We, EMGuid ance Limited, a company registered in accordance with the laws of England and Wales, with registration number 13721354, own and operate the e-scripting platform which is accessible to authorised professionals via the following link: [https://www.emguidance.com/ (“EMGuidance Script”).
The EMGuidance Script platform is provided as a service to a) enable authorised professionals to issue digital scripts for their patients; and b) to enable authorised professionals to dispense medicines and other regulated substances in accordance with digital scripts validly issued.
2.1 EMGuidance reserves the right to update, vary or replace any part of this Agreement at any time by publishing a revised version of this Agreement on the EMGuidance Script platform. Any new functionality, features, products or services which are offered by EMGuidance and added to the EMGuidance Script platform will also be subject to this Agreement.
In this Agreement:
3.1 “Applicable Law” means the law of the Republic of South Africa;
3.2 ‘’Authorised User’’ means identified individuals who are authorised by you to access and use EMGuidance Script by using your registered user account.
3.3 ‘’Dispenser’’ means a party authorised by law to dispense medicines and other regulated substances to members of the public;
3.4 ‘’Force Majeure Event’’ means event of fire, lightning, explosion, flood, hurricane, acts of God, war, terrorism, civil disorder, epidemics, plagues, strikes, boycotts, and lock-outs of all kinds (excluding boycotts, strikes, lock-outs and go-slows by or of a party's own employees), state interference or any other event beyond the control of, and not due to the fault of a party affected by the event, provided in all cases that party has taken all steps and precautions which could reasonably be expected for it to have taken in order to prevent such act or event occurring and in order to mitigate and minimise the effects of the event;
3.5 “Health Professions Act” means the Health Professions Act 56 of 1974 and its Regulations, as amended from time to time;
3.6 “Medicines and Related Substances Act” means the Medicines and Related Substances Act 101 of 1965 and its Regulations, as amended from time to time;
3.7 “Medical Practitioner” means a person registered as such under the Health Professions Act;
3.8 ‘’Permitted Purpose’’ means the use of EMGuidance Script to create and issue e-scripts, and to dispense medicines and other regulated substances pursuant to e-scripts issued via EMGuidance Script;
3.9 “Pharmacy Act” means the Pharmacy Act 53 of 1974 and its Regulations, as amended from time to time;
3.10 “Prescriber’’ means a party authorised by law to prescribe medicines and other regulated substances to members of the public;
3.11 ‘’EMGuidance Script’’ means EMGuidance’s proprietary e-scripting platform, which includes all content, software, code, databases, original works, confidential or proprietary information included with, incorporated in or used with the EMGuidance Script platform;
3.12 “Scheduled Substance” means any medicine or other substance prescribed by the Minister under section 22A of the Medicines and Related Substances Act;
3.13 ‘’Third Party Software’’ means any proprietary software products used in connection with EMGuidance Script, which are licenced by EMGuidance from third parties;
4. ACCESS TO AND RIGHT OF USE
4.1 Upon registration, EMGuidance grants to you, for the duration of this Agreement, a limited, non-exclusive, non-transferable, revocable right and licence to use EMGuidance Script for the Permitted Purpose.
4.2 Subject to clause 4.3, the right and licence granted by EMGuidance to you shall extend any persons you have specified as being Authorised Users when you register for an account. You warrant that only such Authorised Users will be permitted to access and use EMGuidance Script via your user account. You may add Authorised Users at any time on your user account by submitting a new order and upon payment of the relevant subscription fees for the additional number of Authorised Users designated by you.
4.3 The right to access and use EMGuidance Script is restricted to authorised Prescribers and Dispensrs only and may only be used in the Republic of South Africa.
5. FEES AND PAYMENT
5.1 The subscription fees due for you and your Authorised Users to access and use EMGuidance Script is set out in the relevant order placed by you and accepted by EMGuidance upon registration of a user account.EMGuidance Script is offered on a monthly subscription plan or an annual subscription plan.
