CGM MEDISTAR CUSTOMER AGREEMENT  

These Terms and Conditions apply to the Agreement between You and CompuGroup Medical South Africa (Pty) Ltd (“CGM”) regarding CGM’s Medistar Service as ordered by You. You need to agree to these Terms and Conditions for CGM to provide Medistar Services to You. 

1.       DEFINITIONS

1.1 "Activation Date" means the day when the scheduled training session takes place. 

1.2 “Agreement” means the agreement for the provision of Medistar Services to You by CGM, as embodied in Your CGM Medistar Contract and these Terms and Conditions. 

1.3 “Authorised Users” means You and employees of Your practice that CGM has registered as users of Medistar, and to whom CGM has granted access to the Service. The number of concurrent Authorised Users is limited to the number specified in Your CGM Medistar Contract. On request, CGM will change, add or remove a named Authorised User for You, and adjust Your monthly invoice accordingly. 

1.4 "Parties” means You and CGM, with “Party” referring to either of these two. 

1.5 “Practice Data” means Your name, HPCSA number, Identity number, practice number, practice address and contact details. 

1.6 “Services” means the provision of Medistar software for use by Authorised Users. This is a cloud-based service, accessed by Authorised Users via a supported web browser. 

1.7 “You” and “Your” refers to the individual or entity that placed the order for Medistar with CGM.  

1.8 “Your Order” is the order for the Medistar Services included in your CGM Medistar Contract. 

1.9 “Your Data” means all text, files, images, graphics, illustrations, information, data (including Personal Information as defined in the Protection of Personal Information Act of 2013), audio, video, photographs, and other content and material in any format, provided by You or Your Patients that reside in, or run on or through, the Services Environment. 

2.       RIGHTS OF USE

2.1 Authorised Users receive the non-exclusive right, for the term of this Agreement to use the Services within Your practice. 

2.2 Authorised Users may not transfer this right of use. 

2.3 An Authorised User sign on may only be used by the person who has been registered with CGM.  

2.4 You must contact CGM within 5 working days regarding any changes to Authorised Users via support.sa.za@cgm.com or using the CGM Helpdesk at +27 (0)86 1633 334. 

2.5 In the event of an unauthorised transfer of use, You must immediately provide CGM with all information required to assert claims against the unauthorised user, in particular his/her name and address. 

2.6 If Authorised Users’ use of the Services is impaired by third party property rights through no fault of CGM, CGM is entitled to offer an alternative or to refuse the Services affected thereby. CGM will inform You of this immediately and enable You to access Your Data in a suitable manner. If CGM does not offer You an equivalent alternative, You will not be obliged to pay. Your other claims and rights remain unaffected.  

2.7 All intellectual property rights to the Service are owned exclusively by CGM. 

2.8 Authorised Users may not, and You may not allow any third party to access the source code of Medistar, to alter Medistar in any way, or to attempt to extract Your Data from Medistar. Doing so may result in accidental damage to or deletion of Your Data. 

3.       TERM AND TERMINATION

3.1 The Agreement period begins on date of last Party signing and continues on a month-to-month basis unless cancelled in writing with one calendar month's notice from either Party.  

3.2 Receipt of the notice of termination by the recipient is decisive for the timeliness of the termination. 

3.3 The termination of Your Medistar Service does not affect any existing Agreement You may have for any other CGM Service. 

3.4 The termination must be in writing and can be send via e-mail to accounts.za@cgm.com. 

3.5 A termination issued by CGM becomes effective when it is sent to the last e-mail address given by You. 

3.6 When the termination takes effect, the Authorised Users’ ability to use the Services ends. 

3.7 On request, CGM will allow Authorised Users read-only access to Your Data after termination, and will extract Your Data and provide it to You in a readable format at a cost to be determined depending on the size of Your database. 

3.8 We will save a copy of Your Data for a maximum of 1 (one) month after termination before deleting it unless otherwise required by law.  

