1. RECORDAL AND INTRODUCTION
1.1. Whereas the Medical Legal Expert has appointed FundaMedical to act on his/her/its behalf as a lawfully appointed agent and assist with the provision of Administration Services to be executed during the course and scope rendering Medical Legal Services to the Attorney, in terms of the Instruction received in relation to a Personal Injury Claim.
1.2. This Agreement between FundaMedical and the Attorney, is automatically entered into between the Parties when the Attorney accesses FundaFree and/or gives FundaMedical / the Medical Legal Expert an Instruction.
1.3. This Agreement must, where applicable, be read in conjunction with the most recent agreement entered into between the Parties. If there is inconsistency between the terms of the current agreement(s) in place between the Parties, then the terms of this Agreement will supercede and replace such agreement.
2. DEFINITIONS AND INTERPRETATION
2.1. The following definitions shall find application within this Agreement: –
2.1.1. “Administration Services” shall mean the full scope of services to be provided by FundaMedical to the Medical Legal Expert as amended and published on FundaFree from time to time.
2.1.2. “Affiliate” shall mean, in relation to any Party, any person that is controlled by that Party, controls that Party, or is under common control with that Party.
2.1.3. “Agreement” shall mean this agreement as well as any ancillary documents referred to in it.
2.1.4. “Attorney” shall mean the user of FundaFree, which is owned and operated by FundaMedical.
2.1.5. “Business Day” shall mean shall mean any day that the Attorney conducts its business at its premises between 08:00 and 17:00 with the exclusion of Saturdays, Sundays and proclaimed Public Holidays.
2.1.6. “Calendar Day” shall mean all 24 (twenty-four) hour days commencing at midnight (00:00) which shall include Saturdays, Sundays and proclaimed Public Holidays.
2.1.7. “Commencement Date” shall mean the Effective Date.
2.1.8. “Confidential Information” shall mean all information disclosed by the Disclosing Party to the Receiving Party, including, without limitation: –
2.1.8.1. the contents of this Agreement;
2.1.8.2. information concerning its or its Affiliates’ business practices, businesses, clients, contracts, customers, financial condition, intellectual property (whether registered or unregistered), know-how, markets, operations, products, projections, research and development, trade secrets, strategies and prospects;
2.1.8.3. any other information of a confidential nature which is not generally available to outside parties or in the public domain or which would be understood, exercising reasonable business judgment, to be confidential but does not include information which (i) or becomes generally available to or known by the public through no action of the Receiving Party or any of its representatives, (ii) is or becomes available to the Receiving Party or any of its representatives on a non-confidential basis from a person other than the Disclosing Party or its representatives, (iii) was available to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party or its representatives or (iv) has been independently acquired or developed by the Receiving Party or any of its representatives without violating any of its obligations under this Agreement.
2.1.9. “Data” shall mean any form of information in relation to either of the Parties, Data Subjects, Proprietary information and/or Confidential Information that is processed or stored by either of the Parties. The information as aforesaid may include but not be limited to any binary data, text documents, images, audio clips, software programs or other types of data.
2.1.10. “Data Subjects” shall mean (i) FundaMedical or the Attorney as a company, (ii) FundaMedical’s or the Attorney’s business operations, (iii) FundaMedical’s or the Attorney’s staff and/or authorised representatives and/or independent contractors and/or (iv) the Patients.
2.1.11. “Deposit” shall mean the upfront payment to be made by the Attorney to FundaMedical in accordance with the Fee Schedule.
2.1.12. “Effective Date” shall mean the date last in time upon which one of the Parties signs this Agreement, which upon signature shall render this Agreement effective and enforceable between the Parties.
2.1.13. “Entity” shall mean any legally recognized entity or person, that is not either the Attorney, FundaMedical or the Patient.
2.1.14. “Event of Default” shall mean any of the following events: –
2.1.14.1. The Attorney failing to transfer to FundaMedical the funds due, owing and payable for the Medical Legal Services rendered by the Medical Experts to the Attorney in respect of the Patient, in accordance with the provisions of this Agreement;
2.1.14.2. Either Party is deemed for the purposes of any applicable law to be unable to pay its debts as they fall due, admits its inability to pay its debts as they fall due, suspends making payments on any of its debts or announces an intention to do so or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to the rescheduling, restructuring or compromise of any of their indebtedness;
2.1.14.3. the value of the assets of either Party is less than its liabilities (taking into account contingent and prospective liabilities;
2.1.14.4. a moratorium is declared, instituted or takes effect in respect of any of the indebtedness of either Party (in which event the ending of the moratorium will not remedy any Event of Default caused by that moratorium);
2.1.14.5. any corporate action, legal proceedings or other procedure or step (including an application to court, proposal or convening of a meeting) is taken with a view to (i) arrange a composition, compromise, assignment or arrangement with any creditor of either Party and/or (ii) arrange the appointment of a liquidator, receiver, administrator, judicial manager, business rescue practitioner or other similar officer in respect of either Party or any of its assets.
2.1.15. “Fee Schedule” shall mean the fee schedule as published and amended from time to time by FundaMedical. This fee schedule shall be the default position unless otherwise agreed between the Parties.
2.1.16. “Financing Arrangement” shall mean any form of agreement and/or arrangement made in terms of which FundaMedical will, in terms of the agency relationship with and mandate given by the Medical Legal Expert, be entitled to realise a monetary amount in respect of the Recommended Price Invoice. An example of the aforesaid includes but is not limited to the cession and sale of the Recommended Price Invoice to a third party. For the avoidance of doubt, the list of potential arrangements and/or agreements to be reached in respect thereof are not exhaustive in nature.
