TERMS
AND CONDITIONS FOR DOCTOR ACCESS TO LABORATORY RESULTS APPLICATION
A. INTERPRETATION
A.1.
In this Agreement and
in the annexes to this Agreement (other than documents/accounts prepared before
the date of signature of this Agreement), unless the context indicates a
contrary intention – clause headings are for convenience only and are not
to be used in its interpretation.
A.2.
an expression which
denotes - any gender includes the other genders; a natural person includes
a juristic person and vice versa; the singular includes the plural and vice
versa.
B.
DEFINITIONS
B.1.
The following words and expressions bear the meanings assigned to them and
cognate
expressions
bear corresponding meanings;
A.1.1.
“Laboratory”
means the medical testing laboratory
providing the Application and related
services.
A.1.2.
“Doctor” means
a registered medical practitioner authorised to access patient results
through the
Application.
A.1.3.
“Application” means the digital platform, software, mobile
application, website, or related
service
provided by the Laboratory for the purpose of delivering laboratory test
results to
Doctors.
A.1.4.
"Patient”
means any individual whose biological
specimen is tested by the Laboratory
and whose test results
may be accessed by the Doctor through the Application.
A.1.5.
“Personal
Information” and “Processing”
have the meanings assigned in the
Protection
of Personal Information
Act 4 of 2013 (“POPIA”).
A.1.6.
Results” means any
pathology, diagnostic, analytical, or related laboratory outcomes pro
vided to the Doctor.
A.1.7.
“
Signature Date” means the day when the Doctor uses the application by logging in
and/or
downloading the software.
A.1.8.
“
NHA” means
the National Health Act No 61 of 2003
A.1.9.
“Specimen” means
A.1.10.
“Responsible party” means
the person or organisation that determines why and how per
sonal
information is processed.
A.1.11.
“
POPIA” means
the Protection of Personal Information Act 4 of 2013
A.1.12.
“Operator” means
a person or organisation that processes personal information on behalf
of the responsible
party.
A.1.13.
“User”
means is the Responsible Party for all Personal Information and Special
Personal
Information processed
by way of the App.
A.1.14.
“Personal Information”
and “Processing” bear the meanings assigned in
POPIA.
A.1.15.
“Sub-Operator” means
a third party engaged by the Operator to process Personal
Information
A.1.16.
“Categories of
Information being processed” means Patient identifiers; Medical test
results; Diagnostic
imaging or reports; Contact details
of Medical Practitioners; Practice
information; Technical
device information (IP address, logs, metadata).
A.1.17.
“Parties” means Toga and the Medical
Practitioner and “Party” means anyone of them
as the context may require or indicate;
A.1.18.
“Toga
Lab” means
A.1.19.
“Special Personal Information”
includes medical, biometric, and other
sensitive patient
A.1.20.
information.
A.1.21.
“Data Subject” means any patient or individual whose Personal Information is
processed.
A.1.22.
“Healthcare Practice” means any medical, allied health, diagnostic, or clinical
establishment using the
Application.
B.
any substantive
provision conferring rights or imposing obligations on any party in the
interpretation clause shall be given effect to as if it were a substantive
provision in the body of the agreement.
C.
words and expressions
defined in any clause shall, unless the application of any such word or
expression is specifically limited to that clause, bear the meaning assigned to
such word or expression throughout this Agreement.
D.
no provision of this
Agreement or any related document shall be construed against or interpreted to
the disadvantage of any party hereto by reason of such party having or being
deemed to have structured or drafted such provision.
E.
unless specifically
otherwise provided, any number of days prescribed in this Agreement shall be
determined by excluding the first and including the last day or, where the last
day falls on a Saturday, Sunday or public holiday, the next succeeding business
day.
F.
a reference to any
statutory enactment shall be construed as a reference to that enactment as at
the Signature Date and as amended or re-enacted from time to time.
G.
this Agreement
incorporates the annexes which annexes shall have the same force and effect as
if set out in the body of this Agreement.
