Einsteinn Cloud Services Agreement

BACKGROUND

The Provider provides access to its software-as-a-service offerings to its customers;

The Practice wants to access the software-as-a-service offering described herein, and the Provider is willing to provide the Practice access to such offering, subject to the terms and conditions in this Agreement; and

In consideration of the terms and conditions herein, the Parties agree as follows.

CLOUD SERVICES

Access rights: Subject to and conditioned on payment of the Fees and compliance with the terms and conditions of this Agreement, the Provider provides a non-exclusive, non-transferable limited right to the Practice to access and use the Cloud Services for the duration of the Term.

Term: The Agreement starts on the Start Date and continues for the Term, unless it ends earlier under this Agreement.

Auto-renewal: If the Order shows that auto-renewal does apply, then at the end of the Term the Agreement will automatically renew for the Renewal Period, unless either Party gives the other Party written notice that it does not want to renew at least 30 days prior to the end of the Term.

Fees: Unless the Order provides otherwise, Fees are:

charged for each billing period; and

non-refundable once the billing period has started.

Third-Party Expenses: The Practice must reimburse any Third-Party Expenses to the Provider and these will be charged at cost, without any additional mark-up, and shown separately on the invoice.

Taxes: All Fees and Third-Party Expenses are shown excluding VAT and other applicable taxes. The Practice must pay any VAT and other taxes that apply to the supply of the Cloud Services.

Currency and payment method: The Practice must pay all amounts in the Currency shown on the Order; and by EFT or another payment method agreed by the Parties, into the bank account or payment details given on the invoice.

Invoicing and due date: Unless the Order or Order Form states otherwise:

Fees are invoiced in advance for each billing period;

any usage-based Fees and Third-Party Expenses are invoiced in arrears; and

each correct invoice is due and payable within 30 days after the invoice date.

Disputed amounts: If the Practice disputes any part of an invoice, it must:

notify the Provider in writing before the due date, giving reasonable details of the dispute; and

pay the undisputed portion of the invoice on time.

Late payment: If any undisputed amount is not paid on time, the Provider may charge interest on the overdue amount from the due date until the date of payment, at 2% per month.

Escalations: If the Order shows that escalation applies, the Provider may increase the Fees from the at the yearly anniversary date of the Agreement.

Permitted use: The Practice and their Users may only use the Cloud Services as per the Permitted Use and the Documentation.

Restrictions: The Practice must not:

Disassemble, reverse engineer, modify, or create derivate works of the Cloud Services;

Use the Cloud Services in violation of applicable laws;

Circumvent or disable any security features or other aspect of the Cloud Services;

Attempt to gain unauthorised access to the source code of the Cloud Services;

Use the Cloud Services to transmit unlawful material, or to store or transmit material in violation of third-party privacy rights;

Use the Cloud Services to store or transmit any material that may infringe the software or other rights of third Parties; or

Knowingly or negligently use the Cloud Services in a way that abuses or disrupts servers, user accounts, or other services.

Suspension rights:

The Provider may temporarily suspend the Practice's and any Users' access to all or part of the Cloud Services if:

the Provider reasonably believes that there is a threat or attack on its systems, networks, infrastructure or the Cloud Service;

the Practice's or its Users' use of the Provider's Intellectual Property is causing issues or security risks;

the Practice or its Users are using the Provider's Intellectual Property for illegal or fraudulent activities;

the Practice faces bankruptcy or similar issues; or

providing the Cloud Services is against the law.

The Provider must make a reasonable effort to inform the Practice about the suspension and give updates about when access will be resumed.

The Provider must try to restore access to the Cloud Services as soon as possible once the issue is resolved.

The Provider is not liable for any damages or losses the Practice may face due to the suspension.

Retained rights: The Provider retains all right, title, and interest in and to the Cloud Services, including, without limitation, all software included in and used to provide the Cloud Services.

Users: The Practice is responsible its Users’ actions through the Cloud Service and their compliance with this Agreement.

Login credentials: The Practice must ensure that Users keep their login credentials confidential and must promptly notify the Provider upon learning of any compromise of User accounts or credentials.

