MMSA
ONLINE SERVICE AGREEMENT
[last amended: 03/03/2002]
PART 1
SPECIFIC TERMS AND CONDITIONS RELATING TO THE VARIOUS OFFERINGS
PART 1a
MEMBER'S TERMS AND CONDITIONS
DEFINITIONS
Please refer to clause 29 for the definition of terms used in this Agreement.
CONTRACTING PARTIES
This Agreement is concluded between the Member and MMSA.
ONLINE SERVICE
This Agreement applies to all such services as the Member is able to Access
using the Internet.
REGISTRATION
1. I accept that MMSA will not in any way be responsible or liable
for any claims of any nature whatsoever made by anyone {myself excluded} which
arise as a result of my failing to keep my password and user name secure and
confidential to myself.
2. I indemnify MMSA and hold it harmless against any such claims.
3. I understand that this service may not be available 24 hours a day.
PRIVACY
Section 60, Preservation of secrecy, Medical Schemes Act
60. (1) A member of the Council or of its staff shall not disclose any information
relating to the affairs of the Council where the Council meets in committee
or in those instances where the chairperson so determines, except for the purposes
of the performance of his or her duties or the exercise of his or her powers
in terms of this Act or any other law or when required to do so under any law
before a court of law.
(2) No person shall, except in the performance of his or her functions or duties
under this Act or when called upon to do so as a witness before a court of law,
disclose any information relating to the affairs of any medical scheme furnished
to or obtain by him or her in connection with any enquiry or investigation under
this Act.
Additional identification and notification of risks provided in standard terms
PART 2
STANDARD TERMS AND CONDITIONS FOR ONLINE SERVICES
1 ACCEPTANCE
1.1 This Agreement becomes binding on the User and will be deemed to have been
accepted by the User on the first occurrence of one of the following events:
1.1.1 on accessing the Website
1.1.2 submission of the registration form for the Online Service;
1.1.3 utilisation of the Online Service in any manner or form; or
1.1.4 whenever reliance is made or action taken based on any information provided
on the Website.
1.2 Without affecting the validity of deemed acceptance in terms of clause 1.1
and without imposing any duty on MMSA to do so, Users may be required
to Submit acceptance of this Agreement and/or Amendments, from time to time
in a manner other than those elicited in clause 1.1 above.
1.3 Whenever contractual terms are made available for acceptance; or disclaimers
or notices are displayed or made accessible on the Website, not requiring a
Submission from the User to be accepted, such contractual terms, disclaimers
or notices shall be deemed to be accepted by the User unless the User immediately
ends the Session without performing any further Instruction and informs MMSA,
within 24 hours, of his non-acceptance of the contractual terms, disclaimer
or notice in question.
1.4 The provisions of clause 10 shall apply with regard to acceptance of Amendments.
2 ACCESS CODE
2.1 The User will be supplied with an Access Code by such means and in such
format as MMSA may determine from time to time. All Online Services
are subject to MMSA having issued a User with an Access Code.
2.2 The User undertakes to ensure that the Access Code is neither easily accessible
nor disclosed to any other person. The User accepts that storing the Access
Code on a computer or network will be regarded as prima facie negligent for
purposes of evidence with regard to unauthorised transactions.
2.3 The User shall report any actual or potential unauthorised access to or
use of the Access Code to MMSA, without delay, via its specified
telephone call service and provide MMSA with written confirmation
thereof within 24 hours of such notification. On receipt of telephonic notification,
MMSA reserves the right to: (a) reject all Instructions received
after such notification; (b) suspend the processing of all Instructions not
yet executed; (c) reverse (if possible) all executed Transactions with effect
from such date and time as MMSA may reasonably determine the unauthorised
use to have commenced; or (d) deactivate the Access Code without further notice.
2.4 The User shall be obliged to log-off from Online Services before exiting
an Online Session. The User acknowledges that failure to log-off could result
in unauthorised Transactions for which MMSA will not be held liable.