5.2 Upon acceptance of your order, EMGuidance will issue a first invoice, which will include any pro rata subscription fees due for the month that the order is placed by you. All subscription fees are payable in advance on a monthly or annual basis, depending on the plan you have selected.
5. 3 You agree that we (via our nominated third party payment providers) may bill your credit card or other payment method for all fees due, renewals, additional users, agreed expenses, or for unpaid fees or other amounts due to us.Please note that additional bank charges may be payable to your bank for international payments.
5.4 If any fee due for a particular month has not been paid by you, EMGuidance shall immediately suspend your use of EMGuidance Script until payment has been made. If payment has not been made by the end of the following month, EMGuidance may terminate this Agreement and discontinue your access to and use of EMGuidance Script.
5.5 Upfront payment of the full year’s subscription fees may result in a discount at the rates published on our website from time to time.
5.6 The subscription fees payable for your use of the EMGuidance Script may, at EMGuidance’s discretion, be subject to an annual escalation of 5% (five percent), effective from each annual anniversary of your subscription activation date.
6. YOUR RESPONSIBILITIES
6.1 You are and shall remain fully and exclusively responsible for your use, and use by your Authorised Users, of EMGuidance Script. You shall promptly notify us of any misuse or abuse of EMGuidance Script and/or of any unauthorized access, use, copying, modification, or disclosure of any part of EMGuidance Script or its functionality; and you shall take all reasonable steps to safeguard the rights and interests of EMGuidance and its licensors relating to EMGuidance Script.
6.2 You shall not (and shall not attempt to):
6.2.2 use EMGuidance Script in breach of Applicable Laws or for any illegal activities;
6.2.3 copy, translate, or otherwise modify or produce derivative works of all or parts of EMGuidance Script;
6.2.4 disassemble, reverse engineer, decompile, place at risk or circumvent the functionalities, performance, and/or the security of any software, database or other components of EMGuidance Script; or
6.2.5 use all or any part of EMGuidance Script to build a competitive and/or similar product or service.
6.2.6 distribute, sublicense, lease, rent, loan, or otherwise use or make any component of EMGuidance Script available for use by third parties;
6.2.7 allow any other person or entity to use your login details to access, view, or use any component of EMGuidance Script;
6.2.8 access any component available through EMGuidance Script via remote access through interfaces or automated means not approved in writing by us;
6.2.9 collect, compile, or otherwise attempt to "screen scrape," "data mine" or "harvest" any component of EMGuidance Script;
6.2.10 deactivate, bypass, or circumvent any access controls or security measures for EMGuidance Script;
6.2.11 gain unauthorized access to EMGuidance Script;
6.2.12 engage in any activity or use any device, software, or routine, or introduce any virus, Trojan horse, spyware, adware, or other malicious code, that interferes with a user's access to EMGuidance Script or the proper operation of EMGuidance Script;
6.2.13 engage in any activity that disrupts or impairs the performance of EMGuidance Script;
6.2.14 access or use EMGuidance Script in violation of the rights of any third party, or any legal duty or obligation;
6.2.15 reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying programming, algorithms, databases, or other components of EMGuidance Script;
6.2.16 remove or obscure any copyright, trademark, confidentiality, or other notices, terms, disclaimers, or disclosures from EMGuidance Script.
7.1 If you are a Prescriber, you hereby represent and warrant that:
7.1.1 you shall not make use of EMGuidance Script to prescribe any Scheduled Substance if you are not duly registered under the Health Professions Act;
7.1.2 you are empowered by the Health Professions Council of South Africa, to which you are registered, to prescribe a Scheduled Substance;
7.1.3 you shall ensure that, when making use of EMGuidance Script and when prescribing a Scheduled Substance, you adhere to the Medicines and Related Substances Act and the Health Professions Act;
7.1.4 you shall ensure that you, your employees and any Authorised Users are at all times adhering to Applicable Law when making use of EMGuidance Script;
7.1.5 you shall ensure that any prescription drafted by making use of EMGuidance Script adheres to the Medicines and Related Substances Act, and any other applicable legislation;
7.1.6 you shall obtain valid permission from your patients to upload their details onto EMGuidance Script, including their identity number (Please note that EMGuidance uses data from the Department of Home Affairs to verify patient identification to detect and prevent abuse and fraud);
7.1.7 you shall ensure that, once you have added a patient’s details to EMGuidance Script, only you and any other medical practitioners expressly authorised by the patient may access those details on EMGuidance Script. This is a security feature to decrease abuse and fraud.