Changes: The Provider reserves the right, in its sole discretion, to make any changes to the Cloud Services and the Documentation that it deems necessary to:

maintain or enhance:

the quality or delivery of the Cloud Services to its customers;

the competitive strength of or market for the Cloud Services; or

the Cloud Services' cost efficiency or performance; or

to comply with applicable law.

General functionality: Any changes made by the Provider as contemplated above may not materially reduce the general functionality of the Cloud Service.

THIRD-PARTY PRODUCTS

Definitions:

“Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third Parties and are incorporated into or accessible through the Cloud Services.

Terms and conditions:

The Cloud Services may permit access to Third-Party Products.

For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions.

If the Practice does not agree to abide by the applicable terms for any such Third-Party Products, then the Practice should not install, access, or use such Third-Party Products.

Liability and indemnification:

The Practice is solely responsible for any loss, damage, or liability arising from its election to use or integrate with optional Third-Party Products.

The Practice indemnifies the Provider against all claims for losses or damages arising from or relating to the Practice’s use of any Third-Party Products.

Data security and privacy: The Provider is not responsible for the security and privacy of the Practice’s data once it is transferred to a third-party platform, and it is the Practice’s responsibility to ensure that the third-party platform has adequate security measures in place to protect its data.

Compliance with laws and regulations: The Practice is responsible for ensuring that its use of third-party products complies with all applicable laws and regulations, including data protection and privacy laws.

Termination of integration: The Provider may terminate, in its sole discretion, any integration with a third-party platform if it determines that the platform is no longer secure or is in violation of any laws or regulations.

LIABILITY

Definitions:

“Liability Cap” means an amount equal to the total fees paid or payable by the Practice under this Agreement in the twelve (12) months immediately preceding the event giving rise to the relevant claim.

“Enhanced Claims” means any claim arising out of or in connection with:

a breach of the confidentiality provisions of this Agreement;

a breach of the data protection provisions of this Agreement;

any indemnity obligation under this Agreement; or

either Party’s infringement or misappropriation of the other Party’s Intellectual Property Rights.

“Enhanced Liability Cap” means an amount equal to three (3) times the Liability Cap.

General liability cap: Except in relation to Enhanced Claims and liabilities which cannot be limited or excluded under applicable law, each Party’s total aggregate liability to the other Party arising out of or in connection with this Agreement (whether in contract, delict (tort) or otherwise, and however caused) is limited to the Liability Cap.

Enhanced liability cap: In relation to Enhanced Claims only, each Party’s total aggregate liability to the other Party arising out of or in connection with this Agreement (whether in contract, delict (tort) or otherwise, and however caused) is limited to the Enhanced Liability Cap. This Enhanced Liability Cap does not apply to liabilities which cannot be limited or excluded under applicable law.

Non-excludable liabilities: Nothing in this Agreement limits or excludes either Party’s liability for:

any liability which cannot be limited or excluded under applicable law;

death or personal injury caused by its negligence; or

fraud or wilful misconduct.

Unrecoverable losses: A Party will not be liable to the other Party, under any theory of liability (whether in contract, delict (tort) or otherwise, and however caused), for any indirect, consequential, special or punitive loss or damage, including any:

loss of profits;

loss of business revenues;

loss of anticipated savings;

loss of goodwill; or

loss of data,

Exceptions to the unrecoverable-loss exclusion: The exclusion of indirect, consequential, special or punitive loss or damage set out above does not apply to:

any Enhanced Claim;

any act or omission that is grossly negligent;

any act or omission that causes personal injury or death of a third party; or

any act or omission that causes damage to tangible property.

Survival: The provisions of this clause will survive termination or expiry of this Agreement.

INDEMNITIES

Definitions:

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature (civil, criminal, administrative, regulatory or otherwise).

“IP Claim” means any Action brought by a third party alleging that the Product infringes or misappropriates that third party’s Intellectual Property Rights.

“Indemnified Losses” means all out-of-pocket losses, damages, amounts finally awarded by a court of competent jurisdiction or agreed in settlement (with the Indemnifying Party’s consent, not to be unreasonably withheld or delayed), and reasonable legal and other professional fees and expenses incurred by the Indemnified Party in connection with the defence or settlement of an Action, in each case to the extent payable to a third party or a regulator.

“Intellectual Property Rights” means all registered and unregistered rights granted, applied for or otherwise existing now or in future under or related to any patent, copyright, trademark, trade secret, database protection or similar intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.