In this Agreement the word "Agreement" refers to this
Agreement and the words "clause" or "clauses"
and "annexed" or "annexes" refer to clauses
of and annexes to this Agreement.
H.
PREAMBLE
These
Terms and Conditions govern the use of the Application (“the App”), which
enables Medical Practitioners to receive, access, store, view, and manage
patient information, including laboratory results, diagnostic reports, and
related medical data. The App processes Special Personal Information as defined
under the Protection of Personal Information Act 4 of 2013 (“POPIA”). By
registering, accessing, or using the App, the User acknowledges that they are
the user and/or responsible party under POPIA for all patient data processed
through the App and that the Laboratory acts strictly as a POPIA Operator.
These Terms incorporate a POPIA-compliant Operator Agreement and a full Privacy
Notice.
NOW THEREFORE
the parties agree as follows;
1.
LEGALITY AND
ENFORCEMENT
1.1.
These Terms constitute
a binding agreement between the Laboratory and the Doctor.
1.2.
By registering for,
accessing, or using the Application, the Doctor agrees to be bound by these
Terms.
1.3.
The Laboratory may
amend these Terms at its discretion. Continued use of the Application
constitutes acceptance of the amended Terms.
2.
PURPOSE OF THE
APPLICATION
2.1.
The Application is
provided solely to enable Doctors to access laboratory Results for the purpose
of clinical assessment, diagnosis, treatment, and patient management.
2.2.
The Application is not
intended for use by patients or the general public.
2.3.
The Laboratory provides
Results strictly as diagnostic support and not as medical advice or clinical
instruction.
2.4.
The Laboratory does not
provide medical advice, treatment recommendations, or clinical instructions.
3.
DOCTOR’S
WARRANTIES AND OBLIGATIONS
3.1.
The Doctor warrants
that they are duly registered with the Health Professions Council of South
Africa (HPCSA) and legally authorised to receive, interpret, and act upon
laboratory Results.
3.2.
The Doctor is solely
responsible for:
3.2.1. ensuring
the accurate clinical interpretation of results;
3.2.2. verifying
the identity and consent of patients;
3.2.3. maintaining
compliance with POPIA and all applicable healthcare laws;
3.2.4. safeguarding
login credentials, access codes, devices, and authentication mechanisms;
3.2.5. ensuring
all subordinate staff accessing Results do so lawfully and under proper supervision.
3.2.6. maintaining
strict confidentiality in accordance with POPIA, the National Health Act 61 of
2003 (“NHA”), and HPCSA
ethical rules.
3.2.7. securing
access credentials, devices, passwords, and authentication tools and;
3.2.8. preventing
any unauthorised, negligent, or malicious access to the Application.
3.3.
The Doctor must, in
writing, notify the Laboratory immediately of any breach or suspected
breach of security.
4.
LABORATORY’S
OBLIGATIONS
4.1.
The Laboratory shall
exercise reasonable professional skill and care in the testing and preparation
of Results.
4.2.
The Laboratory provides
no guarantee that the Application will operate without interruption, error, or
security vulnerability.
4.3. The
Laboratory shall implement reasonable technical and organisational measures to
ensure uptime, data integrity, and secure processing of Personal Information.
4.4.
The Laboratory reserves
the right to restrict, suspend, or terminate access to the Application for
security, legal compliance, maintenance, or misuse.
5.
LIMITATION OF LIABILITY
5.1.
To the maximum extent
permitted by South African law, including the Consumer Protection Act 68 of
2008 (where applicable), the Laboratory shall not be liable for any:
5.1.1. indirect,
consequential, incidental, or punitive damages;
5.1.2. misinterpretation
of Results, clinical misjudgment, failure to diagnose, or wrongful treatment;
5.1.3. errors
arising from specimen labelling, patient identification, collection, storage,
or transport performed by third parties;
5.1.4. unauthorised
access, loss, corruption, interception, or distribution of Results due to the
Doctor’s
negligence, device insecurity, or misuse of credentials;
5.1.5. delays
or failures in delivery of Results via the Application;
5.1.6. reliance
by the Doctor on outdated or previously withdrawn Results.
