TERMS AND CONDITIONS
WHEREAS, Alchemed has developed application software;
AND WHEREAS, Alchemed is hereby appointed by the Client to install and maintain the application software for the Client;
AND WHEREAS, the Client wishes to obtain a limited, non-exclusive, non-transferable License to use the Alchemed Software;
AND WHEREAS, the Client wishes to obtain and regulate the Services of Alchemed to maintain and support the Alchemed Software as defined herein on the terms and conditions set out in the Agreement.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
Unless the contrary is clearly indicated, the following words and/or phrases used in this Agreement shall have the following meaning:
1.1. “Administrator” means the member of the Client’s Personnel designated to a single Clinician of the Client, who is entitled to access the Alchemed Software for and on behalf of the designated Clinician;
1.2. “Agreement” shall mean this Software License and Support Agreement together with all written appendices, annexures, schedules or amendments attached to it from time to time;
1.3. “Alchemed” means Documed (Pty) Limited t/a Alchemed, a company duly registered and incorporated in terms of the company laws of South Africa with registration number 2018/630638/07, and its affiliates and successors in title;
1.4. “Alchemed Software”” shall mean the computer application software designed, developed and implemented by Alchemed and which is known to the Parties as “Alchemed Software”, including, but not limited to future Updates, Modifications and Upgrades thereto and any documentation associated with Alchemed Software, including without limitation installation and user manuals, whether incorporated in humanly intelligible media or not;
1.5. “Applicable Laws” in relation to a Party means all and any statutes and subordinate legislation and common law; regulations; ordinances and by-laws; directives, codes of practice, circulars, guidance notes, judgments, and decisions of any competent authority or any governmental, intergovernmental or supranational agency, body, department or regulatory, self-regulatory or other authority or organisation; and other similar provisions, from time to time, compliance with which is mandatory for that Party;
1.6. “Business Day” means any day which is not a Saturday, Sunday or official public holiday in the Republic of South Africa;
1.7. “Client” means the company who receives the Use of the Licensed Products, the details of which is set out in Annexure B of this Agreement;
1.8. “Cloud” means a network of remote servers hosted on the Internet to store, manage, and process data;
1.9. “Clinician” means the medical practitioner entitled to access the Alchemed Software and thereby Use the Services; this term is interchangeable with “practitioner”
1.10. “Commencement Date” means the date on which this Agreement becomes effective, that being the date on which it is signed by the last Party hereto;
1.11. “Competitive Products” means those computer software products that are the same or similar to, or can reasonably be said to be competitive with, the Licensed Products;
1.12. “Confidential Information” means and includes, without limitation, any information relating to the Disclosing Party and/or its business in respect of which information is not readily available in the ordinary course of business (including the Disclosing Party’s past, present and future research and development, the Disclosing Party’s products, services, computer software programs and software source documents, drawings, algorithms, know-how, formulae, processes, ideas, trade secrets, Intellectual Property Rights, works of authorship, techniques, design details and specifications, data, defects, new service offerings and products, internal services, operation manuals, training manuals and training materials, licensing and distribution arrangements, pricing, schematics and other technical, business, financial, customer and product information and plans) communicated or made available in whatever form or medium to the Receiving Party for the purposes of, or in connection with, this Agreement, including the provisions of this Agreement and the Personal Information that relates to the Disclosing Party or that is in the possession of the Disclosing Party;
1.13. “Copyright” means all rights of Copyright whether existing now or in the future in and to the Licensed Products including Alchemed Software;
1.14. “Develop” means to develop and/or customise the Licensed Products including Alchemed Software;
1.15. “Disclosing Party” means the Party that discloses or makes information available to the Receiving Party. For purposes of this Agreement, Alchemed will also constitute a Disclosing Party;
1.16. “Data Subject” means the person to whom Personal information relates;
1.17. “Dispute” means any dispute, controversy or claim arising out of or in relation to this Agreement, including the implementation, execution, interpretation, rectification, termination or cancellation of this Agreement or any matter arising out of this Agreement;
1.18. “Insolvency Event” means any of the events set out in the Insolvency Act 24 of 1936;
1.19. “Standard Hours” means 08h00 to 16h30 on Business Days;
1.20. “Intellectual Property Rights” means all the rights in and to intellectual property, including the rights in and to trademarks, service marks, trade names, domain names, logos, get-up, patents, provisional patents, inventions (whether patentable or not), know-how (including confidential industrial and commercial information and techniques in any form), utility models, registered and unregistered design rights, copyright, semi-conductor typography rights, database rights, rights in respect of any new or existing compilation of any data or information not covered under any existing copyright, templates, methodology, any structured analysis, reports, application and any resulting know-how, use or any other results originating or following from or as a consequence of data being made available in respect of any of the aforementioned or part thereof, and all similar proprietary rights which may subsist in any part of the world including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations, as well as any Confidential Information or processes relating to that subject matter;
1.21. “License” means a limited, non-transferable and non-exclusive right granted to the Client to use the production version of the Licensed Products including the Alchemed Software;
1.22. “Licensee” means the Client who has entered into this Software License Agreement with Alchemed for the use of the Licensed Products;
1.23. “License Fee” means the fee as agreed upon in this Agreement and thereafter any yearly increased fee as unilaterally set by Alchemed as described in this Agreement;
1.24. “Licensed Products” means:
1.24.1. the Alchemed Software distributed under the ‘Alchemed’ name and brand from time to time, including products that are owned by other Persons that form part of such computer software products;
1.24.2. all and/or any enhancements, additions, updates, modifications and/or upgrades thereto; and
1.24.3. all documentation and literature (in whatever form or medium) relating to the above computer software products, enhancements, updates, additions, modifications and/or upgrades;
