MedBrief Services Agreement
Last updated: 25 September 2025
1. INTRODUCTION & INTERPRETATION
1.1 This Agreement is entered into between MedBrief (“we”, “us”, “our”) and the Client (“you”, “yours”).
1.2 When we speak of “MedBrief”, “we” or “our” in these terms, we mean the particular MedBrief entity responsible for providing the Services to you, based on the jurisdiction from which the Services are provided to you. You can view a table showing the MedBrief entity providing the Services in particular jurisdictions here: https://medbrief.com/regions/. Subject to the provisions of Applicable Law, based on our reasonable business and technical requirements, and unless specifically agreed to the contrary with you in any Special Terms Addendum, we reserve our rights to provide the Services to you using different entities within the MedBrief Group from time to time, meaning other companies coming under common control with the MedBrief entity with which you are contracting.
1.3 “Client” or “you” means the person accepting the terms of this Agreement in order to receive our Services, or the organisation that you represent when acting in a representative capacity.
1.4 In this Agreement, unless the context expressly indicates otherwise, the following further words and expressions shall have the meanings given to them below:
1.4.1 "Agreement" means this MedBrief Services Agreement as well as any other documents, terms or conditions expressly incorporated by reference into this Agreement;
1.4.2 “Agreement Date” means the date on which this Agreement is or was concluded by the Parties;
1.4.3 “Applicable Data Protection Laws” means the relevant applicable data protection laws for the Client Regions specified at https://medbrief.com/Applicable-Data-Protection-Laws/;
1.4.4 “Applicable Law(s)” means any applicable laws, statutes, regulations, including the common law, Applicable Data Protection Laws, any court order, judgment or ruling binding on a Party or the Parties in the exercise or performance of this Agreement:
1.4.5 “Business Day” means any day other than a Saturday, Sunday or public holiday in the United Kingdom;
1.4.6 “Client Region” means a particular jurisdiction or territory in which a Client (as defined in paragraph 1.3) may be located;
1.4.7 “Confidential Information” means information that is confidential or proprietary in nature including without being limited to:
1.4.7.1 information relating directly or indirectly to the business of the respective Parties not generally made available to the public, including trade secrets, know-how, strategies, ideas, operations, processes, methodologies or practices;
1.4.7.2 works of authorship or products that are written and prepared by either Party not generally made available to the public including but not limited to software, source code, data, diagrams, charts, reports, inventions and working papers of similar materials of whatever nature or on whatever media;
1.4.7.3 all post-login screens and interfaces of the Software not generally accessible to non-account holders;
1.4.7.4 any confidential information exchanged during the negotiations relating to this Agreement and all copies, notes or records thereof (in any form) made or generated by either of the Parties or their representatives; and
1.4.7.5 the terms of any agreement reached by the Parties or proposed by either Party (whether agreed to or not) in connection with this Agreement, including but not limited to the terms of any Special Addendum or Service Order;
1.4.8 “Data Controller” means a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any Personal Data is to be processed;
1.4.9 “Data Processor”, in relation to Personal Data, means any person (other than an employee of a Data Controller) who processes the Personal Data on behalf of a Data Controller;
1.4.10 “Data Protection Agreement” means a further written agreement or addendum that may be entered into between the Parties to supplement the provisions of this Agreement and that further outlines the roles, rights and responsibilities of the Parties in relation to the processing of Personal Data, to ensure compliance with any particular Data Protection Laws or standards;
1.4.11 “Deliverable” means a unitised product or service output delivered, or to be delivered, by MedBrief to or for the Client in accordance with a Service Order;
1.4.12 “Effective Date” means the Agreement Date or, where applicable, the date on which the last of any suspensive conditions have been fulfilled prior to lapsing;
1.4.13 “End-Users” means users of the Software;
1.4.14 “End-User Terms and Conditions” means the terms and conditions applicable to the access and use of the Software by the End-Users, which terms and conditions may be accepted electronically by End-Users prior to accessing and/or using the Software;
1.4.15 “Fees and Charges” means amounts payable by the Client to MedBrief for the provision of any products or Services in terms of this Agreement, including as may be itemised or linked to in any Service Order or schedule hereto;
1.4.16 "Insolvency Event" means when a Party is unable to pay its debts, becomes insolvent, is the subject of any order made or a resolution passed for the administration, winding-up or dissolution (otherwise than for the purpose of a solvent amalgamation or reconstruction), has an administrative or other receiver, manager, trustee, liquidator, administrator, or similar officer appointed over all or any substantial part of its assets, enters into or proposes any composition or arrangement with its creditors generally, becomes the subject of business rescue or business administration proceedings or is the subject of any events or circumstances or analogous to the foregoing;
1.4.17 "Intellectual Property" means any category of intellectual property recognised in law, whether or not registered, including but not limited to copyright, patents, proprietary material, trademarks, design, know-how, trade secrets, new proprietary and secret concepts, methods, techniques, processes, adaptations, ideas, technical specifications and testing methods;
1.4.18 “Interest Rate” means 2% per month;
1.4.19 “Matter” means a distinct legal action or claim, including a potential legal action or claim, excluding a class action or claim;
1.4.20 “MedBrief Data Protection Policy” means the MedBrief Data Protection Policy available at https://medbrief.com/data-protection-policy, including any updates thereto from time to time that are published in accordance with the provisions of this Agreement read with any applicable Special Terms Addendum;
1.4.21 “MedBrief Policy” means any MedBrief policy specified in this Agreement and as the context may indicate;
1.4.22 “MedBrief Privacy Policy” means the MedBrief Privacy Policy available at https://medbrief.com/privacy-policy/, including any updates thereto from time to time that are published in accordance with the provisions of this Agreement read with any applicable Special Terms Addendum;
