SURGILOG TERMS AND CONDITIONS
1.1 In these general terms and conditions ("Terms"):
1.1.1 "We", "our", "us" and "Surgilog" means aspigon 317cc (Proprietary) Limited, registration number, 2011/075584/23, registered in South Africa. Furthermore, any reference to us will be deemed to also include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, advisers, service providers, suppliers and content providers;
1.1.2 "you" and "your" means any person who makes use of the Website and registers to use the Services;
1.1.3 "healthcare professional" means a registered medical practitioner/ professional or medical student in their clinical years of training that makes use of the Services;
1.1.4 "use" means to use, access, refer to, view or make use of the Services;
1.1.5 "Website" means the website which is accessible at the URL: www.surgilog.com;
1.1.6 "Services" means the services made available by us via the Website, APIs and Mobile Device Applications by means of which you are able to, amongst other things:
126.96.36.199 capture and record medical information electronically on our secure web based electronic health record keeping system ("the logbook");
188.8.131.52 access, update and view your logs stored via the Website, including diagnoses, treatment provided, medicines prescribed, clinical notes, medical photographs, audio recordings, procedures and tests performed and any consumables used for treatment; and
184.108.40.206 any other service which may be made available by us via the Website, APIs or Mobile Device Applications from time to time.
1.1.8 "Patient" means any one of the patients treated by you;
1.1.9 "Access Details" means the username and password we provide to you, or created by you upon registration for the Services for the purposes of giving you access to the Services; and
1.1.10 "Loss" means any loss, including loss of profit, liability, expense, claim, penalty or damage, whether direct, indirect, special or consequential.
1.2 Unless the context requires otherwise or it is expressly stated to the contrary, any words and phrases not defined in these Terms but defined in the Electronic Communications and Transactions Act 25 of 2002 ("the ECT Act") will bear the same meaning given to them in the ECT Act.
1.3 The Terms and any additional document we incorporate by reference shall apply to you when you use the Website and/or any part of the Services.
2 What do these Terms regulate?
Subject to paragraph 3.1, these Terms regulate the terms and conditions upon which you may:
2.1 use the Services; and
3 Your agreement to comply with these Terms
3.1 You agree that:
3.1.1 clicking/checking "Register", creating a Surgilog account, making use of any of the Services and/or any use of the Website signifies your unconditional agreement to comply with all of the terms and conditions of these Terms;
3.1.2 we may, at any time, amend or introduce additional terms and conditions relating to the Services or any other service, content, products, facilities or functionality which is made available by us by way of the Website or otherwise. You will be notified of (and required to agree to) such amendments and additional terms and conditions in the manner provided for in paragraph 16.2 of these Terms; and
3.1.3 we may, in our sole discretion, at any time and for any reason and without prior notice, suspend or terminate the Services, the operation of the Website or any of the Website Content or the right to use the Services, the Website or any of the Website Content.
3.2 If you do not agree to these Terms you must not make use of:
3.2.1 the Services; and/or
3.2.2 the Website and the Website Content and you must immediately delete all copies of the Website Content in your possession or under your control.
3.3 You may print a copy of these Terms. If you have any difficulty printing these Terms or require assistance in obtaining a hard copy or electronic copy of these Terms, you should contact our support team via email at firstname.lastname@example.org.
4 References and links to and from other websites
3.4 You agree that you are solely responsible for obtaining and maintaining all facilities, services, products and equipment which may be required by you to use the Website, the Website Content and the Services. In this regard, you must, at all times, provide your own hardware, software as well as a modem and internet connectivity and telecommunications infrastructure.
3.5 You agree that we are allowed to grant the same, similar, additional or different rights to any other person or entity.
4.1 The Website may contain references or links to other websites ("Other Websites") and to the products, opinions or services of third parties.
5 Your behaviour when using the Website and the Services
4.2 Subject to the provisions of the ECT Act and to the fullest extent allowed by law, your use of the Other Websites or the products or services of third parties is entirely at your own risk. We shall not be responsible for any Loss arising from or related to your reliance on, use or attempted use of Other Websites or the opinions, products or services of third parties.