1.25. “Modifications” means changes, improvements or customization of or to the Alchemed Software which may be required to adapt the Alchemed Software to the requirements of the Client;
1.26. “Party/Parties” means Alchemed and the Client, either collectively or individually, as the context may indicate;
1.27. “Person” means a natural person or any juristic person, association, business, close corporation, company, concern, enterprise, firm, partnership, joint venture, trust, undertaking, voluntary association, body corporate and any similar entity;
1.28. “Personal Information” means information relating to a living or existing Person or which can be used to identify a living or existing Person, and shall have the further meaning as prescribed to it by POPI;
1.29. “Personnel” means any employee, officer, agent, consultant, contractor or other service provider of a Party;
1.30. “POPI” means the Protection of Information Act 4 of 2013;
1.31. “Process” means, in relation to Personal Information, copy, compile, collect, collate, process, mine, store, transfer, alter, delete, interfere with or in any other manner use the Personal Information, including any use of any kind which is subject to Applicable Law concerning the Processing of such Personal Information;
1.32. “Publish” means to communicate or make available a message or information by any means, including on a portal or website or in an email;
1.33. “Receiving Party” means the Party who receives or has access to information of the Disclosing Party;
1.34. “Services” means the services provided by the Alchemed Software, which digitizes and streamlines the practice management process, including the recording, storing and accessing of notes, forms and images, whether by the patient, customer or Client, as the case may be;
1.35. “Source Code” means any computer program, whether stored on or in any magnetic or optical medium, in any computer memory of whatsoever kind or in eye readable form, from which it is possible to discern the logic, algorithms, internal structure, operating features and any other design characteristic of such computer program;
1.36. “System” shall mean the Client’s complete computer system, incorporating both computer hardware and computer software;
1.37. “Trademark” means the name ‘Alchemed’, the name of the Licensed Products, and such other names, logos, drawings and/or devices that are associated with or used in relation to the Licensed Products, whether or not such Trademark has been registered or is capable of registration;
1.38. “Updates” shall mean minor changes or improvements to the Alchemed Software which relate to or effect the operating performance of the Alchemed Software or an aspect of the Alchemed Software, but which do not change the basic operation or functioning of the Alchemed Software.
1.39. “Upgrades” shall mean significant changes to the Alchemed Software resulting in the addition of a feature or capability not present in the Alchemed Software prior to the introduction of the changes as well as any changes to the Alchemed Software designed to permit the use of the Alchemed Software on hardware and/or in conjunction with Operating System Software other than that for which the Alchemed Software was initially designed; and
1.40. “Use” shall mean that the Client is entitled to allow the Alchemed Software to operate for the benefit of the Client on the Client’s own internal operating systems or central processors or on the Alchemed Cloud.
1.41. Any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time.
1.42. If any provision in a definition is a substantive provision imposing rights or obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the agreement.
1.43. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
1.44. Expressions defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement which do not themselves contain their own definitions.
1.45. Except as expressly provided to the contrary herein, each paragraph, clause, term and provision of this Agreement and any portion thereof shall be considered severable.
1.46. The eiusdem generis rule shall not apply.
1.47. The contra proferentem rule of interpretation of the agreement, in a case of ambiguity, against the drafter of the Agreement shall not apply.
1.48. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination.
1.49. In this Agreement, unless the context clearly indicates otherwise, clause headings are for convenience only and are not to be used in its interpretation.
- SIGNATURE AND AMENDMENT OF THIS AGREEMENT
2.1 The Client, by its signature and/or acceptance of this Agreement, accepts all benefits conferred by this Agreement.
2.2 This Agreement can be signed electronically by Alchemed and the Client. By signing the Agreement electronically (including by ticking an acceptance box that appears), the signatory accepts the provisions of this Agreement on behalf of the Party that he/she represents and binds that Party to the provisions of this Agreement.
- APPOINTMENT AND DURATION
3.1 The Client hereby agrees to use the Services which may include either remote or web-based installation of the Alchemed Software on the Client’s practice management system.
3.2 Alchemed’s appointment will be effective from the Commencement Date and, subject to the provisions of this Agreement that provide for the earlier termination thereof, will continue until either Party terminates this Agreement on 1 (one) month’s written notice to the other Party.
- GRANTING AND NATURE OF LICENSE
4.1 Alchemed hereby grants to the Client a limited, personal, non-exclusive, non-transferable, non-assignable and revocable license in respect of the Licensed Products subject to the terms and conditions of this Agreement.
4.2 The Client has subscribed to the Use of the Services, limited to the number of Clinicians and Administrators as set out in Annexure A.
4.3 For avoidance of doubt, the limited License does not include the right of the Client to grant sub-licenses to third parties to Use the Licensed Product or to cede, assign, delegate, transfer, subcontract, or mortgage or otherwise encumber the Licensed Product in any way, either in whole or in part, to any Person and shall not copy nor permit any party to copy the Licensed Product, including the Alchemed Software.
4.4 The Client will be entitled to Use the Licensed Products for its own business purposes and its Use thereof will be subject to the terms of this Agreement, provided that on the termination of this Agreement, for whatever reason, the Client’s right to Use the Licensed Products for its own business purposes shall immediately and automatically terminate.
4.5 The License will automatically lapse if there is a change in the membership, ownership or control of the Client, if the Client fails to pay the License Fee or in the event of any other material breach of the terms of this Agreement which the Client has failed to rectify on written notice by Alchemed.
4.6 Except for the limited License, Alchemed grants no other licenses with respect to the Licensed Products and there shall be excluded from this Agreement any further licenses, either express or implied, statutory or otherwise, with regard to the Licensed Products. Without prejudice to the generality of the foregoing, no implied license is made by Alchemed nor shall any such implied license arise by operation of this Agreement and/or Alchemed’s conduct.