5.2.
The
Laboratory’s
total liability arising from any claim shall not exceed the cost of the fee
charged for the specific test giving rise to the claim.
5.3.
Nothing herein excludes
liability where exclusion is prohibited by law.
5.4.
Liability
for direct damages is limited to fees paid in the preceding 12 months.
6.
INDEMNITY
6.1.
The Doctor indemnifies,
defends, and holds the Laboratory harmless against all claims, losses, damages,
penalties, disciplinary sanctions, legal actions, or liabilities arising from:
6.1.1. any
clinical decision, diagnosis, treatment, or omission by the Doctor;
6.1.2. any
breach of POPIA, the NHA, or confidentiality obligations by the Doctor or their
authorised personnel;
6.1.3. unauthorised
access to the Application using the Doctor’s credentials;
6.1.4. inaccurate
Patient information provided by the Doctor or their practice;
6.1.5. defamation,
misconduct, or negligence associated with the Doctor’s use of Results and;
6.1.6. corruption,
loss, or improper use of data arising from the Doctor’s systems or
networks.
6.2.
This indemnity applies
to claims raised by patients, family members, regulators, third parties,
medical schemes, or law enforcement authorities.
7.
DATA PROTECTION AND
CONFIDENTIALITY
7.1.
The Laboratory shall
take reasonable measures to protect Personal Information in accordance with
POPIA.
7.2.
The Doctor acknowledges
their independent responsibilities under POPIA as a Responsible Party.
7.3.
The Doctor must not
store, transmit, or distribute Results except as required for legitimate
medical purposes.
7.4.
Results may not be
downloaded, reproduced, transmitted, or stored except where clinically
necessary and lawful.
7.5.
The Doctor must
implement appropriate technical and organisational safeguards to protect
Patient information accessed via the Application.
7.6.
The parties shall treat
as strictly secret and confidential the existence and nature of all discussions
and negotiations relating to the subject matter of this agreement, it being
agreed and undertaken by both parties that the discussions held and to be held
between them, this Agreement, its existence and its terms and conditions are
not to be disclosed, directly or indirectly to any person without the consent
of the other party prior to the effective date, without the prior written
consent of this other party, which consent shall not unreasonably be withheld,
be disclosed to any third person other than in terms of any order of a Court of
competent jurisdiction which shall have directed it, or as may be required by
law.
7.7.
Each party shall take
or cause to be taken such reasonable precautions as may be necessary to prevent
the disclosure of any information and date made available or obtained from the
Application which are not a matter of public knowledge or lawfully available
from any other source.
7.8.
Only the
Doctor and authorised medical personnel under the Doctor’s supervision, who
require access to Personal Information for patient care, may access such
information. The Doctor remains responsible for ensuring that any authorised
personnel comply with the obligations contained in this agreement.
7.9.
The parties must keep
confidential and not disclose to any third party the terms of this Agreement,
the results and any information relating to each other’s technical process,
business affairs of finances, know-how and intellectual property acquired in connection
with this agreement. Should the Doctor be required by the law to disclose such
information, it must inform in writing the Laboratory within a reasonable time.
7.10.
The clause shall
continue to be binding on the parties notwithstanding any termination or
cancellation of this
Agreement or any part thereof.
8.
ACCESS CONTROL AND
SECURITY
8.1.
The Laboratory may
implement multi-factor authentication, identity verification, encryption, and
monitoring technologies.
8.2.
The Laboratory may
immediately suspend access upon reasonable suspicion of:
8.2.1. security
breaches;
8.2.2. unauthorised
access;
8.2.3. misuse
or misconduct and;
8.2.4. regulatory
risks.
8.3.
Any unlawful access may
be reported to law enforcement and the HPCSA.
9.
INTELLECTUAL
PROPERTY
9.1.
All intellectual
property in the Application remains the exclusive property of the Laboratory.