2.5 MMSA may, in its sole discretion and for whatever reason, require
a User to change his Access Code from time to time and the User undertakes to
comply with such requirement unconditionally.
2.6 The User acknowledges that unauthorised use of the Access Code could expose
a User to exposure of information personal to the User to on other accounts
held with MMSA and furthermore could allow fraudulent transactions
to be initiated with other accounts held with MMSA.
3 WARRANTIES GIVEN TO MMSA
The User warrants to MMSA that he/she:
3.1 has the requisite legal capacity to make use of the Online Services;
3.2 has complied with all applicable statutory provisions; and
3.3 has read, understood and accepted the terms of this Agreement.
4 TECHNOLOGY NEUTRALITY
MMSA makes these Online Services available to the User subject to
the principle of technology neutrality, which principle the User hereby accepts.
The principle of technology neutrality means that, unless otherwise stated in
this Agreement:
4.1 the Online Services are subject to the same business fundamentals and principles
governing MMSA's Offline Business;
4.2 the Online Services are subject to no better than the same processing turn-around
times and performance criteria as applied by MMSA in its Offline
Business;
4.3 any reference to words in this Agreement, legislation or regulations traditionally
associated with a non-electronic or non-Online environment, including the terms
"writing", "document" or "signature", shall include
electronic or Online forms thereof;
4.4 documents or displays viewed or printed by the User via the Website shall
prima facie be deemed to be "true copies" of the original.
5 SIGNATURE AND AUTHORITY BY USER
5.1 The User hereby designates the Submission of the Access Code as the User's
signature for purposes of all subsequent actions performed or Instructions given
during a Session.
5.2 In as far as a signature is required for each Instruction in terms of this
Agreement or applicable legislation, the User hereby designates each Submission
of an Instruction as his written signature.
5.3 Whenever required in this Agreement or applicable legislation, the Submission
of the Access Code, together with the Submission of an Instruction shall, collectively,
constitute and have the same effect as a written, signed authority.
5.4 Subject to the provisions of clause 2.3, MMSA shall be entitled
to regard all Instructions as actually originating from or authorised by the
User; and to act on such Instructions. Under no circumstances shall MMSA
be held liable for any actions taken on unauthorised Instructions.
6 INSTRUCTIONS
Unless otherwise provided for in this Agreement:
6.1 An Instruction becomes irrevocable once Submitted to MMSA.
6.2 MMSA shall not be liable for the consequences of the User executing
the same Instruction more than once, whether as a result of mistake or otherwise,
notwithstanding that it shall endeavour to assist the User with the reversing
of Instructions where it is possible to do so.
6.3 Unless confirmed by email from MMSA to the User within 24 hours
of Submission of an Instruction, no Instruction shall be considered to have
been received by MMSA.
6.4 PLEASE NOTE THAT, if an Instruction is not confirmed within 24 hours, the
User shall not re-Submit or send the same Instruction prior to contacting MMSA.
This is because the initial Instruction may still be in process and
re-sending the Instruction may lead to a double transaction for which MMSA
shall not be held liable in terms of clause 6.2 above.
7 SUFFICIENT NOTIFICATION
7.1 The User hereby grants MMSA authority to issue notifications
required in terms of this Agreement, legislation or regulation, as the case
may be, by posting such notification on the Website or sending such notification
by email to the User.
7.2 Any notices so issued by MMSA, shall insofar as they contain
contractual terms pertaining to the Online Services, also form part of this
Agreement.
7.3 A certificate signed by the administrator responsible for the maintenance
of this Website (whose authority it shall not be necessary to prove) shall be
prima facie proof of the first date of publication, withdrawal or contents of
a notification.
8 GUESTS
8.1 In this Agreement, all references to User shall include reference to a Guest,
provided that a Guest shall under no circumstances obtain any of the rights
granted to a User in this Agreement.