“Product” means the Cloud Services and the Documentation provided under this Agreement.

“Indemnifying Party” means the Party that is providing an indemnity under this clause.

“Indemnified Party” means the Party that is receiving the benefit of an indemnity under this clause.

Provider IP indemnity:

The Provider will indemnify, defend and hold harmless the Practice from and against any Indemnified Losses arising out of an IP Claim, provided that the Product was being used by or on behalf of the Practice in accordance with this Agreement and the Documentation at the time of the events giving rise to the IP Claim.

The Provider will have no obligation under the above clause to the extent that an IP Claim results from:

the Product being combined or used with any product, service, data or technology not supplied or authorised in writing by the Provider;

any modification of the Product by anyone other than the Provider or its subcontractors;

use of the Product in breach of this Agreement, the Documentation or applicable law;

the Practice’s failure to use a new version, update, fix or workaround to the Product that would have avoided the alleged infringement, where the Provider made such version, update, fix or workaround available without additional charge; or

compliance by the Provider with any designs, specifications or written instructions provided by the Practice.

Practice indemnity:

The Practice will indemnify, defend and hold harmless the Provider from and against any Indemnified Losses arising out of any Action brought by a third party to the extent that the Action results from:

any allegation that Practice Data, or the use of Practice Data by or on behalf of the Provider in accordance with this Agreement, infringes or misappropriates that third party’s Intellectual Property Rights or privacy rights; or

the Practice’s or any User’s use of the Cloud Services in breach of this Agreement, the Documentation or applicable law.

The Practice’s obligations under the above clause do not apply to the extent that the relevant Action or Indemnified Losses result from:

the Provider’s breach of this Agreement;

the Provider’s use of the Cloud Services or Practice Data in a way that is not in accordance with the Practice’s written instructions or this Agreement; or

any combination of the Cloud Services with products, services, data or technology supplied or required in writing by the Provider.

Conduct of claims:

The Indemnified Party must promptly notify the Indemnifying Party in writing of any Action in respect of which it wishes to claim an indemnity under the above clauses.

The Indemnifying Party will have the sole right to control the defence and settlement of the Action, provided that it may not enter into any settlement that imposes any admission of liability on, or material non-monetary obligation on, the Indemnified Party without the Indemnified Party’s prior written consent (not to be unreasonably withheld or delayed).

The Indemnified Party may participate in the defence of the Action with its own counsel at its own cost.

The Indemnified Party must provide the Indemnifying Party with reasonable cooperation and assistance in connection with the defence and settlement of the Action.

A failure by the Indemnified Party to comply with this conduct of claims clauses will not relieve the Indemnifying Party of its obligations under the indemnities clause, except to the extent the Indemnifying Party is materially prejudiced by that failure.

Apportionment: To the extent that an IP Claim or any other Action, or any Indemnified Losses, are caused by any contributory act or omission of the Practice or its personnel, contractors or agents, the Practice will bear such portion of the losses as is attributable to its fault and the Provider will only be liable for the balance.

Infringement remedies (Provider): If an IP Claim is made, or in the Provider’s reasonable opinion is likely to be made, then in addition to its indemnity obligations the Provider may at its own cost and option:

procure for the Practice the right to continue using the Product; or

modify or replace the Product (or any part of it) so that it becomes non-infringing while providing substantially equivalent functionality;

terminate the Practice’s right to use the infringing Product and refund any prepaid fees in respect of the unused portion of the then-current subscription term for the affected Product.

Sole remedy for third-party IP claims: The indemnity and remedies set out in this indemnities clause, together with any express termination rights under this Agreement, are the Practice’s sole and exclusive remedies in respect of IP Claims relating to the Product, without limiting the Practice’s right to seek interim or injunctive relief where available at law.

Relationship to limitation of liability: Each Party’s aggregate liability under this indemnities clause forms part of the Enhanced Claims under the Liability clause and is subject to the Enhanced Liability Cap and any other applicable limitations set out in that clause, except to the extent that such liability cannot be limited or excluded under applicable law.

WARRANTIES

Non-conformity warranty: During the Term, the Provider warrants to the Practice that the Cloud Services will, in all material respects, conform to the then-current Documentation when used in accordance with this Agreement and the Documentation.