1.4.23 “Nominated Account” means MedBrief’s banking account, the details of which will be provided to the Client in writing and which it shall be entitled to change from time to time on written notice to the Client;
1.4.24 “Operating Environment” means the recommended or minimum operating environment on or through which the Software is intended to be accessed or used, including any third-party software, middleware and network and connectivity infrastructure that may be specified or stipulated by MedBrief from time to time;
1.4.25 “Personal Data” means information identifying and describing an identifiable individual, including, but not limited to information relating to their name, age, gender, reproductive status, marital status, national, ethnic or social origin, sexual orientation, physical or mental health, disability, conscience, belief, culture, language and birth of the individual; educational, criminal or employment history of the individual, financial status or information relating to financial transactions in which they have been involved and any identifying number, address or contact information of the individual;
1.4.26 "Personnel" means any employee, agent, contractor or sub-contractor of MedBrief, or any other person who performs any activity for or on behalf of MedBrief in relation to this Agreement;
1.4.27 “Process" and "Processing” means, in relation to Personal Data, carrying out any operation or set of operations on such Personal Data, including but not limited to the organisation, adaptation, alteration, retrieval, use or dissemination of Personal Data;
1.4.28 "Services" means collectively, any and all services agreed to be provided by MedBrief to the Client in terms of this Agreement including as may be recorded in a Service Order, which may include but not be limited to:
1.4.28.1 processing and management of medical or other records;
1.4.28.2 providing access to Software;
1.4.28.3 medical-legal or other data processing, analysis and reporting services;
1.4.28.4 Software maintenance and/or support services; and/or
1.4.28.5 End-User training and/or support services;
1.4.29 “Service Levels Schedule” means a written document, including any annexures or schedules hereto, or that may be incorporated by reference into to a Service Order, that is mutually executed by MedBrief and the Client, including by electronic means, which records the service levels to be maintained by MedBrief in relation to the Services to be provided to the Client;
1.4.30 “Service Order” means a written document, including any annexes or schedules that may be attached hereto, that is mutually executed by MedBrief and the Client, including by electronic means, and which specifies the Software subscription, Services, or combination thereof to be provided by MedBrief for the Client, the applicable Fees and Charges, and any other transaction-specific terms agreed between the Parties;
1.4.31 “Service Regions” means the applicable service regions listed at https://medbrief.com/regions/;
1.4.32 “Software” means such software systems or software applications, or particular modules or components thereof, as MedBrief may agree in writing to license or make available to the Client for use in terms of a Service Order;
1.4.33 “Special Terms Addendum” means, where applicable, an additional document that may have been signed and entered into between the Parties recording any variations to this Agreement and that may include, but is not limited to, a Data Protection Agreement;
1.4.34 “Standard Rates” means the prevailing fees and standard rates for MedBrief’s respective service categories and Personnel, available to the Client at the time of ordering the Services and/or as otherwise made available to the Client in writing on request from time to time; and
1.4.35 “Supplemental Terms” means additional terms and conditions excluding a Service Order or Special Terms Addendum that have been agreed to between the Parties for specific Services or Client Regions as may defined in those Supplemental Terms;
1.4.36 “VAT” means Value Added Tax as levied on products and services in terms of Applicable Law.
1.5 The headings to any clauses, schedules and appendices in this Agreement are for reference purposes only and shall in no way govern or affect the interpretation thereof.
1.6 If any provision in the Introduction or any definition contains a substantive provision conferring rights or imposing obligations on a Party, effect shall be given to it as if it were a substantive provision in the body of this Agreement.
1.7 Where figures are referred to in numerals and in words, if there is any conflict between the two, the numerals shall prevail unless a contrary intention can be proven.
1.8 Where any number of days is prescribed in this Agreement, same shall be recorded exclusive of the first day and inclusive of the last day unless the last day does not fall on a Business Day, in which case the last day shall be the next succeeding Business Day and, where any day referred to in this Agreement falls on a day that is not a Business Day, that reference shall be taken to mean the first Business Day following any such day.
1.9 Expressions defined in this Agreement shall bear the same meanings in any annexures/schedules hereto, to the extent that they do not themselves contain their own definitions of such expressions.
1.10 Any reference in this Agreement to an Act of Parliament shall include any such Act as amended from time to time.
1.11 A reference to a person shall include both natural and juristic persons unless the context expressly indicates otherwise.
1.12 A reference to a Party includes a Party's successors in title and permitted assigns.
1.13 The rule of construction that in the event of an ambiguity a contract or any provision thereof shall be interpreted against the Party responsible for the drafting thereof shall not apply in the interpretation of this Agreement.
1.14 The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement which by virtue of their nature must continue to have effect after such expiration or termination notwithstanding that the clauses themselves do not expressly provide for this.
2. COMMENCEMENT, DURATION AND NATURE OF RELATIONSHIP
2.1 This Agreement shall be binding on the Parties from the Agreement Date, shall take effect on the Effective Date and shall endure until terminated in any of the manners provided for in this Agreement.
2.2 The commencement of this Agreement does not guarantee the provision of any Software or Services by MedBrief to the Client. Software and Services shall be ordered using a Service Order as contemplated in paragraph 1.4.30.
2.3 MedBrief shall provide the Services to the Client (including Software, where applicable), subject to the Client’s acceptance of and compliance with the terms of this Agreement, the terms of the relevant Service Order and subject further to payment to MedBrief of all applicables Fees and Charges as and when they may fall due.