9.2.
The Doctor receives a
limited, non-transferable, revocable license to use the Application solely for
clinical purposes.
10.
PROHIBITED
CONDUCT
10.1.
The Doctor may not:
10.1.1.
reverse-engineer, copy, or reproduce any component of
the Application;
10.1.2.
use the Application for non-clinical, commercial, or
research purposes without
written consent;
10.1.3.
allow Patients direct access to the Application.
10.1.4.
Breach of this clause may result in civil action,
reporting to the HPCSA, or criminal
charges where applicable.
11.
ACCURACY, VALIDITY, AND
INTERPRETATION OF RESULTS
11.1.
Results are based on
specimens received under the conditions submitted and accepted for
processing.
11.2.
The Laboratory is not
responsible for:
11.2.1.
improper specimen
collection, labelling, or transport;
11.2.2.
degradation of
specimens prior to receipt;
11.2.3.
misidentification of Patients or samples.
11.3.
The Doctor retains full
and exclusive responsibility for interpretation and clinical decisions.
11.4.
The Laboratory is not
responsible for pre-analytical errors, specimen degradation, or
incorrect patient identifiers
supplied by the Doctor.
11.5.
Interpretation remains
solely the Doctor’s
responsibility.
12.
SUSPENSION AND/OR
TERMINATION
12.1.
The Laboratory may
suspend or terminate access at any time where required for:
12.1.1.
system maintenance or upgrades;
12.1.2.
legal compliance;
12.1.3.
investigation of misconduct;
12.1.4.
protection of Patient information;
12.1.5.
breach of these Terms.
12.2.
Upon termination, the
Doctor must cease all use of the Application and ensure the lawful
retention or
destruction of any stored Results.
This POPIA Operator Agreement
(“Agreement”) is concluded between: The Responsible Party, as defined in the
main Terms and Conditions; and The Operator, being the Client identified in the
main Terms and Conditions.
The Parties agree as
follows:
13.
PURPOSE AND SCOPE
13.1.
This Agreement governs
the processing of Personal Information by the Operator on behalf
of the Responsible
Party under POPIA.
13.2.
The Operator shall
process Personal Information only:
13.2.1.
in accordance with the
Responsible Party’s documented and
lawful instructions, and;
13.2.2.
as required for
performance of the main Terms and Conditions.
13.3.
Where the Operator
reasonably believes that an instruction infringes POPIA, it shall notify
the Responsible Party
so the Parties may resolve the issue jointly.
14.
GENERAL OBLIGATIONS OF
THE PARTIES
14.1.
Operator Obligations
The Operator shall:
14.1.1.
implement appropriate
security measures;
14.1.2.
ensure confidentiality
of personnel;
14.1.3.
notify the Responsible
Party of any security compromise;
14.1.4.
assist the Responsible
Party where reasonably required to comply with POPIA.
14.2.
Responsible Party
Obligations
The
Responsible Party shall:
14.2.1.
provide lawful,
documented, and clear instructions;
14.2.2.
ensure it has a valid
legal basis for collecting Personal Information;
14.2.3.
ensure that Personal
Information it provides is accurate and relevant;
14.2.4.
not require the
Operator to take any action that would breach applicable law.
14.3.
Shared Responsibilities
14.3.1.
Co-operate in good
faith on compliance matters,
14.3.2.
maintain records
required under POPIA, and
14.3.3.
implement reasonable
measures to prevent unauthorised access or misuse.
15.
SECURITY SAFEGUARDS
15.1.
The Operator shall
implement appropriate and reasonable technical and organisational
security measures, considering:
15.1.1.
the nature of the information;
15.1.2.
the risks associated
with processing;
15.1.3.
industry standards; and
15.1.4.
the resources available
to the Operator.
15.2.
The Responsible Party
shall implement its own security measures for all Personal
Information in its
possession and control.
15.3.
The Parties shall
notify one another of any significant new risks or vulnerabilities that may
affect compliance.
15.4.