4.3 You shall not make (and may not permit any third party to make) any reference to us, the Website or the Website Content, whether by way of a link or otherwise, where the reference could, in any way, be interpreted as an endorsement, affiliation or recommendation by us in relation to you or a third party or of the services, products or opinions of a third party, without our prior written consent.
5.1 You shall not use the Website to obtain or distribute:
5.1.1 copyrighted material or material protected by law without our prior written consent; or
5.1.2 material containing viruses or any other destructive materials or data or code which is able to corrupt, interfere with, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation of a computer system or hardware or software.
5.2 You must not perform any act which may jeopardise or interfere with the functionality or the operation of any part of the Website.
5.3 You are strictly prohibited from using the Website for "spoofing", "hacking", "flaming", "cracking", "phishing" or "spamming" or any other activity designed or aimed at achieving purposes similar or the same as the aforementioned acts.
5.4 You shall not intercept any information transmitted to or from us or the Website which is not intended by us to be received by you.
5.5 Subject to the further provisions of these Terms, the Website and the Website Content may only be used by you for lawful purposes and shall not extend to the use of the source code of the Website or the Website Content.
5.6 You are not allowed to: (i) frame, link to, modify, distribute, commercialise, exploit and/or alter the Website or the Website Content; (ii) incorporate any part of the Website Content in any other work or publication; and/or (iii) perform any other act which may not be considered fair use. Should you wish to do so, our prior written approval is required and we are entitled, in our sole discretion, to withhold or grant consent and to impose any conditions on any consent which is granted by us. Requests for approval must be submitted to email@example.com.
5.7 Any restrictions on the use of the Website or the Website Content shall also apply to any part of the Website or the Website Content which may be cached when using the Website or the Website Content.
5.8 In addition, you shall not and shall not allow a third party to:
6 Registration for the Services by healthcare professionals
5.8.1 decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats, programming of the software forming part of the Website and/or the Website Content ("the Software") or any files contained in or generated by the Software by any means whatever;
5.8.2 remove any product identification, copyright or other notices, from the Software or documentation;
5.8.3 lend to a third party or use any portion of the Software (whether or not modified or incorporated with other software) on or with any machine or system other than your practice's hardware; or
5.8.4 disseminate performance information or analysis of the Software from any source relating to the Software.
6.1 The Website operates as electronic and interactive portfolio and logbook and is designed for healthcare professionals to collect, capture and record a Patient's file information and medical records.
6.2 Only persons who have registered may make use of the Services via the Website.
6.3 To register for and use the Services on the Website you will be required to:
6.3.1 agree to these Terms;
6.3.2 provide us with all the information we require in order to make the Services available to you, including but not limited to: (i) your personal details; (ii) details relating to your medical practice, and (iii) confirmation of your registration at the Health Professions Council of South Africa ("HPCSA") or equivalent regulatory body.
6.4 You agree that we may use the information provided to us in terms of clause 6.3.2 to conduct a check with the HPCSA or equivalent regulatory body to confirm your registration with the HPCSA or equivalent regulatory body.
7 Conditions for use of the Services by healthcare professionals
6.5 When logging on to use the Services, you will be requested to enter your Access Details. You may at any time change your Access Details. You will be solely responsible for keeping these Access Details secret. You agree to notify us immediately should you suspect that another person has obtained access to your Access Details or if you are aware of any unauthorized use of your Access Details.
6.6 To the extent permitted by law, you will be responsible for any Loss or damage you, your Patients or any other party may suffer if any other person accesses the Services using your Access Details.
6.7 To access the Services, you must have access to a computer, which is able to connect to the internet and to download and receive content.