8.2 The rights of a Guest shall be limited to accessing and viewing such information
provided on the Website for which no Access Code is required.
9 JURISDICTIONAL DISCLAIMER
9.1 The Online Services are only available to:
9.1.1 persons domiciled or of permanent residence in the Republic of South Africa
("RSA");
9.1.2 corporate or other legal entities or organisation domiciled and incorporated
in terms of the laws of the RSA; and
9.1.3 RSA citizens temporally resident outside the RSA for the purposes of holiday
or similar, subject to the Rules.
9.2 Any use or attempted use of the Online Services by any person or entity
other than those specified in this clause 9 could result in civil action or
criminal prosecution.
10 AMENDMENTS
10.1 This Agreement may be amended by MMSA from time to time. The
User acknowledges that by accessing this Website from time to time, he/she shall
become bound to the current version of this Agreement (the "current version")
and, unless otherwise stated in the current version, all previous versions shall
be superseded by the current version. the User undertakes to view the then current
version each time use is made of the Online Services.
10.2 Without derogating from the aforegoing and without imposing any obligation
on MMSA whatsoever, MMSA reserves the right to give
the User notification of amendment of this Agreement either by electronic mail
or by posting a notice on the Website. On notification of the existence of the
amended terms, the User is obliged to visit the Website and view the then current
version of this Agreement. Unless the User notifies MMSA otherwise,
the amended Agreement will be deemed to have been perused and accepted by the
User on the occurrence of the first of the following events:
10.2.1 within 5 (five) days of the notice of amendment having been mailed by
traditional, paper-based mail if the User does not access the Website within
such period; or
10.2.2 within 1 (one) day of having been sent by facsimile, emailed or sent
by SMS, as the case may be, if the User does not access the Website within such
period; or
10.2.3 whenever the User makes use of the Online Services.
10.3 A certificate signed by the administrator responsible for the maintenance
of this Website shall be prima facie proof of the date of publication and content
of the current version and all previous versions of this Agreement. The same
provisions apply with regard to notices and disclaimers posted on the Website.
11 UNAVAILABILITY OF ONLINE SERVICES
11.1 MMSA shall at all times and for whatever reason, have the sole
and exclusive right to suspend or terminate the Online Services without any
prior notification or giving any reasons for such termination or suspension.
11.2 The User acknowledges and accepts that the Online Services may become unavailable
from time to time due to various circumstances, including: technical failure
or problems with the MMSA System; technical failure or problems
with Third Party Systems; unavailability of telecommunication or electricity
services; or other circumstances beyond the control of MMSA. Without
derogating from the provisions of clause 12, the User undertakes to limit his
or her potential losses by utilising MMSA's Offline Business for
the duration of the unavailability of the Online Services.
12 DISCLAIMER & LIMITATION OF LIABILITY
12.1 THIS WEBSITE AND THE ONLINE SERVICES ARE PROVIDED "AS IS" AND
MMSA MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH
REGARD THERETO. WITHOUT LIMITING THE GENERALITY OF THE AFOREGOING:-
12.1.1 MMSA DOES NOT WARRANT THAT THE WEBSITE OR ONLINE SERVICES
WILL BE ERROR-FREE OR WILL MEET ANY PARTICULAR CRITERIA OF ACCURACY, COMPLETENESS
OR RELIABILITY OF INFORMATION, PERFORMANCE OR QUALITY.
12.1.2 MMSA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY AND ACCURACY.
12.2 USE OF THIS WEBSITE AND THE ONLINE SERVICES IS ENTIRELY AT A USER'S OWN
RISK AND USERS ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM THE
USE THEREOF. NEITHER MMSA, ITS SHAREHOLDERS, AGENTS, CONSULTANTS
OR EMPLOYEES WILL BE LIABLE FOR ANY DAMAGES WHATSOEVER RELATING TO THE USE OF
THIS WEBSITE, THE ONLINE SERVICES OR THE INFORMATION CONTAINED THEREIN, INCLUDING,
WITHOUT LIMITATION, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF CONTRACT, STATUTE, DELICT OR OTHERWISE.
WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, MMSA SHALL
NOT BE LIABLE FOR:
12.2.1 ANY INTERRUPTION, MALFUNCTION, DOWNTIME OR OTHER FAILURE OF THE WEBSITE
OR ONLINE SERVICES, THE MMSA SYSTEM, DATABASES OR ANY COMPONENT
PART THEREOF FOR WHATEVER REASON;
12.2.2 ANY LOSS OR DAMAGE WITH REGARD TO USER DATA OR OTHER DATA DIRECTLY OR
INDIRECTLY CAUSED BY MALFUNCTION OF THE MMSA SYSTEM, POWER FAILURES,
UNLAWFUL ACCESS TO OR THEFT OF DATA, COMPUTER VIRUSES; PROGRAMMING DEFECTS;
AND NEGLIGENCE ON THE PART OF MMSA.
12.2.3 ANY INTERRUPTION, MALFUNCTION, DOWNTIME OR OTHER FAILURE OF GOODS OR
SERVICES PROVIDED BY THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, THIRD PARTY
SYSTEMS SUCH AS THE PUBLIC SWITCHED TELECOMMUNICATION SERVICE PROVIDERS (CURRENTLY
TELKOM), INTERNET SERVICE PROVIDERS, ELECTRICITY SUPPLIERS (CURRENTLY ESKOM),
LOCAL AUTHORITIES AND CERTIFICATION AUTHORITIES;
12.2.4 AN EVENT OF FORCE MAJEUR OR ANY OTHER EVENT OVER WHICH MMSA
HAS NO DIRECT CONTROL.
13 BREACH
Save for those provisions in this Agreement specifically providing for breach
and/or termination, MMSA may terminate the Online Services or parts
thereof if a User breaches any material provision or term of this Agreement
and fails to remedy such breach within 24 (twenty-four) hours of receipt of
a notice requiring it to do so. MMSA may terminate the Online Services
in addition to any other remedy available to it at law or under this Agreement,
including obtaining an interdict.
14 DISPUTE RESOLUTION
14.1 Save in respect of those provisions of this Agreement which provide for
their own remedies which would be incompatible with arbitration, a dispute which
arises in regard to -
14.1.1 the interpretation of; or
14.1.2 the carrying into effect of; or
14.1.3 any of the parties' rights and obligations arising from; or
14.1.4 the termination or purported termination of or arising from the termination
of; or
14.1.5 the rectification or proposed rectification of;
this Agreement, or out of or pursuant to this Agreement or on any matter which
in terms of this Agreement requires agreement by the parties, (other than where
an interdict is sought or urgent relief may be obtained from a court of competent
jurisdiction), shall be submitted to and decided by arbitration.
14.2 That arbitration shall be held -
14.2.1 with only the parties and their representatives present thereat;
14.2.2 at the offices of the Arbitration Foundation of Southern Africa, Sandton,
Gauteng Province, South Africa.
14.3 It is the intention that the arbitration shall, where possible, be held
and concluded in 21 (twenty-one) working days after it has been demanded. The
parties shall use their best endeavours to procure the expeditious completion
of the arbitration.
14.4 The arbitration shall be governed by the Rules of the Arbitration Foundation
of Southern Africa, in terms of South African Law and shall be heard by an arbitrator
or arbitrators appointed by the Foundation.
14.5 The arbitrator shall have the fullest and freest discretion with regard
to the proceedings save that he shall be obliged to give his award in writing
fully supported by reasons. His award shall be final and binding on the parties
to the dispute save that a party shall be entitled to apply to the High Court
of South Africa to set aside the award in regard to question of law or in the
event of manifest or clerical error.