2.1.17. “Force Majeure” shall mean (i) an exceptional event or circumstance beyond a Party’s control, (ii) which could not have reasonably foreseen or provided for before entering into this Agreement and (iii) which having arisen could not reasonably have been avoided or overcome.
Such exceptional events or circumstances shall include but not be limited to war, hostilities (whether war is declared or not), invasion, acts of foreign enemies, rebellion, terrorism, revolution, insurrection, military or usurped power, civil war, riot, commotion, disorder, strike or lockout by the employees of either FundaMedical and/or the Attorney, industrial action, munitions of war, explosive materials and natural catastrophes such as earthquake, hurricane, typhoon or volcanic activity as well as Stage 2 or any greater frequency of load-shedding by Eskom SOC Ltd.
2.1.18. “FundaMedical” shall mean Fundamedical Management (Pty) Ltd, with registration number 2001/007947/07, a private company duly incorporated in accordance with the relevant laws of the Republic of South Africa, with its registered office and principal place of business being situated at Ground Floor, 3 River Road, Riverview Office Park, Bekker Road, Halfway Gardens, Midrand, Gauteng Province, Republic of South Africa.
2.1.19. “Intellectual Property Rights” shall mean all the rights in and to intellectual property of FundaMedical inclusive of (without limitation) the rights in and to Proprietary Information, 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, copy right, semi-conductor topography rights, database rights and all similar proprietary rights which may subsist in any part of the world, as well as any Confidential Information or processes relating to that subject matter.
2.1.20. “Instruction” shall mean the individual instruction letter that is received by FundaMedical and/or the Medical Legal Expert, wherein the Attorney requests the provision of Medical Legal Services.
2.1.21. “Key Account Manager” shall mean a duly authorized and appointed employee of or independent contractor to FundaMedical, whom will maintain the relationship between the Attorney and FundaMedical.
2.1.22. “Medical Legal Expert” shall mean a professionally registered person or entity rendering Medical Legal Services within his/her/its chosen field of expertise. Examples of fields of expertise include but are not limited to orthopaedic surgery, occupational therapy, physiotherapy, speech and language therapy, neurology, psychology (inclusive of clinical neuropsychology), industrial psychology and/or actuarial services.
2.1.23. “Medical Legal Services” shall mean the expert services that the Medical Legal Expert provides to the Instructing Attorney and/or the Patient, which is inclusive of but not limited to (i) the compilation of medical legal reports inclusive of addendums, (ii) the compilation of joint minutes and (iii) providing expert testimony in respect of the aforesaid.
2.1.24. “Notice” shall mean a written communication excluding any form of social media carrying either the hand signature or electronic signature of the respective author, sent either electronically or delivered by hand by either Party to the other at the receiving Party’s domicilium, which shall, unless otherwise expressly stated herein, be deemed to be received on the Business Day immediately following transmission if electronic and upon receipt if delivered by hand.
2.1.25. “Operational Hours” shall mean all hours wherein FundaMedical and/or the Medical Legal Expert, can perform his/her/its obligations in terms of this Agreement as well as any ancillary agreements with the Attorney. For the avoidance of doubt, Operational Hours as aforesaid, shall mean continual twenty four (24) operational hours of FundaMedical and may include but not be limited to Business Days as well as Saturday, Sunday and/or proclaimed public holidays.
2.1.26. “Patient” shall mean the plaintiff in the legal proceedings being pursued where expert evidence is needed in relation to the nature, extent and permanent effects of a damage causing incident.
2.1.27. “Personal Information” shall mean information relating to the Data Subjects, including but not limited to: –
2.1.27.1. views or opinions of another individual about the Data Subjects;
2.1.27.2. corporate structure, composition and business operations irrespective of whether such information is in the public domain or not;
2.1.27.3. correspondence that is implicitly or expressly of a personal, private or confidential nature (or further correspondence that would reveal the contents of the original correspondence);
2.1.27.4. race, sex, gender, pregnancy status, marital status, nationality, ethnic or social origin, colour, age, physical or mental health, well-being, disability, religion, conscience, belief, cultural affiliation, language and birth;
2.1.27.5. education, medical, financial, criminal or employment history; and
2.1.27.6. names, identity number and/or any other personal identifier, including any number(s), which may uniquely identify Data Subjects.
2.1.28. “Personal Injury Claims” shall mean the legal claim that has been / is to be instituted by the on behalf of the Patient(s) where the Attorney has been appointed as the attorney of record.
2.1.29. “Personnel” shall mean the employees, agents and/or independent contractors of FundaMedical and/or the Medical Legal Experts.
2.1.30. “POPI” shall mean the Protection of Personal Information Act 4 of 2013 (as amended from time to time) and all regulations promulgated in terms thereof.
2.1.31. “Presiding Officer” shall mean the duly appointed or elected official who adjudicates over the legal proceedings that the Patient has instituted.
2.1.32. “Processing” shall mean any operation or activity or any set of operations, whether or not by automatic means, concerning Personal Information, including: –
2.1.32.1. the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use;
2.1.32.2. dissemination by means of transmission, distribution, or making available in any other form by electronic communications or other means; or
2.1.32.3. merging, linking, blocking, degradation, erasure or destruction. “Process” has a corresponding meaning.
2.1.33. “Proprietary Information” shall mean all Confidential Information of FundaMedical, which shall include but not be limited to all workflow processing systems such as the FundaFree Portal along with the relevant viewing systems.
2.1.34. “Recommended Price Invoice” shall mean the invoice that is issued by FundaMedical on behalf of the Medical Legal Expert in respect of the Recommended Retail Price.
2.1.35. “Recommended Retail Price” shall mean the Deposit plus the Settlement Amount as arranged by agreement between FundaMedical and the Attorney from time to time, in respect of the supply of Medical Legal Services as set out within the Fee Schedule. Factors that FundaMedical shall take into account in respect of the formulation of this amount, shall include but not be limited to (i) the geographical region in which the Patient resides, (ii) the circumstances of the Attorney and (iii) the negotiations that FundaMedical conducts on behalf of the Medical Legal Expert.