The
Operator must implement safeguards equivalent to South African laboratory
information
systems, including encryption in transit and at rest; multi-factor
administrative
access
controls; regular penetration testing; strict staff confidentiality agreements.
16.
USER ELIGIBILITY AND
PROFESSIONAL RESPONSIBILITY
16.1.
The User warrants that
they are a licensed Medical Practitioner or authorised healthcare
professional.
16.2.
The User is solely
responsible for:
16.2.1.
verifying laboratory or
diagnostic results before medical interpretation,
16.2.2.
clinical
decision-making,
16.2.3.
ensuring patient
consent where required,
16.2.4.
ensuring that all
patient data provided through the App is accurate and lawful to
process.
17.
SECURITY COMPROMISE
17.1.
If either Party becomes
aware of a security compromise, it shall notify the other Party
without undue delay.
17.2.
The Parties shall
cooperate reasonably and proportionately in investigating, mitigating,
and remedying the
compromise.
17.3.
Each Party shall bear
its own costs unless the compromise is caused by the wrongful
or negligent act of one
Party, in which case liability is allocated in terms of clause 6.
17.4.
The Responsible Party
remains legally responsible for notifying the Information Regulator
and affected Data
Subjects unless delegated contractually.
18.
SUB-OPERATORS
18.1.
The
Operator may appoint Sub-Operators with the prior written approval of the
Responsible
Party, which approval may not be unreasonably withheld or delayed.
18.2.
The
Operator shall ensure Sub-Operators are bound by obligations substantially
similar
to those in this Agreement.
18.3.
The
Operator remains responsible for the actions of approved Sub-Operators to the
extent
such
actions relate to obligations delegated to them.
19.
CROSS-BORDER TRANSFERS
19.1.
The Operator shall not
transfer Personal Information cross-border without:
19.1.1.
the Responsible Party’s
written authorisation (not to be unreasonably
withheld)
and;
19.1.2.
ensuring that the
receiving country, organisation, or mechanism meets POPIA’s
requirements.
19.2.
Where the Responsible
Party instructs the Operator to transfer information, the
Responsible Party
warrants that such transfer complies with POPIA.
20.
AUDIT AND INSPECTION
20.1.
The Responsible Party
may, on reasonable notice, request information demonstrating the
Operator’s compliance.
20.2.
Formal audits may be
conducted only where:
20.2.1.
required by law; or
20.2.2.
there is a reasonable
and written evidenced suspicion of non-compliance.
20.3.
Audits shall:
20.3.1.
be conducted during
business hours;
20.3.2.
not unreasonably
disrupt operations;
20.3.3.
respect the Operator’s
confidentiality and proprietary information; and
20.3.4.
be at the Responsible
Party’s cost unless material non-compliance is discovered.
20.3.5.
exclude all proprietary
code, trade secrets, or unrelated confidential information.
21.
RETURN OR DESTRUCTION
OF PERSONAL INFORMATION
21.1.
Upon termination of the
main Terms and Conditions, the Operator shall:
21.1.1.
return or securely
destroy Personal Information as instructed, unless
retention
is required by law; and
21.1.2.
certify the completion
of such measures.
21.2.
The Responsible Party
shall ensure it provides clear and lawful instructions for destruction
or return.
22.
WARRANTIES
22.1.
The Operator warrants
that it:
22.1.1.
will comply with POPIA
as applicable;
22.1.2.
has implemented
reasonable security safeguards;
22.1.3.
will process Personal
Information only as permitted by this Agreement.
22.2.
Responsible Party
warrants that:
22.2.1.
it
has a lawful basis for all Personal Information provided;
22.2.2.
Personal Information is
not unlawfully collected or excessive;
22.2.3.
its instructions comply
with POPIA.
23.
PRIVACY NOTICE
23.1.
This Privacy Notice
sets out the manner in which Personal Information and Special Personal
Information of Data
Subjects is collected, used, processed, stored, retained, and
safeguarded through the
Application.
23.2.