2.4 The Parties act for all purposes in terms of the Agreement as independent contractors and for these purposes, unless clearly recorded to the contrary in a Service Order or any Supplemental Terms, neither Party shall be entitled to contract on behalf of or bind the other Party in any manner whatsoever or to incur any liability or debt on behalf of the other Party, nor be deemed staff of the other Party for any purpose whatsoever.
2.5 The Client acknowledges and agrees that, without MedBrief in any way derogating from its responsibility to render all Services in a professional manner, MedBrief shall retain the discretion to designate appropriate persons or resources to execute or perform the Services or any or all of its responsibilities in terms of this Agreement based on the nature of the Services to be performed and the degree of skill and experience required.
3. PROVISION OF SOFTWARE & SERVICES
3.1 Subject to the terms of any applicable Service Order and/or any applicable Service Levels Schedule, MedBrief undertakes to provide the Services in a professional and workmanlike manner, using appropriate resources according to the nature of the Services.
3.2 Against full and up to date payment of all Fees and Charges and charges due and payable hereunder, and subject to the terms and conditions of this Agreement any particular Service Order and/or acceptable usage policies that may be published by MedBrief in its reasonable discretion from time to time, MedBrief shall grant to the Client a non-exclusive, non-transferable and non-perpetual license to use the Software (or particular modules or components thereof), on licensed Matters, or in relation to specific Deliverables for which MedBrief has licensed the Software to the Client in the course of the provision of those Deliverables, at the applicable per-Matter or per-Deliverable Fees and Charges agreed upon.
3.3 MedBrief Software shall be licenced to the Client, and its Services shall be provided, on a per-Matter basis unless otherwise agreed to the contrary in the applicable Service Order or Special Terms Addendum.
3.4 MedBrief shall retain the right to restrict End-User access to the Software to only those Matters, or in relation to only those Deliverables, for which the Client has given MedBrief an express instruction of its requirement to use the Software at the applicable per-Matter or per-Deliverable rates and charges agreed upon and to only those End-Users who have accepted the End-User Terms and Conditions when signing up for access to the Software and who act in conformance therewith and in accordance with any acceptable usage policies published by MedBrief as bebing generally applicable to the Software in MedBrief’s reasonable discretion.
3.5 The Client acknowledges that it obtains no moral rights or rights of ownership in and to the Software, and that nothing in this Agreement shall convey any title or proprietary rights to the Client in or over the Software in respect thereof, that may be carried out for the Client. Save as otherwise permitted by MedBrief in writing:
3.5.1 the Client shall not have the right to sub-license, transfer, lease, encumber or assign the Software in any way, either in whole or in part, to any third party;
3.5.2 the Client shall not utilise the Software to develop applications for or at the request of any third party, nor shall it copy or permit any third party to copy the Software;
3.5.3 the Client shall not modify, de-compile, disassemble or otherwise reverse-engineer the Software whether in whole or in part, or attempt to do any of these, nor shall it permit, whether directly or indirectly, any third party to do any such things; and
3.5.4 the Client shall not create any derivative works based on the Software, or otherwise attempt to derive any source code subject to MedBrief’s copyright, nor shall it permit, whether directly or indirectly, any third party to do any such things.
3.6 MedBrief warrants that it owns the Software and/or has licensed components thereof and/or acquired the right to re-license same and/or has obtained valid licenses and/or permissions and consents for all third-party software used in the development of the Software.
3.7 MedBrief shall, at its own expense, defend any action or claim instituted against the Client alleging that the supply, use or possession of the Software as provided by MedBrief to the Client, or any part thereof, constitutes an infringement or alleged infringement of any third parties’ Intellectual Property rights provided that MedBrief shall be notified immediately in writing by the Client of any such claim or pending claim of which it is aware and provided further that MedBrief shall have sole control over the defence of any such action or claim, which shall include all settlement negotiations. The Client undertakes that it shall give its permission, on receipt of a written request, for its name to be used in any such proceedings (such permission not to be unreasonably withheld or delayed) and further that it shall give all reasonable assistance required of it by MedBrief in defending any action or claim. Subject to the provisions of this clause and clause 11, MedBrief hereby indemnifies and holds the Client and its respective officers and employees harmless from any and all claims, actions, liabilities, losses, costs, damages or expenses, including reasonable solicitor’s fees, which arise out of or in relation to any breach of MedBrief’s Intellectual Property warranties in clause 8.2.2.
3.8 It is acknowledged and understood by the Client that certain components of the Software, where applicable, may have been developed using open source proprietary software and open standard technologies. If the Software (or any component or module of the Software) is held to constitute an infringement of any third party’s intellectual property rights or, as part of the settlement negotiations of any action concerning an infringement then, and in that event, MedBrief may at its sole option and expense procure for the Client the rights to continue using the Software; modify it so that it is non-infringing, without detracting from its overall performance and functionality; or substitute for the infringing component/s other non-infringing computer programs having the same capability as the Software. MedBrief may, having used all reasonable endeavours to resolve an infringement in the manner set out above, terminate this Agreement forthwith by notice in writing to the Client.
3.9 It is understood and acknowledged by the Client that the Software is not intended to guarantee or ensure compliance with any common law, statutory or regulatory requirement or obligation to which the Client may be subject. Use of the Software is entirely at the risk of the Client and the Client acknowledges that it should seek legal advice before making any business or legal decisions based on any content, functionality or procedures made available to the Client by means the Software.
4. MAINTENANCE AND SUPPORT
4.1 Maintenance of any MedBrief Software licensed to the Client as part of the Services shall be provided by MedBrief as set out in a relevant Service Order or Service Levels Schedule or, where not so specified, as otherwise may be provided in the ordinary course of the provision of MedBrief’s Services.