14.6 Either party shall be entitled to have the award made an order of court
of competent jurisdiction.
14.7 The provisions of this clause are severable from the rest of this Agreement
and shall remain in effect even if this Agreement is terminated for any reason.
14.8 The parties shall keep the evidence in the arbitration proceedings and
any order made by any arbitrator confidential unless otherwise contemplated
herein.
14.9 The arbitrator shall have the power to give default judgement if any party
fails to make submissions on due date and/or fails to appear at the arbitration.
15 INDEMNITY
The User hereby indemnifies MMSA for all losses and/or all expenditures
which MMSA may incur on his/her behalf due to:
15.1 non-payment;
15.2 any Instruction exceeding the amount available in the User's benefits;
15.3 unauthorised Instructions executed which are not due to MMSA's
negligence.
16 NO PROFESSIONAL ADVICE
16.1 MMSA does not act as a medical professional.
16.2 All material published on this Website (the "material") is only
intended to provide general information regarding MMSA and its Products
and does not constitute professional advice of whatever nature. All material
including, without limitation, research, opinions, figures, prices, projections
or other content are provided "as is" and the User shall not place
reliance thereon in taking actions which might affect his/her or her health
without consulting MMSA directly.
17 NO OFFER
Unless clearly otherwise stated, nothing displayed or available through the
Online Services should be construed as an offer of any kind made by MMSA.
All material on this Website merely constitute an invitation to do business
with MMSA.
18 INTELLECTUAL PROPERTY
18.1 MMSA or its licensors (third parties) retain all copyright
in all material, including logos and other graphics published on or via the
Website. The User is hereby authorised to view, download one copy to a local
hard drive or disk, print and make copies of such printouts, provided that:
18.1.1 such material is used only for the purposes of using or considering using
the Online Services and no other commercial purposes;
18.1.2 any reproduction of MMSA proprietary material from this Website
or portion thereof must include these terms and conditions in their entirety.
18.2 The logos and marks displayed on this Website are registered and unregistered
trademarks of MMSA and/or third parties. Nothing contained on this
Website should be construed as granting any licence or right to use any trademark
without the written permission of MMSA and/or such third parties.
18.3 Irrespective of copyright or trade marks, the User acknowledges that MMSA
is the proprietor of all material on the Website, whether confidential
information or not, and the User shall have no right, title or interest in any
such material or use the material otherwise than for purposes of using or considering
the Online Services.
18.4 No hyperlinks, framing or meta-tagging of whatever nature shall be allowed
to this Website without the prior written consent of MMSA.
19 USE OF SOFTWARE
19.1 Prior to making use of the Online Services, the User is required to use
and maintain only hardware and software of sufficient quality and performance
capability and to use only appropriate Internet browser software. Failure to
use a Specified browser may result in a higher security risk and/or cause some
or all of the functionality of the Website not to operate properly or at all
and MMSA shall not be held liable in this regard.
19.2 Software, if any, made available for download on or via the Website is
governed by licence conditions establishing a legal relationship with the licensor.
The User indemnifies MMSA against any breach of such licence conditions.
19.3 MMSA gives no warranty and makes no representation, whether
express or implied, as to the quality or fitness for purpose or use of such
software.
19.4 NO WARRANTY, WHETHER EXPRESS OR IMPLIED IS GIVEN THAT ANY FILES, DOWNLOADS
OR APPLICATIONS AVAILABLE VIA THIS WEBSITE ARE FREE OF VIRUSES, TROJANS OR ANY
OTHER DATA OR CODE WHICH HAS THE ABILITY TO CORRUPT OR AFFECT THE OPERATION
OF THE USER'S INFORMATION SYSTEM.
20 TRANSMISSION OF INFORMATION
Information transmitted via the Internet, including e-mail, is prone to unlawful
access or monitoring. The User shall bear all risk of transmitting information
via the Internet and under no circumstances will MMSA be liable
for any loss, harm or damage suffered by them as a result thereof. MMSA
reserves the right to request independent verification of any information
transmitted by the User via the Website or e-mail. MMSA will not
intentionally deviate from its privacy policy as published on the Website from
time to time.