7.1.8 you can request the deletion of any details added to EMGuidance Script by emailing email@example.com, but you cannot delete any prescriptions since that data must be retained for a prescribed period of time in terms of Applicable Law;7.1.9 if you are using the general EMGuidance platform and you wish to review a patient’s prescription history or other details, or you wish to issue prescriptions for that patient via EMGuidance Script, you will require express permission from that patient before doing so;
7.1.10 you shall obtain a patient’s expression permission, when using the search functionality on EMGuidance Script, to use their identity number for this purpose.
7.2 If you are a Dispenser, you hereby represent and warrant that:7.2.1 you shall not make use of EMGuidance Script, or dispense any Scheduled Substance, if you are not duly registered under the Pharmacy Act;
7.2.2 you shall ensure that you, your employees and any Authorised Users are at all times adhering to Applicable Law when using EMGuidance Script;
7.2.3 you shall ensure that, when making use of EMGuidance Script and when dispensing a Scheduled Substance, you adhere to the Medicines and Related Substances Act and the Pharmacy Act;7.2.4 you shall ensure that any prescription accessed via EMGuidance Script adheres to the Medicines and Related Substances Act, and any other applicable legislation;
7.2.5 you shall ensure that any pharmaceutical services rendered through your use of EMGuidance Script shall comply with good pharmacy practice standards prescribed in the Pharmacy Act and the relevant provisions of the Medicines and Related Substances Act;
7.2.6 you acknowledge that you will be creating data on a data subject by accessing EMGuidance Script and that this data will be accessible by other pharmacists to detect and prevent abuse and fraud;
7.2.7 you may only access and use data on data subjects on EMGuidance Script to detect and prevent abuse and fraud, or in the normal course of business to provide healthcare services to the data subject and for no other reason;
7.2.8 you acknowledge that EMGuidance will collect certain usage data when you interact with EMGuidance Script and this data will form part of the prescription record which must be retained to comply with Applicable Law.
8. EMGUIDANCE RESPONSIBILITIES
8.1 EMGuidance undertakes, at all times during this Agreement, to:
8.1.1 use commercially reasonable efforts to ensure that EMGuidance Script and related functionality, features, products or services, are available for your use; provided that it does not and cannot guarantee that EMGuidance Script will always be accessible;
8.1.2 comply with all Applicable Law and, as far as reasonably practicable, with any guidelines published by a relevant regulatory body.
8.2 EMGuidance will not be held liable for any loss or damage caused to you or any other person due to the non-availability or disrupted availability of EMGuidance Script or any related functionality, features, products or services.
8.3 EMGuidance will provide support for EMGuidance Script in accordance with its normal support policies, which can be accessed at the following URL: [insert link]. Additional support required by you will be quoted for and agreed on separately.
8.4 EMGuidance may publish online and physical training materials for the operation and use of EMGuidance Script from time to time. Additional training services required by you will be quoted for and agreed on separately.
9. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
9.1 EMGuidance and its licensors have and will retain all rights (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to EMGuidance Script, or any part thereof, including all usage data.
9.2 You shall not acquire any rights or interest in or to EMGuidance Script or any part thereof, except for the limited rights granted in terms of this Agreement and solely for the Permitted Purpose.
