. The Customer and/or End-user hereby irrevocably consents to CGM, the CGM Group and its business partners using its practice/entity details (set out in the Contract) to: (i) provide the Products and/or Services; (ii) to identify the practice in respect of any historical, statistical or research activities or datasets; (iii) to commercialise the aforegoing generally for the benefit of CGM or the CGM Group; and (iv) any other lawful purpose.

11.4. Request to provide lawful datasets. The Customer and/or End-user may request CGM in writing to deliver to a third party nominated by the Customer and/or End user lawful datasets pertaining to the Customer and/or End-user which CGM may hold for purposes of performing data analytics and related Services, provided that the third party shall be subject to approval of CGM from time to time in its sole discretion.

11.5. Specific requirements. The terms in this clause 11 may be amended in writing, in a document signed by both Parties, in terms of Supplementary Terms to the extent that any Products and/or Services may require further terms to facilitate compliance.

11.6. The Customer and/or End-user hereby indemnifies CGM and the CGM Group from any and all claims as a result of a breach by the Customer and/or End-user of its obligations in terms of this clause 11.

 

12. DATA SECURITY

12.1. CGM SA warrants that its in-house software products are supplied to the Customer and/or End-user virus-free.

12.2. The Customer and/or End-user accepts that it alone is responsible for the content, integrity, and security of its own and its patients’ data on the Customer and/or End-user’s computer systems.

12.3. The Customer and/or End-user accepts that it is responsible for doing daily back-ups of its data, at least one of which should be stored off-site, and on a different network from the system used on a daily basis.

12.4. The Customer and/or End-user accepts responsibility for ensuring that its database security and Cybersecurity software is up to date and functioning correctly.

12.5. The Customer and/or End-user indemnifies CGM SA from responsibility for any Cybersecurity breach of the Customer and/or End-user’s computer system.

12.6. CGM SA does not accept liability for the Cybersecurity status of any third-party software products or third-party storage plug-ins which the Customer and/or End-user may purchase from a third party.

12.7. If the Customer and/or End-user has opted for CGM SA’s hosted cloud-based option with back-ups and Cybersecurity, it acknowledges that CGM SA will use its best efforts to ensure accurate, valid back-ups are made of the files specified in writing by the Customer, and to protect the Customer and/or End-user’s data from Cybersecurity attacks. However, CGM SA (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.

 

13. RISK AND LIABILITY

13.1. The Products and Services rely on third party providers and other electronic communication systems which require error reporting by the Customer and/or End-user to initiate certain manual interventions in continually identifying, analysing, debugging and resolving faults and failures as part of the ordinary operation and proper working condition of the Products and Services.

13.2. To the maximum extent permitted, the liability of CGM and the CGM Group for the use by the Customer and/or End-user and the Authorised Users (including, without limitation, for any faulty execution) of the Products and/or Services, as well as all damages suffered by the Customer, whether direct or indirect, for whatever reason and howsoever arising, will be limited to CGM rectifying the malfunction, within a reasonable time and free of charge, provided that CGM is notified by the Customer and/or End-user immediately of the damage or faulty execution of the Products and/or Services and the Customer and/or End-user is not the cause of such faulty execution.

13.3. The Customer and or End-user hereby agrees that CGM and the CGM Group parties shall not be liable to the Customer and /or End-user for loss of profits, punitive, exemplary, special or indirect or consequential loss suffered by the Customer and/ or End-user or any third party, howsoever arising out of or in connection with the Customer’s use of the Products and/or Services or the delivery, installation, servicing, performance or use of it.

13.4. Notwithstanding the aforegoing, should a court of competent jurisdiction find that CGM and/or the CGM Group is liable to the Customer and/or End-user for whatever reason and howsoever arising, the Customer and/or End-user expressly records and agrees that any such liability shall not exceed the amount of Service Charges actually paid by the Customer and/or End-user in respect of the period in which such failure, breach or defect occurred.

