Terms & Conditions

1. GRANT OF LICENSE

SOLUMED grants Licensee a non-exclusive, non-transferable License to Use the Software from the Effective Date, limited to the number of Licenses specified in Schedule 2.1.

2. RENTAL AND EXPENSES
   • Rental
     • The Rental documented in Schedule 2.2 will be payable by the Licensee to SOLUMED monthly in advance, on or before the first day of each month, with the exception of the first month’s payment, which will be due and payable within 5 (five) Days from the Effective Date. Where the Effective Date is not the first day of a month, the Rental for such first month will be pro-rated accordingly.
     • The Rental is payable in respect of and limited to Licensee’s right to use the Software and excludes the cost of Installation, Training, Customization, Enhancement, Support or other services unless otherwise agreed or the contrary is specified in Schedules 2.2
     • The Rental will increase annually in an amount equal to the higher of 10% or CPI+3% (consumer price index plus three percent) with effect from the anniversary of the 1st day of the Effective Month.
     • If Licensee’s system configuration changes for any reason, including an Enhancement, SOLUMED will have the right to increase the Rental pro rata.
   • General
     • The Rental will be paid pursuant to clause 3.1. All other payments due by Licensee in respect of, inter alia, Upgrade Fees, Installation, Training, Customization, Enhancements, or other services will be payable within 30 (thirty) days from date of statement.
     • Licensee will reimburse SOLUMED for: costs of parking at and travelling to and from any Licensee site; and all travelling, accommodation, subsistence and telephone expenses that SOLUMED incurs in carrying out Support, Installation or other services.
     • All amounts exclude VAT, and will be paid in ZAR, without deduction, and free of any bank charges or exchange.
     • A certificate signed by any director of SOLUMED (whose appointment it will not be necessary to prove) will constitute prima facie proof of any amount due and payable by Licensee to SOLUMED for all purposes, including any legal proceedings.
     • Outstanding amounts will bear interest at the maximum interest rate allowed in law which is currently the 1.2 times the repo rate multiplied by 2.2.
     • SOLUMED will be entitled to suspend the operation of the Software, Support, and all other services should any amount due by Licensee be outstanding, until such time as full payment has been made. Such suspension will not constitute a breach hereof.

3. TERMS AND TERMINATION
   • Term
     • The Licensee’s rights to the Licenses and Support will commence on the Effective Date (Being the date of first invoice of initial monthly rental) and continue for 12 (twelve) months (“Initial Period”).
     • On expiry of the Initial Period, or any Subsequent Period, and provided the Agreement has not been terminated, this Agreement will continue for 12 (twelve) months with a 2-month notice period.
     • If SOLUMED cannot perform an adequate reference check on the Licensee, then the equivalent of three months’ rental will be needed to be paid up front.
   • Termination
     • This Agreement may be terminated by SOLUMED with immediate effect if the Licensee:
       • does or causes any of the Contraventions to be done as per clause 5 below, or breaches clause 15 below; or
       • fails to pay the Rental on due date despite having received notice;
     • This Agreement may be terminated by either party if:
       • in terms of clause 15, the other commits a material breach hereof;
       • the other commits an act that would, if it were a natural person, be an act of insolvency;
       • the other is placed into liquidation or under judicial management, whether provisionally or finally;
       • the other makes an assignment for the benefit of, or enters into a compromise with any of its creditors;
       • a judicial manager, curator or trustee is appointed to the other Party, whether provisionally or finally;
       • the other is deregistered, dissolved, or ceases to carry on business; or
     • Clauses 10, 16, 17, 18, 19, and any other clause that impliedly survives termination, will survive termination hereof.
     • Licensee must, within 3 (three) Days of termination hereof: cease using (within its defined and ordinary meaning) the Software and Software Documentation; destroy all Media and back-up copies under its control; and ensure the Software is erased from all Hardware under its control
     • If SOLUMED elects to cancel this contract in terms of clause 4.2.1, the Licensee will immediately become liable for payment of all remaining amounts due for the initial period or any subsequent period.

4. CONTRAVENTIONS

Licensee will not, without SOLUMED’s consent, do or cause to be done, attempt, or permit any third party to do any of the following acts (“Contraventions”):

• Customize, modify, merge or combine the whole or any part of the Software with any other software, documentation or data;
• assign, distribute, pledge, transfer, sell, lease or otherwise deal in, dispose of or encumber the Software or the Software Documentation;
• Use the Software or Software Documentation on another person’s behalf;
• take steps to reverse engineer, decompile, disassemble or otherwise derive source codes or techniques for the Software;
• permit any third person to have access to the Software or Software Documentation or to a copy thereof;
• create a derivative work or otherwise modify the Software or any portion thereof;
• enhance the Software, or any part, provided the intellectual property rights to any improvements or Enhancements to the Software in contravention hereof will nevertheless vest in SOLUMED;
• infringe the intellectual property rights of SOLUMED in the Software and/or Software Documentation;
• use the software to develop similar systems, or for any purpose other than contemplated herein; or
• Circumvent any anti-copying or protection measures in the Software.