Remedies for breach: If the Practice reasonably believes that there has been a breach of the non-conformity warranty as contemplated above, then the Practice must notify the Provider in writing without undue delay and provide reasonable details of the alleged non-conformity. Following such notice, the Provider will, as the Practice’s sole and exclusive remedies for breach of the warranty:

use commercially reasonable efforts to correct the non-conformity so that the Cloud Services materially conform to the Documentation; or

provide a workaround or alternative means of achieving substantially the same functionality; or

replace the affected Cloud Services with substantially equivalent services;

Exclusions: The Provider is not obliged to remedy any non-conformity of the Cloud Services to the extent the non-conformity results from:

any modification or alteration of the Cloud Services by any person other than the Provider or its subcontractors;

use of the Cloud Services in breach of this Agreement, the Documentation or applicable law; or

use of the Cloud Services for a purpose or in a manner not reasonably contemplated by the Documentation or not expressly authorised in writing by the Provider.

Any refunds or credits paid by the Provider under this clause will be taken into account when calculating whether the applicable liability cap in the liability clause has been reached.

The remedies set out in this clause, together with the Practice’s termination rights under this Agreement, are the Practice’s sole and exclusive remedies, and the Provider’s entire liability, in respect of any breach of the warranties in this clause, without prejudice to:

the Practice’s rights under indemnities clause in respect of IP Claims and any other indemnified events; and

either Party’s rights to seek interim or injunctive relief where available at law.

Disclaimer of other warranties:

EXCEPT FOR THE WARRANTIES EXPRESSLY SET OUT IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CLOUD SERVICES, DOCUMENTATION AND ALL OTHER MATERIALS PROVIDED BY THE PROVIDER ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND THE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE CLOUD SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ANY THIRD-PARTY COMPONENTS WILL FUNCTION AS EXPECTED OR INTENDED.

TERMINATION

Termination for material breach:

Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to remedy that breach within thirty (30) days after receiving a written notice describing the breach in reasonable detail.

If a material breach is not capable of remedy, the aggrieved party may terminate this Agreement with immediate effect by written notice to the defaulting party.

Termination for material breach does not prevent the aggrieved party from claiming damages or any other relief available at law, subject to any applicable limitations and exclusions of liability contained in this Agreement.

Termination for insolvency and serious misconduct: Either party may terminate this Agreement with immediate effect by written notice to the other party if the other party:

is unable or admits its inability to pay its debts as they become due in the ordinary course of business;

suspends payment of its debts generally or proposes or enters into any compromise, composition or arrangement with its creditors generally;

has a liquidator, business rescue practitioner, receiver, administrator or similar officer appointed over all or a substantial part of its undertaking, assets or revenues; or

is convicted of, or admits to, any offence involving fraud, bribery or corruption in connection with this Agreement.

Termination due to change in law or regulatory environment:

If, after the date of this Agreement, any law, regulation or binding order of a competent authority that applies to the provider’s performance under this Agreement changes in a way that makes it unlawful or commercially impracticable for the provider to continue providing the Cloud Services on the agreed terms, the provider will notify the customer in writing and the Parties will, for a period of thirty (30) days, discuss in good faith any amendments that may be reasonably required.

If the Parties are unable to agree such amendments within that period, the provider may terminate this Agreement, in whole but not in part, by giving not less than ninety (90) days’ prior written notice to the customer. On termination under this clause, the provider will refund any fees:

paid in advance for Cloud Services that will not be provided after the effective date of termination and will provide reasonable transition assistance for a limited period to facilitate the customer’s migration to an alternative solution. No additional termination fee will be payable, except any reasonable and documented termination costs agreed between the Parties in writing.

Effect of termination: Termination of this Agreement does not affect any rights, remedies, obligations or liabilities of either party that have accrued up to the effective date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before that date, subject to any applicable limitations and exclusions of liability contained in this Agreement.

DATA EXPORT AND DELETION

Data export: For a period of 30 days after the termination or expiry of this Agreement (the “Export Period”), the Provider will:

keep Practice Data accessible in a non-production or limited-use state solely for the purpose of export; and

provide the Practice with a reasonable opportunity to export Practice Data in accordance with this clause.