7.1 You hereby agree as follows:
7.1.1 You are above the age of 18 years old;
7.1.2 You will not provide any false information on the Website;
7.1.3 You will not be entitled to register an account on behalf of any other health professional or person whatsoever;
7.1.4 You will not be entitled to register more than one account on the Website;
7.1.5 You may not register an alternative account if your membership to use the Services on the Website is suspended or terminated for any reason whatsoever;
7.1.6 You will not be entitled to transfer your membership to another healthcare professional nor accept or use an account on the Website that is not your own;
7.1.7 You may not charge any person for access to any part of the Services on the Website; and
7.1.8 You may not use the Services and the Website to unlawfully compete with Surgilog.
7.2 Notwithstanding the foregoing, healthcare professionals who have registered on the Website will be able to link the names of healthcare professionals not registered on the Website ("non-members") in their logbooks (for example in order to link the non-member's name to an operation or procedure which was performed by them). In order to link the names of non-members to your logbook on the Website, you will be required to submit the email address of the non-member to the Surgilog database. In so doing, you hereby authorise Surgilog to send the non-member an email invitation to join and register on the Website. It will be your responsibility to alert the non-member that Surgilog will be sending him/her an email invitation.
8 Allowed use and licence
8.1 You acknowledge that the Services made available to you are owned by, or licensed to us and are protected by intellectual property laws.
9 Patient Consent
8.2 You agree that you will not use the Services in any manner that constitutes a violation of any law (including intellectual property law), or an infringement of the rights (including the intellectual property rights) of Surgilog, our licensors or any third party.
8.3 You agree that you will not reproduce, modify, copy, perform, transmit or commercially exploit the Services in any manner whatsoever.
9.1 In order to use the Website and the Services, Surgilog requires that you obtain your Patient's informed consent for their confidential medical file information to be captured and recorded by you on the Website. You must keep patient identifiable information to a minimum and you must not use full patient names or patient addresses in any free field.
10 Commencement and additional services
9.2 You hereby warrant that you have obtained your Patient's informed consent for their confidential medical file information to be captured and recorded by you on the Website.
9.3 You hereby indemnify Surgilog, its affiliates, shareholders, directors, agents, consultants and employees ("the Indemnified Parties") against any claims, costs or damages that may be incurred by the Indemnified Parties of whatsoever nature, including, without limitation any direct, indirect, special, consequential and/or physical damages, whether in an action arising out of contract, statute, delict or otherwise, relating to your failure to obtain your Patient's informed consent for their confidential file information to be recorded and captured on the Website.
10.1 Your appointment of Surgilog to render the Services commences on and is with effect from the date on which you register for the Services ("the Effective Date") and endures indefinitely until terminated by yourself or us giving the other 30 days notice thereof.
11 Exclusion of liability for use of the Website, the Website Content and the Services
11.1 Your use of the Website, the Website Content and the Services is entirely at your own risk.
12 Exclusion of warranties and representations
11.2 Subject to the provisions of the ECT Act and to the fullest extent allowed by law, we shall not have any liability whatsoever in relation to the Website, the Website Content and/or the Services. You hereby indemnify us against any Loss arising from your use of or reliance on the Website, the Website Content or the Services or arising out of any of the events contemplated in paragraph 11.3 below, or any actions or transactions resulting therefrom, even if we have been advised of the possibility of such Loss.
11.3 In addition, you agree that we will not be liable for any unavailability, interruption, downtime, malfunction, or failure of the Website, the Website Content or the Services for any reason whatsoever.
11.4 To the fullest extent allowed by law, if any of the limitations or exclusions of our liability in these Terms are held by any competent court, arbitrator or authority to be invalid or unenforceable, in no event will our total cumulative liability to you exceed R100.00.
12.1 The Website, the Website Content and the Services are provided "as is" and are subject to change without notice.
13 Additional disclaimers and exclusion of warranties
12.2 We do not accept any responsibility for any errors or omissions on the Website or the Website Content. In addition, you acknowledge that the Website Content may not be accurate or complete.