4.2 The Client acknowledges and agrees that MedBrief shall have an unfettered discretion to release any improvement to any Software product or application licensed by MedBrief as either an update thereto or as a new version thereof.
4.3 The Client hereby agrees and acknowledges that any standard maintenance and support service provided by MedBrief as contemplated by clause 4.1 may specifically exclude the repair of any fault, error or malfunction resulting from any of the following:
4.3.1 the Client’s breach of the provisions of this Agreement;
4.3.2 the Client’s (or any Client authorised End-User’s) failure to keep its own information systems and/or End-User devices secure or to prevent unauthorised access to its own information systems and/or End-User devices;
4.3.3 any Force Majeure event;
4.3.4 misuse or incorrect handling or operation of the Software by the Client, its End-Users, employees, agents and/or sub-contractors;
4.3.5 use of the Software other than in the ordinary course of the Client’s bona fide and lawful business activities;
4.3.6 operator error on the part of the Client or any person permitted by it to access or use the Software;
4.3.7 faults arising in any hardware, software, products, materials or any other item/s supplied to or obtained by the Client from any third party;
4.3.8 the actions, omissions or service interruptions of any utilities provider or third-party service provider, including those affecting the quality of internet connectivity of the Client, or those of other service providers including a telecommunications or data centre service;
4.3.9 the Client’s incorporation or attachment of any program, plug-in or device to the Software;
4.3.10 failure to provide a suitable environment for the Software or accessing or using the Software other than on the specified or recommended Operating Environment for same;
4.3.11 any unauthorised use of a Client End-User ID or password;
4.3.12 use of the Software for any other purpose other than that for which it was designed; or
4.3.13 any other exclusions expressly outlined elsewhere in this Agreement.
4.4 Repair of any faults arising as a result of any of the circumstances provided for in any of the sub-clauses of 4.3 may be undertaken by MedBrief at its discretion and may be subject to additional time and material charges in accordance with MedBrief’s prevailing Standard Rates.
5. COMPLIANCE WITH DATA PROTECTION LAWS AND POLICIES
5.1 In the performance of the Services, MedBrief shall take all steps and do all such things as may be necessary or reasonably required by the provisions of any Applicable Data Protection Laws pertaining to the security and protection of any Personal Data and shall ensure that any processing thereof is conducted in compliance with the provisions of all Applicable Data Protection Laws.
5.2 The Parties acknowledge and agree that, where MedBrief processes Personal Data on the instructions of the Client, MedBrief acts as a Data Processor to the Client as Data Controller.
5.3 MedBrief will process Personal Data only in accordance with the provisions of its Data Protection Policy and its Privacy Policy; and at all times in accordance with the provisions of the relevant Applicable Data Protection Laws for the different Service Regions listed at https://medbrief.com/Applicable-Data-Protection-Laws/.
5.4 Without derogating from the generality of the aforedoing, MedBrief shall:
5.4.1 take all appropriate technical and organisational security measures to ensure that where any Personal Data is provided to it in terms of this Agreement for Processing, it will be protected against loss, destruction and damage, and against unauthorised or accidental access, Processing, erasure, transfer, use, modification, disclosure or other misuse; and
5.4.2 assist the Client by taking reasonable appropriate technical and organisational measures to assist the the Client in meeting its own obligations under Applicable Data Protection Laws.
5.5 Subject to MedBrief’s right to maintain records and archives of the performance of its Services for statutory and other legal purposes set out in its Data Protection Policy, MedBrief may delete, de-identify and/or, at the request of the Client, return all Personal Data to the Client upon completion of the Services and return any existing copies of the data, subject to a reasonable administration charge, unless regulations require to the contrary.
5.6 Without derogating from any other provisions of this Agreement, the MedBrief Data Protection Policy or the MedBrief Privacy Policy, MedBrief shall ensure that any persons or third party that may be authorised by MedBrief to process Personal Data shall have committed themselves contractually to maintaining adequate technical and other organisational measures to protect any Confidential Information or Personal Data from unauthorised disclosure to any other person.
6. GENERAL UNDERTAKINGS OF THE CLIENT
6.1 The Client agrees that it shall make available suitably qualified and experienced personnel to fulfil its obligations under this Agreement, and that it shall nominate, at MedBrief’s request, an authorised representative to liaise directly with MedBrief in respect of any particular issue where required. Where the Client fails to nominate an authorised representative, MedBrief shall be entitled to assume that the person or End-User who accepts these terms and conditions for an identified Client is legally authorised to do so until such time as the Client nominates an alternative person.
6.2 The Client shall keep accurate records of all End-Users registered and authorised to access the Software.
6.3 The Client shall ensure that it is lawfully permitted to provide MedBrief with access to any property, including any Intellectual Property, materials, information or data which it makes available to MedBrief in terms of this Agreement, including in relation to any particular Matter or Service Order.
6.4 Whilst MedBrief shall take all steps to ensure the security, storage and processing of the Client’s data (to the extent applicable) in accordance with Applicable Laws as contemplated by clause 8.1, the Client acknowledges that the security of its and its authorised or invited End-Users’ devices, systems interfaces, mobile or wireless networks, software, Internet communications, email or messaging systems (including individual Client user email accounts), virtual private networks, firewalls, encryption and/or other systems or hardware used by the End-Users (collectively referred to herein as “Other Systems”), including but not limited to for purposes of accessing or using the Software, remains the Client and/or such End-Users own responsibility, and that MedBrief shall not be held liable either directly or otherwise for any losses incurred by the Client as a result of any breach or compromise of the security of any such Other Systems.