9.3 EMGuidance and its licensors own all text, images, software, photographs, video, graphics, audio, features, data, designs, images, and other such similar content found on EMGuidance Script. Except as expressly permitted, you may not modify, copy, reproduce, republish, upload, post, transmit, hyperlink to or from, or distribute in any way any content from EMGuidance Script, including code and software underlying the platform, nor may you sell, transfer, or otherwise use EMGuidance Script or any content for any purpose other than the Permitted Purpose without our prior written consent. We may in our sole discretion make changes to any content published on EMGuidance Script at any time without notice.
10. CONFIDENTIALITY AND NON-DISCLOSURE
10.1 For the purposes of this clause and where used elsewhere in this Agreement, “Confidential Information” means information relating to a party (‘’Disclosing Party’’) or its business that is not known or generally available to the public or in the industry or trade in which the Disclosing Party competes, and which has economic value by virtue of it not being generally known, including but not limited to financial information; trade secrets and proprietary knowledge and know-how; information relating to or incorporated in any intellectual property rights; medical information; technical information relating to products, services, systems, software; pricing or commercial information relating to customers, investors, suppliers, service providers, business partners; any strategic, commercial and/or marketing plans; operational techniques, methods, procedures, processes; and any other information relating to the Disclosing Party’s business which if used or disclosed without authorisation could result in the Disclosing Party suffering harm or loss.
10.2 Each party (‘’Receiving Party’’) undertakes to maintain the strict confidence and secrecy in respect of all Confidential Information which has been disclosed by the Disclosing Party or otherwise acquired by them directly or indirectly pursuant to this Agreement.
10.3 During the term of this Agreement and for a period of 5 (five) years after the termination or expiration of this Agreement for any reason, a Receiving Party shall:10.3.1 keep the Confidential Information confidential;
10.3.2 not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or being compelled by law to disclose same; and
10.3.3 not use the Confidential Information for any purpose other than the performance of its obligations under this agreement or to further the best interests of the Disclosing Party.
10.4 During the term of this Agreement a Receiving Party may disclose the Confidential Information to its directors, officers, employees, service providers, suppliers or consultants, for the sole purpose of performing its obligations under this Agreement and provided that it has ensured that any such person is contractually bound by and complies with the same obligations of confidentiality set out in this clause as if they were a party to this Agreement themselves.
10.5 The obligations contained in this clause shall not apply to any Confidential Information which:10.5.1 is at the date of this Agreement or at any time after the date of this Agreement comes into the public domain other than through breach of this clause by the Receiving Party; or
10.5.2 can be shown by the Receiving Party to the reasonable satisfaction of the Disclosing Party to have been known to the Receiving Party prior to it being disclosed by the Disclosing Party or by anyone authorised by it; or
10.5.3 subsequently comes lawfully into the possession of the Receiving Party from a third party not bound by any duty of confidentiality or non-disclosure.
11. DATA PRIVACY AND PROTECTION
11.1 In this clause, “Data Protection Legislation” means any law applicable from time to time relating to the processing of Personal Information (including special personal information) and/or privacy, as in force at the date of the Agreement or as re-enacted, applied, amended, superseded, repealed or consolidated, including without limitation, as applicable, the Protection of Personal Information Act 4 of 2013 (“POPIA”), and any legally binding regulations, direction and orders issued from time to time under or in connection with any such law.
11.2 The parties agree to comply at all times with all applicable requirements under the relevant Data Protection Legislation.
11.3 You shall be responsible for the processing of any personal information in connection with your access to and use of EMGuidance Script and shall be deemed to be ‘’a responsible party’’ as defined in POPIA. EMGuidance and its service providers shall be deemed to be an ‘’operator’’ as defined in POPIA.
11.4 EMGuidance shall only process personal information:
11.4.1 for the purposes of performing its obligations under this Agreement; safeguarding and maintaining the security and integrity of EMGuidance Script or any component thereof; detecting and preventing abuse and fraud; or otherwise in accordance with your express instructions;
11.4.2 where required to do so by Applicable Law.
11.5 We shall, in addition to any measures put in place by you, implement and maintain appropriate technical and organisational security measures in respect to EMGuidance Script to (a) ensure a level of security appropriate to the risk to the personal information when it is processed by us; and (b) to assist you in the fulfilment of your obligations to respond to requests from data subjects exercising their rights under the Data Protection Legislation.