5. PROJECT PLAN
   • Licensee will set out its requirements for Installation in the Project Plan, as agreed by SOLUMED.
   • Licensee will appoint and make available resources to, inter alia: liaise with SOLUMED; assist in compiling the Project Plan; test the Software; approve Deliverables; and otherwise assist in the development, Installation and Use of the Software, including Customizations and Enhancements thereto. Such resources will have sufficient knowledge and experience to carry out such obligations, be reasonably available, and have sufficient authority to make decisions.
   • SOLUMED will install the Software or train the Licensee’s staff to install the software pursuant to the Project Plan.
6. CUSTOMISATION AND ENHANCEMENT
   • Should Licensee require Customization or Enhancement, Licensee will provide SOLUMED with a change request outlining the nature and scope of the change required.
   • If SOLUMED agrees to the request, SOLUMED will provide an estimate of its fees therefor. Upon the Parties’ written agreement, such fee may be amortized over the remaining period hereof and added to the Rental, whereupon Schedule 2.2 will be amended accordingly. Failing written agreement, such fee will be payable pursuant to clause 3.2.1
   • The parties will jointly: develop a Project Plan outlining the Deliverables and delivery dates of the Customization / Enhancement; prepare a specification document detailing the Deliverables; and agree on the costing. SOLUMED will thereafter carry out the changes as agreed.
   • Any Customization / Enhancement will become part of the Software and subject to all the terms hereof.
   • SOLUMED may, in its discretion, incorporate Enhancements into the Software provided the Enhancements will not adversely affect the functionality.
   • It is specifically recorded that all documentation, wording, Terms and Conditions supplied by the Licensee remain the property of the Licensee.
7. BACK-UP COPIES
   • With the exception of clause 8.2 below, Licensee will not make copies of the Software, Software Documentation or any part thereof.
   • Licensee is entitled to make 1 (one) back-up copy of the Software and Software Documentation for business continuity purposes, which copy/ies may only be used if the Software is rendered inoperable, and will be securely stored at the Licensee’s head office address or such other site as agreed in writing. Licensee will not at any stage, for whatever reason, have any right to the Software source code.
   • Licensee will: reproduce all copyright and trade mark notices on each copy of the Software and Software Documentation; maintain an up-to-date record of the number of such copies and their location; and upon request produce such record to SOLUMED.
8. TRAINING
   • Licensee will ensure its System Administrator and all users undergo suitable training for the correct use of the Software and Hardware.
   • SOLUMED will provide training, subject to the Licensee paying SOLUMED therefore as reflected in Schedule 2.2, or otherwise at SOLUMED’s standard schedule of charges.
9. INTELLECTUAL PROPERTY RIGHTS
   • Licensee acknowledges and agrees that all intellectual property rights in the Software and Software Documentation, and in Customizations and Enhancements to the Software, will remain SOLUMED’s property. It being recorded that any customisation or enhancements that have been paid for in terms of clause 7.2 shall be for the exclusive use of the Licensee. The Licensee will not acquire or be entitled to any right or interest therein, or in any way dispute SOLUMED’s ownership thereof.
   • Any copyright, trademarks and other rights belonging to SOLUMED may only be used by Licensee with SOLUMED’s written consent.
   • If Licensee breaches this clause 10, or in any way detracts from SOLUMED’s rights in the Software, Licensee will be liable to SOLUMED for all and any damages suffered by SOLUMED, without limitation.
10. SUPPORT
    • SOLUMED will provide the Support as more fully outlined in this agreement, as applicable.
    • Any first line telephonic or remote support rendered that is related to the software will be included in the monthly rental, that is payable as per Schedule 2.2, all other support will be charged pursuant to SOLUMED’s standard schedule of charges, unless the Parties have agreed to the payment of a retainer fee for Support.
    • If it transpires that the root cause of a fault (in its ordinary meaning) was not due to a Fault, SOLUMED will be entitled to levy a charge on Licensee for the Support pursuant to SOLUMED’s standard schedule of charges.
11. WARRANTIES
    • Functionality
      • SOLUMED will warrant the Software will, for a period of 3 (three) months after the Effective Date, substantially conform to the Specified Functionality, meaning there is no material divergence from the Specified Functionality, and excluding divergences that do not materially impact on the Use. Failure of the Software to so conform will require SOLUMED, at its discretion, to either: repair the Software by providing a Working Solution; or replace the Software. If SOLUMED is unable to resolve the software failure referred to in this clause above within 14 working days, The Licensee has the right at their discretion to terminate the contract. Clauses 10, 16, 17, 18, 19, and any other clause that impliedly survives termination, will survive termination hereof.
      • The warranty in clause 12.1.1 above will not apply if the lack of Specified Functionality was caused by:
        • an act of God as detailed in clause 17 below;
        • a Disabling Event or Contravention;
        • misuse, neglect, improper installation, or repair or alteration of the Software by Licensee or a third person;
        • defects in the Hardware;
        • errors in third party software; or
        • changes required by Licensee to the Specified Functionality