4.7 The Client shall not itself or through another Person modify, de-compile, disassemble, reverse compile, translate, interrogate, decode, reverse-engineer the Alchemed Software, or decode the Licensed Products to bypass or delete protection methods provided for preventing unauthorized use of, or access to, the Licensed Products, to derive from them or to determine any design structure, concepts or methodology behind or any Source Code in any form whatsoever or for any other purpose whatsoever.. In addition, the Client may not rent, sub-license, merge, adapt the Licensed Products including the Alchemed Software nor allow it to be combined with other programs, nor used in a hosted or service bureau environment.
4.8 The Client shall allow Alchemed, upon reasonable notice, access to its premises and the Location to audit the Client’s compliance with this Agreement.
- GENERAL RIGHTS AND OBLIGATIONS OF THE CLIENT
5.1 The Client will have the right to Use Alchemed’s Software as long as the terms and conditions of this Agreement are adhered to.
5.2 The Client will retain all rights in the Client’s data provided to Alchemed under this Agreement.
5.3 Alchemed may use the Client Data only for the purpose of providing the Services to the Client and its Users, and/or monitoring the Client’s or any User’s compliance with this Agreement and/or use of the Service. Notwithstanding the foregoing, nothing in this Agreement is intended to prevent Alchemed from generating and using aggregated and anonymized Client or Patient Data for the purposes or providing, measuring, improving and marketing the Services (such generated data shall not be Confidential Information for the purposes of this Agreement, provided that such data is not identifiable for the purposes of the Data Protection Legislation or capable of being identified as originating from the Client or the data subject.)
5.4 The Client shall be fully responsible for the Use of the Licensed Products, including operating procedures of the Alchemed Software. The Alchemed Software shall be used on a computer system equipped for that purpose.
5.5 All the Client’s Personnel who will be using the Alchemed Software, shall undergo initial basic user training at the Client’s cost.
5.6 The Client undertakes to procure the installation and commissioning of suitable internet connection and software to enable it to use the Achemed Software. The costs of installation and commissioning will be solely borne by the Client.
5.7 The Client shall notify Alchemed in writing if there is an increase in the number of practitioners or practice managers involved with the Client’s practice who will be Using Alchemed’s Software.
5.8 The Client expressly agrees:
5.8.1 to refrain from doing any act or engaging in any practice or conduct that could prejudice Alchemed’s sales activities or prejudice Alchemed’s right to fair trade and business;
5.8.2 to ensure that it and all its Personnel using Alchemed’s Software have the basic ability and know-how required to use Alchemed’s Software;
5.8.3 to act in strict accordance with the standard policies and procedures and the written instructions and directions issued by Alchemed from time to time in relation to the Alchemed Software and the use of same;
5.8.4 to maintain records that are reasonably necessary in order for Alchemed to properly service the Client;
5.8.5 not to make material that Alchemed furnishes to the Client for its internal training purposes available to any Persons in any form whatsoever;
5.8.6 that any material, documents or methodology made available to it remains the Confidential Information and proprietary property of the Alchemed;
5.8.7 not to disclose to any other Person, without consent from Alchemed, its prospective and/or existing trade secrets, processes or procedures related to the Licensed Products and the Services;
5.8.8 not to do anything or cause anything to be done that damages the good name and reputation of Alchemed and to protect and enhance the good name and reputation of Alchemed; and
5.8.9 not to, under any circumstances whatsoever and whether directly or indirectly take any steps to copy or recreate performance tools of the Licensed Products for Competitive Products.
5.9 The Client agrees that the restrictions imposed in terms of this clause are agreed to by the Client as an equal negotiating party and are reasonable as to subject matter and duration.
- RIGHTS AND OBLIGATIONS OF ALCHEMED OR ITS ACCREDITED THIRD PARTY
6.1 Alchemed, or an accredited third party designated to service the Client shall, upon full payment of the installation fee and within a reasonable time after the Commencement Date install the Alchemed Software and issue a License.
6.2 Alchemed will, for the duration of this Agreement, maintain the Alchemed Software. This obligation is limited to the examination and testing of the Alchemed Software and effecting adjustments thereto necessitated by the normal use of the Software within the Client’s industry.
6.3 Alchemed will have rights of access the server(s) and / or computers of the Client directly on site or via internet to assist the Client with maintenance or other support.
6.4 Alchemed may, from time to time, make enhancements, Updates and Upgrades to the Licensed Products. If these enhancements, Updates and Upgrades are made available to the Client, they will be governed by the terms and conditions of this Agreement.
6.5 Alchemed reserves the right to sell, implement, Develop and otherwise exploit the Licensed Products and to grant other Persons the right to sell, implement, Develop or otherwise exploit the Licensed Products.
6.6 Alchemed reserves the right to change or terminate any of the specifications, features or functions of the Licensed Products and to change or terminate the level or type of support that Alchemed makes available for the Licensed Products.
- SUPPORT SERVICES
7.1 Services included in the monthly License Fees
Alchemed shall, with effect from the date of installation of the Alchemed Software, render the following support services:
7.1.1 telephonic support in accordance with the provisions set out hereinafter;
7.1.2 remote support which shall include remote correction of critical errors in the Alchemed Software; and
7.1.3 program Updates.
7.2 Support services excluded from monthly License Fees
The following support services will not form part of the monthly License Fees:
7.2.1 Maintenance or repairs of electrical works or telecommunication lines, computing equipment / hardware, circuits and apparatus connected to computers or any accessories or devices;
7.2.2 The repair of damage to the computing equipment as a result of but not limited to strikes, natural disasters, riots, floods, acts of war, terrorism, accidents, logistics failures, theft, fire, water, smoke, neglect or misuse, surge or failure of electrical power and changes to the specified environment or any similar events beyond Alchemed’s control.
