FOR THE SUPPLY OF PRODUCTS AND SERVICES BY FUNDAMEDICAL MANAGEMENT (PTY)LTD AND MEDICAL LEGAL EXPERTS REPRESENTED BY FUNDAMEDICAL MANAGEMENT (PTY)LTD TO AN INSTRUCTING ATTORNEY.
i. FundaMedical Management (PTY) Ltd (FundaMedical) acts as the lawfully appointed agent to various Medical – Legal and other Experts (Experts) in providing the Administrative Services and support which they require to facilitate their rendering of Medical Legal and Expert Services and Products to Instructing Attorneys. FundaMedical also provides ancillary services directly to Attorneys.
ii. By making use of FundaMedical to secure the Medical Legal and Expert Services and Products offered by an Expert represented by it or any other services, the Instructing Attorney agrees to these Terms and Conditions.
iii. Quotes, Instructions, and any annexures to this Agreement form an integral part hereof and words and expressions defined in this Agreement will bear, unless the context otherwise requires, the same meaning in such Quotes, Instructions, and annexures.
1. DEFINITIONS AND TERMINOLOGY
The following definitions shall find application within this Agreement: –
“Administration Services” shall mean the full scope of services which FundaMedical agreed to provide to a Medical Legal – or other Expert.
“Advance Payment” shall mean payment of the full Vat – inclusive price of a Service or product prior to a reservation being confirmed or a Service or product being delivered.
“Balance” shall mean the balance of the amount due and payable by the Instructing Attorney after deduction of the First Amount Payable or the Deposit and on the terms determined in/by the relevant Services Specification (Annexure “A”).
“Caseflow Management” shall mean the order in which Expert Reports are completed, to ensure coherence where certain Experts are reliant on the opinions of an expert from a different discipline in order to inform the formulation of their own opinion. FundaMedical has a standard protocol for Caseflow Management.
“Deposit” shall mean such percentage of the full Vat – inclusive price charged for a Service or product, which amount is payable prior to a reservation being confirmed or a Service or product being delivered. Balance payable within the time set out in the relevant Quote.
“Expert” shall mean a Medical Legal or other Expert to whom FundaMedical provides Administrative Services.
“First Amount Payable” shall mean such percentage of the full Vat – inclusive price charged for a Service or product, which amount is payable upon presentation of an invoice and together with the delivery of the Service or Product in question.
“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 being situated at Ground Floor, 3 River Road, Riverview Office Park, Bekker Road, Halfway Gardens, Midrand, Gauteng Province, Republic of South Africa and principal place of business being situated at Unit 3, Riverview Office Park, Janadel Avenue, Halfway Gardens, Midrand, Gauteng Province, Republic of South Africa.
“Instructing Attorney” shall mean the Attorney or firm of Attorneys which instructs an Expert represented by FundaMedical or which makes use of any of the Services offered by causing a written Instruction to be sent to FundaMedical.
“Instruction” shall mean each individual written Instruction which FundaMedical receives from an Instructing Attorney or its representative, requesting the provision of one or more of the products and Services.
“Medical Legal Assessment” shall mean the assessment during which a Patient is examined and interviewed by an Expert prior to the preparation by such Expert of a Medical Legal Report.
“Medical Legal Expert” shall mean a healthcare practitioner to whom FundaMedical provides Administrative Services, who is registered with a professional body and renders Medical Legal Services within his/her chosen field of expertise.
“Medical Legal Report” shall mean a written report prepared by a medical Expert for the assistance of the Court in legal proceedings where Expert evidence is required, and which contains the opinion of such Expert in his/her own words, based on his/her findings. Included an Addendum Medical Legal Report.
“Medical Legal Services” shall mean the Services that the Medical Legal Expert provides to the Instructing Attorney in legal proceedings where Expert evidence is required.
“Patient” shall mean a person who has suffered personal injuries following an incident caused by a third party or any other client of the Instructing Attorney in terms of who the Instructing Attorney gives an Instruction to FundaMedical to secure its Services or the Services of an Expert.
“PoPIA” shall mean shall the Protection of Personal Information Act 4 of 2013 and the Regulations thereto.
“Quotation” shall mean a formal statement outlining the requested product and / or service, their quantities, prices, payment terms, and any other relevant terms and conditions. Once accepted by the Instructing attorney, the quotation will form the basis of a legally binding contract between the parties, outlining the obligations and responsibilities of each party.
“Service(s)” shall mean the products and services offered by FundaMedical or an Expert to whom FundaMedical provides Administrative Services.