13.5. The information supplied and certain Services provided through the Products and Services (including, without limitation, medical scheme rates and other such information) is provided through third party providers or obtained directly from publicly published information, and accordingly the Customer and/or End-user assumes full risk in relying on such information and hereby holds CGM and the CGM Group harmless for any and all loss or damages resulting from reliance thereon.

 

14. BREACH AND SUSPENSION

14.1. If the Customer and/or End-user breaches any provision of this Agreement and remains in breach for 10 (ten) days after written notice by CGM to the Customer and/or End-user requiring it to rectify the breach, or if the Customer and/or End-user repudiates this Agreement, CGM shall be entitled at its sole discretion to:

14.1.1. sue for the immediate specific performance of any of the defaulting Party's obligations under this Agreement whether or not any such obligation is then due; or

14.1.2. cancel this Agreement, which cancellation shall take effect on the giving of the notice of cancellation to the defaulting Party.

14.2. In the event that CGM breaches or otherwise fails to timeously fulfil any provision of this Agreement on the terms contained herein, or should there be any defect or failure in relation to the Products and/or Services, the Customer and/or End-user shall timeously provide reasonable notice in writing to CGM of such breach or failure and thereafter co-operate fully and promptly and provide all reasonable access in order that CGM may apply all reasonable and commercially expedient measures to rectify such breach or failure as soon as reasonably possible, failing which the Customer’s and/or End-user’s sole remedy shall be to cancel this Agreement.

14.3. CGM reserves the right to suspend or revoke a Customer/End-user’s access to any product or service in the event of a breach.

14.4. CGM must provide a digital Licence key or certificate for certain Products or Services upon activation thereof and thereafter from time to time in order to keep the Products operational. CGM reserves the right to withhold or withdraw such Licence key or certificate and/or to suspend or revoke access to the use of the Products and/or Services, or otherwise to take such other reasonable measures to protect its proprietary interests, in the event of the Customer and or End-user being in breach of this Agreement.

 

15. AUDIT RIGHTS

15.1. The Customer and or End-user shall, on reasonable notice by CGM, provide CGM with access to the Customer’s and or End-user's premises and records for purposes of verifying the Customer’s and or End-user's compliance with the terms and conditions of this Agreement, including confirming the number of Authorised Users.

15.2. Any audit as contemplated in clause 15.1 shall be at the expense of the CGM, save that should the results of the audit indicate a negative finding, without limitation to any other remedies available to CGM, the Customer and or End-user shall be liable for payment of the audit exercise and any additional Licence fees or other costs owing to CGM or its licensors.

 

16. FORCE MAJEURE

16.1. CGM shall not be liable to the Customer and or End-user for failure to perform any of its obligations in terms of this Agreement where such failure was due to cause(s) or any impediment beyond CGM’s control (whether or not such event could be anticipated by the Parties).

16.2. If any such event lasts for more than 3 (three) months from the date of its commencement and that event prevents CGM from performing all or a material part of its obligations during that period, the Customer and or End-user may (as sole remedy therefor) by giving 1 (one) month’s written notice to CGM to such effect, terminate this Agreement with immediate effect from the end of the aforementioned notice period if such event still persists, and the Customer and or End-user shall have no claim whatsoever against CGM arising out of such termination save for any Service Charges which may have been levied within such period.

 

17. ADDRESS FOR SERVICE AND NOTICES

17.1. The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the addresses set out in this Agreement or such other address as either Party may notify to the other in writing from time to time.

17.2. Notice or any document, including where required to be in “writing”, shall be delivered personally or by courier or by facsimile or email transmission and shall be deemed to be given:

17.2.1. in the case of delivery personally on delivery;

17.2.2. in the case of couriering (in the absence of evidence of earlier receipt) 48 (forty‐eight) hours after delivery to the courier company; and

17.2.3. in the case of e-mail transmission on completion of the transmission.

 

18. GENERAL

18.1. CGM may at any time assign, transfer, charge, sub‐contract or deal in any other manner with all or any of its rights or obligations under this Agreement, either partially or in full.

