TERMS AND CONDITIONS
DISCLAIMER
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
ENGAGEMENT LETTER
INDEPENDENT AGREEMENT
Entered and between
OCCUPATIONAL THERAPY SUPPORT CENTRE (PTY) LTD
(OTSC)
And
THE MEDICAL PROFESSIONAL AND/OR THERAPIST AND/OR CLIENT AND/OR PURCHASING PARTY, PURCHASING ANY OF THE ONLINE PRODUCTS OF OTSC.
THE PURCHASING PARTY
1. DEFINITIONS
1.1 Agreement Means these Terms and Conditions/Disclaimer/ Confidentially and Non- disclosure Agreement/ Engagement Letter/ Independent.
1.2 Business Day means any day that is not a Saturday, Sunday or Public holiday in the Republic of South Africa.
1.3 Confidential Academical Information means all Confidential Academical Information whatever nature whether in tangible or intangible form, relating to the Purpose and, without limiting the generality of the term shall include, but not be limited to, all and any information relating to data, know-how, documentation, materials, home programs, protocols, practice management documents, practice compliance documents, all training documents, all training information, and other communications, (whether written, oral, or stored in computerized, electronic, disc, tape, microfilm or other form) relating to the Disclosing Party, its business, clients, and client information, trade secrets, affairs and assets or any part thereof, marketing strategies, plans, financial information, projections, sales and estimates, performance results of its business or affiliates, subsidiaries, and affiliated companies, disclosed or provided to the Receiving Party or its Representatives by or on behalf of the Disclosing Party or which may be learned or acquired by the Receiving Party or Its Representatives by or on behalf of the Disclosing Party or which may be learned or acquired by the Receiving Party or its Representatives during any examination of the Confidential Information or during any discussions regarding the Purpose, whenever and however disclosed, and any other confidential information of the Disclosing Party that should reasonable be recognized as such, whether furnished before or after the Purchase Date, including financial information, business plans, budgets, statistics, data, intellectual property, analyses, studies, raw material supply arrangements and computer software systems in general, which is also not generally known by any third party or the public.
1.4 Disclosing Party means any Party who discloses information to the other Party.
1.5 Purpose means the intent to examine or use the information given regarding the academical property, documentation, forms, policies, guidelines, checklists, booklets, evaluation documents of the Disclosing Party, by the Receiving Party, for the Receiving Party to use in the Practice of the Receiving Party only and not to redistribute to any other Party or any other Practice of institution or business other than the Receiving Party’s own business purposes.
1.6 Parties means OTSC and the Purchaser/Customer/Company/Registered Medical Practice)
“Party” shall mean either one of them as the context may indicate.
1.7 Receiving Party any Party who receives or acquires the Information of the Disclosing Party under any circumstances whatsoever.
1.8 Representatives means with/ about either party’s directors, officers, employees, agents, consultants, advisors, consortium partners, and or investors.
1.9 Services means the use of any information academical property, documentation, forms, policies, guidelines, checklist, booklets, home programs, protocols, Practice management documents, compliance documents, and evaluation documents for purposes of Practice and business use of the Receiving Party only.
1.10 Signature Date means the date of Purchasing of this Agreement by the Purchasing Party by ticking and accepting the Terms and Conditions tick box on the online store when purchasing online products.
2. RECITAL
2.1 OTSC is a Support Centre for Occupational Therapists, Health Care Professionals and Allied Workers assisting with Business Solutions, Training Services and Human Asset Management.
2.2 The Purchaser/Customer/Company/Registered Medical Practice/Therapist) is a person/individual/ Purchaser/Customer/Company/Registered Medical Practice who needs the support, business solutions, training services and human asset management of OTSC.
2.3 The Parties wish to enter into an Agreement, where The Purchaser (Purchaser/Customer/Company/Registered Medical Practice) needs the support, business solutions, training services and human asset management of OTSC.
3. TERM
Irrespective of the term of this Agreement, the Parties’ duty to hold in confidence Confidential Information that was disclosed during the existence of this Agreement, shall remain in effect indefinitely.