2. INSTRUCTIONS
2.1 Upon receipt of request, FundaMedical shall provide the Instructing Attorney with a quote for
the requested Services and / or products. The Instructing Attorney’s acceptance of the quote
shall represent the effective date of the Agreement governed by these Terms and Conditions
together with all annexures referred to therein, including the Instruction itself.
2.2 In addition to his / her assessment of the Patient and the history given by the Patient, the
Expert and or FundaMedical will rely on the documentation and information provided by the
Instructing Attorney for the preparation and delivery of the Products and Services.
FundaMedical, its employees and or Experts do not take responsibility for incorrect
information and / or documentation provided by the Patient or the Instructing Attorney.
2.3 Should the information and documentation provided by the Instructing Attorney not reach the
Expert timeously in order to allow him / or her to thoroughly prepare for an Assessment, or
once received, not be sufficient in order to allow for the preparation of a Medical Legal Report
which meets the requirements of an Expert witness report, FundaMedical reserves the right to
reschedule the relevant Medical – Legal Assessment(s).
2.4 Should further documentation and information be made available by the Instructing Attorney
after the Medical Legal Assessment has already taken place and which requires a follow – up
assessment and / or report, such follow up assessment and report will be charged for I
accordance with a Quote.
2.5 Should circumstances arise which prevent the performance of the specific Services requested
by the Instructing Attorney, then FundaMedical will, as soon as it becomes aware thereof,
notify the Instructing Attorney of alternative proposals for the delivery of the Services.
3. CONSIDERATION PAYABLE BY THE ATTORNEY AND PAYMENT TERMS
3.1 Payment terms in respect of Services and products are set out in the Quotation.
3.2 Payment of all amounts due by the Instructing Attorney in terms of this Agreement shall be
made into the bank account nominated by FundaMedical from time to time.
4. MUTUAL OBLIGATIONS, UNDERTAKINGS AND WARRANTIES
4.1 The Instructing Attorney shall immediately notify FundaMedical of any change in circumstances
relating to a Patient and/or the Instructing Attorney which may have the effect of substantially
affecting the rights of FundaMedical, the Experts represented by it or the delivery of any of the
Services.
4.2 The Instructing Attorney warrants that any Instruction apparently emanating from its offices is
given by an employee or representative of such Instructing Attorney, duly authorised to do so
on its behalf.
4.3 FundaMedical will use its best endeavours to deliver the Products and/or Services thoroughly,
professionally, and correctly, with all deliverables met in a timely manner.
4.4 The Attorney warrants to FundaMedical that it has obtained the prior written consent of the
Patient, authorising FundaMedical and/or the relevant Expert to Process the Patient’s Personal
Information in line with PoPIA, insofar as the same is required for the provision of the Services.
5. INDEMNITY AND LIMITATION OF LIABILITY
5.1 The Instructing Attorney indemnifies and holds FundaMedical harmless from any and all claims
brought by any party for breach of these warranties and against any claims of whatsoever
nature and howsoever arising out of the acts or omissions of FundaMedical or any of its
employees, contractors, agents or the Experts to whom FundaMedical provides Administrative
Services.
5.2 The Instructing Attorney hereby indemnifies and holds harmless FundaMedical from and
against any loss, claim, action, damage or expense suffered or sustained by the Instructing
Attorney or instituted against the Instructing Attorney by any third party resulting from an act or
omission by FundaMedical or any of its employees, contractors, agents or the Experts to whom
FundaMedical provides Administrative Services, or pursuant to – or arising out of the breach by
the Instructing Attorney of any of its obligations, representations or the warranties contained
herein.
5.3 Notwithstanding any liability having been excluded elsewhere in this Agreement, FundaMedical
and any individual professional, employee, consultant or agent of FundaMedical and/or any
individual professional, employee, consultant or agent of the to which FundaMedical provides
Administrative Services or any entity controlled, owned or otherwise associated with
FundaMedical and/or such Expert shall not be liable, whether in contract, delict or otherwise
arising out of or in connection with the Services, for any losses, damages and/or penalties
suffered by the Instructing Attorney and/or the Patient.
6. BREACH /DEFAULT
6.1 If any Party to this Agreement is in default or 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, and fails to
remedy such breach within 21 (twenty one) days of receipt of a written notice from the
Aggrieved Party requiring it to do so, then the Aggrieved Party may declare a dispute in writing
whereupon the Parties will arrange to meet forthwith to attempt to resolve the dispute. Failing
the resolution of the dispute during the aforesaid meeting, the Aggrieved Party will be entitled,
in addition to any other remedy available to it at law, to cancel this Agreement or to hold the
other Party to the terms thereof and in either event to claim damages from the other party
without prejudice to any of the aggrieved Party’s other rights or its ability to litigate or to call for
mediation or arbitration of the dispute.