3.9 If You are a consumer in terms of the Consumer Protection Act, No. 68 of 2008, and this Agreement was concluded by way of direct marketing as defined in that Act, then You may cancel this Agreement in writing without penalty within 5 business days of concluding this Agreement.  

4.       PAYMENT 

4.1 The first payment is due at the end of the first service month following the Activation Date.  

    4.1.1 If Activation Date is on or before the 15th of the month, then the first service month is that same month. 

    4.1.2 If Activation Date is after 15th of the month, then the first service month is the next month. 

4.2 For the use of the Services commissioned by You in Your Order, You agree to pay CGM. The fee shall be debited against Your account as authorised in Your Order. The Debit Order direct debit is collected by CGM monthly in arrears. 

4.3 CGM can increase its fees for the use of the Services from time to time in line with general price developments (consumer price index) and/or due to external costs that are not foreseeable now (e.g., due to procurement costs, a changed legal situation, etc.). If an increase takes place, it will be not more than once a year and will be announced at least eight weeks in advance.  

4.4 The withholding of payments due to counterclaims by You is not permitted unless such counterclaims have been legally established or recognized by CGM. The same applies to offsetting against such counterclaims. 

4.5 CGM can suspend the fulfilment of its obligations if You will not or cannot perform a substantial part of Your obligations:  

    4.5.1 because of a serious lack of Your ability to fulfil the Agreement or Your lack of creditworthiness; or  

    4.5.2 because of Your behaviour in preparation for the fulfilment, or in the fulfilment of the Agreement. 

5.       INFRASTRUCTURE REQUIREMENTS AND SET-UP 

5.1 Your connection to the Internet, maintenance of the network connection, as well as the procurement and provision of the hardware and software required by You to use the Services is Your responsibility, unless You have explicitly contracted with CGM for provision of any such infrastructural support.  

5.2 You must ensure that you have adequate data capacity and data speed to access the Services.  

5.3 CGM will provide You with access to the Services by providing login details to Your Medistar account on completion of the Set-up. 

5.4 CGM will use all reasonable endeavours to ensure that Set-Up is completed timeously and in accordance with the details you provide in writing. 

5.5 CGM will not be liable for any delay caused by Your failure to fulfil your Set-Up obligations timeously. 

6.       MAINTENANCE AND MONITORING 

6.1 CGM regularly carries out maintenance work (“General Maintenance Work”) on its servers to ensure the security of network operations, to maintain network integrity, interoperability of Services, and data security.  

6.2 If possible, CGM will carry out General Maintenance Work during periods of low usage (i.e., at night and on weekends).  

6.3 CGM will notify Authorised Users of its plans to carry out the General Maintenance Work - as far as possible - with appropriate advance notice. 

6.4 To monitor server availability, CGM will ping the HTTP service on the server by retrieving HTTP headers every 5 minutes with a 30-second threshold. If an HTTP service does not respond, the server is considered non-operational and is automatically rebooted. If rebooting the server does not solve the problem, it is immediately escalated to the support centre. In cases where two or more consecutive HTTP tests fail, the server downtime will be registered as the number of minutes between the first and the last failed tests. Downtime of less than 5 minutes in duration is not recorded. CGM calculates server uptime based on this type of server monitoring. 

6.5 The availability of the Services will average 95% per month ("Operating Time").  

7.       SUPPORT

7.1 All logged support requests to the CGM Helpdesk at support.sa.za@cgm.com or +27 (0)86 1633 334 will receive a response based on assigned priority.  

7.2 The following response times are for queries which require support relating to the Authorised Users use of MEDISTAR: 

Please note that CGM reserves the right to change the criticality and priority level of a reported issue. CGM may decide to split an initial issue into several components, or to group similar issues to be resolved in a timeline appropriate to that categorisation.  

Response time: Once CGM is contacted, this is the time within which CGM will take to engage with You to get clarification regarding the issue that has been reported, so that CGM can work on resolving it. This could be an email or in-app notification when it is a general issue for all users. 