2.1.36. “Settlement Amount” shall mean the balance of the Recommended Retail Price that remains where a Deposit has been paid.
2.1.37. “Termination Date” shall mean the date upon which this Agreement is lawfully terminated.
2.1.38. “VAT” shall mean the value added tax imposed in terms of section seven (7) of the Value Added Tax Act 89 of 1991 (as amended from time to time).
2.2. The headings of the clauses in this Agreement are for purposes of convenience and reference only and shall not be used in the interpretation, nor modify or amplify the terms of this Agreement nor any clause hereof.
2.3. Unless the contrary intention appears words importing:-
2.3.1. any one gender includes the other gender;
2.3.2. the singular includes the plural and vice versa; and
2.3.3. a natural person includes juristic persons (corporate or unincorporated) and vice versa.
2.4. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.5. References to clauses, and annexures are to the clauses and annexures of this Agreement and references to paragraphs are to paragraphs of the relevant annexures to this Agreement.
2.6. If any provision in a definition is a substantive provision conferring rights or imposing 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.
2.7. When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day is not a Business Day, in which case the last day shall be the next succeeding Business Day.
2.8. Where the day upon or by which any act is required to be performed is not a Business Day, the Parties shall be deemed to have intended to have intended to perform an act upon or by the next succeeding Business Day, unless otherwise stated in this Agreement.
2.9. The rule of construction that if general words or terms are used in association with specific words or terms which are species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (i.e. the eiusdem generis rule) shall not apply, and whenever the word “including” is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given.
2.10. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provided that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
2.11. If any doubt or conflict arises where monetary amounts are indicated, all words reflecting same shall prevail over numbers.
2.12. All monetary amounts are denominated in South African Rand, unless otherwise specified and agreed, and are exclusive of VAT.
2.13. Each of the provisions of this Agreement has been negotiated by the Parties and drafted for the benefit of the Parties, and accordingly, the rule of construction that the contract shall be interpreted against or to the disadvantage of the Party responsible for the drafting and preparation of this Agreement (i.e. the contra proferentem rule), shall not apply.
2.14. If there is any conflict or inconsistency between this Agreement and any other agreement(s) concluded between the Parties, then the terms and conditions of this Agreement shall prevail.
2.15. The termination of this Agreement shall not affect such of the provisions of this Agreement that are expressly provided that they will operate after any such termination or by virtue of necessity, must continue to have effect after such termination, notwithstanding that the clauses themselves do not expressly provide for this.
3. CANCELLATION OF PRIOR ARRANGEMENTS / AGREEMENTS
3.1. The Parties record and agree that any prior arrangements, agreements, undertakings and/or understandings shall be of no force or effect.
3.2. This Agreement is intended to be the sole memorial of the Parties’ rights and obligations vis-â-vis each other and as such, this Agreement shall supercede and replace any arrangement, agreement, undertaking and/or understanding reached/concluded/given.
3.3. It is expressly agreed that the fee arrangements in place in respect of Patient bookings confirmed prior to the Effective Date of this Agreement shall remain of full force and effect.
4. COMMENCEMENT AND DURATION
4.1. This Agreement shall come into force upon (i) the Attorney accessing FundaFree and (ii) the Attorney giving an Instruction. This Agreement shall apply to each and every Instruction received.
5. MEDICAL LEGAL SERVICES TO BE PROVIDED BY MEDICAL LEGAL EXPERTS
5.1. The Medical Legal Expert has appointed FundaMedical as its lawful agent to, inter alia, provide Administration Services in in accordance with the terms and conditions of the agreement into between FundaMedical and the Medical Legal Expert in respect of the Medical Legal Services that the Medical Legal Expert is to provide to the Attorney.
6. WRITTEN INFORMATION AND INSTRUCTIONS RECEIVED BY FUNDAMEDICAL
6.1. The Attorney must, in order to engage FundaMedical and / or the Medical Legal Expert, provide FundaMedical with an Instruction addressed to the Medical Legal Expert to provide Medical Legal Services.
6.2. It is expressly agreed that the Attorney must ensure that the following appears within an Instruction: –
6.2.1. the identity of the Patient must be sufficiently outlined to enable FundaMedical and/or the Medical Legal Expert to easily identify the Patient with sufficient particularity;
6.2.2. identify and specify the scope of the Medical Legal Services required;
6.2.3. contain a reference to the Attorney’s internal file reference number as well as the relevant civil court case number and/or any other unique identification numbers that may be used by either party to the proceedings in relation to that specific Instruction; and
6.2.4. contain all appropriate and necessary supporting documentation to enable FundaMedical and / or the Medical Legal Expert to ensure that the Medical Legal Services are capable of being rendered.
6.3. The Attorney shall be entitled to, at any point prior to the delivery of the Medical Legal Services in respect of an Instruction received by the Medical Legal Expert, alter a prior Instruction received through transmission of an amended Instruction to FundaMedical (“Amended Instruction”). To this end, the Attorney irrevocably accepts that: –
6.3.1. if the execution of the Amended Instruction involves or incurs any additional costs or results in wasted costs being incurred or additional time spent by FundaMedical and/or the Medical Legal Expert, it shall be liable for the said costs in accordance with the provisions of this Agreement; and
6.3.2. neither FundaMedical nor any of the Medical Lega Expert shall be held liable by the Attorney and/or the Patient for damages, losses, adverse costs orders and/or any postponements in respect of the Personal Injury Matters where an Amended Instruction is requested.