12.1.3    If the lack of specified functionality was caused by errors in third party software, where the integration has been approved by SOLUMED, SOLUMED undertakes to work with the third party to address the issue and restore the functionality.

• Viruses and Locks
  • SOLUMED warrants the Software will be free of viruses as at the Effective Date. Licensee will be responsible for ensuring the Software is free of viruses after the Effective Date.
  • Should the Software contain a virus at or before the Effective Date, SOLUMED will do everything reasonably possible to clean the virus, failing which SOLUMED will replace the affected Software.
  • The Software may contain a “lock” that allows SOLUMED to disable the Software, which lock will not be viewed as a virus or Fault.  SOLUMED will be entitled to activate the lock if: The Agreement is terminated; or any Rental or fees due by Licensee remain outstanding.
• General
  • Licensee warrants it has the requisite licenses to use such other software or data that it requires in conjunction with the Software.
  • Licensee warrants that it has not provided any false, misleading or inaccurate information to SOLUMED.
  • SOLUMED does not warrant: that the Software will be fit for the purpose for which it is intended, notwithstanding that the intended use is known to SOLUMED; that the Software is error-free; that Licensee’s use thereof will be uninterrupted; or the results of Use.
  • Licensee’s sole remedy in the event of a breach of clause 12.2 above will be limited to the replacement or correction of the non-conforming component, at SOLUMED discretion and expense.

12. HARDWARE
    • Any equipment, electrical requirements, cabling or other infrastructure or Hardware required for successful Installation will be supplied by Licensee, at Licensee’s expense, and will be in place before the Effective Date. SOLUMED will not be responsible for any damages caused from any such installation or supply.
    • Licensee will be liable for the replacement of goods loaned to Licensee and not returned in good order within 40 (forty) Days of delivery.
13. CONFIDENTIALITY
    • “Confidential Information” means, without limitation: any technical, financial, marketing, product or business information; trade secrets; business activities, practices or processes; designs, trademarks or logos; the Software, Software Documentation and any Faults; and any information that is not publicly available to the disclosing Party’s competitors, being information acquired by either Party from the other Party before or during the course of this Agreement, whether formally designated as confidential or not.
    • Both Parties are restrained from, and undertake in favour of the other that it will not, without the prior written consent of such other Party:
      • Disclose the other Party’s Confidential Information to any other person. Provided that it will be entitled to disclose Confidential Information to those of its staff who need to know the Confidential Information for the purpose of performing that Party’s obligations hereunder and who are under a similar confidentiality obligation; or
      • Use or copy the other Party’s Confidential Information for any purposes other than to perform its obligations hereunder.
    • This clause will not apply to information that is: trivial or obvious; already in the possession of a Party otherwise than as a result of disclosure by the disclosing Party to such Party; or in the public domain for reasons other than a breach hereof.

SOLUMED acknowledges that the information processed by SOLUMED staff in terms of this agreement may contain Personal Information as defined in The Protection of Personal Information Act, no 4 of 2013 and confirm that they are aware of the provisions of the Act and will to the extent that they have copies of data belonging to the Licensee in their possession at any point in time, ensure full compliance, including but not limited to the provisions pertaining to operators contained in section 19 to 22 of the Act for the duration of this agreement.  This clause shall survive termination of the agreement to the extent that legislation stipulates it shall.