This Notice further
describes the legal rights of Data Subjects and the respective
responsibilities of the
Healthcare Practice and the Developer in relation to the lawful handling
of such information.
23.3.
All processing
activities are undertaken with the objective of ensuring full compliance with
applicable legislation
and recognised ethical obligations, and with due regard to the
confidentiality
inherent in healthcare related information.
23.4.
All Personal
Information and Special Personal Information processed through the
Application
shall be handled strictly in accordance with the requirements of the Protection
of Personal Information Act 4 of 2013 (“POPIA”), the National Health Act 61 of
2003 (“NHA”), any applicable regulations issued under such statutes, and any
relevant rules, ethical standards, or professional obligations imposed by the
Health Professions Council of South Africa (“HPCSA”).
23.5.
Where the Application
is used in a context that gives rise to additional statutory obligations,
those
obligations shall similarly apply to all processing activities.
23.6.
INFORMATION COLLECTED
23.6.1.
The Application may
collect, generate, or process the following categories of
Personal
Information and Special Personal Information in the ordinary course of
its
operation:
23.6.1.1.
Identifying,
demographic, or contact particulars of Data Subjects,
including names, identification numbers,
physical and electronic
addresses,
and telephone numbers.
23.6.1.2.
Health-related and
clinical information, including medical records,
diagnostic findings, clinical notes,
test results, prescriptions, medication histories, and any other information
necessary for healthcare provision.
23.6.1.3.
Administrative,
billing, and financial information, including account
details, medical scheme information, and
records relating to claims processing or reimbursement.
23.6.1.4.
Information voluntarily
provided by the User, uploaded by authorised
personnel,
or obtained via secure integration with external systems,
platforms,
or healthcare services.
23.7.
PURPOSE OF PROCESSING
23.7.1.
Personal Information
and Special Personal Information shall be processed
solely
for lawful, legitimate, and explicitly defined purposes, including:
23.7.1.1.
the provision of
medical care, diagnosis, treatment, continuity of care,
and
related healthcare services;
23.7.1.2.
the creation,
maintenance, and management of patient records and
clinical documentation;
23.7.1.3.
communication with Data
Subjects for health-related purposes,
including appointment
scheduling, treatment-related notifications, and follow-up care;
23.7.1.4.
billing administration,
claims submissions, verification of benefits, and
other
funding-related functions;
23.7.1.5.
compliance with
statutory, regulatory, or professional obligations,
including
mandatory reporting requirements;
23.7.1.6.
system administration,
security monitoring, operational maintenance,
performance optimisation,
and improvement of the Application.
23.8.
LAWFUL BASIS FOR
PROCESSING
23.8.1.
The processing of
Personal Information and Special Personal Information may
be
undertaken on one or more of the following lawful bases:
23.8.1.1.
the explicit,
voluntary, and informed consent of the Data Subject, where
required
under POPIA;
23.8.1.2.
the necessity of such
processing for the purpose of providing
healthcare
services or medical treatment to the Data Subject;
23.8.1.3.
the fulfilment of legal
obligations imposed on the Healthcare Practice or
any
healthcare professional making use of the Application and;
23.8.1.4.
the legitimate
interests of the Healthcare Practice, to the extent that
such
interests are recognised under POPIA and do not unlawfully
infringe
upon the rights of the Data Subject.
23.9. STORAGE, SECURITY, AND SAFEGUARDS
23.9.1.
All Personal
Information and Special Personal Information shall be stored using appropriate,
reasonable, and industry aligned technical and organisational security measures
designed to prevent loss, unauthorised access, unlawful disclosure, or improper
alteration.
23.9.2.
Access to Personal
Information shall be strictly limited to authorised Users who require such
access for lawful and legitimate processing purposes.
23.9.3.
The Developer may
implement additional security mechanisms, including encryption protocols,
secure transmission methods, authentication controls, intrusion detection
measures, and system level safeguards, in order to ensure compliance with
POPIA’s security requirements and to maintain the integrity of the Application.
23.10.