6.4. It is expressly agreed that an Instruction will be deemed to have been given by the Attorney when accepted by FundaMedical upon FundaMedical transmitting a confirmation of receipt.
6.5. FundaMedical and/or the Medical Legal Expert will only be in a position to render Medical Legal Services to the Attorney and/or the Patient, if the Attorney , at all material times, uses its very best endeavours to procure and supply information, documents and instructions necessary to deal with the issues at hand. The Medical Legal Experts will rely on the documentation and/or information supplied by the Attorney (whether orally or in writing).
6.6. FundaMedical and/or the Medical Legal Expert will make all reasonable efforts to ensure that the information and documentation received from the Attorney is dealt with appropriately, however, neither FundaMedical nor the Medical Legal Expert will be able to verify the correctness and/or the accuracy of the documentation and information received. Thus, in the absence of any obvious error on face value, information and/or documentation submitted shall be taken as is.
6.7. Neither the Attorney and/or the Patient shall hold FundaMedical and/or the Medical Legal Expert liable in respect of the incompleteness of any information or documentation submitted, its accuracy, its reliability or any representations made by FundaMedical and/or the Medical Legal Expert on the basis of any or all of the aforesaid.
7. CONSIDERATION PAYABLE BY THE ATTORNEY AND PAYMENT TERMS
7.1. The Attorney shall pay to FundaMedical all amounts that are due, owing and payable to the Medical Legal Experts appointed in respect of an Instruction received by FundaMedical on behalf of the Medical Legal Experts. For the avoidance of doubt, the collection of all money due to the Medical Legal Expert in terms of this Agreement, is to be collected by FundaMedical given that the Medical Legal Experts have agreed to and appointed FundaMedical as their lawful agent in the course and scope of rendering Medical Legal Services.
7.2. The consideration that is due, owing and payable by the Attorney to the Medical Legal Experts shall be made in accordance with the Recommended Price Invoice issued in line with the Recommended Retail Price within the Fee Schedule.
7.3. All payments to be made by the Attorney in terms of this Agreement, shall be made in cash and in full, without any form of deduction, set-off or counterclaim and free and clear of any tax and/or other deductions or withholdings or any nature, by electronic funds transfer on the due date for payment and for value on that date, in freely transferable readily available funds, free of the cost of transfer of those funds.
7.4. Payment of all amounts due to the Medical Legal Experts, in terms of this Agreement, shall be made into the bank account nominated by FundaMedical from time to time.
7.5. FundaMedical reserves the right to vary or amend the fees, charges and/or any other expenses payable by the Attorney to the Medical Legal Experts where FundaMedical gives the Attorney Notice thereof (“Price Adjustment Notice”). Any Price Adjustment Notice as aforesaid, shall: –
7.5.1. be deemed to become effective upon receipt thereof, which receipt shall be deemed to have occur, unless otherwise proven, upon transmission by FundaMedical; and
7.5.2. not affect any existing Instruction that was confirmed prior to the Price Adjustment Notice being received.
7.6. The Attorney shall not be liable to make payment of any amounts due in terms of this Agreement if FundaMedical does not provide it with a Recommended Price Invoice in respect of the Medical Legal Services rendered by the Medical Legal Expert.
7.7. It is expressly agreed between the Parties that neither FundaMedical nor the Medical Legal Experts attend to the execution of Instructions given by the Attorney on the basis of a contingency arrangement or agreement. As such, the Attorney agrees that it will be liable for the full amount of the consideration payable in accordance with the Fee Schedule and this Agreement.
7.8. FundaMedical reserves the right to enter into form of Financing Arrangement with the Attorney and/or other Entity on behalf of the Medical Legal Expert in respect of the Recommended Retail Price agreed and the Recommended Price Invoice issued or to be issued as the case may be. The Attorney and the Patient agree that FundaMedical may, from the date that the Instruction is received, enter into any form of Financing Arrangement as aforesaid.
8. MUTUAL OBLIGATIONS AND UNDERTAKINGS
8.1. The Attorney agrees that it shall: –
8.1.1. not without the prior written consent of FundaMedical, transfer, makeover or dispose of a Patient’s file for as long as this Agreement is effective and/or any outstanding amounts due to the Medical Legal Expert has not be settled;
8.1.2. immediately notify FundaMedical of any change in circumstances relating to a Patient which may have the effect of detrimentally effecting the rights of FundaMedical and/or the Medical Legal Experts in terms of this Agreement and all agreements that have been concluded to give effect to this Agreement;
8.1.3. provide all documentation and/or information, as reasonably required, in relation to the Patient to FundaMedical, in order for FundaMedical and/or the Medical Legal Experts to enforce any of their respective rights in terms of this Agreement; and
8.1.4. provide FundaMedical and/or the Medical Legal Expert with regular updates in respect of the status of the Personal Injury Claim to which the Instruction relates. Any information as aforesaid, includes but is not limited to information regarding the trial date of the Personal injury Claim and well as the prospects of settlement and the final settlement, inclusive of all details relating to the party and party costs recovery (where applicable);
8.1.5. provide FundaMedical with access to the file contents of the Personal Injury Claim to which the Instruction relates within a view for FundaMedical to ascertain (i) whether the relevant medical legal reports are on file and (ii) whether a copy of the Recommended Price Invoice is in the file for purposes of payment to be effected.
8.2. FundaMedical agrees that it shall employ its best efforts to render the Administration Services to the Attorney in accordance with the reasonable standard of care and diligence that can be expected.