6.5 The Client agrees to indemnify and hold MedBrief harmless in respect of all claims, penalties, liabilities, costs or expenses that are made or imposed against MedBrief by any party as a result of any unlawful or negligent act or omission by the Client or any breach by the Client of the provisions of this Agreement.
6.6 The Client hereby indemnifies and holds MedBrief and its respective officers, directors, shareholders, employees and agents, and their respective successors and assigns harmless from any and all claims, actions, causes of action, liabilities, losses, costs, damages or expenses, including reasonable attorney’s fees, which arise out of or in relation to an End-User’s breach of the End-User Terms and Conditions and/or acceptable usage policies and/or any unauthorised use of the Software.
7. FEES AND PAYMENT
7.1 The Client shall be liable to make payment of the Fees and Charges charged by MedBrief on a Matter-by-Matter or Deliverable basis from time-to-time, including such fees and charges that may may be itemised in a Service Order and/or Fees and Charges Schedule. Unless expressy indicated to the contrary, all Fees and Charges shall be indicated exclusive of VAT and any taxes or levies due on any Fees and Charges and charges will be paid by the Client.
7.2 Any invoices arising in respect of this Agreement shall be due and payable on presentation thereof unless expressly recorded to the contrary in relation to the applicable Fees and Charges Schedule or Special Terms Addendum and shall be paid by transferring the invoiced amount into MedBrief’s Nominated Account, and time of payment will be of the essence. MedBrief will never update its bank account details other than by notice delivered inside of its own Software systems accessible to authorised End-Users of the Client for receipt of such notices. The Client and its authorised or invited End-Users shall be responsible for carefully checking the authenticity of any communication that the Client or any such End-User receives purporting to be from MedBrief before acting on it.
7.3 In the event of a failure to pay any invoice in accordance with clause 7.2, MedBrief will forthwith be entitled to suspend access to the Services (including any Software where applicable) and to charge interest on any sums outstanding from the invoice date until the date of payment at the Interest Rate, such interest to accrue on a daily basis and to be compounded monthly in arrears.
7.4 The Client acknowledges and agrees that non-delivery or non-performance by any of its customers or any other third party shall not give the Client any right to delay, withhold or set off any payment that falls due to MedBrief. The Client undertakes to pay all amounts that may fall due to MedBrief free of any deduction, set off, exchange or compromise.
7.5 Subject at all times to any fixed or minimum duration for the licensing of the Software or the provision of the Services that may be recorded in this Agreement, in the event that the Client wishes to cancel any particular Services to be rendered or being rendered by MedBrief at any stage, it will be required to deliver a written notice of cancellation to MedBrief.
7.6 MedBrief may adjust any of its Fees and Charges for its Services at any time, including but not limited to its Fees and Charges for new Matters or new Service Orders executed after the Effective Date of this Agreement provided however that once a Service Order has been executed for a particular Matter, MedBrief will honour the Fees and Charges provided for in the executed Service Order for that particular Matter, subject to MedBrief’s right to adjust its Fees and Charges on the expiry of any minimum subscription period provided for in that Service Order.
7.7 Unless expressly indicated to the contrary, where MedBrief provides any cost and time estimates to the Client in respect of any aspect of the Services to be rendered on a time and materials basis, including in respect of any deliverable required to be produced by it, then the Client acknowledges and agrees that such estimates are, unless expressly agreed to the contrary, generally provided to assist with planning and resource allocation and are based on anticipated resource utilisation and working days comprising of 8 (eight) hours. MedBrief undertakes to use all reasonable efforts to meet such estimates however the actual charges for any such Services or aspects thereof may differ based on the actual time and materials utilised in respect thereof.
8. WARRANTIES
8.1 Each of MedBrief and the Client warrants in favour of the other that it will comply in all material respects with all Applicable Laws to which it may be subject in the performance of its obligations in terms of this Agreement, including, in the Client’s instance, when uploading or sharing information using the Software.
8.2 MedBrief warrants in favour of the Client:
8.2.1 that all Services rendered by it will be rendered in a professional and workmanlike manner with an appropriate degree of professionalism and skill;
8.2.2 that it is the owner of the Intellectual Property utilised in the Software and/or a lawful re-licensor thereof and that the provision of the Software by MedBrief to the Client shall not constitute an infringement of any third party’s Intellectual Property rights; and
8.2.3 that the Software will operate in material conformance with the representations made in this document where properly configured, used and maintained in the contemplated Operating Environment, save however that where the Software is modified or altered in any manner by any person other than the Personnel of MedBrief, including whether by attachment, infiltration or plug-in of any other software application or virus, this warranty will immediately lapse and be of no force and effect.
8.3 MedBrief makes no warranty that operation of the Software developed or supplied by it will be completely error-free, nor that any particular site or application that it develops will be compatible with any particular browser or other software. MedBrief hereby expressly excludes any warranty that the Software has been built to manage to a particular minimum concurrent user load or minimum number of transactions.
8.4 Each of the Parties hereby warrants in favour of the other that it knows of no facts or reasons which would preclude it from lawfully concluding this Agreement and the person accepting this Agreement on behalf of each Party warrants that he or she is duly authorised to do so and has all necessary permissions and consents required to enable him or her to do so.
8.5 The Client specifically warrants that all information provided by the Client to MedBrief in relation to its information systems and information environments both prior to the Agreement Date and following the conclusion of this Agreement is and shall be true and correct.
