Payscript Service Level Agreement: Terms And Conditions

PAYSCRIPT SERVICE LEVEL AGREEMENT: TERMS AND CONDITIONS

AGREEMENT BETWEEN PAYSCRIPT (PTY) LTD (“PAYSCRIPT”) AND THE PRACTITIONER (“CLIENT”)

DEFINITIONS

For the purpose of this Agreement, unless the context indicate otherwise,

Clause headings are for convenience only and shall not be used in its interpretation;
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;
The following words shall bear the meanings assigned to them below and similar expressions bear corresponding meanings:
- “Agreement” means the Agreement set out in this document together with any annexure and/or attachment hereto;
- “Business day” means any day other than a Saturday, Sunday or a public holiday in the Republic of South Africa;
- “Claim” means a single script send by the doctor to a patient which is submitted to Payscript for processing in a single instance;
- “Commencement Date” means the date indicated by the Client as the Agreement Start Date on the Client Application Form;
- “Application” means all Software owned and developed by Payscript or licenced to Payscript;
- “Hardware” means the Client's mobile device, tablet or computer system existing as at the date of use of Payscript and includes, but is not limited to, all hardware, servers and workstations on which Payscript will be installed and used;
- “Help Desk Support” means telephonic and email support Services provided by Payscript to the Client;
- “Intellectual Property” means all intellectual property of every nature whatever relating to Payscript,, including any rights to the trademarks, trade secrets, logos, systems methods, marks, trade names, styles, insignias, design, patents and copyright relating to Payscript, whether registered or not;
- “License” means the license to use Payscript in terms of this Agreement;
- “License Fee” means the annual license fee payable to Payscript, where applicable;
- “Payscript” means Payscript (Proprietary) Limited, a company duly incorporated in terms of the Companies Act, Act No 71 of 2008 (as amended), with company registration number 2020/065715/07;
- “Party” means a party to this Agreement;
- “Prime Rate” means the prime bank overdraft rate as charged by Firstrand Bank to its corporate customers in respect of overdraft facilities, calculated and compounded monthly in arrear, as certified by any manager of such bank whose appointment it shall not be necessary to prove;
- “Service” means the prescription creation, payment and distribution services, as the case may be, provided by Payscript to the Client;
- “Application” means the Paysript application used under licence by the client, and includes:
  - All upgrades, enhancements and modifications to the Application developed from time to time;
  - The Intellectual Property; and
  - The User Guide Documentation, as may be published and amended from time to time.
- “Specifications” means the specifications of the features and facilities of the Application;
- “User Guide Documentation” means the instruction manuals, user guides, training manuals and other information in respect to the use of the Application as supplied by Payscript to the Client, either in printed, electronic or machine readable form and as may be amended from time to time;
- “VAT” means value-added tax as levied in terms of the Value-Added Tax Act, Act No 89 of 1991 (as amended).

INTRODUCTION
- Payscript is a mobile application owned by Payscript (Pty) Ltd.
- Payscript undertakes to provide to Client the Services on the terms and conditions set out in this Agreement.

LICENSE TO USE SOFTWARE
- Payscript will, on behalf of the Client, do a verification of the Client, and will grant access to the Client for use the The Client will have access to use the Application for the duration of this Agreement.

DURATION AND TERMINATION
- Notwithstanding the signature date by the respective Parties, this Agreement shall take effect on the Commencement Date and shall continue for an indefinite period.
- This Agreement may be terminated by either Party by giving at least 30 (thirty) days written notice of termination to the other Party, which notice may be given at any time.
- Payscript retains ownership of the data at all times and have no obligation to return of any of the data to the Client after cancellation of the agreement.

FEES AND PAYMENT
- In consideration for the Services, including support and maintenance services, the Client shall pay to Payscript the applicable agreed percentage per successfully paid script / form issued by the
- Payscript agrees to make Electronic Fund Transfer payments to the client unless Payscript agrees to an alternative payment method.
- All monthly fees payable in terms of this Agreement shall be payable by means of deduction/set-off from the payment of successful transactions processed by means of the Payscript application to the Client.
- Payments to the client will occur every 14 days on a date determined by Payscript (Pty) Ltd from time to time.
- All fees payable in terms of this Agreement are exclusive of VAT.
- Payscript may, on an annual basis, review the fee payable by the Client provided that Payscript gives the Client 30 (thirty) days’ written notice of its intention to do so. If the Client does not notify Payscript to the contrary within the aforesaid notice period of 30 (thirty) days, it shall be deemed to have accepted the increased Service

LICENSE RESTRICTIONS
- The Client agrees that it will not itself, or through any third party:
  - Copy, reproduce, translate, adapt, vary, modify, sell, lease, sublicense, encumber or in any other way deal with the Application or any component of the Application;
  - De-compile, disassemble or reverse engineer any portion of the Application;
  - Write and/or develop any derivative product or any other program based on the Application and or User Documentation;
  - Provide, disclose, divulge or make available to or permit use of the Application otherwise than in terms of this Agreement.