7.3 Support services Client is liable for:
7.3.1 additional training which will be charged at an hourly rate agreed to by the Parties beforehand and well as travelling costs for any additional training;
7.3.2 recovery and repair of data that is damaged due to hardware failure or loss which will be charged at an hourly rate agreed to by the Parties beforehand;
7.3.3 repair of data corruption due to virus attack, Client interference, Client generated errors, or allowing an inadequately trained operator to use the System;
7.3.4 re-installation of Alchemed’s Software on the Clients computers and / or servers after 30 (thirty) days of the initial installation;
7.3.5 any Services requested outside Alchemed’s Standard Hours.
7.4 The services noted herein will be charged at standard prices as unilaterally determined by Alchemed from time to time. These fees will be payable in advance upon acceptance of a quotation for the Services.
7.5 Compliance requirements for requesting support services
Support Services will be subject to the following compliance measures:
7.5.1 Alchemed shall not be required to provide support services set out in clauses 7.1 and 7.2 above, as the case may be, unless requested to do so by the Client.
7.5.2 The Client shall furnish Alchemed with reasonably sufficient detail of the support services required.
7.5.3 Alchemed’s Personnel will endeavour to resolve the issue identified by the Client as soon as reasonably possible, should it fall within the support services rendered by Alchemed. Should Alchemed’ s Personnel not be able to resolve the issue identified by the Client within a reasonable time, Alchemed shall give the Client an estimate of how long a problem may take to resolve.
7.5.4 The Client shall only be entitled to support service outside of Alchemed’s Standard Hours, if there is a complete failure of the Alchemed Software.
- CHARGES, LICENSE FEES AND PAYMENT
8.1 The Client expressly agrees to the most recent payment schedule set out in Annexure A (and listed on the Alchemed Website) which shall be amended from time to time upon notice to the Client.
8.2 The installation and initial training costs are payable with the first month’s invoice which will be provided after the first free trial month. Subsequent invoicing will be on the first Business Day of the month and the Client shall pay the fee monthly in advance, per the invoice, on or by no later than the 5th calendar day of each month.
8.3 The Client shall pay compound interest monthly on all overdue amounts due to Alchemed at a rate of 2% (two per centum) per annum above the prevailing prime interest rate at the time.
8.4 The Client shall not be entitled, for any cause whatsoever, to withhold, delay, deduct from or defer payment of any amount due by it to Alchemed to satisfy any claim of the Client arising from this or any other contract between the Parties, nor will the Client be entitled to set-off such an amount against the amount payable to Alchemed in terms of this Agreement. All payments shall be free of demand, exchange and set off.
8.5 In the event of non-payment of any fees owed by the Client to Alchemed, Alchemed reserves the right to suspend the License until all outstanding payments are made in full.
8.6 Alchemed reserves the right, upon 30 (thirty) days written notice to the Client, to unilaterally increase the fees by an amount which is fair and reasonable in view of:
8.6.1 any enhancement of the Services that Alchemed renders to the Client;
8.6.2 any increase in the Consumer Price Index (“CPI”) since the previous fixing of the fees;
8.6.3 the growth of the size or complexity of the medical practice or hospital/clinic; and
8.6.4 any increase in the support needs of the Client.
8.7 If the Client does not terminate this Agreement within the aforesaid notice period of 30 (thirty) days, the fee increase shall be deemed to have been accepted.
8.8 Alchemed reserves the right to review its annual price in January of each year for all customers.
- CLOUD SECURITY
9.1 Alchemed reserves the right to monitor network traffic to identify unauthorized attempts to upload or change information or to otherwise cause damage to the Alchemed Software. The Client expressly consents to such monitoring.
9.2 Unauthorized attempts to modify, alter, deface, destroy or corrupt any information stored on the Cloud via the Alchemed Software, to defeat or circumvent any security features, to probe, scan or test for vulnerabilities, to breach security or authentication measures, to install or attempt to install unauthorized software or to utilize this System for purposes other than its intended purposes are expressly prohibited and may result in civil or criminal prosecution. Alchemed reserves the right to claim damages in the appropriate forum upon learning of any of the above actions having taken place.
9.3 Alchemed will, without attracting any liability whatsoever, report any and all criminal activity and shall, without notice to the Client, submit any evidence which may be gathered to the appropriate authorities.
- EXCLUSION AND LIMITATION OF LIABILITY
To the maximum extent permitted by law:
10.1 Alchemed shall only be liable to the Client for direct damages or loss which is shown to be caused by Alchemed’s wilful misconduct or fraudulent behavior, whether arising in contract, tort, delict, by statute or otherwise.
10.2 Alchemed’s liability for claims relating to the Alchemed Software, Support and / or Services as well as all damages suffered by the Client, whether direct or indirect, as a result of the malfunctioning of or errors in the Software, or the compromise to or loss of any data in Alchemed’ s possession or in the Cloud will be limited to Alchemed rectifying the malfunction, compromise or loss of data to the extent that this is in the control of Alchemed, within a reasonable time and free of charge, provided that Alchemed is notified immediately of the malfunction, compromise or loss of data.