9. CONFIDENTIALITY
9.1 Subject to clauses 9.2 and 9.3, and save as otherwise expressly provided for in this Agreement, neither Party will during the operation of this Agreement nor thereafter disclose to any person or use for any purpose any Confidential Information made available to it (the "Recipient Party") by the other (the "Disclosing Party") other than where it:
9.1.1 discloses such Confidential Information to such of its own employees or professional advisers (which may include lawyers, accountants and auditors) who have a need to know such Confidential Information for the proper performance of their duties, provided that the Recipient Party has given prior written instructions to its employees and/or professional advisors as to the restrictions on use and disclosure contained in this Agreement; or
9.1.2 uses such Confidential Information in the proper exercise of its rights or the performance of its obligations under this Agreement.
9.2 The Recipient Party will use its reasonable endeavours to minimise the risk of unauthorised disclosure or use of the Confidential Information and undertakes to take proper care and all reasonable measures to protect the confidentiality of the Confidential Information using a standard of care which is no less than that standard of care which it applies for the protection of its own Confidential Information.
9.3 Subject to clause 9.6, the restrictions on use and disclosure of Confidential Information under clause 9.1 will not apply to any Confidential Information which the Recipient Party can prove:
9.3.1 was already known to it prior to its receipt thereof from the Disclosing Party; or
9.3.2 was subsequently disclosed to it lawfully by a third party who did not obtain the same (whether directly or indirectly) from the Disclosing Party; or
9.3.3 was in the public domain at the time of receipt by the Recipient Party or has subsequently entered into the public domain other than by reason of the breach of the provisions of this clause or any obligations of confidence owed by the Recipient Party to the Disclosing Party; or
9.3.4 is required to be disclosed by law, regulation, order or regulators.
9.4 Confidential Information will be subject to the obligations of confidence irrespective of whether that Confidential Information is communicated orally or in writing by the Disclosing Party or its authorised representatives or obtained through observations made by representatives of the Recipient Party.
9.5 Confidential Information will not be exempted under clause 9.3 from restriction under this Agreement by reason only that:
9.5.1 some or all of its features (but not the combination and/or principle thereof) are or become public knowledge or are in the possession of or become available to the Recipient Party as mentioned in clause 9.3; or
9.5.2 such information could be derived or obtained from information which is or becomes public knowledge or is in the possession of or becomes available to the Recipient Party as mentioned in clause 9.3 if to obtain or derive such information would require substantial skill, labour or expense.
9.6 For the avoidance of doubt, no provision of this Agreement should be construed in such a way that the Disclosing Party is deemed to have granted its consent to the Recipient Party to disclose the whole or any part of the Confidential Information in the event that:
9.6.1 the Recipient Party receives a request for the whole or any part of the Confidential Information in terms of the provisions of any applicable law regulating the rights of access to information; or
9.6.2 the Disclosing Party has previously disclosed any of its Confidential Information to a third party in terms of the provisions of any such law as is contemplated in terms of clause 9.6.1 or any other law or court order.
9.7 Subject to the provisions of clause 9.8, and subject to any other rights the Disclosing Party may have in law, the Parties agree that the disclosure of Confidential Information by the Recipient Party, otherwise than in accordance with the provisions of this Agreement, will entitle the Disclosing Party to institute action for breach of confidence against the Recipient Party.
9.8 Each of the Parties acknowledges that the provisions of clause 9.7 will not be construed in such a manner as to exclude the applicability of any other ground of refusal contained in any law which may be applicable in the event that the Recipient Party receives a request for the whole or any part of the Confidential Information in terms of any law.
9.9 This section dealing with confidentiality will survive termination of this Agreement.
10. TERMINATION
10.1 Either Party may terminate this Agreement for convenience provided that not less than three calendar month’s prior written notice of termination is delivered to the other Party. Without derogating from the specific provisions of paragraph 10.2 regarding Software, during this three calendar month period, MedBrief shall be entitled to complete any Service Orders that it had accepted prior to the expiry of the aforesaid notice period, or to cancel the delivery of such Services, subject to any particular refund or cancellation terms that may be recorded in the applicable Service Orders.
10.2 Where MedBrief terminates this Agreement for convenience and stipulates that all Software licenses are to be terminated, MedBrief shall either be entitled to stipulate that this Agreement shall end on the expiry of the last such expiring Software license. Where this Agreement is terminated for convenience by MedBrief and ends prior to the expiry of any pre-paid Software licenses, MedBrief shall be liable to refund the Client a pro-rata portion of the pre-paid license fee.
10.3 In the event that either Party commits a breach of any of the material terms and conditions of this Agreement and, in the case of a remediable material breach, remains in default for a period of 30 days after receipt of a written notice from the other Party calling for that breach to be remedied, then the other Party shall be entitled, without prejudice to any other rights it may have hereunder or in law, to claim specific performance or to cancel and terminate this Agreement.
10.4 Either Party may immediately terminate this Agreement at any time by giving the other Party written notice of such termination:
10.4.1 if a final and un-appealable judgment against the other Party remains unsatisfied for a period of 15 Business Days or more after it comes, or ought reasonably to have come, to the attention of that other Party;
10.4.2 there is an Insolvency Event in respect of the other Party;
10.4.3 the other Party makes any arrangement or composition with its creditors generally or ceases or threatens to cease trading; or
10.4.4 the other Party is, other than for the purposes or reconstruction or amalgamation, placed under voluntary or compulsory liquidation or under judicial management or under the equivalent of the foregoing.
10.5 MedBrief shall be entitled to immediately terminate the provision of any or all Services (and to terminate access to the Software) to the Client in the event that:
10.5.1 the Client ceases trading; or
10.5.2 there is a change in control of the Client’s business which results or shall result in control of its business falling under any person whom MedBrief reasonably regards as being its competitor or as being likely to negatively affect MedBrief’s reputation or goodwill.
10.6 Any termination pursuant to the provisions of this clause will be without prejudice to any claim that either Party may have against the other, including for damages, in respect of any breach or any prior breach of the terms and conditions of this Agreement.