7. CANCELLATION
7.1 An Instructing Attorney who wishes to cancel any of the Services in respect of which an
Instruction was confirmed by FundaMedical may cancel such Instruction on 14 days written
Notice to FundaMedical, provided that the cancellation of an Instruction or Service requiring the
Assessment of a Patient may not occur within 14 days of the date of such Assessment.
7.2 Once an Assessment has taken place the Medical Legal Report in preparation of which it was
arranged will be produced and the Instructing Attorney will be liable for payment thereof in
accordance with the terms set out in the Quotation. A decision to put a hold on – or discontinue
the production of a Medical Legal Report is within the sole discretion of FundaMedical and will
be made with a view to mitigation of damages.
7.3 Notwithstanding the above, FundaMedical reserves the right to cancel this Agreement at any
time if the Instructing Attorney:
7.3.1 is in default or commits a material or persistent breach of any of the provisions of this
Agreement;
7.3.2 acts in a manner that detrimentally affects, or may reasonably detrimentally affect
FundaMedical or any of the Experts to which FundaMedical provides Administrative
Services, as determined by FundaMedical in its sole discretion; or
7.3.3 is struck from the roll of practicing attorneys or ceases to practice for any other reason.
7.4 Cancellation of this Agreement for any of the reasons referred to in 7.3.1 to
7.3.3 hereinbefore
shall cause all outstanding Deposits, Initial Amounts and / or Balances applicable to any
Instruction accepted by FundaMedical from the Instructing Attorney, to immediately become
due, owing and payable.
8. PERSONAL INFORMATION AND CONFIDENTIALITY
8.1 The Parties consent to the processing of their respective personal information provided that it
occurs in accordance with the provisions of PoPIA and insofar as the same is compatible with
the contents of this Agreement and the legitimate purpose underlying it.
8.2 The Parties confirm that their interpretation of PoPIA is set out in their respective Privacy
Manuals published in accordance with PoPIA and which they undertake the reciprocal duty to
familiarise themselves with.
8.3 Each Party shall hold the other’s Confidential Information in confidence and shall not make
such Confidential Information available to any third party unless required by law to do so or
with the prior written consent of the other Party and shall not use the other’s Confidential
Information for any purpose other than the implementation of this Agreement.
9. NOTICES AND DOMICILIUM
9.1 The Parties choose as their respective domicilia citandi et executandi their respective principal
places of business at which Notices and/or documents in legal proceedings in connection with
this Agreement may be served.
10. GENERAL
10.1 This Agreement, all quotes as well as any Instruction confirmed pursuant thereto, represents
the entire agreement between FundaMedical and the Instructing Attorney and may not be
altered unless agreed to by both parties and reduced to writing.
10.2 Any construction that the provisions of an agreement be interpreted against the Party
responsible for its drafting will not apply to this Agreement.
10.3 The cancellation of this Agreement shall not affect such of the provisions thereof as expressly
provided that they will operate after any such cancellation or which of necessity must continue
to have effect after cancellation, notwithstanding that the clauses themselves do not expressly
provide for this.
10.4 If an Instruction contains specifications or terms which conflict, – or are inconsistent with the
terms of this Agreement, then the terms and conditions of this Agreement (including those set
out in the Quotation) shall prevail.
10.5 If there is any conflict or inconsistency between this Agreement and any other agreements
concluded between the Parties, then the terms and conditions of this Agreement shall prevail.
10.6 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.
10.7 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.
10.8 Any Notice required or permitted to be given under this Agreement shall be valid and effective
only if in writing. To this end, each party chooses as its physical address at which it will accept
all documents, notices, communications, and court processes for all purposes under this
agreement its address specified in clause 9 above. Either party may on 7 (seven) day’s written
notice to the other party change its domicilium to another physical address in the Republic of
South Africa.
10.9 A written Notice actually received by a Party, including a notice sent by e – mail delivered to
the e – mail address selected by the respective parties in paragraph 9 above, (excluding any
legal processes), will be an adequate Notice to it notwithstanding that it was not sent or
delivered to its chosen physical address.
10.10 Any waiver of performance agreed to by both Parties will be in writing and signed by both
parties.
10.11 Neither Party will incur any liability by reason of any failure to fulfil any obligation in terms of
this Agreement if such failure is occasioned by a force majeure consisting of acts of God, fire,
accident, governmental acts, explosion, industrial dispute or any other act, omission or event
beyond the reasonable control of such Party. The onus of proving that such failure was
occasioned by a force majeure will rest on the Party alleging same.
10.12 Neither Party may cede or assign its rights and / or obligations hereunder to any third party
without the other party’s prior written consent.
10.13 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.