8.3. Notwithstanding anything to the contrary in this Agreement, all amounts due to the Medical Legal Expert by the Attorney in respect of Instructions received, shall become due, owing and immediately payable to FundaMedical in accordance with this Agreement irrespective of whether the said amounts are in fact due and payable at that point in time, if: –
8.3.1. the Patient dies;
8.3.2. the Attorney’s Mandate to represent the Patient is terminated for any reason whatsoever;
8.3.3. either FundaMedical and/or the Medical Legal Expert’s respective mandates are terminated by the Attorney for any reason whatsoever;
8.3.4. the Attorney is no longer in possession or control of the Patient’s file containing all of the documentation relevant to the Personal Injury Claim;
8.3.5. the Attorney does not make the relevant payments to FundaMedical in terms of this Agreement;
8.3.6. the Attorney, in the opinion and sole discretion of FundaMedical, has broken the trust relationship between the Parties and/or the trust relationship that the Attorney has with the Medical Legal Expert; and/or
8.3.7. an Event of Default arises.
8.4. If clause 8.3 (inclusive of all subclauses) finds application and is triggered, then the Attorney undertakes, as soon as is reasonably practicable, to inform all relevant stakeholders, inclusive of but not limited to the Patient’s new attorney of record, of the amounts due to the Medical Legal Experts in terms of the Instruction(s) given, in order for FundaMedical to protect their rights and those of the Medical Legal Experts.
9. NO EMPLOYER AND EMPLOYEE RELATIONSHIP IN RELATION TO THE PERSONNEL
9.1. The Personnel shall, at all material times, be regarded as employees, agents and/or independent contractors of FundaMedical and/or the Medical Legal Experts. As such, no relationship of employer and employee shall arise between the Attorney and any of the Personnel, irrespective of the level of supervision that may or is in actual fact exercised over the Personnel.
9.2. FundaMedical shall ensure that all Personnel abide by the provisions of this Agreement and the obligations that are imposed in respect thereof.
9.3. FundaMedical shall ensure that all representations and all facts relating to the Personnel that are provided to the Attorney are materially correct and that all qualifications and experience that the Personnel are stated to possess have been verified thoroughly by FundaMedical to ensure that the same is accurate and materially correct in all respects. If at any material time during the operation of this Agreement, it transpires that the Personnel have misrepresented their qualifications and/or experience to FundaMedical and/or the Attorney, then the Attorney agrees to indemnify and hold FundaMedical harmless in respect of any all claims (whether founded in contract, delict or otherwise) that they may have as a result of losses or penalties incurred and/or damages sustained (whether general, special or otherwise) as a result thereof.
9.4. The Attorney may, at any time during the operation of this Agreement, deliver a Notice wherein it requests proof of the qualifications and/or experience of any of the Personnel. To this end, FundaMedical must respond to the Attorney by way of Notice as soon as is reasonably practicable to do so.
10. BREACH
10.1. If any Party to this Agreement (“the Defaulting Party”) commits a breach of any term of this Agreement, all of which will be deemed to be material, or causes an Event of Default to arise, then the other Party (“the Innocent Party”) shall be entitled transmit a Notice to the Defaulting Party wherein the Innocent Party must afford the Defaulting Party as period of seven (7) Calendar Days to remedy such breach failing which, the Innocent Party may then elect to either cancel the Agreement forthwith or claim specific performance.
11. TERMINATION FOR CONVENIENCE
11.1. In addition to any other rights that either of the Parties may have under this Agreement, either Party may at any time, in their absolute direction and without cause, terminate the Agreement in whole or in part by giving the other Party a Notice of intention to terminate this Agreement after the expiry of thirty (30) Calendar Days.
11.2. Upon termination for convenience as aforesaid or in terms of any other part of this Agreement, then the Attorney must pay to FundaMedical all amounts that are due, owing and immediately payable to FundaMedical in terms of this Agreement at that point. FundaMedical and/or the Medical Legal Expert must attend to the finalization of all Medical Legal Services still outstanding and ensure that the Instruction is executed in all respects unless otherwise agreed. To the extent that Medical Legal Services in the form of a medical legal report (inclusive of all addendum reports) have been performed prior to termination, then FundaMedical and/or the Medical Legal Expert shall, in addition to any other rights in law, have the right to retain a lien over same until such time as (i) the Personal Injury Claim is settled in totality and (ii) the Attorney has made payment of the Recommended Retail Price.
12. EXCLUSION AND LIMITATION OF LIABILITY
12.1. Notwithstanding any liability having been excluded elsewhere in the Agreement, FundaMedical, any individual professional, employee, consultant or agent of FundaMedical or any entity controlled, owned or otherwise associated with FundaMedical and/or the Medical Legal Expert (jointly referred to as “the Defendants”) shall not be liable, whether in contract, delict or otherwise arising out of or in connection with Administration Services and/or Medical Legal Services, for any losses, damages and/or penalties suffered by the Attorney and/or the Patient.
13. FORCE MAJEURE
13.1. If either Party to this Agreement is prevented, restricted or delayed either directly or indirectly from carrying out any or all of its obligations in terms of this Agreement due to a Force Majeure event (“the Affected Party”), then the Affected Party shall be relieved of its obligations in terms of this Agreement until such time as the Force Majeure event has terminated.
13.2. The Affected Party shall not be liable for any delay or failure of performance of its obligations in terms of this Agreement and no liability in respect of any loss of damage (either general, special or consequential) shall a rise provided that the Affected Party gives Notice of the Force Majeure event within forty eight (48) hours of the same arising.
13.3. The Parties Agree that the Affect Party shall use all reasonably practicable endeavours to terminate the circumstances giving rise to the Force Majeure event and upon the same terminating, it shall give the other Party Notice of same.
14. PERSONAL INFORMATION
14.1. Consent to processing of Personal Information:
14.1.1. Each Party consents to other Party using their respective Personal Information to the extent that such Personal Information is necessary for purposes of discharging its obligations in terms of this Agreement.
14.1.2. The Data Subjects may withdraw the consent given or object to Either Party Processing their Personal Information at any time.