21 CERTIFICATE
21.1 A certificate signed by MMSA or its auditors (whose appointment
as such it shall not be necessary to prove) shall constitute prima facie proof
of any amount payable by the User to MMSA in terms hereof and the
fact that the same is due and payable for all purposes, including (but not limited
to) provisional sentence and summary judgement.
21.2 A certificate signed by MMSA shall constitute prima facie proof
of the operation of the Online Services or any part thereof and the contents
of any information displayed on the Website on a given date.
22 INFORMATIONAL SERVICES
MMSA may use the services of certain third parties to provide information
on the Website from time to time. MMSA has no control over this
information and makes no representations or warranties of any nature as to the
accuracy, appropriateness or correctness of such information. The User agrees
that such information is provided "as is" and MMSA shall
not be directly or indirectly liable for any damages that may arise from the
User's reliance on such information.
23 HYPERLINKS; DEEP LINKING; CRAWLERS AND METATAGS
23.1 This Website may contain links to other websites, which may contain material
that has been produced by parties not affiliated with MMSA. MMSA
accepts no responsibility for information provided on any such website.
Any opinions expressed on such websites are solely those of such third parties
and are not necessarily opinions shared by MMSA.
23.2 The existence of a link from this Website to any others websites does not
constitute a recommendation or approval by MMSA of such websites
or any provider thereof.
23.3 No person may establish a hyperlink, frame, meta-tag or similar instrument
(collectively referred to as "link"), to this Website or any subsidiary
pages without the prior written approval of MMSA and subject to
such conditions as MMSA may specify from time to time.
23.4 An application for linking must be submitted to [email protected]
upon receipt of which we will use our best endeavours to respond. Until such
time as we respond, the application for linking must be considered as not having
been granted.
23.5 Breach of these conditions shall entitle MMSA to take appropriate
legal action without prior notice and you agree to reimburse the costs associated
with such legal action on an attorney and own client scale.
24 MESSAGE BOARDS AND CHAT ROOMS
24.1 MMSA may, in its sole discretion, at some stage provide the
User with the facility to post messages on the Website (the "message board").
24.2 MMSA reserves the right to evaluate ("review") message
contents ("Content") prior to posting them on the message board but
the User accepts and acknowledges that review shall not cause MMSA
to be regarded as having exercised content control over the message board and,
as such, does not guarantee the accuracy, integrity or quality of such Content.
24.3 The User agrees not to use the message board to:
24.3.1 upload, post, email or otherwise transmit any Content that is unlawful,
harmful, threatening, abusive, defamatory, vulgar, obscene, libellous, invasive
of another's privacy, hateful or otherwise objectionable;
24.3.2 impersonate any person including, but not limited to, a MMSA
official or host; or falsely state or otherwise misrepresent their affiliation
with a person or entity;
24.3.3 manipulate identifiers in order to disguise the origin of any Content
transmitted through the message board;
24.3.4 upload, post, email or otherwise transmit any Content that they do not
have a right to transmit under any law;
24.3.5 upload, post, email or otherwise transmit any Content that infringes
any patent, trademark, trade secret, copyright or other proprietary rights ("Rights")
of any party;
24.3.6 upload, post, email or otherwise transmit any unsolicited or unauthorized
advertising, promotional materials, "junk mail," "spam,"
"chain letters";
24.3.7 upload or otherwise transmit any material that contains viruses or any
other computer code designed to interrupt, destroy or limit the functionality
of any computer software or hardware or telecommunications equipment;
24.3.8 interfere with or disrupt the message board or servers or networks connected
to the message board, or disobey any requirements, procedures, policies or regulations
of networks connected to the message board;
24.4 The User agrees to indemnify and hold MMSA harmless from any
claim or demand, including reasonable attorneys' fees, made by any other User
or third party arising out of Content the User submits through the message board.