4. OBLIGATIONS AND UNDERTAKINGS
The Receiving Party shall ensure that:
4.1 any and all Confidential Academical Information disclosed, or provided by/to it or its Representatives, during the investigation for the Purpose or discussions concerning the Purpose, whether furnished before or after the Signature Date, shall be regarded as Confidential Academical Information.
4.2 other than permitted disclosure to its Representatives in terms of this Agreement, it shall keep and maintain all Confidential Academical Information, confidential and secret and will not, unless compelled to do so in law, in which event the provision of clause 6.4 will be applicable, without the prior Written Consent of Disclosing Party, disclose any Confidential Academical Information to any Third Party.
4.3 proper and secure storage of all Confidential Academical Information.
4.4 it will not use, and shall procure that its Representatives shall not use, either directly or indirectly, any Confidential Academical Information for any purpose whatsoever, other than for the purposes of considering and making the necessary recommendation flowing from such Purpose to the Disclosing Party.
4.5 not in any way force the Disclosing Party to be obliged to disclose, reveal or exchange any information to the Receiving Party.
4.6 it will not at any time use the Confidential Academical Information to solicit or entice away or endeavor to solicit or entice away any other Practice Institute to, customers of, or employees of Disclosing Party, either to join it or for any other purpose.
4.7 not allege that this Agreement grants the Receiving Party, either directly or indirectly, or by implication or by estoppel or otherwise, any right, whatsoever, under this Agreement of Disclosing Party’s proprietary Rights, of whatever nature, or that it is entitled to utilize Confidential Academical Information, in any way contrary to the stipulations contained herein.
4.8 not create the impression, directly or indirectly, with or lead any Third Party to interpret or construe any condition contained in this Agreement, that this is an Agency Agreement and/or Partnership Agreement and/or Joint Venture and/or any similar arrangement, since this will be a Support and Networking Agreement.
4.9 refrain from disclosing, reproducing, summarizing and/or distributing Confidential Academical Information of the Disclosing Party, except in pursuance of the Receiving Party’s business relationship with the Disclosing Party, and only as otherwise provided for hereunder.
4.10 it will not, save as may be required in law, disclose to any Third Party (other than to its Representatives who need to know such information):
4.10.1 the Purpose or that discussions or negotiations are taking, or have taken, place: and
4.10.2 any of the terms, conditions, or other facts with respect to the Purpose, including the status thereof.
4.10.3 The Purchasing Party (Purchaser/Customer/Company/Registered Medical Practice/Therapist) may use their own Logo on the Frontpage cover on all purchased documentation or Home Programs/ Protocols/ Report Templates/ Evaluation Templates, etc. which contains Confidential Academical Information. The Purchasing Party is NOT permitted to remove any of the OTSC Logo’s or Copyright Disclaimer per individual page as per original documentation received. The Purchasing Party is NOT permitted to change any of the content of the purchased documentation without the written consent of OTSC.
5. LIMITATION OF CONFIDENTIALITY UNDERTAKINGS
The obligations imposed in this Agreement shall have no application to Confidential Academical Information which:
5.1 was known to the Receiving Party, or its Representatives, prior to the disclosure to, or acquisition of the Confidential Academical Information concerned: and/or
5.2 was derived from a Third Party who, insofar as is known by the Receiving Party, is not prohibited from transmitting or disclosing the Confidential Academical Information; and/or
5.3 has been developed by the Receiving Party independently of the Confidential Academical Information disclosed by the Disclosing Party; and/or
5.4 becomes part of the public domain by public use, publication, general knowledge, or the like.
6. DISCLOSURE
6.1 The Receiving Party shall:
6.1.1 limit disclosure of any Confidential Academical Information to its directors, officers, employees, agents or representatives (collectively “Representatives”) who have a need to know such Confidential Academical Information in connection with the current or contemplated business relationship between the Parties to which this Agreement relates and only for that purpose.
6.1.2 advise its Representatives of the proprietary nature of the Confidential Academical Information and of the obligations set forth in this Agreement and require such Representatives to keep Confidential Academical Information confidential.