SHARING AND DISCLOSURE
23.10.1. Personal
Information and Special Personal Information shall not be disclosed to any
third party except where such disclosure is lawful, necessary, and consistent
with the purposes outlined in this Notice. Such disclosures may include:
23.10.1.1.
treating healthcare
professionals who require access for purposes of diagnosis,
treatment, or
continuity of care;
23.10.1.2.
pathology laboratories,
pharmacies, or other healthcare service providers
involved in the treatment or management of the
Data Subject;
23.10.1.3.
medical schemes,
insurers, or authorised funding entities for the purposes of
benefit verification,
billing, or claims administration;
23.10.1.4.
regulatory authorities,
courts, tribunals, or law enforcement agencies where
disclosure is required
by law or pursuant to a valid legal process.
23.11.
RETENTION AND DEVELOPER
RECORD-KEEPING
23.11.1. All
clinical records and medical information shall be retained by the Healthcare
Practice or User in accordance with the retention periods prescribed by the
National Health Act, the associated regulations, and the relevant HPCSA ethical
rules, including any minimum statutory retention period for health records.
23.11.2. The
Developer may maintain system generated logs, audit trails, security records,
and technical metadata strictly for operational, security, diagnostic, or
compliance purposes.
23.11.3. Such
records shall be retained only for as long as is reasonably necessary to fulfil
these legitimate functions, to comply with applicable legal obligations, or to
enforce or defend legal rights, after which such records shall be securely
deleted or anonymised in accordance with POPIA.
23.12.
DATA SUBJECT RIGHTS
Data Subjects are
entitled, subject to applicable law and any lawful limitations, to exercise the
following rights:
23.12.1. the
right of access to Personal Information held about them;
23.12.2. the
right to request the correction, updating, or rectification of any inaccurate
or incomplete information;
23.12.3. the
right to object to certain forms of processing, including processing undertaken
on the basis of legitimate interests, where such
objection is permitted by law;
23.12.4. the
right to lodge a complaint with the Information Regulator of South Africa
should they believe that their Personal Information has been processed in a
manner inconsistent with POPIA.
23.13.
CONTACT AND COMPLAINTS
23.13.1. Any
inquiries, requests, or concerns relating to the processing of Personal
Information through the Application should be directed to the Laboratory or
Healthcare Practice using the contact details provided within the Application.
23.13.2. Data
Subjects may also submit complaints directly to the Information Regulator of
South Africa should they consider that the handling of their Personal
Information contravenes applicable data-protection laws.
24.
DISPUTE RESOLUTION
24.1.
Amicable Consultation
24.1.1.
If any dispute,
disagreement, or claim of any nature arises between the Parties in connection
with this Agreement, including its interpretation, performance, breach, or
termination, the Parties shall promptly attempt to resolve the matter through
good-faith negotiations.
24.1.2.
Each Party shall
designate a representative with decision-making authority to engage in these
discussions.
24.1.3.
The Parties must use
their best efforts to settle the dispute through mutual consultation within ten
(10) days from the date on which either Party notifies the other in writing of
the existence of the dispute.
24.2.
Referral to Mediation
24.2.1.
If the Parties are
unable to resolve the dispute through amicable consultation within the time
period specified in clause 24.1.3, they may, by mutual agreement, refer the
dispute to voluntary mediation before proceeding to arbitration.
24.2.2.
The mediator shall be
jointly selected by the Parties with not less than 5 (five) years of experience
as an accredited mediator, and the mediation process shall be conducted in
accordance with the rules of the Arbitration Foundation of Southern Africa
(AFSA) or another recognised Mediation Organisation agreed upon in writing.
24.2.3.
Mediation shall not
exceed ten (10) days, unless the Parties agree otherwise.
24.2.4.
Parties shall follow
the rules and guidelines as outlined in the Gauteng Practice Directive or any
Mediation legislation thereafter.
24.3.
Arbitration
24.3.1.
If the Parties fail to
resolve the dispute through amicable mediation within the periods described
above, either Party may serve written notice on the other Party of its
intention to refer the dispute to binding arbitration.