14.1.3. The Parties will ensure that it will Process Personal Information only for purposes of discharging their obligations in terms of this Agreement or such other purposes as the Data Subjects may consent to from time to time and neither Party, will not process any Personal Information for any other further purposes which a Party or the Data Subjects, as the case may be, has not consented to.
14.2. Storage of Personal Information:
14.2.1. The Parties warrant that they will keep the Data Subjects’ Personal Information that they Processes secure and confidential and will maintain the integrity and confidentiality of the Personal Information in its possession or under its control by taking appropriate, reasonable technical and organisation measures in line with international best practice to prevent the loss of, damage to, unauthorised destruction of or unlawful access to the Personal Information.
14.2.2. Each Party will provide each other with sufficient proof that it has implemented physical, organisational ,contractual and technological security measures to keep all Personal Information secure, including protecting any Personal Information from loss or theft as well as unauthorised access, disclosure, copying, use or modification.
14.2.3. Either Party will notify the other, in writing, if a security breach (or a reasonable belief of a security breach) in respect of either Party’s Personal Information occurs. A Party will provide such notification as aforesaid, as soon as reasonably possible after it has become aware of any security breach of Personal Information and immediately upon notifying the other Party, at its own cost, take all necessary steps as well as the reasonable steps directed by the other Party to mitigate the continuation of the compromise, the repetition of a similar compromise and mitigate the extent of the loss occasions by the compromise of the Personal Information.
14.3. Retention of Personal Information:
14.3.1. Each Party will process Personal Information for as long as necessary to fulfil the purposes for which that Personal Information was collected and/or as permitted or required by applicable law.
14.3.2. Once the purpose for which the Personal Information was initially collected and processed no longer applies or becomes obsolete, the Attorney will ensure that it is deleted, destroyed or de-identified in order to ensure that a third party cannot re-identify such Personal Information.
14.4. Provision of Personal Information to Third Parties:
14.4.1. Where necessary, FundaMedical may disclose the Personal Information of the Attorney to an external service provider and will ensure that it enters into the relevant agreements with the said external service provider to ensure that they Process all Personal Information in accordance with the provisions of this Agreement and POPI and only to fulfil the purposes for which that Personal Information was collected.
14.4.2. The Attorney may not send Personal Information to any jurisdiction outside the Republic of South Africa without the prior written consent of FundaMedical.
14.5. Access to Personal Information:
14.5.1. The Data Subjects may, at any time, request access to its Personal Information held by either Party and request the correction or deletion of such Personal Information.
14.5.2. The Data Subjects can challenge the accuracy or completeness of its Personal Information in the Attorney’s records. If the Data Subjects successfully demonstrate that their Personal Information in the Attorney’s records is inaccurate or incomplete, the Attorney will ensure that such Personal Information is amended or deleted as requested by the Data Subjects.
14.6. Indemnity:
14.6.1. The Parties hereby indemnify each other against all losses (including costs on an Client own client basis), interest, penalties and/or other expenses that a Party may incur as a result of any claim lodged against it in respect of breach of clause 13 (thirteen) above. This obligation to indemnify shall continue notwithstanding the termination of this Agreement for as long as the Attorney remains in possession of Personal Information.
15. CONFIDENTIALITY
15.1. The Parties acknowledge that as a result of their prior relationship and/or during the course of the execution of their respective obligations under this Agreement, they have already or are likely to become privy to Confidential Information belonging or pertaining to either Party. To this end, the Parties further acknowledge that they both have a legitimate business interest in keeping their respective Confidential Information confidential.
15.2. Given that each party may be given access to Confidential Information of the other Party in order to perform its obligations under this Agreement and in consequence, each Party undertakes to, (i) use the other Party’s Confidential Information for the duration and purposes of entering into and implementing this Agreement only and (ii) use at least the same degree of care, diligence and discretion to limit disclosure of the other Party’s Confidential Information, but in no case with any less degree than reasonable care and diligence.
15.3. A Party’s Confidential Information shall not be deemed to include information that:-
15.3.1. is or becomes publicly known other than through any act or omission of the receiving Party;
15.3.2. was in the other Party’s lawful possession before the disclosure;
15.3.3. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
15.3.4. is independently developed by the receiving Party, which independent development can be shown by written evidence; or
15.3.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
15.4. Each Party shall hold the other’s Confidential Information in confidence and either (i) unless required by law or (ii) without the prior written consent of the other Party, not make Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
15.5. Any unauthorized disclosure of Confidential Information by a Party shall, for purposes of this Agreement, be deemed to be a material breach of contract, notwithstanding anything to the contrary within this Agreement.
15.6. The Parties agree that the obligations outlined above in respect of Confidential Information and the confidentiality of this Agreement in general, shall remain in full force and effect notwithstanding any termination or cancellation of this Agreement for any reason whatsoever.
16. DATA PRIVACY AND PROTECTION
16.1. Each Party’s Data shall be and remain the property of that Party and its affiliates. Neither Party shall divulge the Data of the other Party to third parties (unless provided otherwise in this Agreement) and a Party shall use the Data of the other Party only for purposes of this Agreement.
16.2. Neither Party shall possess or assert any lien or other right against or to the other Party’s Data, or sell, assign, lease or otherwise dispose of the other Party’s Data, or any part thereof, to third parties. Each Party shall take such steps as are reasonably required to prevent its employees and/or independent subcontractors and their respective employees and/or agents from doing the same.
17. INTELLECTUAL PROPERTY RIGHTS
17.1. All Intellectual Property and/ or Intellectual Property Rights vesting in each of the respective Parties prior to the commencement of this Agreement shall remain vested in the said Party and nothing in this Agreement shall be construed as being a cession and/or assignment of such Intellectual Property and/or Intellectual Property Rights by a Party.