6.1.3 shall keep all Confidential Academical Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and
6.1.4 not disclose any Confidential Academical Information received by it to any Third Party, without the prior Written Consent of the Disclosing Party.
6.2 The Receiving Party acknowledges that the Academical Information is a valuable, special and unique asset proprietary to the Disclosing Party. It may only be used as indication per product purchased. Home Programs purchased are for the sole purpose of the Purchaser to resell or provide to their patients in treatment in their Practice and NOT intended to resell or provide to any other Therapist, Medical Professional, or any other 3rd Party who did not formally purchase the Home Program. It may only be used in the Practice of the Purchaser and under direct supervision of the Purchaser. Report Templates, Protocols, Evaluation Templates, Human Asset Management and Compliance Documentation are for the sole purpose of the Purchaser using it in their own Practice and not to be sold or provided to any other 3rd party outside of the Purchaser’s Practice. The Employees of the Purchaser may use the Purchased documentations, but only while employed in the service of the Purchaser. After employment is terminated the Purchaser takes full responsibility of all ex-Employees and must take responsibility that they do not copy or make use of any or the Products that the Purchasing Party purchased from OTSC. The Purchasing Party will be held liable for any of the Products purchased from OTSC that may be used or copied by Employees in their service or ex-Employees that were in their service.
6.3 Each Party shall be responsible for any breach of this Agreement by any of its respective Representatives.
6.4 The Receiving Party may disclose Confidential Academical Information of the Disclosing Party in accordance with a judicial order or specifically applicable Legislation, only if the Receiving Party:
6.4.1 gives the Disclosing Party at least 14 (fourteen) days Written Notice prior to such disclosure to allow the Disclosing Party a reasonable opportunity to seek a protective order or equivalent; or
6.4.2 obtains written assurance from the applicable judicial or governmental Entity that it will afford the Confidential Academical Information the highest level of protection afforded under the applicable Laws or regulations.
6.5 The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Academical Information or any other breach of this Agreement by the Receiving Party and its Representatives and will cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of the Confidential Academical Information and prevent its further unauthorized use or disclosure.
6.6 If the Receiving Party, or any of its Representatives
6.6.1 becomes legally compelled to disclose any of the Confidential Academical Information; or
6.6.2 receives a request for Confidential Academical Information under the Promotion of Access to Information Act, 2000 or a similar Law, it shall (and shall procure that its Representatives shall), unless precluded by Law, forthwith upon it becoming aware of any occurrence referred to in clauses 6.6.1, provide the Disclosing Party with Written Notice thereof so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of the Agreement.
6.7 The Receiving Party shall, to the extent that it is able to do so and upon receipt of a reasonable satisfactory indemnification from the Disclosing Party, provide reasonable assistance to the Disclosing Party in obtaining any protective order or other appropriate remedy that the Disclosing Party may seek for the purposes of preventing disclosure of any of the Confidential Academical Information.
7. USE
7.1 The Receiving Party agrees to use the Confidential Academical Information solely in connection with the current or contemplated business relationship between the Parties and not for any purpose other than as authorized by this Agreement, without the prior Written Consent of an authorized Representative of the Disclosing Party.
7.2 No Right or License whatsoever, whether expressed or implied, in the Confidential Academical Information is granted to the Receiving Party hereunder.
7.3 Title to the Confidential Academical Information will remain solely in the Disclosing Party.
7.4 All use of Confidential Academical Information by the Receiving Party shall be for the benefit of the Disclosing Party and any modifications and improvements thereof by the Receiving Party shall be the sole property of the Disclosing Party.
7.5 The Receiving Party may re-sell to their Patients some of the Confidential Academical Information, such as custom-made diagnosis specific ready to use Home Programs.
7.6 These Home Programs can only be purchased by qualified Occupational Therapists or Physiotherapists.
7.7 The use of these Home Programs in the sense of treatment must be used under the supervision and care of a qualified Occupational Therapist or Physiotherapist, as these Home Programs are general Guidelines and is not “patient-specific”.