11. LIMITATION OF LIABILITY
11.1 Under no circumstances shall MedBrief’s cumulative and aggregate liability to the Client and/or any third party in terms of any indemnity provided to the Client in terms of this Agreement, whatever the basis of such claims, whether for Software supplied or any Services rendered or procured by MedBrief, and irrespective of whether such claims arise in contract, in tort or otherwise, exceed the amount of £2 000 000 (TWO MILLION POUNDS). Under no circumstances shall the Client be entitled to set off the amount of any claim for damages whether liquidated or otherwise that it may have against MedBrief from any amount that may be due to MedBrief in terms of this Agreement.
11.2 The Client hereby agrees that it is in a better position than MedBrief to foresee and estimate any loss it may suffer in connection with this Agreement and that the Fees and Charges and charges have been agreed to after taking full account of the limitations and exclusions contained in this section. Where the Client requires MedBrief to assume any additional liability that exceeds the liability assumed under clause 11.1, such additional liability shall be agreed to between the Parties in writing in advance and the Client shall be liable to make payment to MedBrief of any insurance premium that it may be required to pay in order to insure itself against that extended liability.
11.3 UNDER NO CIRCUMSTANCES SHALL MEDBRIEF BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS, REVENUE OR GOODWILL) AND HOWSOEVER ARISING, WHETHER IN CONTRACT, TORT OR IN TERMS OF ANY INDEMNITY GIVEN BY MEDBRIEF, INCLUDING WHETHER IN RESPECT OF ANY SOFTWARE OR ANY SERVICES, SUFFERED BY THE CLIENT OR ANY THIRD PARTY AND ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT.
11.4 Without in any way derogating from the provisions of clause 11.3, MedBrief shall have no liability to the Client or any third party for any loss or harm suffered as a result of any of the events or circumstances described in clauses 4.3.1 to 4.3.13 (inclusive).
11.5 The Client is responsible for virus-checking any programs, macros, data files or other material received on any storage medium accessed through the Internet or by email. MedBrief shall have no liability for any viruses uploaded to the Software or to any of the Client’s information systems by third parties or by the End-User’s, employees or agents of the Client.
12. NON-SOLICITATION
The Client hereby acknowledges that the Services provided by MedBrief may be provided by high-level and expertly trained employees and that by virtue of MedBrief’s performance of its obligations in terms of this Agreement, the Client’s respective officers, directors, shareholders, employees and agents may become well acquainted with such MedBrief employees and their respective skills. At all times, such persons shall remain subject to the conditions of employment and/or management of MedBrief. The Client acknowledges that MedBrief is likely to suffer economic or other prejudice should its employees be solicited and/or employed by the Client, and the Client accordingly undertakes that it shall not, both during the term of this Agreement and for a period of 1 (one) year after the termination hereof, hire or engage, nor offer to hire or engage, directly or indirectly, whether as an employee, consultant, independent contractor or in any other capacity, any MedBrief employee with whom the Client interacted during the course of this Agreement.
13. FORCE MAJEURE
13.1 If either Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement, including any Service to be rendered by MedBrief, by reason of Force Majeure, then that Party shall be relieved of such obligations during the period that Force Majeure and its consequences continue but only to the extent that it is so prevented and in which circumstances it shall not be liable for any delay or failure in the performance of such obligations or for any losses or damages whether general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given by the affected Party, where reasonably possible, of its inability to perform.
13.2 Any Party invoking Force Majeure will upon the termination or cessation of the event giving rise thereto immediately give written notice thereof to the other Party. Should that Force Majeure event continue for a period of more than 30 days then either Party will be entitled forthwith to cancel this Agreement in respect of any obligations still to be performed hereunder.
14. DISPUTE RESOLUTION
14.1 If the Parties are unable to resolve any dispute resulting from this Agreement by means of joint co-operation or discussion between the individuals directly involved with the execution of this Agreement or the relevant Services where applicable, within 1 week of any such dispute arising, or such extended period of time as the Parties may allow in writing, then such dispute shall be submitted to the most senior executives of the Parties who shall endeavour to resolve this dispute within 5 Business Days of it having been referred to them.
14.2 Should a dispute not be resolved in the aforesaid manner, then the Parties hereby expressly agree to the non-exclusive jurisdiction of the Courts of England and Wales for purposes of resolving any such dispute or for enforcing any of their rights.
14.3 The Parties expressly agree that neither Party may institute any claim or counterclaim whether by means of formal litigation or arbitration for any damages or loss sustained by that Party unless that Party has fully paid up any undisputed invoices due to the other Party.
14.4 In the event that the Parties agree to refer a dispute to arbitration, such arbitration shall be held subject to the provisions of this clause:
14.4.1 in London; and
14.4.2 at and in accordance with the provisions of the London Court of International Arbitration; and
14.4.3 it being the intention that, if possible, it shall be held and concluded within 21 Business Days after it has been demanded.
14.5 The arbitrator shall be if the question in issue is:
14.5.1 primarily an accounting matter, a practising accountant of not less than 10 years’ experience agreed upon between the Parties;
14.5.2 primarily a legal matter, a practising advocate of not less than 10 years’ experience agreed upon between the Parties; or
14.5.3 any other matter, an independent person agreed upon between the Parties.
14.6 If the Parties cannot agree upon a particular arbitrator within 7 Business Days after the arbitration has been demanded, the nomination in terms of 14.5.1, 14.5.2 and/or 14.5.3 above, as the case may be, shall be made by the Chief Executive Officer of the Law Society of England & Wales (or its successor), within 7 Business Days after the Parties have so failed to agree.