17.2. Any further development to and/or improvements made to existing Intellectual Property and/or Intellectual Property Rights as a result of the provision of Medical Legal Services, prior to the commencement of this Agreement, shall remain vested in the Party who held ownership and/or title as the case may be, prior to the commencement of this Agreement.
17.3. All rights to, interest in, ownership of and/or title gained in respect of any new inventions, discoveries and/or treatment methods created or enhanced during the course as scope of executing Medical Legal Services, which may consequently entitle the Attorney to claim that it holds the Intellectual Property Rights thereon, is hereby irrevocably ceded and assigned to and in favour of FundaMedical.
17.4. The Attorney, hereby consents and grants FundaMedical the right to make use of its Confidential Information, which may include but is not limited to its professional practice number(s), letterhead and/or medico-legal reports for the purposes of internal training, marketing and/or other financial purposes.
17.5. FundaMedical hereby consents and grants to the Attorney the permission to make use of its logos and business name for purposes of marketing.
18. NON-CIRCUMVENTION AND NON-SOLICIATTION
18.1. The Parties acknowledge that the exclusion of FundaMedical in concluding a transaction with any new and/or existing Medical Legal Expert may arise, whether purposefully or unintentionally, directly or indirectly, as a result of the Attorney having direct access to the Medical Legal Expert, Confidential Information (where applicable) as well as Proprietary Information (where applicable) and may result in damages being suffered by FundaMedical. As such, it is agreed that the Attorney will not, during the currency of this Agreement or for a period of thirty-six (36) months after the Termination Date:
18.1.1. for itself or as agent of anyone else, persuade, induce, solicit, encourage or procure any Personnel to become employed by or interested in any manner whatever in any business, firm, undertaking, company or other entity or association of persons (all of which are hereinafter referred to as “any concern”), directly or indirectly in competition with the business carried on by FundaMedical;
18.1.2. unless FundaMedical consents thereto in writing, which consent shall not unreasonably be withheld, do business with, render any service to or otherwise furnish any Confidential Information and/or Proprietary Information to any other third Party or take any other action which is directly or indirectly designed to or results in any of the Medical Legal Experts terminating their association with FundaMedical.
18.2. At all material times during the operation of this agreement and for a period of sixty (60) calendar months after the termination of this Agreement, the Attorney undertakes not to: –
18.2.1. without the prior written consent of FundaMedical, circumvent FundaMedical at any point by contacting any of the Medical Legal Experts at any point in time with a view to provide any form of Medical Legal Services directly to them; and
18.2.2. conduct, engage or be affiliated anywhere within the Republic of South Africa with a competitive business or a business in competition with FundaMedical or which renders any services of the same and/or similar nature as any of the services rendered by FundaMedical.
18.3. The Attorney acknowledges and agrees that the restraint imposed as aforesaid is fair and reasonable in so far as the same relates to (i) the period of restraint and (ii) the territorial limitation imposed, given that the same is reasonably necessary to protect FundaMedical, its associates, its proprietary interests, trade secrets, business associations with the Medical Legal Experts and/or Confidential Information.
19. NOTICES AND DOMICILIUM
19.1. FundaMedical chooses as their domicilia citandi et executandi the following physical addresses at which Notices and/or documents in legal proceedings in connection with this Agreement may be served:
19.1.1. FundaMedical
Ground Floor, 3 River Road Riverview Office Park Janadel Avenue, Midrand Gauteng Province
Republic of South Africa
Email: [email protected] | [email protected]
19.2. The Attorney’s domicilia citandi et executandi shall be its registered office or principal place of practice and the email address used to access FundaFree.
19.3. Any Notice given by one of the Parties (“the Addressor”) to the other (“the Addressee”) which:-
19.3.1. is delivered by hand to the Addressee’s domicilium, shall be presumed until the contrary is proven to have been received by the addressee on the date of delivery;
19.3.2. is posted by prepaid registered post from an address within the Republic of South Africa to the Addressee at the Addressee’s domicilium shall be presumed, until the contrary is proven, to have been received by the Addressee on the fifth (5th) Calendar Day of the date of posting;
19.3.3. is sent by electronic mail, shall be deemed to have been received by the Addressee on the second Business Day after it has been transmitted.
19.4. Either Party shall, upon a Notice being sent, be entitled to change their domicilium address provided that the new domicilium address in located within the Republic of South Africa and consists of or includes, a physical address at which process can be served.
20. GOVERNING LAW
20.1. This Agreement shall in all respects be governed by and construed in accordance with the laws of the Republic of South Africa and as such, all disputes, actions and other matters in connection therewith shall be determined in accordance with such law.
21. DISPUTE RESOLUTION, LITIGATION AND ARBITRATION
21.1. Any dispute arising out of or in connection with the mandate(s) given by FundaMedical to the Attorney shall be subject to mediation by a legal practitioner of at least 15 (fifteen) years standing. Such Legal Practitioner is, unless otherwise agreed between the Parties, to be appointed by the Legal Practice Council upon either party requesting such appointment.
21.2. Should such mediation be unsuccessful or in the event of either Party refusing to attend such mediation, any such dispute shall be referred to arbitration before one arbitrator, in the English language and in terms of the Expedited Rules of the Arbitration Foundation of South Africa (“AFSA”), unless otherwise agreed.
21.3. If the issue at hand is primarily an accounting matter, then the arbitrator shall be an independent practicing chartered accountant of not than 15 (fifteen) years standing if the question in dispute is primarily an accounting matter.
21.4. If the issue at hand does not fall within the scope of clause 20.3 above, then the arbitrator shall be a legal practitioner of at least 15 (fifteen) years standing.