10.3 Under no circumstances shall Alchemed be liable to the Client (or any party claiming through or on behalf of Client) in respect of any other form of loss or damages of whatsoever kind, whether based on contract, tort or delict (including strict liability), statute, the breach of any warranty, other legal or equitable grounds or otherwise, including but without being limited to, indirect, special, incidental, exemplary or consequential damages or loss, loss of anticipated profits, loss of business opportunity, loss of business data/information or loss of contracts by either the Client or any third party if the Client attempts to correct or allows third parties to correct or attempt to correct the Software or such faulty execution of the Services or any damage arising therefrom without the prior written approval from Alchemed. The exclusion set out in this provision applies equally to to the Licensed Products or the Use of the Licensed Products or in connection with or arising out of this Agreement or the Client’s use of material, templates, methodology or tools made available to the Client.
10.4 Alchemed shall not be held liable for any fault that occurs or is discovered in the hardware or other software used by the Client nor does Alchemed warrant the integrity of any third-party data or electronic information, including but not limited to converted data.
10.5 Notwithstanding clause 10.2 above, Alchemed’s aggregate liability and the Client’s exclusive remedies for any cause whatsoever shall be limited to direct damages or loss that are a result of a settlement that Alchemed consents to or a final judgment or award by a court of competent jurisdiction, which shall not exceed the fees paid by the Client to Alchemed during the 1 (one) month period immediately preceding the date on which the event or series of connected events giving rise to the claim occurred. Any claim against Alchemed shall have expired 6 (six) months after the month in which the liability arose.
10.6 Without limiting the generality of the foregoing, Alchemed shall not be liable for any delay, failure, breakdown or damage caused by software, programs and support services supplied by or obtained by the Client without the consent or knowledge of Alchemed; or software or programs modified by the Client or any third party not authorized to do so in terms of the Agreement; or the actions or requirements of any telecommunications authority or a supplier of telecommunications services or software.
10.7 To the extent that any of the above exclusions or limitations are specifically prohibited by any statute or applicable law that the Client is subject to, such exclusion or limitation shall not apply to the Client in the circumstances expressly provided for in such statute or applicable law and to the extent of such prohibition.
11.1 The Client hereby indemnifies, holds harmless and undertakes to defend Alchemed and their officers, employees and agents (“Indemnified Parties”) from all and any damages, loss and liability whatsoever claimed against the Indemnified Parties (including all associated costs, attorneys’ fees and costs on an indemnity basis, damages and losses and all and any consequential losses incurred by the Indemnified Parties):
11.1.1 resulting from the use by the Client and/or its Personnel of any materials, templates, tools or methodology made available to it;
11.1.2 resulting from or connected with the Client’s failure to comply with the provisions of this Agreement and/or all Applicable Laws, Licence conditions and the requirements of any legislative body or government, provincial, regional or local authority;
11.1.3 resulting from the negligence, recklessness, or wilful misconduct of the Client in the performance of its obligations under this Agreement.
11.2 Alchemed shall indemnify, hold harmless and defend the Client from and against any settlement or final judgment or award that is awarded or made an order of court by a court of law against the Client resulting directly from any claim that Alchemed did not have the right to grant the Client the Limited Licence. This clause shall apply only if the Client has given Alchemed prompt written notice of any such claim, suit, demand or action; Alchemed has exclusive control of the defence of such claim, suit, demand or action and the settlement or compromise thereof; the Client has completely co-operated with Alchemed in the defence and settlement thereof; and the claim, suit, demand or action has not or was not caused by or related to any act or omission of the Client or its Personnel other than acting strictly in accordance with the provisions of this Agreement or by any act or omission of the Client other than using the Licensed Products in accordance with the provisions of this Agreement.
- INTELLECTUAL PROPERTY RIGHTS
The Client hereby acknowledges that:
12.1 The Licensed Products are proprietary property and constitute valuable trade secrets of Alchemed and hereby specifically acknowledges and recognises the ownership and Intellectual Property Rights of Alchemed in and to the Licensed Products.
12.2 Alchemed retains ownership of all the intellectual property rights in or relating to the Software, Source Codes, materials, documents, methodology, tools and any copy thereof that form part of, or relate to the Alchemed Software. The Alchemed Software is not sold, and the Client is only entitled to use it under licence while paying the agreed fees.
12.3 The Client shall not, during or at any time after termination of this Agreement, acquire or be entitled to claim any right or interest in or to the Licensed Products or in any way question or dispute the ownership thereof by Alchemed.
12.4 The Client agrees, when discharging its obligations hereunder, to identify the Licensed Products as being the invention, development, and proprietary property of Alchemed. The Client agrees not to remove any copyright notices or confidential or proprietary legends or identification from the Licensed Products or any documentation relating to the Licensed Products.
12.5 The Client undertakes to take all reasonable steps necessary to ensure that its Personnel and Licensees comply with the provisions of this clause.
13.1 The Client recognises that Alchemed is the owner of the Trademark in the Republic of South Africa and of the goodwill attached to the business in the Licensed Products, including the Alchemed Software in respect of which it is used and agrees that the Trademark shall remain vested in Alchemed both during the term of this Agreement and thereafter. Nothing in this Agreement shall give the Client any rights in the Trademark and the Client agrees never to challenge the validity or ownership of the Trademark or that the use thereof by the Client is on behalf of Alchemed.
14.1 The Receiving Party undertakes that during the operation of, and after the expiration, termination, or cancellation of, this Agreement for any reason, it shall keep confidential the Disclosing Party’s Confidential Information.
14.2 The Receiving Party undertakes, subject to clause 14.3 below, not to disclose or Publish or allow access to any of the Disclosing Party’s Confidential Information nor to use or exploit such information for its own or anyone else’s benefit.
14.3 Notwithstanding the provisions of clause 14.2 above, the Receiving Party shall be entitled to use or disclose the Disclosing Party’s Confidential Information if and to the extent only that the use or disclosure is made in the utmost good faith and is necessary for the purposes of carrying out its obligations in terms of this Agreement.