25 NO WARRANTIES OR REPRESENTATIONS
This Agreement contains the sole terms and conditions governing the Online Services.
The User acknowledges and agrees that any warranties, statements or representations
of whatever nature and in whatever form, including promotional materials, granted
or made by MMSA, its employees, agents or advisors which are not
evidenced in this Agreement shall not be valid and enforceable.
26 ADDRESS FOR NOTICES AND SERVICE OF LEGAL PROCESS
For purposes of exchange of any notices and communications in terms of this
Agreement as well as for purposes of service of legal process, the User chooses
its address as supplied to MMSA on registration (unless a change
of address had been properly notified to MMSA thereafter, in which
case the latter address will apply) and MMSA chooses its address
as it appears on the Website, from time to time.
26.1 Subject to any specific provision to the contrary, any notice or communication
required or permitted to be given in terms of this Agreement shall be valid
and effective only if in writing but it shall be competent to give notice by
facsimile or email.
26.2 Any party may by notice to any other party change the physical address
chosen as its domicilium citandi et executandi to another physical address where
postal delivery occurs or its facsimile number or email address, provided that
the change shall become effective vis-à-vis that addressee on the 10th
business day from the receipt of the notice by the addressee.
26.3 Any notice to a party -
26.3.1 delivered by hand to a responsible person during ordinary business hours
at the physical address chosen as its domicilium citandi et executandi shall
be deemed to have been received on the day of delivery; or
26.3.2 sent by facsimile or email to its chosen facsimile number or email address,
shall be deemed to have been received on the next working day following the
date of despatch (unless the contrary is proved).
26.4 Notwithstanding anything to the contrary herein contained a written or
electronic notice or communication actually received by a party shall be an
adequate notice or communication to it notwithstanding that it was not sent
to or delivered at its chosen domicilium citandi et executandi.
27 SOLE AGREEMENT
27.1 This Agreement constitutes the whole agreement between the User and MMSA
with regard to Online Services and no warranties, undertakings or representations,
whether express or implied, not stated herein shall be binding on the parties.
27.2 No agreement at variance with this Agreement shall be binding on the parties
unless reduced to a hand-written agreement signed by or on behalf of the parties,
provided that this provision shall in no way affect or detract from the validity
and effect of MMSA's right to amend this Agreement as provided for
in clause 10.
28 GENERAL
28.1 The headings of the clauses in this Agreement are for the purpose of convenience
and reference only and shall not be used in the interpretation of nor modify
nor amplify the terms of this Agreement nor any clause hereof.
28.2 This Agreement shall be performed and construed in accordance with South
African law.
28.3 Where any dates, time or calculation of same are required in terms of this
Agreement, South African time shall be used.
28.4 Failure or neglect by MMSA to enforce at any time any of the
provisions hereof or the grant, whether express or implied, of any leniency
to the User, shall not be construed nor shall be deemed to be a waiver of MMSA's
rights hereunder nor in any way affect the validity of the whole or
any part of this Agreement nor prejudice MMSA's rights to take subsequent
action.
28.5 In the event that any of these terms, conditions or provisions shall be
determined invalid, unlawful or unenforceable to any extent such term, condition,
or provision shall be severed from the remaining terms, conditions and provisions
which shall continue to be valid to the fullest extent permitted by law.
28.6 The User shall not cede, assign or otherwise transfer all or any part of
his rights or obligations in terms of this Agreement without the prior written
consent of MMSA.