Fees and costs: Provided self-service export functionality is available, self service export will be provided at no additional charge; and any custom export, bespoke reporting, data transformation or other transition assistance requested by the Practice will be treated as professional services and charged on a time-and-materials basis at the Provider’s then-current rates.

Deletion of data: The Provider will delete or irreversibly de-identify Practice Data within 30 days after the end of the Export Period (the “Deletion Period”).

Data retention: Despite the above, the Provider may retain copies of Practice Data:

in routine backup or archival systems that are not readily accessible in the ordinary course of business; and

to the extent required by applicable law, regulation, professional obligation or the rules of a competent regulatory or supervisory authority, provided that any retained copies:

remain subject to the confidentiality, security and data-protection obligations in this Agreement; and

are deleted in accordance with the retaining Party’s standard backup and retention cycles.

Anonymised and aggregated data: Notwithstanding the above, the Provider is not required to delete data that has been irreversibly anonymised and aggregated in accordance with this Agreement.

INTELLECTUAL PROPERTY

Definitions: For purposes of this Agreement:

“Feedback” means any ideas, suggestions, comments, enhancement requests, recommendations or other feedback that the Practice or its Users provide to the Provider relating to the Cloud Services or the Provider’s business.

“Intellectual Property Rights” means all intellectual property rights of any kind, including copyrights, moral rights, inventions, patents, patent applications, trade marks, service marks, logos, trade names, designs, domain names, rights in get-up, rights in software, rights in databases, trade secrets, know-how, rights in Confidential Information and all similar or equivalent rights or forms of protection, in each case whether registered or unregistered and including all applications, renewals, extensions, restorations and revivals of such rights anywhere in the world.

Practice’s rights: The Practice owns all Intellectual Property Rights in and to:

Practice Data; and

the Practice’s trade marks, trade names, logos and other branding.

Provider’s rights: The Provider owns all Intellectual Property Rights in and to:

the Cloud Services (including all software, source code, object code, interfaces, algorithms, databases, configurations and underlying systems used to provide the Cloud Services);

all Documentation; and

any and all other software, tools, templates, configurations, reports, scripts, integrations, workflows, know-how and other items or materials that are created, developed or provided by or on behalf of the Provider under or in connection with this Agreement (including any enhancements, updates, modifications or derivative works of any of the foregoing), in each case excluding Practice Data and Practice Marks.

Feedback: The Practice acknowledges that the Provider may freely use and exploit Feedback to improve and develop its products and services. Accordingly, the Practice hereby grants the Provider a perpetual, irrevocable, worldwide, non-exclusive, transferable, sublicensable, royalty-free licence to use, copy, modify, create derivative works from and otherwise exploit any Feedback for any lawful purpose, without any obligation to compensate the Practice or attribute the Feedback to the Practice.

CONFIDENTIALITY

Confidential information: Subject to Section ‎10.2, no Party will disclose this Agreement or any part thereof, or any information exchanged between the Parties pursuant to this Agreement, to any third party without obtaining the prior written consent of the other Party.

Allowed disclosures: A Party may disclose information contemplated in Section ‎10.1 if:

a Party is required by law to disclose such information;

the disclosure of the information is made to a director, officer, trustee, employee, adviser or representative of a Party whose function requires them to have such information; or

information which becomes publicly known, or publicly accessible or in the public domain.

Survival: The provisions of this Section ‎10.1 will survive the failure or termination of this Agreement for whatever reason.

FORCE MAJEURE

No liability: Neither Party is liable for failure or delay to perform its obligations under the Agreement to the extent caused by events or acts beyond its control which could not have been reasonably foreseeable when the Agreement was concluded and includes events or acts of:

acts of God, natural disasters, earthquakes, fire, explosions, floods, hurricanes, storms or other severe or extraordinary weather conditions, natural disasters;

sabotage, contamination, nuclear incidents, epidemics;

war (civil or other and whether declared or not), military or other hostilities, terrorist acts or similar, riot, rebellion, insurrection, revolution, civil disturbance, or usurped authority;

strikes or other industrial disputes that affect an essential portion of the supplies or works, except with respect to workers under the control of the party asking for relief due to this event;

non-availability or loss of export permit or license for the products or services to be delivered, or of visas or permits for the party’s personnel;

requisition or compulsory acquisition by any governmental or competent authority, embargo, or other sanctions, and

currency restrictions, shortage of transport means, general shortage of materials, restrictions on the use of or unavailability or shortage of power or other utilities,

Exclusions: The relief in Section ‎11.1 will not apply to the extent that:

the default or the delay was caused by the non-performing Party; or

such default or delay could have been prevented by precautions and could have been circumvented by the non-performing Party using alternate sources, workaround plans, or other means.