14.4 The obligation of confidentiality placed on a Receiving Party in terms of this clause 14 shall cease to apply to a Receiving Party in respect of any information which:
14.4.1 is or becomes generally available to the public other than by the negligence or default of the Receiving Party or by the breach of this Agreement by the Receiving Party;
14.4.2 the Disclosing Party confirms in writing is disclosed on a non-confidential basis;
14.4.3 has lawfully become known by or come into the possession of the Receiving Party on a non-confidential basis from a source other than the Disclosing Party having the legal right to disclose same, provided that such knowledge or possession is evidenced by the written records of the Receiving Party existing at the Commencement Date; or
14.4.4 is disclosed pursuant to a requirement or request by operation of law, regulation, or court order, to the extent of compliance with such requirement or request only and not for any other purpose, subject to the onus resting on the Receiving Party to establish that information falls within the exclusions set out in clauses 14.4.1 to 14.4.4; and information or a combination of features shall not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in the Receiving Party’s possession.
14.5 In the event that the Receiving Party is required to disclose any of the Disclosing Party’s Confidential Information as contemplated in clause 14.4.4, the Receiving Party shall:
14.5.1 advise the Disclosing Party thereof in writing prior to disclosure, if legally permissible;
14.5.2 take such steps to limit the disclosure to the minimum extent required to satisfy such requirement and to the extent that it lawfully and reasonably can;
14.5.3 afford the Disclosing Party a reasonable opportunity, if possible, to intervene in the proceedings;
14.5.4 comply with the Disclosing Party’s reasonable requests as to the manner and terms of any such disclosure; and
14.5.5 notify the Disclosing Party of the recipient of, and the form and extent of, any such disclosure immediately after it is made.
14.6 To the extent that by performing its obligations under this Agreement, the Receiving Party will have access to Personal Information of the Disclosing Party, its clients or employees or Personal Information in the Disclosing Party’s possession or under its control:
14.6.1 the Receiving Party acknowledges that same shall constitute the Disclosing Party’s Confidential Information;
14.6.2 the Receiving Party hereby warrants and undertakes that it shall not, at any time, Process the Personal Information for any purpose other than with the express prior written consent of the Disclosing Party and to the extent necessary to perform its obligations and enforce its rights under this Agreement. In terms hereof, the Client, as the Disclosing Party of its data subjects’ Personal Information, hereby warrants that it has received the required consent from its data subjects to allow Alchemed, as the Receiving Party, to process such information. Notwithstanding anything else in this Agreement, the Client shall indemnify Alchemed, to the fullest extent permitted by law, against any claims arising from the processing of such Personal Information;
14.6.3 the Receiving Party warrants that it shall ensure that all its systems and operations which it shall use to perform its obligations under this Agreement, including all systems on which the Personal Information is Processed as part of performing its obligations, shall at all times be of a minimum standard required by law (and in any event sufficient to enable the Disclosing Party to comply with its obligations under Applicable Law concerning Personal Information) and be of a standard no less than the standards which are in compliance with the international best practice for the protection, control and use of Personal Information;
14.6.4 the Receiving Party warrants that it shall inform the Disclosing Party immediately in the event that any Personal Information has been compromised;
14.6.5 the Receiving Party hereby undertakes to strictly comply with the provisions of any Applicable Law relating to the protection of Personal Information in relation to such Personal Information and to furnish such information as is reasonably required by the Disclosing Party to assess the Receiving Party’s compliance with its obligations in terms of this clause 14.6. The Receiving Party further undertakes to ensure that its Personnel shall strictly comply with the provisions of this clause 14.6 and the Receiving Party shall be jointly and severally liable with such Personnel for any breach of this clause 14.6 by such Personnel;
14.7 Immediately on the termination of this Agreement, for whatever reason, the Receiving Party shall return to the Disclosing Party or, at the option of the Disclosing Party, destroy all of the Disclosing Party’s Confidential Information, and all copies thereof, in the possession or control of the Receiving Party or its Personnel and submit a statement or declaration signed by its Chief Executive Officer, or a similar designated Person, to the Disclosing Party confirming that it has acted accordingly.
14.8 The Receiving Party agrees that, in addition to recovering damages from it, the Disclosing Party shall also be entitled to apply for such injunctive or equitable relief against the Receiving Party and/or its Personnel in respect of any threatened or actual breach of this clause 14.
14.9 The Parties’ obligations recorded in this clause 13 shall survive the termination or cancellation of this Agreement.
- DATA PROTECTION
15.1 Given the nature of Alchemed’s business, it is necessary to collect and process Personal Information.
15.2 Both Parties are subject to POPI and therefore agree to ensure that such use of Personal Information is lawful, reasonable, and pursuant to the purpose of this Agreement and the engagement that this Agreement mandates.
15.3 Alchemed’s rights and obligations
15.3.1 For the purposes of performing the Services, Alchemed has the right to collect Personal Information.
15.3.2 Alchemed will collect Personal Information:
18.104.22.168 directly from the Client or its representatives through electronic communication, telephonically, during meetings, through related documentation; and / or in general interactions with the Client or its representatives;
22.214.171.124 from the Client’s electronic profiles;
126.96.36.199 from affiliates and third-party service providers.
Retention of Personal Information
15.3.3 Alchemed will retain Personal Information for the duration of this Agreement or for as long as Alchemed provides Services to the Client.
15.3.4 For purposes of this section, Alchemed’s Services will be regarded as being terminated if the Client no longer uses its Services for a period of one year or if Alchemed’s Services are expressly terminated or if Alchemed’s Services come to a natural conclusion.