CLIENT'S RIGHTS AND OBLIGATIONS
- The Client undertakes that for the duration of this Agreement it shall:
  - Immediately bring to the attention of Payscript any improper or wrongful use or infringement of the Intellectual Property rights which come to the attention of the Client and shall use every effort to safeguard such Intellectual Property rights and interests of Payscript;
  - Not disclose any confidential (business, technical or financial) information to any competitor of Payscript without the specific and prior written consent of Payscript
  - Not make any representation or warranty in respect of the Application other than those authorised in writing by the developers, Payscript, as the case may be, or not given in respect of the Application in authorised advertising or User Documentation, and the Client hereby indemnifies Payscript and its directors and employees against any loss, damage (whether direct, indirect or consequential), expense or liability which Client may sustain pursuant to a breach of the provisions of this clause;
  - Not make the Application available to any third party other than the Client's employees who are authorised to use the Application on the terms and conditions of this Agreement;
  - Accept responsibility for the supervision, management and control of the Application;
  - Maintain the minimum information technology requirements (e.g. connectivity, software and Hardware) that are needed for the optimal utilisation of the At its own cost provide its own Hardware, additional software and all other equipment necessary to allow the successful installation and implementation of the Application according to the Specifications;
  - Comply with all its obligations in terms of this Agreement;
  - Select only suitably trained staff for operation of the Application;
  - Use its particular access code for its own business use only and not disclose such access code to any other person for any reason whatsoever and maintain the confidentiality thereof.

SUPPORT SERVICES
- Payscript shall endeavour to provide the following support and maintenance services to the Client in respect of the Application:
  - Help Desk Support in terms of which Payscript shall provide suitably qualified personnel to respond to and assist in the solving of queries of the Client in regard to the Services and Application. The Help Desk Support shall be available

from 08:00 to 16:30 Monday to Friday for the duration of this Agreement but specifically excludes Saturdays, Sundays and Public holidays recognised in the Republic of South Africa.

PAYSCRIPT'S RIGHTS AND OBLIGATIONS
- Payscript shall not be responsible for and shall not be obliged to correct errors and mistakes which result from:
  - Failure of equipment or other software, including, but not limited to device operating systems and software, third party applications not installed by Payscript and which are not covered by this Agreement, including faults in equipment and operator error from whatever cause;
  - Environmental conditions including, but not limited to, conditions associated with humidity and air-conditioning;
  - Accident, negligence, misuse or default by the Client or any third party or due to a force majeure or vis major.
- In the event of any potential risk of a confidentiality breach, Payscript has the right and may, in its sole discretion, immediately prohibit the Client from all access to and usage of the Application.

WARRANTIES AND INDEMNITY
- No warranties, whether express, implied in law or residual, including, without limitation, the warranties of merchantability and fitness of the Application for a particular purpose, are made by
- The Client indemnifies Payscript and its directors and employees against all loss, liability, damage or expense (whether actual, contingent or otherwise), which the Client or any third party may suffer as a result of or which may be attributable to the provisions of this Agreement.
- Notwithstanding anything to the contrary, Payscript shall not be liable to the Client or any third party in any circumstances whatsoever for any direct, indirect, contingent, consequential, punitive and/or exemplary loss (including but not limited to loss of revenue, loss of business, loss of profit or loss of data) sustained or incurred by the Client or any third party, howsoever arising.
- Payscript specifically does not warrant or guarantee or make any representations concerning the use of or the result of the use of the Application and the Application is purchased and used at the sole risk of the Client.

TRADE MARK INFRINGEMENT
- The Client shall forthwith notify Payscript if any claim or demand is made or action brought against it for infringement or alleged infringement of any of the Intellectual Property
- The Client shall afford to Payscript all necessary assistance for the purpose of contesting any such claim or demand made or action brought for infringement or alleged infringement of any Intellectual Property rights in connection with the Application and the User Documentation.
- In the event that such an infringement has occurred Payscript shall, at its sole discretion either procure for the Client the right to continue using the Software, or, replace same, so that there is no further infringement.

SUMMARY TERMINATION
- This Agreement may be summarily terminated by the other Party if –
  - The defaulting party compromises or attempts to compromise generally with its creditors;
  - The defaulting party is placed under a winding-up order or judicial management or similar disability whether provisional or final, voluntary or compulsorily;
  - The defaulting party allowing any default judgment to be entered against it and failing within 21 (twenty one) days of becoming aware of such judgment,
    - To satisfy same; or
    - To apply for it to be set aside, and such judgment not subsequently being set aside within a reasonable time.
  - The Client fails to pay any amount due to Payscript in terms of this Agreement.
- The aggrieved party shall exercise its rights to summarily terminate this Agreement pursuant to (and without affecting its other remedies in law) by giving written notice to that effect to the defaulting party, which notice shall specify the event/s giving rise to termination and the effective date of termination, which date may not precede the date of the defaulting party's receipt of such notice.