29 DEFINITIONS AND INTERPRETATION
29.1 In this Online Service Agreement the following terms shall have the following
meaning:
"Access Code" means the User specific code or codes required to initiate
an Online Session and includes any component part of such Access Code such as
an User ID or PIN;
"Act" means the Medical Schemes Act 131 of 1998;
"Agreement" means this Online Service Agreement comprised of the terms
in Part 1 and Part 2;
"Amendments" means amendments to this Online Service Agreement as
provided for in clause 10;"
"electronic signature" means an electronic signature as defined in
the Electronic Communications and Transactions Act 25 of 2002 and includes the
identifier/s provided for in clause 5;
"Employer" means an employer who has elected to have some or all of
its employees become members of a medical scheme administered by MMSA
and who have been enrolled or admitted as such and who is responsible for payment
of the relevant fees on behalf if such employees;
"Guest" means any user of the Website who is not a User;
"hyperlink" means any graphic, icon or text on the Website linked
by internet protocol technology to any other website or web page, whether on
the Website or any other website;
"information system" means a system for generating, sending, receiving,
storing, displaying or otherwise processing Instructions and includes the Internet,
telephone voice recognition, Short Messaging System (SMS) and Wireless Application
Protocol (WAP) communications;
"Instruction" means an instruction given Online or otherwise by a
User to MMSA, for MMSA to perform Online Services;
"Intermediary" means a broker a person whose business, or part thereof,
entails providing a service or advice in respect of the introduction of prospective
members to a medical scheme and who has been accredited in terms of Section
65 of the Act and appointed by MMSA to introduce Members and Employers
to the medical schemes administered by MMSA, in return for consideration;
"Internet" means the interconnected system of networks that connects
computers around the world using TCP/IP and includes any future versions thereof;
"Member" means a person who has been enrolled or admitted as a member
of a medical scheme administered by MMSA, or who, in terms of the
rules of a medical scheme administered by MMSA, is a member of such
medical scheme;
"Offline Business" means the products and/or services provided by
MMSA otherwise than Online;
"Online" means via an information system;
"Online Session" means the uninterrupted period during which the User
has access to Online Services, from time to time;
"Online Service" means the services or products provided for in Part
1;
"Part 1" and "Part 2" refers to Part 1 and Part 2 of this
Agreement;
"PIN" means the User selected personal identification number to access
the Online Services;
"Rules" means the rules of the various medical schemes administered
by MMSA;
"Session" means the uninterrupted period during which the User has
access to the Online Services, from time to time;
"MMSA" means Momentum Medical Schemes Administrator;
"Specified" means displayed on the Website;
"Standard Terms" means the general terms and conditions provided for
in Part 2 of the Online Service Agreement;
"Submit", "Submission" means the submission of information
by the User to MMSA through the MMSA System and includes
the clicking of any icon or hyperlink on the Website or functionality on the
User's Internet browser which transmits information to MMSA;
"MMSA System" means the information system underlying
the Online Services, owned or controlled by MMSA and excludes any
Third Party System;
"Supplier" means the supplier of a relevant health care service, as
defined in the Act, to a member or his/her dependant who has registered with
MMSA;
"Transactions" means electronic transactions as defined in the Electronic
Communications and Transactions Act 25 of 2002;
"Third Party System" means the information system directly or indirectly
underlying the Online Services, owned or controlled by persons other than MMSA
and excludes the MMSA System;
"User" means an Employer, Intermediary, Member or Supplier, duly registered
and authorised to use the Online Services;
"User ID" means the user's user name and/or number to access the Online
Services;
"Website" means the website or websites on which the Online Service
is provided, initially being www.sovhealth.co.za .
29.2 Purely for purposes of convenience, words defined in the Online Service
Agreement are indicated hereinafter by displaying them in Title Case. However,
failure by MMSA to so indicate defined words shall not detract from
their defined meanings.
29.3 Whenever conflict or inconsistencies arise between the interpretation of
the Standard Terms and any other provision of this Online Service Agreement,
the provisions of the Online Service Agreement shall prevail.
29.4 For purposes of convenience but subject to the provisions of clause 8,
all reference in this Online Service Agreement to User shall include reference
to Guest.