7.8 The use of any information or treatment techniques as set out in these Home Programs, is entirely at own risk and discretion of the Receiving Party / qualified Occupational Therapists or Physiotherapists. It is the responsibility of the Receiving Party / qualified Occupational Therapist or Physiotherapist to ensure that any information and/or treatment techniques meet the specific treatment requirements of the Patient.
7.9 The Disclosing Party shall not be liable for any mis-use of these Home Programs and/or shall not be held liable for any injuries that may occur due to mis-use.
Custom-made Practice Administrative Documents, custom-made Occupational Therapists Report Templates/Protocols/Forms/Evaluation Tests/Test Batteries/Treatment Protocols/ Practice Policy Templates/Practice Employment Contracts etc. are not for sale to any other Third Parties.
8. PROTECTION OF PERSONAL INFORMATION
The Party processing any individual’s personal information, (THE OPERATOR), shall remain responsible in terms of the Protection of Personal Information’s Act, 4 of 2013, and shall ensure that such processing is done in a lawful manner, compatible for the purpose and take all reasonable steps to safeguard such information.
9. DOMICILIUM CITANDI ET EXECUTANDI
9.1 Each Party chooses the address set out opposite its name below as its domicillium citandi et executandi at which all Notices, legal processes and other communications must be delivered for the purposes of this Agreement:
9.2 OTSC
6A Juan Singel, Baysvalley,
Bloemfontein
Free State
9301
Tel: 082 929 2845
Email: training@otsc.co.za
Contact Person: Juane Raats
9.3 (Name of Purchaser/Customer/Company/Registered Medical Practice/Therapist) will be delivered via their contact details provided on the online store.
9.4 Any Notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, but it shall be competent to give Notice by email.
9.5 Each Party may by Written Notice to the other Party change its chosen address to another physical address and/or its chosen email address to another email address, provided that the change shall become effective on the 10th (tenth) Business Day after the receipt of the Notice by the addressee.
9.6 Any Notice to a Party contained in a correctly addressed envelope and:
9.6.1 Send by prepaid registered post to it at its chosen address; or
9.6.2 Delivered by hand to a responsible person during ordinary business hours at its chosen address, shall be deemed to have been received, in the case of clause 11.4.1 on the 7th (Seventh) Business Day after posting (unless the contrary is proved) and, in the case of clause 11.4.2, on the day of delivery.
9.7 Any Notice by email to a Party at its email address shall be deemed, unless the contrary is proven, to have been received on the 1st (first) Business Day after it is transmitted.
10. BREACH
10.1 Should any Party (“the Defaulting Party”) commit a breach of any of this Agreement and fail to remedy such breach within 5 (five) Business Days from the date of Written Notice from any other Party to the Agreement (“the Aggrieved Part”) calling upon it to do so, the Aggrieved Party shall, without prejudice to any other Rights which it may have, have the Right:
10.2 If the breach complained of is material and goes to the root of this Agreement, to cancel this Agreement; or
10.3 In all other events, to take whatever action may be necessary to enforce its Rights under this Agreement, other than to cancel this Agreement, and in either event to claim such damages as it may have suffered because of such breach of contract.
10.4 The Defaulting Party shall be liable for all costs and expenses (calculated on an attorney and own client scale) incurred because of or in connection with the default.
10.5 The Parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Academical Information and that the Disclosing Party shall be entitled, without waiving any other Rights or remedies it may have, to such injunctive or equitable relief as may be deemed proper by a Court of competent jurisdiction.
11. ARBITRATION
11.1 Any dispute arising out of this Agreement or the interpretation thereof, both while in force and after its termination, shall be submitted to and determined by arbitration in accordance with the Uniform Rules of the High Court (“the Rules”). Such arbitration shall be held at a place, date and time agreed upon and shall be held in a summary manner with a view to it being completed as soon as possible.