21.5. Should the parties not agree upon the person to preside as the arbitrator or agree on which scope the dispute falls, within 10 (ten) days of either party having requested such arbitration, then the arbitrator shall be appointed by the Secretariat of AFSA.
21.6. The findings of the arbitrator shall be final and binding on the parties.
21.7. Nothing will prevent either Party from approaching the relevant jurisdiction of the High Court of South Africa seeking relief on an urgent or interlocutory basis.
21.8. If the dispute at hand relates to the payment of a Recommended Price Invoice, then nothing is this Agreement will prevent or restrain FundaMedical and/or the Medical Legal Expert from approaching a competent court within the Republic of South Africa for the appropriate relief.
22. WARRANTEES
22.1. Each of the Parties hereby warrants to and in favour of the other that: –
22.1.1. it has the legal capacity and has taken all the necessary corporate action required to empower and authorise it to enter into this Agreement;
22.1.2. this Agreement constitutes an agreement that is valid and binding on it and enforceable against it all respects;
22.1.3. the execution of this Agreement and the performance of its obligations hereunder does not and shall not (i) contravene any law or regulation to which that Party is subject, (ii) contravene any provision of that Party’s constitutional documents or (iii) conflict with or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it;
22.1.4. to the best of the its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all of its obligations in terms of this Agreement;
22.1.5. it is entering into this Agreement as principal and not as agent or in any other capacity;
22.1.6. the natural person who signs and executes this Agreement on its behalf is validly and duly authorised to do so; and
22.1.7. no other part is acting as a fiduciary for it.
22.2. The Attorney warrants to FundaMedical that: –
22.2.1. It understands that FundaMedical does not represent or warranty that the use of the Administration Services and/or the Medical Legal Services of the Medical Legal Experts shall result in the Attorney and/or the Patient achieving success in the Personal Injury Claim;
22.2.2. It and all of the individual legal practitioners in the employ of the Attorney will adhere to and observe the highest professional and ethical standards required by, inter alia, the Legal Practice Council of the Republic of South Africa (“the LPC”) and/or the body that may replace or substitute the LPC ;
22.2.3. ensure that its professional practice registrations as well as those of the individual legal practitioners in the employ of the Attorney, shall be maintained and not be suspended or encumbered for any lawful reason;
22.2.4. it has obtained the prior written consent of the Patient authorising FundaMedical and/or the Medical Legal Experts to Process Personal Information in line with POPI, in so far as the same is required for the provision of Medical Legal Services.
23. GENERAL
23.1. Notwithstanding anything to the contrary, this Agreement between the Parties represents the entire agreement between them. No amendment, alternation, variation, deletion, addition and/or cancellation of this Agreement, whether consensual, unilateral or bilateral, shall be of any force and effect unless reduced to writing and signed by the Parties’ authorized representatives.
23.2. No relaxation or indulgence granted, from time to time, by either Party in relation to the enforcement of its rights under this Agreement, shall be construed to be a waiver of any rights that a Party may have in terms of the Agreement. In further amplification of the aforesaid, it is expressly agreed that if either Party, at any time, breaches any of their obligations under this Agreement, the other party (“the Aggrieved Party”): –
23.2.1. may at any time after that breach, exercise any right that became exercisable directly or indirectly as a result of the breach, unless the Aggrieved Party has expressly elected in writing or by clear and unambiguous conduct, amounting to more than mere delay, not to exercise the said right. If the Aggrieved Party is willing to relinquish that right, the Aggrieved Party will, on a request to do so, do this in writing. In particular, acceptance of late performance will for a reasonable period after performance be provisional only and the Aggrieved Party may still exercise that right during that period;
23.2.2. will not be estopped (i.e. precluded) from exercising the Aggrieved Party’s rights arising out of that breach, despite the fact that the Aggrieved Party may have elected or agreed on one or more previous occasions not to exercise the rights arising out of any similar breach or breaches.
23.3. Each of the terms contained in this Agreement, shall be separate and divisible from one another. In the event that any term is found to be unenforceable for any reason whatsoever, the said provision shall be severed and shall not affect the validity of any of the other terms.
23.4. The Attorney may not cede, assign, delegate, transfer or otherwise encumber any of the rights, obligations, share or interest acquired in terms of this Agreement, in whole or in part, to any other person without the prior written consent of FundaMedical, which consent shall not be unreasonably withheld or delayed.
23.5. Each of the Parties undertakes at all times to do all such things, perform all such acts and take all such steps, within its power and control, as may be open to it and necessary for and incidental to the putting into effect and/or maintenance of the terms, conditions and import of this Agreement.
23.6. This Agreement or any part thereof, may be executed in one or more counterparts, each of which shall be an original and all of which together shall constitute one and the same agreement or part of the Agreement as at the date of signature of the Party that signs its counterpart last in time.
23.7. Each Party acknowledges that it has been free to secure independent legal advice as to the nature and effect of all of the provisions of this Agreement and that they both have taken such independent legal advice or dispensed with the necessity of doing so, at their own risk. The Parties further acknowledge that all of the provisions of this Agreement and the restrictions herein contained are both fair and reasonable in all circumstances and part of the overall intention of the Parties in connection with this Agreement and such, the Parties agree to waive any and all claims that they may have against their respective legal advisors in so far as the said claims relate to the negotiation, interpretation, drafting and conclusion of this Agreement.
23.8. If either of the Parties to this Agreement incur any legal costs in relation to: –
23.8.1. the enforcement of this Agreement; or
23.8.2. any litigation surrounding the validity and/or enforcement of any of the terms of this Agreement as a result of any breach and/or default by a Party; or
23.8.3. any claim for damages against either Party,
the unsuccessful Party shall be liable for all such legal costs incurred by the successful Party on the attorney and own client scale