15.3.5 Alchemed will retain Personal Information for a longer period if:
188.8.131.52 Required by law or regulation;
184.108.40.206 Required by contractual obligation with the Client or if the Client expressly requests that Personal Information is retained for a specific period for a legitimate purpose;
220.127.116.11 It is for a legitimate purpose that relates to Alchemed’s Services.
15.3.6 Personal Information that does not need to be retained for any of the reasons listed hereinabove will be deleted and / or destroyed. Alchemed agrees to provide, upon request, written confirmation that the Personal Information has been deleted and / or destroyed.
Disclosure of Personal Information
15.3.8 The Client acknowledges that it is necessary for Alchemed to disclose Personal Information to the following persons to perform its Services:
18.104.22.168 To the Client and / or its representatives, agents, or personnel if requested in writing;
22.214.171.124 To Digital Ocean LLC;
126.96.36.199 To Alchemed employees, contractors, and agents to the extent that these parties need the Personal Information in order for Alchemed to provide the Services to the Client;
188.8.131.52 To Alchemed’s affiliates;
184.108.40.206 To authorities or governmental agencies in order to comply with any law, regulation, or legal process; or
220.127.116.11 In order to protect Alchemed’s rights, property, or safety or those of Alchemed’s employees, contractors, agents, clients or any other third party.
Protection of information
15.3.9 Alchemed will take reasonable, appropriate, and generally accepted measures to ensure that Personal Information is protected against unauthorized and unlawful processing, accidental loss, destruction, or damage.
15.3.10 Alchemed undertakes to regularly review its security controls and implement appropriate and generally accepted technical and organizational measures to ensure such protection as far as reasonably possible.
15.3.11 Alchemed guarantees that it has or will impose necessary security, privacy, and confidentiality obligations on those third parties that it has a contractual relationship with to ensure, as far as reasonably possible, that Personal Information remains secure.
15.3.12 Alchemed will ensure that third parties agree to treat Personal Information with the same standard of care as it is obliged to ensure.
15.4 The Clients’ rights and obligations
15.4.1 The Client, in its capacity as a Processor or Responsible party, expressly agrees to ensure that it is POPI compliant.
15.4.2 The Client warrants that it has the necessary rights to provide Alchemed with the Client data, including but not limited to the necessary consent from the Client’s Data Subjects for the processing of the Data Subject’s Personal Information, and grants Alchemed the right to use the Client data for the purpose of Alchemed providing the Services.
15.4.3 The Client acknowledges that it bears the onus to obtain written consent from Data Subjects pertaining to the transfer and storage of Personal Information.
15.4.4 Alchemed shall not be liable for direct or indirect damages or loss which is shown to be caused by the Client’s negligent or intentional act or omission, whether arising in contract, tort, delict, by statute or otherwise relating to a Data Breach or Alchemed’s non-compliance with POPI.
15.4.5 To the extent that the above exclusion is specifically prohibited by any statute or applicable law that the Client or Alchemed is subject to, such exclusion shall not apply to Alchemed expressly provided for in such statute or applicable law and to the extent of such prohibition.
15.4.6 The Client hereby indemnifies, holds harmless, and undertakes to defend Alchemed and their officers, employees, and agents (“Indemnified Parties”) from all and any damages, loss, and liability whatsoever claimed against the Indemnified Parties (including all associated costs, attorneys’ fees and costs on an indemnity basis, damages and losses and all and any consequential losses incurred by the Indemnified Parties) based upon any Data Breach directly or indirectly resulting from the Client’s negligent or intentional act or omission or the Client’s non-compliance with POPI.
16.1 The Client acknowledges its understanding and acceptance that it is not commercially possible to produce computer software products that are error free, and the Client accepts unconditionally that Alchemed does not warrant that the Licensed Products (or any part thereof) are error free or that errors in the Licensed Products will be corrected or that the Client’s use thereof or the performance of the Licensed Products will be uninterrupted.
16.2 Alchemed does not warrant or represent that the functions contained in the Licensed Products will meet the Client’s requirements or that the results obtained from the Licensed Products will meet or fulfil the Client’s requirements or that the Licensed Products will operate in the combination selected by the Client or that the Licensed Products will operate in all environments or that the Licensed Products will appear precisely as described in any literature or documentation supplied by Alchemed or that the operation of the Licensed Products will be error free or that the tools, material, templates and methodology made available will meet or fulfil the requirements of the Client and Alchemed makes no representations or warranties, express or implied, of any kind whatsoever and there shall be excluded from this Agreement any warranties or conditions, either express or implied, statutory or otherwise.
16.3 To the extent that any of the above exclusions or restrictions are specifically prohibited by any statute or applicable law that the Client is subject to, such exclusion or restriction shall not apply to the Client in the circumstances expressly provided for in such statute or applicable law and to the extent of such prohibition.
16.4 Where the context requires, the Parties warrant and undertake to and in favour of the other Party that it shall at all times comply with Applicable Law relating to the performance of the Services and it shall not engage in any conduct or behavior that would be regarded as being anti-competitive, corrupt, deceptive, misleading, unethical or unlawful in terms of Applicable Law; and it shall not do anything that may prejudice or be adverse to the operations, business, and reputation of the other.
- BREACH AND TERMINATION
17.1 In the event that the Parties wish to terminate this Agreement by their mutual consent, such termination shall only be effective upon the recording of such consent by the Parties in writing.
17.2 Breach of this Agreement by the Client:
17.2.1 Without prejudice to Alchemed’s rights herein and save for those provisions that have their own remedies, should the Client commit a breach of this Agreement (including failing to comply with any payment obligation stipulated in this Agreement) and fail to remedy such breach within 7 (seven) days of written demand from Alchemed, then Alchemed may, in its sole and absolute discretion, in addition to any other rights and remedies that it may have, including the right to recover damages:
18.104.22.168 claim specific performance of the Client’s obligations; and/or
22.214.171.124 revoke any or all rights the Client may enjoy under this Agreement; and/or
126.96.36.199 terminate this Agreement, such termination to be effective from the date stipulated in a termination notice delivered to the Client.