BREACH
- Notwithstanding any other provision of this Agreement, should either Party (“the defaulting party”) commit a material breach of any provision of this Agreement and fail to remedy such breach within 21 (twenty-one) days of receiving written notice from the aggrieved party requiring it to do so, then the aggrieved party shall be entitled, without prejudice to its other rights in law, to terminate this Agreement or to claim immediate specific performance of all of the defaulting party's obligations whether or not due for performance, in either event without prejudice to the aggrieved party's right to claim damages.

RIGHTS OF TERMINATION
- Notwithstanding any other provision of this Agreement, on termination of this Agreement for any reason whatsoever ('termination date”) –
  - The Client shall immediately cease using the Application; and
  - Any amount due and owing by the Client to Payscript shall immediately be paid to Payscript.

CESSIONS AND ASSIGNMENT
- The Client shall not be entitled to cede, assign or transfer all or any of its rights and/or obligations in terms of this Agreement, save with the prior written consent of

RELATIONSHIP
- Nothing in this Agreement shall create any relationship of agency, partnership or joint venture between Payscript and the Client, and the Client shall not hold itself out as the agent or partner of Payscript or as being in a joint venture with Payscript.

DOMICILIUM AND NOTICES
- Each of the parties chooses domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purpose arising from this Agreement as follows –

Payscript -

Email: [email protected]

Contact Person: Izelle Matthee

Address: 713 Rubenstein Road, Moreleta Park

Postal code: 0044

The Client - The physical address, fax number, email address and contact person as set out in the Client Application Form

Each of the Parties shall be entitled from time, by written notice to the other, to amend its domicilium to any other address which is not a post office box and/or to amend its fax number and/or to amend its email address.
Any notice given and any payment made by either Party to the other (“the addressee”) which:
- Is delivered by hand during the normal business hours of the addressee at the addressee's domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;
- Is posted by prepaid registered post to the addressee's domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the seventh day after the date of posting.
- Any notice which is sent by fax and/or email during the normal business hours of the addressee to the addressee's domicilium for the time being, shall be presumed, until the contrary is proved by the addressee, to have been received on the first Business Day on which the fax and/or email was transmitted.

FORCE MAJEURE AND VIS MAJOR
- If either party is prevented from carrying out any of its obligations as a result of force majeure, vis major or an act of God, strike, fire, riot, war (whether declared or not) embargoes, export control, international restrictions, shortage of transport facilities, any order of any international authority, and court order, any requirements of any authority or other competent local authority, or any other circumstances whatsoever which are not within the reasonable control of such Party, will be deemed to have been released from its obligation to perform under this Agreement to the extent that and for so long as it is prevented from performing and this Agreement will be deemed to have been suspended to such extent and for the period concerned.
- As soon as a Party becomes aware that an act of force majeure or vis major is likely to cause a suspension of this Agreement, it shall give notice in writing to the other Party, estimating the approximate duration of such suspension. The estimate shall not be binding and the Party claiming force majeure shall –
  - Use its best endeavours to terminate the circumstances giving rise to the force majeure or vis major; and
  - Give notice to the other Party as soon as the force majeure or vis major ceases to operate.

APPLICABLE LAW AND JURISDICTION
- The Client, by his/her/its signature hereto and in terms of the provisions of Section 45 of the Magistrate's Court Act No 32 of 1944, as amended, consents to the jurisdiction of the Magistrate's Court in relation to any action or proceeding instituted against the Client in terms of, or arising out of provisions of this Agreement, provided that Payscript, in its sole and absolute discretion, shall be entitled to institute any such actions or proceedings, in any division of the High Court of South Africa possessed of the requisite jurisdiction.
- In the event of Payscript instituting legal proceedings against the Client to recover amounts due to Payscript or take any other legal steps arising out of this Agreement, the Client shall be liable for legal costs on the scale as between attorney and own client and/or any collection costs.

NON-SOLICITATION
- Neither Party shall during the tenure of this Agreement, or for a period of 12 (twelve) months following the termination thereof, directly or indirectly solicit or offer employment to any of the personnel of the other Party, and shall not employ or contract in any manner with any personnel of the other Party.

GENERAL
- This Agreement constitutes the whole Agreement between the parties in regard to the subject matter thereof. Neither Party shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein or reduced herein or reduced to writing and signed by the parties or their duly authorised representatives.
- No addition to, variation, or agreed cancellation of this Agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties.
- No indulgence that either Party may grant to the other shall constitute a waiver of any of the rights of the grantor.
- This Agreement and all matters or disputes arising there from or incidental thereto shall be governed and construed in accordance with the laws of the Republic of South Africa.
- All provisions of this Agreement shall be independent of each other and deletion from or the invalidity of any such provision or schedule shall not affect the remainder of this Agreement.
- If any provision hereof is held to be illegal, invalid or unenforceable for any reason, such provision shall be deemed to be pro non scripto, but without affecting, impairing or invalidation any of the remaining provisions of this Agreement which shall continue to be of full force and effect.