14. BREACH
    • If either Party breaches a material term hereof and fails to remedy such breach within 10 (ten) Days of receipt of written notice requiring it to do so then the aggrieved Party will be entitled, without notice and in addition to any other remedies available to it, to cancel this Agreement or to claim specific performance, in either event without prejudice to the aggrieved Party’s right to claim damages.
15. EXCLUSION AND LIMITATION OF LIABILITY
    • SOLUMED will not be liable for any consequential or special damages regardless of cause, including without limitation, damages caused by loss of data, loss of profits, lost opportunity costs or loss of anticipated savings, or resulting in expenses or wasted staff time.
    • Licensee’s sole remedy for direct damages from any cause whatsoever will be for SOLUMED to use commercially reasonable efforts to remedy the breach at its expense. Failing which, Licensee will not be liable for costs in excess of the direct costs incurred in remedying such breach.
    • SOLUMED will not be liable for Customizations or Enhancements made by Licensee or any other person, or for any damages suffered by Licensee as a result of the manner in which data, whether processed by the Software or not, is transmitted or stored
    • SOLUMED will not be liable for, inter alia, the supply of accessories, internet access, website development, network and cabling. Licensee remains responsible for liaising with a provider of its choice for the supply of same, and will be liable for all associated charges.
    • It is Licensee’s responsibility to perform backups of its data and take preventative measures against viruses and unauthorized access. SOLUMED will not be liable for any damage caused by any loss of data, viruses or unauthorized access to information.
    • If the full solution required by Licensee comprises services rendered by third persons, the identity of whom is known to Licensee, any claim Licensee may have against SOLUMED in respect of or caused directly or indirectly by such third person will be strictly limited to the cession of Licensee’s claim against the relevant third person.
16. ACTS OF GOD
    • Neither Party will be liable to the other if performance is not possible due to events beyond its reasonable control, or an act of God, which includes without limitation: acts of Government; civil or military authority; acts of public enemy; war; riots; civil disturbances; accidents; fires; explosions; earthquakes; floods; lightening; strikes; labour disputes; shortages of suitable parts, materials or labour; delay or halt in a sub-contractor’s supply; magnetic interference; interruptions of electrical power or other utility services; viruses; hacking; unavailability of telecommunications services; backbone or network error.
    • If an act of God or other event beyond the reasonable control of either Party continues for a continuous period of 60 (sixty) Days or more, either Party may terminate this Agreement in writing.
17. NOTICES
    • Any notice under this Agreement will be delivered to the address of the Parties as set out in writing, being the address at which each Party agrees to receive all notices, or as amended on written notification to the other Party.
    • Any notice will be deemed to have been received: if delivered by hand, on the date of delivery; if sent by pre-paid registered post, on the 7th (seventh) Day after the date of posting; if sent by fax or email, on the 1st (first) Day following the date of dispatch.
    • If a notice is actually received by a Party, adequate notice will have been given, even though it was not delivered as described above.
18. GENERAL
    • Licensee will allow SOLUMED, on 2 (two) Days prior written notice, access to its premises to audit Licensee’s compliance herewith.
    • None of the parties to this agreement will, without the other’s consent, either during, or within 1 (one) year after termination hereof, employ or solicit for employment any employee of the other Party.
    • Licensee will not assign, cede or delegate any of its rights or obligations hereunder or any part thereof, or attempt to do so, without SOLUMED’s prior written consent. SOLUMED may assign its rights and obligations on 2 (two) months prior written notice to Licensee.
    • This Agreement is not one of partnership or joint venture, and neither Party is authorized to act on behalf of the other.
    • If any provision of the Agreement is invalid or unenforceable, such provision will be amended, if possible, to give effect thereto, and failing that, deleted. In neither instance will the remaining provisions be affected, which provisions will be upheld and of full effect.
    • No indulgence will be construed as a waiver of or otherwise affect any rights in terms hereof, or prevent a party from enforcing strict compliance herewith.
    • No undertaking, representation or warranty not included in this Agreement will be of any effect.
    • This Agreement replaces and supersedes all previous agreements (if any) between SOLUMED and Licensee in connection with the Software, and constitutes the whole and only agreement between the Parties relating to the subject matter in question.
    • No amendment, variation or cancellation hereof will be binding unless in writing and signed by both Parties.
    • Internet is required throughout the installation to facilitate remote maintenance and application updates. If there is no Internet access and a site visit is required to rectify a problem which ordinarily would be done remotely then the call out will be charged at our current rate.
    • A fully functional antivirus policy must be installed and applied. If despite our recommendation, a Licensee does not install anti-virus software and a virus problem is experienced, any call outs which result as a consequence are expressly omitted from any Maintenance Contracts and will be charged for.
    • In the event of any default by the Licensee of any provision of this agreement, the Licensee hereby consents and authorizes SOLUMED to furnish the name, credit record and repayment history of the Licensee to any credit bureau as a delinquent debtor, it is also agreed that SOLUMED may use any means to verify the information contained in this document.
    • In the case of any conflicting or inconsistent provisions between this agreement and the schedule 7, then the clauses in schedule 7 will prevail.
19. INITIAL IMPLEMENTATION
    • To implement the software, the Licensee is required to:
      • Adhere to all training requirements as set out in Schedule 3.1
      • Provide SOLUMED with the data and other information as set out in Schedule 3.2 and Schedule 5
      • All servers and workstations are setup with the required software and hardware as set out in Schedule 3.4 and Schedule 4