14.7 The Parties irrevocably agree that the decision in these arbitration proceedings:
14.7.1 shall be binding on them;
14.7.2 shall be carried into effect;
14.7.3 shall not be subject to review;
14.7.4 may be made an order of any Court of competent jurisdiction; and
14.7.5 shall not exclude the Parties’ right to claim urgent or injunctive relief in any Court of competent jurisdiction.
15. NOTICES AND DOMICILIUM
15.1 The Client’s physical address as recorded in the relevant Client administration module within any MedBrief Software licensed to the Client in terms of this Agreement shall serve as its domicilium citandi et executandi for all purposes arising out of or in connection with this Agreement.
15.2 Any notice given in terms of this Agreement shall be in writing and –
15.2.1 if delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;
15.2.2 if posted by prepaid registered post be deemed, unless the contrary is proved by the addressee, to have been received by the addressee on the 8th day following the date of such posting; or
15.2.3 if sent by courier to the addressee at the addressee's domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee on the date of delivery by the courier service concerned; or
15.2.4 if sent by electronic mail to the email address nominated for a Party in any Service Order or administration module of any licensed MedBrief Software shall be deemed, unless the addressee Party can prove otherwise, to have been received within one hour of sending to the addressee’s mail system where sent during the business hours of 08h00 – 16h00 on any Business Day or within one hour of the commencement of the next business hour of a Business Day where sent outside of any such business hours or other than on a Business Day.
15.3 Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by one of the Parties from another including by way of email transmission shall be adequate written notice or communication to such Party.
16. NEW LAWS AND INABILITY TO PERFORM
16.1 The Parties undertake to comply with the provisions of any new Applicable Law which may have an impact on this Agreement after its coming into effect; provided however that if such compliance would render it reasonably impracticable for a Party to perform its obligations as provided for in this Agreement or any relevant Service Order, the Parties undertake to enter into negotiations in good faith regarding a variation of this Agreement or the relevant Service Order in order to ensure that neither this Agreement nor its implementation will constitute a contravention of any such Applicable Law.
16.2 If MedBrief is prevented from performing any of its obligations in terms of this Agreement as a result of any new law, it shall not be liable to perform those of its obligations under this Agreement which are affected by the new law until such time as a variation to this Agreement has been reached in terms of clause 16.1 above. The Parties shall however, to the extent possible, continue to perform those obligations under this Agreement that are not affected by the new law.
16.3 Further, the Parties undertake to discuss any changes in the Applicable Laws which may have an material impact on this Agreement.
17. GENERAL
17.1 Survival of Rights, Duties and Obligations: Termination of this Agreement for any cause whatsoever shall not release either Party from any liability which at the time of termination has already accrued to the other or which thereafter may accrue in respect of any act or omission prior to such termination.
17.2 Entire Agreement: This Agreement together with all annexures / schedules hereto contains the entire Agreement between the Parties and neither Party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
17.3 Cession and Assignment: All of the rights and obligations of the Client under this Agreement are personal to the Client and may not be ceded, assigned, transferred, charged, sub-licensed, sub-contracted or otherwise delegated, transferred or disposed of in whole or in part without the prior written consent of MedBrief. MedBrief shall be entitled to delegate obligations by engaging a third party sub-contractor as contemplated in this Agreement and/or by ceding or assigning this Agreement or any part thereof to any other entity within its group of companies.
17.4 Supersession: The terms and conditions set out herein cancel and supersede all prior negotiations and agreements entered into between the Parties relating to the matters set forth herein. In the event of any conflict between this Agreement and any other agreement between the Parties relating to the matters set forth herein, whether oral or in writing, this Agreement shall take precedence and be duly implemented.
17.5 Further Assurance: The Parties shall co‑operate with each other and execute and deliver to the other of them such other instruments and documents and take such other actions as may be reasonably requested of either of the Parties from time to time in order to carry out, evidence and conClient its rights and the intended purpose of this Agreement.
17.6 Indulgences: No indulgence, leniency or extension of time which any Party (“the grantor”) may grant or show to the other shall operate as an estoppel or in any way prejudice the grantor or preclude the grantor from exercising any of its rights in the future.
17.7 Governing law: This Agreement shall be governed by and interpreted in accordance with the laws of the England and Wales. All disputes, actions and other matters in connection with this Agreement shall be determined in accordance with such laws.
17.8 Invalidity: Any provision of this Agreement which is held invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
17.9 Severability: Each undertaking in this Agreement shall be construed as a separate undertaking and if one or more of the undertakings contained in this Agreement is found to be unenforceable or in any way unreasonable, the remaining undertakings shall continue to bind the Parties. To the extent possible in any jurisdiction to which this Agreement may apply or in which this Agreement may be enforced, if any undertaking contained in this Agreement is found to be void but would be valid if the period of application thereof were reduced or if some part of the undertaking were deleted, the undertaking in question shall apply with such modification as may be necessary to make it valid and effective.
17.10 Anti-Bribery: MedBrief shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 ('Relevant Requirements'); and have and shall maintain in place throughout the duration of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and shall notify the Client (in writing) if it becomes aware of any breach of this clause; and shall ensure that any person associated with MedBrief who is performing acts and services in connection with this Agreement does so only on the basis of a written contract which imposes on and secures from such person terms at least equivalent to those imposed on MedBrief by this clause, and MedBrief shall be responsible for the observance and performance of such requirements by all such persons. Breach of this clause 17.10 shall be deemed a material breach of this Agreement
17.11 Cumulative Rights and Remedies: The rights and remedies of the Parties under this Agreement are cumulative and in addition to any rights and remedies provided by law.