12.3 Subject to the provisions of the ECT Act, the Website and the Services are provided without any representation or warranty whatsoever, whether express, implied or statutory, including (without limitation) any representation or warranty as to the operation, integrity, compatibility, availability or functionality of the Website or as to the operation, accuracy, completeness, integrity, compatibility, availability functionality or reliability of the Website Content.
12.4 We also make no warranty or representation, whether express or implied, that the Website Content is free of viruses, destructive materials or any other data or code which is able to harm or otherwise impede in any manner the operation of a computer system, computer network or your hardware or software and you accept all risks in this respect.
12.5 You may also not rely on any warranty or representation, which allegedly induced you to agree to these Terms, unless the representation or warranty is recorded in these Terms.
12.6 You acknowledge that the information on the Website and the Website Content is not intended to, and does not, constitute professional medical advice or a replacement or substitute for professional medical advice of any nature whatsoever, including (without limitation) in respect of any diagnosis or treatment to a specific medical question or condition.
12.7 You acknowledge that the Website, the Website Content and the Services is not intended to and does not create a doctor-patient relationship nor does it replace the relationship between a health care professional and their patients.
12.8 The grant of any indulgence by us to you in respect of any matter connected to your use of the Website, the Website Content or the Services shall not constitute a waiver of any right by us or prevent or adversely affect the exercise by us of any existing or future right.
13.1 You acknowledge that the information on the Website is not intended to, and does not, constitute professional medical advice or a replacement or substitute for professional medical advice of any nature whatsoever, including (without limitation) in respect of any diagnosis or treatment to a specific medical question or condition of your Patient.
13.2 You acknowledge that the use of the Website does not create nor replace the professional relationship you have with your Patient. Accordingly, whilst all reasonable and foreseeable steps and precautions have been taken to ensure the accuracy and safety of the content of this Website:
13.2.1 you agree that any reliance hereof and hereon is solely and entirely at your own risk and that you assume full responsibility and risk of Loss resulting from the use hereof;
13.2.2 you agree that the information you record and capture in respect of your Patients is accurate and is recorded solely and entirely at your own risk and you assume full responsibility and risk of Loss resulting from the use thereof; and
13.2.3 you agree that the use of the products or services which may be advertised on the Website are used at your own risk and you assume full responsibility and risk of any injury, damage or Loss resulting from the use thereof.
13.3 You hereby indemnify the Indemnified Parties against any claims, costs or damages that may be incurred by the Indemnified Parties of whatsoever nature, including, without limitation any direct, indirect, special, consequential and/or physical damages, whether in an action arising out of contract, statute, delict or otherwise, relating to the use of, accuracy or inability to use the Website or the information contained herein.
14 Intellectual Property Rights
13.4 You agree that Surgilog may, on reasonable notice to you, limit or deny access to all or any part of the Services for purposes of performing any upgrade, repair or maintenance services. In these circumstances, we will use our best efforts to limit or deny your access to the Services to non business hours.
14.1 The Website, the Website Content and the Services are protected by law. This incorporates all intellectual property rights in respect of the Website, the Website Content and the Services, including all rights, title and interest (statutory and common law) in copyright, designs, trademarks and inventions. Any unauthorised use of the Website, the Website Content and the Services and all intellectual property rights related thereto, is prohibited.
15 Variation of certain deeming provisions in the ECT Act
14.2 All intellectual property rights, including all rights, title and interest (statutory and common law) in copyright, of whatsoever nature existing now and in the future, remain the absolute property of Surgilog. The software may not be sub-licensed, transferred or assigned without the prior written consent of Surgilog and you shall not and shall not permit access to the software and any documentation relating thereto by any third party without the prior written consent of Surgilog.
14.3 You will not acquire any right, title or interest, including any intellectual property rights, in or to the Website, the Website Content or the Services other than those rights expressly granted to you in these Terms.
14.4 Where any of the Website Content has been licensed to us or belongs to any third party, your rights of use will also be subject to any terms and conditions which that licensor or third party imposes from time to time and you agree to comply with such third party terms and conditions.