11.6 We shall:11.6.1 provide reasonable assistance to you as is reasonably requested to enable you to comply with your obligations under the Data Protection Legislation;
11.6.2 take reasonable steps to ensure that access to personal information is limited to those personnel who require access to it for the purpose of complying with our obligations under this Agreement and that such personnel are bound by enforceable obligations of confidentiality;
11.6.5 upon termination of this Agreement or on your request, archive all personal information in our possession or control, save where we are required to retain same for evidentiary purposes or for any other reason required or authorised by Applicable Law.
11.7 EMGuidance uses reputable third party hosting services (currently Google Cloud Services) to host EMGuidance Script, including all related data used in connection with EMGuidance Script. You acknowledge and agree that your use of EMGuidance Script may necessarily involve the transmission of your data over networks that are not owned, operated or controlled by EMGuidance or its service providers, and EMGuidance cannot and is not responsible for any harm or loss suffered by you or any other person if any data is intercepted, modified, stored or lost when being transmitted across such networks.
12.1 EMGuidance Script, and all related functionality, features, products or services, and content, are provided "as is" and EMGuidance expressly disclaims any and all warranties of any kind or nature, whether express, implied or statutory, including without limitation the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose.
12.2 In particular, and to the maximum extent permitted by law, neither EMGuidance nor any of its service providers or suppliers makes any representation, warranty or guarantee as to:
12.2.1 the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any information or content included in or published with EMGuidance Script, or that your use of EMGuidance Script will always be secure, timely, uninterrupted or error-free;
12.2.2 the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any hardware, software, system, or data provided by any third parties which is included in or used in conjunction with EMGuidance Script;12.2.3 that EMGuidance Script will meet your specific requirements (you acknowledge that you will always be responsible for ensuring that EMGuidance Script is suitable for your specific requirements);
12.2.4 that any stored data will be accurate or reliable or that any stored data will not be lost or corrupted;
12.2.5 that any errors or defects will be corrected.
12.3 EMGuidance shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of EMGuidance.
12.4 If certain warranties cannot be disclaimed in terms of Applicable Law, the scope and duration of those compulsory warranties, if any, shall be limited to the fullest extent possible permitted by law.
12.5 Information provided on EMGuidance Script is for informational purposes or general guidance only, and does not constitute medical, legal, financial, accounting, tax, or other professional advice. We do not warrant or guarantee the accuracy, completeness, adequacy or currency of the provided information, nor do we endorse any views or opinions that may be included therein. The provided information does not constitute the rendering by us of any type of opinion, certification, or guarantee. The provided information is not a substitute for medical or other professional advice and it is important that no medical or other professional decisions should be made without first consulting a personal physician or other applicable professional. The receipt of any questions or feedback you submit to us does not create a professional relationship.
12.6 Users acknowledge that EMGuidance Script and all related functionality and data shall be used for guidance purposes only and that independent, professional judgement must still be applied by Users when using EMGuidance Script and specifically before making any decisions based on such guidance, functionality or data. EMGuidance makes no representation or warranty as to the completeness or accuracy of the clinical guidance provided by EMGuidance Script and Users are and will always remain solely responsible for the accuracy and appropriateness of any prescription or treatment plan developed by them through their use of EMGuidance Script.
12.7 The pricing and formulary information provided by EMGuidance Script may be limited and is subject to change. EMGuidance will take reasonable measures to update the pricing and formulary information provided by EMGuidance Script. However, EMGuidance makes no representation or warranty as to the completeness or accuracy of the pricing and formulary information provided by EMGuidance Script and Users are and will always remain solely responsible for verifying the accuracy of any pricing or formulary information before prescribing any medication or treatment. Users warrant that, when using EMGuidance Script, they shall not rely solely on the pricing and formulary information provided by EMGuidance Script when prescribing medication or treatment, and Users shall be responsible for verifying the accuracy of the pricing and formulary information and shall be responsible for ensuring compliance with all Applicable Law governing the prescribing of medication and treatment.13. INDEMNITY
14.1 This Agreement may be terminated by us or by you by giving [30 (thirty)] calendar days’ written notice.
14.2 Either one of us may immediately terminate this Agreement if:
14.2.1 the other is in breach of this Agreement and has failed to remedy such breach within [10 (ten)] calendar days of having been notified in writing of the same; or
14.2.1 either Party suffers a Force Majeure Event which continues for [60 (sixty)] calendar days or more.