Feedback time: This is the time within which CGM will revert to You regarding the plan for resolution, further feedback, and an initial estimate of resolution time. This could be an email or in-app notification when it is a general issue for all users. 

Resolution time: The time within which CGM will endeavour to resolve the issue that has been reported. Should this timeline not be achievable, CGM will communicate the reason for this and give regular feedback. 

8.       YOUR DUTY TO CO-OPERATE

8.1 You agree to co-operate with CGM to make Authorised Users available for any agreed configuration, activation, and training relating to the Services. 

8.2 If an Authorised User encounters a problem with the application and contacts CGM for support, they must be willing to allow a CGM support staff member to access their computer in share screen mode for the purpose of resolving the problem. They must be willing to co-operate with the CGM support staff member in the active session and follow instructions where necessary. 

8.3 If a third party asserts against You that Medistar violates his/her rights, You are obliged to inform CGM of this immediately and to hand over the documents on which this claim is based to CGM. Insofar as this is permissible, You shall leave it to CGM to address the asserted claims at its own expense. 

8.4 You are still obliged to fulfil Your statutory retention requirements for all information not stored on Medistar. 

9.       LIABILITY

9.1 Liability is limited to wilful and grossly negligent behaviour by CGM, its legal representatives and vicarious agents, to a limit of R50,000.00 (fifty thousand rands). 

9.2 CGM is not liable if third parties assert claims against You because You have not obtained any required declaration of consent from a patient. If damage is claimed by third parties in this respect, You shall indemnify CGM in this respect. 

9.3 CGM is not liable for the accuracy or availability of any information or service supplied by third parties that Authorised Users may access via CGM. Such third-party services include, but are not limited to the pricing of medicines and consumables, claims data from medical schemes, and up-time of third-party services. 

10.    PRIVACY AND DATA SECURITY

10.1 CGM warrants that its software Services are supplied to You virus-free.  

10.2 CGM will use encryption techniques to prevent unauthorized access to Your data when it is stationary and in transit, as far as this is possible with reasonable economic and technical effort. CGM has installed the latest secure socket layer (SSL) 128-bit encryption.  

10.3 You accept that You alone are responsible for the content, integrity, and security of Your own patients’ data that is stored on Your personal computer systems.  

10.4 You accept responsibility to ensure that only virus-free data and content are transmitted by Authorised Users at Your practice.  

10.5 You accept responsibility for ensuring that Your database security and Cybersecurity software is up to date and functioning correctly on Your personal computer systems. In this instance, Cybersecurity means all physical and electronic measures designed to protect electronic data from malicious attack from third parties, including the employment of anti-virus, anti-malware, and encryption software.  

10.6 You are aware and hereby acknowledge that complete protection against harmful data is not possible.  

10.7 If a risk to the system cannot be eliminated technically and/or economically in any other way, CGM is entitled to delete any data with damaging content, including Your Data.  

10.8 The functionality of some CGM Services depends on use of certain third-party products. CGM does not guarantee that any third-party software will meet Your needs, or that this software will function under Your chosen conditions. CGM is not liable for any damage or loss resulting from Your usage of or inability to use third-party software and hosting platforms. CGM also cannot accept liability for the Cybersecurity status of any software products or storage plug-ins which You may independently purchase from a third party. 

10.9 CGM has strict service level agreements with its internet service provider to ensure best possible uptime of its Cloud Services and protection from cyber-attacks. 

10.10 Delivery of some Services necessitates CGM sharing elements of Your Practice Data with third parties who participate in provision of those Services. CGM shares the minimum quantity of Practice Data necessary to serve the particular purpose. CGM has written agreements in place with all such third parties to protect the processing of Your Practice Data. By accepting these terms and conditions, You agree to such limited sharing of Your Practice Data.   

10.11 To read CGM's Privacy Notice, click here. 

11.    FORCE MAJEURE 

11.1 The Parties are released from the obligation to perform under this Agreement if and to the extent that the non-performance of Services is due to force. 