17.3 Breach of this Agreement by Alchemed:
17.3.1 Should Alchemed breach any material term of this Agreement and fail to remedy such breach within 30 (thirty) calendar days of written demand from the Client, then the Client shall be entitled to, as permitted by Applicable Law to:
188.8.131.52 claim specific performance of Alchemed’s obligations; or
184.108.40.206 terminate this Agreement, such termination to be effective from the date stipulated in a termination notice delivered to Alchemed.
17.4 Alchemed shall not be liable to the Client for, and the Client expressly waives all rights to, compensation or damages of any kind, whether on account of the loss by the Client of present or prospective profits, anticipated orders, expenditures, investments, or commitments made in accordance with this Agreement, goodwill created or on account of any other reason whatsoever which may arise as a result of the termination of this Agreement.
- CONSEQUENCES OF TERMINATION OR EXPIRATION
18.1 Upon termination or expiration the Client shall:
18.1.1 pay to Alchemed all fees and other amounts due to Alchemed in terms of this Agreement, irrespective of whether or not the fees and amounts are due, owing and payable at the time of such termination;
18.1.2 immediately return to Alchemed all Licensed Products and all documentation relating to the Licensed Products in the possession or under the control of the Client or its Personnel, including all copies thereof, or, at Alchemed’s discretion, destroy the Licensed Products (including erasing same from all computers or storage devices and facilities) and submit a statement or declaration signed by its Chief Executive Officer, or a similar designated officer, to Alchemed confirming that it has acted accordingly;
18.1.3 immediately eliminate from the Client’s literature, stationery, publications, notices and advertisements (including websites and internet information) all references to Alchemed and the Licensed Products;
18.1.4 immediately cease its use of the Trademark and the Confidential Information of Alchemed;
18.1.5 not, nor shall it attempt to encourage or entice or incite or persuade or induce or furnish any information or advice to any third party or use any other means which are directly or indirectly designed, or in the ordinary course of events calculated, to result in such party terminating its license in respect of the Licensed Products.
18.2 Save as otherwise expressly provided in this Agreement, termination of this Agreement shall be without prejudice to any accrued rights and obligations under this Agreement as at the date of termination.
- DISPUTE RESOLUTION
19.1 Within 30 (thirty) calendar days of the Dispute being raised, the senior executives of the Parties must confer to attempt to resolve the Dispute.
19.2 If the Parties are unable to resolve the Dispute either Party may refer the Dispute to arbitration that will be arbitrated by a party agreed to by both parties. Both parties agree to be bound by the decision taken by the arbitrator
19.3 Notwithstanding the existence of a Dispute, both Parties must continue to perform their obligations under this Agreement.
- DOMICILIA CITANDI ET EXECUTANDI
20.1 The Parties choose as their domicilium citandi et executandi for all purposes under this Agreement, whether in respect of court processes, notices or other documents or communication of whatsoever nature (including the exercise of any option) the addresses set out in Annexure B.
20.2 Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing. It shall be competent to give such notice by electronic mail or WhatsApp, if applicable.
20.3 Either Party may give notice to the other Party to change the physical address chosen as its domicilium citandi et executandi to another physical address in South Africa, provided that such change shall become effective on the 7th (seventh) day from the deemed receipt of the notice by the other Party.
20.4 Any notice sent by electronic mail to the electronic mail stipulated in the domicilium citandi et executandi, shall be deemed to have been received on the date of dispatch (unless the contrary is proved). Any notice sent by prepaid registered post in a correctly addressed envelope sent to the address stipulated in the domicilium citandi et executandi, shall be deemed to have been received on the 7th (seventh) Business Day after posting, unless the contrary is proved.
20.5 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered to the address chosen as the domicilium citandi et executandi.
- GENERAL PROVISIONS
21.1 This Agreement constitutes the whole agreement between the Parties and supersedes all prior verbal or written agreements or understandings or representations by or between the Parties regarding the subject matter of this Agreement, and the Parties will not be entitled to rely, in any dispute regarding this Agreement, on any terms, conditions or representations not expressly contained in this Agreement.
21.2 It is hereby declared and acknowledged by the Parties hereto that neither Party has made any representations to the other and neither Party has acted on or relied upon any representation made by the other except as is expressly provided and set forth herein.
21.3 No indulgence, leniency or extension of a right, which either of the Parties may have in terms of this Agreement, and which either party (“the Grantor”) may grant or show to the other party, shall in any way prejudice the Grantor, or preclude the Grantor from exercising any of the rights that it has derived from this Agreement, or be construed as a waiver by the Grantor of that right.
21.4 In the event that any of the provisions of this Agreement are or may become illegal, invalid, unlawful or unenforceable in any jurisdiction affected by this agreement, such provisions, as to such jurisdiction, shall be ineffective to the extent of such prohibition or unenforceability and shall be treated as not written in this Agreement and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
21.5 No variation of or addition to this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the Parties.
21.6 The validity and interpretation of this Agreement will be governed by the laws of the Republic of South Africa.
21.7 It is hereby declared and acknowledged by the Parties that the relationship between them established by this Agreement is that of independent contractors and that nothing herein shall constitute them as partners, joint venturers, franchisor and franchisee or agents one for the other. No Party shall have any authority to bind the other legally.
21.8 Notwithstanding termination of this Agreement, any clause which, from the context, contemplates ongoing rights and obligations of the Parties, shall survive such termination, and continue to be of full force and effect.