14.3. Upon the expiration or termination of this Agreement, you shall promptly cease all use of EMGuidance Script and all fees due for your use of EMGuidance Script up to and including the date of termination shall immediately become due and payable.
15. LIMITATION OF LIABILITY
15.1 To the fullest extent allowed by law, neither EMGuidance or any of its service providers or suppliers, shall be liable for any loss of use, lost data, failure of security mechanisms, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort, delict (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance, arising from your use of EMGuidance Script.
14.2.1To the fullest extent allowed by law, EMGuidance and its service providers’ and suppliers’ entire liability shall not exceed the amounts actually paid by you to EMGuidance under this Agreement during the 6 (six) month period prior to the date the claim arose, or any part thereof if a full 6 (six) months on the Agreement has not run at the date the claim arose.
16. DISPUTE RESOLUTION
16.1 Should any dispute of whatever nature arise from or in connection with this Agreement (including an urgent dispute), then the dispute shall, unless the parties otherwise agree in writing:
16.1.1 in the first instance be referred to mediation by a mediator acceptable to both parties; and
16.1.2 failing resolution by mediation or agreement in respect of a mediator, shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.
16.2 This clause is severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated for any reason.
17. GOVERNING LAW; JURISDICTION
17.1 This Agreement will be governed by and construed in accordance with the applicable laws of South Africa, without giving effect to its principles relating to conflicts of laws.
17.2 Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of clause 16 (Dispute Resolution) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the High Court of South Africa, and each party irrevocably submits to the sole and exclusive personal jurisdiction of that court, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.
17.3 Notwithstanding the foregoing, either party may bring a claim for equitable relief or injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
18.1 You select as your domicilia citandi et executandi and for the purposes of giving or sending any notice provided for or required in terms of this Agreement, the physical and email addresses provided by you when applying for a user account on the EMGuidance Script platform (or such other address as you may notify us of in writing, provided that the change of address will only become valid after we have received your notification).
18.2 EMGuidance selects as our domicilia citandi et executandi and for the purposes of giving or sending any notice provided for or required in terms of this Agreement, following physical and email addresses (or such other address as we may notify you of in writing, provided that the change of address will only become valid after you have received our notification):Physical address: 83 Baker Street, London, W1U 6AG;
Email address: [firstname.lastname@example.org].
18.3 Any notice delivered to a party’s designated physical or email address shall be deemed to have been given:
18.3.1 If posted by prepaid registered post, 7 (seven) days after the date of posting thereof;
18.3.2 If hand delivered, on the day of delivery; or
18.3.3 If sent by email, the next business day.
19. GENERAL PROVISIONS
19.1 This Agreement constitutes the entire agreement between the parties relating to its subject matter, and supersedes all other oral or written representations, understandings or agreements.
19.2 If any clause or provision in this Agreement is or becomes illegal, invalid or unenforceable, such clause or provision shall be divisible and shall be removed and the remainder of this Agreement will continue to be valid and binding.
19.3 No extension of time or waiver or relaxation of any of the provisions of this Agreement shall operate as an estoppel against any party in respect of its rights under this Agreement, nor shall it operate to preclude such party from exercising its rights strictly in accordance with this Agreement.
19.4 Neither party may assign, cede, or otherwise transfer the benefit or burden of all or any part of this Agreement without the written consent of the other party.
Last updated – 03 May 2023
Last updated – 17 August 2023