11.2 Force majeure circumstances include wars, strikes, unrest, expropriations, changes in law, storms, floods, and other natural disasters as well as other circumstances for which the Parties are not responsible. 

11.3 Each Party must inform the other Party immediately and in writing of the occurrence of a force majeure event. 

12.    DISPUTE RESOLUTION

12.1 Any dispute, question or difference arising at any time between the Parties regarding this Agreement shall be discussed between the Parties who will attempt, in good faith, to resolve such dispute. 

12.2 Should the Parties fail to resolve the dispute, it may be referred for arbitration as set out below.  

12.3 Any such arbitration shall be held in Cape Town in accordance with the provisions of the Arbitration Act No. 42 of 1965, as amended.  

12.4 The arbitrator shall be appointed by the Parties, and failing agreement, shall be nominated by the Chairman for the time being of the Cape Town Bar Council. 

12.5 The arbitrator shall be entitled to: 

     12.5.1 determine and settle the formalities and procedures, which shall be in an informal and summary manner, that is, it      shall not be necessary to observe or carry out either the usual formalities or procedure or the strict rules of evidence; 

     12.5 2 investigate or cause to be investigated any matter, fact, or thing which the arbitrator considers necessary or            desirable in connection with any matter referred to him or her for decision; 

     12.5.3 decide the matters submitted to the arbitrator according to what he or she considers just and equitable in all the      circumstances, having regard to the purpose of this Agreement;  and 

     12.5.4 make such award, including an award for specific performance, an interdict, damages or a penalty or the costs of      arbitration or otherwise as the arbitrator in his or her discretion may deem fit and appropriate. 

12.6 The arbitration shall be held as promptly as possible after it is agreed between the Parties, with a view to it being completed within 30 (thirty) days. 

12.7 The Parties agree that the decision of the arbitrator shall be final and binding. 

12.8 Nothing contained in this clause shall preclude either Party from seeking relief of an interim or urgent nature in any Court of competent jurisdiction. 

12.9 This clause is severable from the rest of the Agreement and shall therefore remain in effect even if this Agreement is terminated. 

13.    GENERAL

13.1 This Agreement shall be governed by the laws of South Africa, and shall be subject to the jurisdiction of the High Court of South Africa (Western Cape Division).  

13.2 By being a Party to this Agreement You consent to personal information being transmitted, stored, and processed outside South Africa by CGM only as permitted in terms of section 71 of POPIA. 

13.3 You consent to CGM forwarding Your Practice Data to a credit bureau to obtain a credit report about You, and to CGM having the right to refuse to accept this Agreement if You do not pass CGM's credit check. 

13.4 Should any provision of these Terms and Conditions be or become void, the validity of the other provisions shall remain unaffected. 

13.5 CGM can make changes to these Terms and Conditions. 

13.6 Changes to these Terms and Conditions by CGM become effective and binding upon You if CGM sends the changed Terms and Conditions to You for information and You have not raised an objection to their contractual inclusion within eight weeks. 

13.7 Changes and additions to the Agreement including the Terms and Conditions must be made in writing.  

13.8 Changes and additions to the terms and conditions can also be agreed in electronic form via the CGM portal, and they become effective when You accept the respective changes. 

13.9 CGM may, on written notice to You, cede all or part of its rights and obligations in this Agreement to a third party. 

13.10 Any latitude in enforcement of the terms of this Agreement by either Party will not prevent strict enforcement of such terms on a later occasion. 

13.11 The relationship between You and CGM is that of independent contractors, and this Agreement creates no partnership or joint venture, and does not render either Party as the other's agent, employee, or representative. 

13.12 When You register for Link2Pay You will be directed to the applicable additional terms and conditions of Nexion, the company which owns Link2Pay. 

13.13 The Parties choose as notice addresses the addresses recorded in Your CGM Medistar Contract.