24.3.2.
The arbitration shall
be conducted in accordance with the rules of the Arbitration Foundation of
Southern Africa (AFSA), by an arbitrator or panel of arbitrators appointed by
AFSA with not less than 10 (ten) years of experience as an Arbitrator.
24.4.
Finality and Binding
Nature
The
decision or award of the arbitrator(s) shall be final, binding on the Parties,
and capable of being made an order of court upon application by either Party.
24.5.
Costs of Arbitration
Unless
otherwise determined by the arbitrator(s), the costs of the
arbitration—including the fees of the arbitrator(s), administrative fees, and
the Parties’ legal costs—shall be borne by the Parties in proportion to the
arbitrator’s award or in such manner as the arbitrator(s) deem just and
equitable.
24.6.
Continuation of
Obligations
During the dispute-resolution process,
the Parties shall continue performing their respective obligations under this
Agreement to the extent reasonably possible, except in matters directly
affected by the dispute.
24.7.
Urgent or Interim
Relief
Nothing
in this clause shall prevent either Party from approaching a court of competent
jurisdiction for urgent or interim relief where such relief is necessary to
protect its rights pending the outcome of arbitration.
25. TERMINATION
Either party may
terminate this Agreement upon 10 (ten) days written notice to the other. It is contemplated that, upon termination,
either: (a) neither party would make further disclosures of Confidential
Information to the other, or (b) a superseding Non-Disclosure Agreement would
be executed.
26.
GOVERNING LAW AND
JURISDICTION
26.1.
These Terms are governed by the laws of the Republic of
South Africa.
26.2.
Any dispute arising from these Terms shall be subject
to the exclusive jurisdiction of the High Court
of South Africa.
27.
NOTICES
27.1.
Formal
notices must be delivered in writing to the parties’ designated
email or physical address as
indicated in the XXXXX.
27.2.
Notices
by the Laboratory may be delivered electronically through the Application.
28.
SEVERABILITY
28.1.
If any provision of these Terms is found invalid or
unenforceable, the remaining provisions shall
remain in full force.
29.
GENERAL
29.1.
This Agreement
constitutes the whole of the agreement between the Parties relating to the matters
dealt with herein and,
save to the extent otherwise provided herein, no undertaking, representation,
term or condition
relating to the subject matter of this Agreement not incorporated in this
Agreement
shall be binding on
either of the Parties.
29.2.
No addition to or
variation, deletion, or agreed cancellation of any and all clauses or
provisions of
this Agreement will be
of any force or effect unless in writing and signed by the Parties.
29.3.
No waiver of any of the
terms and conditions of this Agreement will be binding or effectual for any
purpose unless in writing and signed by
the Party giving the same. Any such
waiver will be effective only in the specific instance and for the purpose
given. Failure or delay on the part of
either Party in exercising any right, power or privilege hereunder will not
constitute or be deemed to be a waiver thereof, nor will any single or partial
exercise of any right, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
29.4.
All provisions and the
various clauses of this Agreement are, notwithstanding the manner in which
they have been grouped together or
linked grammatically, severable from each other. Any provision or clause of this Agreement
which is or becomes unenforceable in any jurisdiction, whether due to voidness,
invalidity, illegality, unlawfulness or for any other reason whatever, shall,
in such jurisdiction only and only to the extent that it is so unenforceable,
be treated as pro non scripto and the
remaining provisions and clauses of this Agreement shall remain of full force
and effect. The Parties declare that it
is their intention that this Agreement would be executed without such
unenforceable provision if they were aware of such unenforceability at the time
of execution hereof.
29.5.
Neither this Agreement
nor any part, share or interest herein nor any rights or obligations hereunder
may
be ceded, delegated or assigned by either Party without the prior written
consent of the other Party.
29.6.
Any consent or approval
required to be given by either Party in terms of this Agreement will, unless
specifically, otherwise stated, not be
unreasonably withheld.