18.2. The members of the CGM Group shall have any benefit stipulated in their favour in this Agreement shall be deemed to have accepted such benefit on the Commencement Date (the legal concept of a stipulatio alteri).

18.3. This Agreement shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa.

18.4. The Parties agree that the High Court of South Africa, Western Cape Division, shall have exclusive jurisdiction to hear any disputes that may arise from this Agreement. The Customer, however, consents to the jurisdiction of the Magistrate’s Court should CGM in its discretion consider such jurisdiction suitable, notwithstanding the amount actually claimed.

18.5. No latitude, extension of time or other indulgence which may be given or allowed by any Party to the other Parties in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any Party arising from this Agreement, and no single or partial exercise of any right by any Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by such Party or operate as a waiver or a novation of or otherwise affect any of the Party's rights in terms of or arising from this Agreement or estop or preclude any such Party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof.

18.6. No addition to or variation, consensual cancellation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all the Parties or their duly authorised representatives.

18.7. This Agreement constitutes the whole Agreement between the Parties as to the subject matter hereof and no agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein are binding on the Parties.

18.8. Each Party will pay its own costs and expenses incurred by it in connection with the negotiation, drafting, re‐drafting, entering into and implementation of legally binding documents.

18.9. Should either Party instruct attorneys to take any steps to enforce any rights in terms of this Agreement arising from a breach thereof, then the breaching Party shall be liable for all legal and incidental costs, including legal fees on the attorney and own client scale, collection commission and tracing charges.

18.10. Each of the Parties hereto acknowledges that they have been free to secure independent legal advice as to the nature and effect of all of the provisions of this Agreement and that they have either taken such independent legal advice or dispensed with the necessity of doing so.  Further, each of the Parties hereto acknowledge that all of the provisions of this Agreement and the restrictions herein contained are fair and reasonable in all the circumstances and are part of the overall intention of the Parties.

18.11. The Customer warrants that its designated contact person on page 1 of this Agreement (or such other person as notified to be its contact person to CGM in writing from time to time) shall at all material times be duly authorised for all interactions between CGM and the Customer, and that the Authorised Users shall similarly be acting under the authority of the Customer and or End-user.

18.12. Should it be found by any tribunal of competent jurisdiction that the provisions of the Consumer Protection Act (South Africa), 68 of 2008, or any other cognate legislation applies to this Agreement, this Agreement shall be interpreted, as far as possible in terms of applicable law, in favour of its validity, and should same not be possible, the Parties shall enter into good faith negotiations with a view to amending this Agreement as far as may be necessary to provide for its validity.

 

19. ELECTRONIC SIGNATURES

19.1. The Parties agree to accept electronic signatures that comply with the requirements of the ECT Act (South Africa) as the equivalent of an original wet signature (or initial, as the case may be) for purposes of entering into this Agreement and for any amendments or other agreements that may be required to be signed in terms or in the furtherance hereof.  In the case of CGM however, only directors of the board shall be such duly authorised signatories.

19.2. CGM shall without fee or other charge provide a copy of all documents signed electronically to the Customer and/or End-user via the e-mail address specified in this Agreement, which copies shall be deemed a true version thereof, the Customer and/or End-user can prove otherwise within 7 (seven) days from the later of the Commencement Date or from CGM otherwise activating or initiating the first supply of the Products and/or Services.

 

20. CREDIT CHECK

20.1. The Customer hereby gives consent for CGM SA to forward the Customer’s personal information, including their name, surname and identity number to a credit bureau to obtain their credit profile and payment profile history and to make such credit report available to CGM.

20.2. The Customer unconditionally indemnifies the credit bureau and its information suppliers against any liability which may result from furnishing information in this regard.

20.3. The Customer acknowledges and accepts that CGM SA will have the right to refuse to sign this Agreement if the Customer’s credit report does not pass CGM SA’s credit check.

 

21. COMMUNICATION

The Customer and/or End-user gives consent for CGM to contact it via e-mail from time to time regarding CGM’s existing Products or new Products and Services.