By using the Website and/or the Services, you agree that these Terms create a binding agreement between us and you, even though these Terms are wholly or partly in the form of a data message. You agree specifically that:
15.1 the agreement will be treated as if it was concluded at our physical address on the date on which you first made any use of the Website;16 Variation of these Terms
15.2 an electronic signature is not required by you or us for purposes of agreeing to these Terms;
15.3 your use of the Website and/or the Services is sufficient evidence of your agreement to these Terms;
15.4 any data message sent by either you or us to the other will be deemed to have been sent from our physical address if neither your usual place of business nor residence is located within South Africa;
15.5 subject to the further provisions of these Terms, any communication sent to you by an information system programmed to operate automatically on our behalf will be a data message attributable to, or authorised by us;
15.6 subject to the further provision of these Terms, a data message sent by you to us will only be treated as having been received by us when an acknowledgement of receipt is sent by us personally or a person who had authority to act on our behalf in respect of that data message; and
15.7 these Terms will be interpreted and implemented in accordance with the laws of South Africa and you agree to the jurisdiction of the courts of South Africa.
16.1 Subject to the variations or amendments provided for in terms of paragraph 16.2, no other variation or amendment, in any form whatsoever, of these Terms will be enforceable or binding on us unless we have agreed to such variation or amendment in writing. For this purpose, "writing" shall be writing on paper signed in ink by our authorised representative and specifically excludes any writing that may be in electronic format.
17 Miscellaneous matters
16.2 We are entitled and reserve the right to vary or amend these Terms from time to time and in our sole discretion. Any amendments to these Terms will be displayed on the Website from time to time. On the first occasion on which you use the Website or the Services after we amend the Terms, you will be notified that amendments to the Terms have been effected and you will be required to re-click/check "I Agree". If you continue to use the Services thereafter, the amended Terms will immediately be treated as being effective and binding upon you.
16.3 It is your responsibility to access and familiarise yourself with any amendments to the Terms on each occasion that you make use of the Website, the Website Content or the Services.
17.1.1 Our address for the service of any legal notice is firstname.lastname@example.org.
17.2 Disputes, claims and legal proceedings
17.2.1 Any dispute declared by you and any claim which you may have against us arising out of or in connection with these Terms or the use of the Services, including after termination, cancellation or amendment of these Terms and/or the Services will be referred to arbitration in accordance with the Arbitration Act 1965 (as amended) or any replacement Act and will take place in accordance with the Commercial Arbitration Rules of the Arbitration Foundation of Southern Africa.
17.2.2 If we declare a dispute with you, or wish to institute any claim or legal proceedings against you arising out of or in connection with these Terms or your use of the Website, the Website Content or the Services, we reserve the right to deal with the matter in a forum of our choice, which will include but will not be limited to, the courts of South Africa. This right will continue to apply after termination, cancellation or amendment of these Terms.
17.2.3 Notwithstanding anything to the contrary contained in these Terms, neither you nor we will be precluded from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the institution or resolution of a dispute or other legal proceedings.
Any costs, including legal costs on attorney and own client scale and value-added tax, incurred by us arising out of your use of the Website, the Website Content and/or the Services, or a breach of these Terms, will be borne by you.
You shall not cede, assign or transfer any of your rights and obligations in these Terms without our prior written consent. We are entitled to cede, assign or transfer any of our rights and obligations in these Terms without your prior written consent and without notice to you.
17.5.1 A copy of the ECT Act can be viewed and downloaded via this link. Click here. It is your responsibility to ensure that the copy downloaded is the most recent version of the ECT Act.
17.5.3 No relaxation or indulgence which we may grant to you will be deemed to be a waiver of any of our rights in these Terms or in law.
17.5.4 The termination of any agreement created by these Terms will be without prejudice to any other rights or remedies that you or we may be entitled to under the agreement or at law, and will not affect any of our or your accrued rights or liabilities nor the coming into or continuance in force of any provision of these Terms which is expressly or by implication intended to come into or continue in force on or after such termination.