11.2 There shall be 1 (one) arbitration who shall be, if the question in issue is:
11.2.1 Primarily an Accounting Matter, an independent Chartered Accountant of at least 10 (ten) years’ standing;
11.2.2 Primarily a Legal Matter, a practicing Senior Counsel or retired Judge;
11.2.3 Any other Matter, a suitably qualified person.
11.3 The appointment of the arbitration shall be agreed upon between the Parties, but failing agreement between them within a period of 14 (fourteen) days after the arbitration has been demanded, any of the Parties shall be entitled to request the Chairman for the time being of the Arbitration Foundation of Southern Africa to make the appointment who, in making his appointment, shall have regard to the nature of the dispute.
11.4 The Arbitrator shall have the powers conferred upon an Arbitrator under the Rules.
11.5 The decision of the Arbitrator shall, in the absence of manifest error, be final and binding on the Parties but subject always to appeal in terms of the Rules, and may be made an Order of any Court of competent jurisdiction. The Parties hereby submit themselves to the High Court, should a Party wish to make the Arbitrator’s decision an Order of Court.
12. GENERAL
12.1 This Document contains the entire Agreement between the Parties as to the subject matter hereof. No Agreement to vary, add to or cancel this Agreement shall be of any force or effect unless contained in the form of an Addendum to this Agreement and signed on behalf of all the Parties to this Agreement. No written correspondence shall suffice.
12.2 The validity and interpretation of this Agreement will be governed by the Laws of the Republic of South Africa even if any Confidential Academical Information was bought outside of the Borders of South Africa.
12.3 Neither Party shall have any Claim or Right of action arising from any undertaking, representation or warranty not included in this Document.
12.4 Neither of the Parties shall be entitled to assign, cede, delegate or transfer any Rights, obligations, share or interest acquired in terms of this Agreement in whole or in part, to any other party person, without the prior Written Consent of the Party, which consent may not unreasonably withhold of delayed or conditioned.
12.5 No failure by either Party to enforce any provision of this Agreement shall constitute a waiver of such provision or affect in any way that Party’s right to require performance of any such provision at any time in the future, nor shall the waiver of any subsequent breach nullifies the effectiveness of the provision itself.
12.6 Each clause in this Agreement is severable from all the other clauses. If any clause is found by any competent Court to be defective or unenforceable or invalid for any reason whatsoever, the remaining clauses shall continue to be of full force and effect.
12.7 Each Party represents and warrants that it has authority necessary to enter into this Agreement and to do all the things necessary to procure the fulfilment of its obligations in term of this Agreement.
12.8 Each Party warrants that it has the Right to make disclosures under this Agreement.
12.9 The Parties acknowledge that although they shall each endeavor to include in the Confidential Academical Information all information that they each believe relevant for the purpose of the evaluation of a transaction, the Parties understand that no representation or warranty as to the accuracy or completeness of the Confidential Academical Information is made by either Party.
12.10 Each Party shall bear its own costs to be incurred in connection with the drafting and negotiation of this Agreement.
12.11 This Agreement is ongoing for as long as all Parties wishes to make use of each other’s services. Should any Party wish to end this Agreement, a Notice Period of 3 months is applicable for all Parties.
SIGNED at Bloemfontein on same day of signing of Purchaser/Customer/Company/Registered Medical Practice/ Therapist when the Product was purchased online.
For: OTSC (PTY) LTD
J. Raats
Capacity: Director
The day of the online purchase by the Purchaser will be the effective date and place of signature to this agreement by (The Purchaser/Customer/Company/Registered Medical Practice/Therapist). The purchase transaction on the online store with the acceptance of the Terms and Conditions on the online store will be the effective signature date and place of signature of contract.
Witness 1: Name: Bianca Willemse
Witness 2: Name: Margaux Knibbs
Witness 3: Name: Hein Koegelenberg
A physical signature may not always be possible, therefore, if you tick the Accept Terms and Conditions box, it counts as an electronic signature and acceptance of all pages of this Agreement.
The Receiving Parties, which may include Juane Raats (training@otsc.co.za) which is the Director and Hein Koegelenberg (compliance@otsc.co.za) Bianca Willemse (info@otsc.co.za) and/or Margaux Knibbs (events@otsc.co.za) will count as the Witness Signature/s.