Obligations: If an event or act as contemplated in Section ‎11.1 occurs:

the non-performing Party must as soon as practical notify the other Party and provide all relevant information, describing at a reasonable level of detail the circumstances and the performance that is affected;

the non-performing Party must use reasonable endeavours to overcome the event; and

the non-performing Party must continue to perform their obligations as far as practicable.

Should either Party be prevented from carrying on their contractual obligations due to an event above lasting continuously for 30 days, the Parties will consult each other on the future implementation of the Agreement.

If the Parties don’t mutually arrive at an acceptable arrangement within 30 days after that, either Party can terminate the Agreement immediately on written notice.

DISPUTE RESOLUTION

Good faith negotiation: If any dispute arises out of or in connection with this Agreement, including any question regarding its existence, validity or termination, either Party may give the other written notice of the dispute. The Parties must then meet (in person or remotely) and negotiate in good faith to resolve the dispute. Unless otherwise agreed, such negotiations must take place within 10 days of the notice and continue for at least 10 days after first meeting.

Mediation: If the dispute is not resolved through negotiation in terms of the above clause, either Party may refer the dispute to mediation:

The mediation shall be administered by the Arbitration Foundation of Southern Africa (“AFSA”) in accordance with the AFSA Mediation Rules then in force.

Unless otherwise agreed, the Parties will share the mediator’s fees and AFSA’s administrative charges equally.

Either Party may be legally represented at the mediation.

The mediation will be treated as without prejudice and confidential and nothing said or disclosed in the mediation may be used in any later proceedings, except to the extent required by law.

Arbitration: If the dispute is not resolved within 30 days after it has been referred to mediation (or such longer period as the Parties may agree in writing), the dispute must be finally resolved by mandatory, binding arbitration:

The arbitration shall be administered by AFSA in accordance with the AFSA Arbitration Rules then in force.

The arbitration will be conducted by a single arbitrator appointed by agreement between the Parties, failing which by AFSA.

The arbitrator’s award will be final and binding on the Parties, with no right of appeal, and may be made an order of court by any court of competent jurisdiction.

Unless the arbitrator decides otherwise in an award on costs, the Parties will share the arbitrator’s fees and AFSA’s administrative charges equally.

Interim relief and continued performance: Nothing in this clause prevents either Party from seeking urgent or interim relief from a court of competent jurisdiction. Each Party must continue to perform its obligations under this Agreement, as far as reasonably possible, while any dispute is being resolved under this dispute resolution clause.

Survival and confidentiality: This dispute resolution clause survives termination or expiry of this Agreement. All dispute resolution proceedings under this dispute resolution clause, and all information disclosed in those proceedings (including any award), will be confidential to the Parties, except to the extent disclosure is required by law or to enforce or challenge an award.

COMPLIANCE WITH LAWS

Undertakings: Each Party undertakes, at its own expense, in favour of the other Party to:

comply with all Applicable Laws in the performance of its obligations under the Agreement;

obtain and maintain any necessary permits, licenses, and authorizations required for the performance of its obligations under this Agreement; and

to promptly notify the other Party of any changes in Applicable Laws that may materially affect its ability to perform under this Agreement.

Breach: Failure to adhere and comply with ‎13.1 above will be deemed to be a material breach under the Agreement.

Indemnity: Each Party hereby indemnifies and holds the other Party harmless against all and any claims, loss or liability of whatsoever nature and for all expenses or costs directly or indirectly related thereto or arising therefrom, which arises directly or indirectly as a result of or in connection with the Party’s failure to adhere and comply with ‎13.1 above.

MISCELLANEOUS

Independent advice: Each Party acknowledges that:

they have been free to secure independent legal and other professional advice, including financial and taxation advice, regarding the nature and effect of this Agreement’s provisions and that they have taken such independent advice or dispensed the need to do so;

all the provisions of this Agreement follow their intentions;

they have not relied on any advice given by the counter Party’s legal advisors in the preparation, negotiation, or implementation of this Agreement; and

they have taken all reasonable actions to satisfy themselves regarding the consequences of entering this Agreement.

Governing law: The laws of Republic of South Africa govern this Agreement.

Amendments and waivers:

No amendment to this Agreement is effective unless it is in writing, identified as an amendment and signed by an authorised representative of each Party.

Except as otherwise stipulated in this Agreement, no failure to exercise any rights arising from this Agreement will be construed as a waiver.

Except as otherwise stipulated in this Agreement, any exercise of any right hereunder will not preclude any other or further exercise thereof or the exercise of any other right.

Further assurances: On a Party's reasonable request, the other Party must, at such other Party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

Assignment:

This Agreement will be binding on the Parties hereto and their respective successors and assigns.

Except as contemplated below, neither Party may assign this Agreement without the prior written consent of the other Party which consent may be withheld or conditioned within the other Party’s sole discretion.

A Party may assign this Agreement where:

a Party assigns the Agreement to its affiliate; or

in the case of a merger or acquisition of all or substantially all of the assigning Party’s assets.

Any assignment made without other Party’s consent as required above is null and void and of no effect as between the Parties.

Drafting and negotiation costs: Each Party will pay their costs for the Agreement’s negotiation, drafting, finalisation, signing, and implementation.

No employment, partnership, or agency: This Agreement will not result in an employment, partnership or agency relationship between the Parties and the Parties must not represent that there is any employment, partnership or agency relationship between the Parties.

No undertakings: Neither Party may give any undertaking which will create a binding obligation on the other Party.

No authority to bind: Neither Party will have authority to bind the other Party to any agreement.

No rights to third-Parties: Unless otherwise stipulated in this Agreement, nothing in this Agreement is intended to or will confer on any other person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

Notices: Any notice under the Agreement must be delivered by email to the email address as per the Order. A notice will be deemed given if sent by email on the same day of transmission with a receipt confirming the successful completion of the transmission.

Public disclosures: All public disclosures by either Party relating to this Agreement will be subject to the following terms:

Any public disclosures must be coordinated with and approved by the other Party before release unless the announcement is intended solely for internal distribution or disclosures required to meet legal requirements beyond the control of the disclosing Party.

Despite Subsection ‎14.12(a), the Provider can list the Practice as a customer and describe in general terms the Services provided by the Provider under this Agreement in proposals and other marketing materials.

Entire agreement: This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement.

Superseding documents: This Agreement supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter of this Agreement.

Deemed modification: If any provision of the Agreement is or becomes illegal, unenforceable or invalid, the relevant provision must be deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.

Deemed severance: If modification under the above Subsection is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.

Interpretation:

“Parties” means the Parties to this Agreement and “Party” means one of the Parties.

All references in this Agreement to “Articles,” “Sections,” and “Schedule” refer to the articles, sections, and schedules of this Agreement.

The table of contents, background section and any section, schedule or other headings in this Agreement are included for convenience only and do not affect the interpretation of this Agreement.

The word “including” is not intended to be exclusive and means “including, but not limited to” and the word “or” is not intended to indicate exclusivity.

If a word or expression is defined in a Section, the word or expression will bear the meaning assigned to such word or expression throughout this Agreement.

An expression which denotes:

Any gender includes the other genders;

A natural person includes a juristic person and vice versa; and

The singular includes the plural and vice versa;

When reference is made to a specific time, the applicable time zone is SAST.

When reference is made to days, it means calendar days and when calculating days and the last day falls on a Saturday, Sunday, or a public holiday, the last day will be the next succeeding business day.

Unless otherwise provided, a reference to a law is a reference to it as amended, extended or re-enacted from time to time, provided that, as between the Parties, no such amendment, extension or re-enactment made after the date of this Agreement will apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any Party.

A reference to a month or months is a reference to a period starting on one day in a calendar month and ending on the day preceding the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:

if the numerically corresponding day is not a business day, the period will end on the next business day in that month (if there is one) or the preceding business day (if there is not); and

if there is no numerically corresponding day in that month, that period will end on the last business day of that month;