“User” means any (i) user, beneficiary of a Subscription in his name and/or (ii) Healthcare Actor or Assistant authorized by a Subscriber, an Administrator or by another User, to use certain features of the Services under the full responsibility of the Subscriber or User, beneficiary of a Subscription in his name.
“Subscriber” designates indifferently (i) any natural person who is a health actor practicing in a liberal capacity, (ii) any legal person under private law bringing together health actors for the exercise of their profession and (iii) any legal person under public law. bringing together Healthcare Actors for the exercise of their profession, having subscribed to the Services by signing the Subscription Conditions and paying for the Subscription.
CREATION OF USER ACCOUNT
AfriWell authorizes any User to create a unique personalized code for the first connection so that he can access his User Account. This code is generated by the Subscriber during the Subscription. During this first connection, the User commits to provide exact and complete information on his identity, and if necessary, on his right to exercise, requested in the online form and in accordance with the ethics, the rules defined by his profession and/or his professional order. In particular, he commits not to create a false identity likely to mislead AfriWell or third parties, not to erroneously claim a right to exercise, and not to usurp the identity of another natural person moral. The User commits to immediately update, in the event of any modification, the User Data that he communicated during his first connection to his User Account.
Given the nature of the data processed by Users, AfriWell reserves the right to verify and/or have verified, by a specialized third party service provider, the identity of each User, in particular by asking them to send a copy of their identity card. identity, and, where applicable, his right to exercise.
The acceptance of the CU is done online by Electronic Signature. Any Electronic Signature of the document concerned has legal value. The fact of subscribing online implies the User’s full and complete acceptance of the Contract.
After the validation of the CU and the creation of his User Account, the User receives a confirmation e-mail electronically to the address he will have provided. From then on, he will be able to identify himself and have access to his User Account and to the Services ordered by the Subscriber.
In the event that the User provides false, inaccurate, obsolete, incomplete or misleading information, AfriWell may, immediately without notice or compensation, suspend or terminate the User Account and refuse access to it, in such a way temporary or permanent to all or part of the Services.
CONDITIONS OF ACCESS TO SERVICES
The Calendar Service is the main service of AfriWell, so the User acknowledges and accepts that any subscription to Additional Services requires a valid Subscription to the Calendar Service beforehand. Any User who accesses the Services offered by AfriWell commits to comply, without reservation, with these CU. These are notified to Users for express and prior acceptance before using the Services and are available in the User space.
TECHNICAL SPECIFICITIES OF ACCESS TO SERVICES
The User Account includes in particular the Identifiers entrusted by AfriWell. The User commits to keep them secret and not to disclose them in any form whatsoever. If one of the User’s Identifiers is lost or stolen, the latter must immediately inform AfriWell, which will then cancel and/or immediately update the Identifier concerned. The User is solely responsible for the use made of his Identifiers, in particular if he pre-registers his Identifiers on equipment, thus allowing automatic connection to the Services.
Any access, use of the Services and transmission of data made from a User’s User Account will be deemed to have been made by the latter. In this respect, the User is required to ensure that at the end of each session he actually disconnects from the Services, in particular when he accesses the Services from a public computer.
Any loss, misappropriation or unauthorized use of a User’s Identifiers and their consequences are the sole responsibility of this User. In all the cases mentioned above, the User is required to notify AfriWell, without delay, by electronic message, specifying his Identifiers, surname, first names at the following address: email@example.com, so that AfriWell can reset the User Account.
As part of a subscription to the Teleconsultation Service, the User must have at least the following Infrastructure: a personal and/or professional computer, tablet or mobile phone, recent enough to allow the Teleconsultation to be carried out under optimal conditions, a webcam with a sufficient resolution and an Internet connection with sufficient speed to allow quality Teleconsultation.
6. HEALTH DATA SHARING
The User acknowledges that any sharing of Health Data with other Health Actors must be done in accordance with the Public Health Code, regardless of the Service used.
When pooling a patient database, the User is responsible for (i) compliance with the rules attached to medical secrecy and the management of access rights; and (ii) collection of the authorizations necessary to comply with the laws and regulations in force. AfriWell reminds the User that in the event of pooling of patient databases containing Health Data and/or Documents, these are fully accessible by default by each User authorized in the health structure, subject to the authorizations which are subsequently granted or refused.
The commitments, listed below, made by an Assistant, are made in the name and on behalf of the Health Actor User, responsible for compliance with said commitments.
7.1 The User agrees to:
(i) comply with the terms of the Contract;
(ii) to make available to AfriWell, without limitation, all supporting documents, diplomas, certificates, approvals and professional authorizations, allowing the data communicated by the User to be confirmed;
(iii) communicate to AfriWell, within the agreed deadlines, all the information necessary for the provision of the Services and to update this information in writing. The User is solely responsible for the consequences related to a failure or delay in updating said information;
(iv) verify that the system and the Infrastructure necessary for the use of the Services and used comply with the technical requirements communicated to it; The supply, installation and maintenance of the Infrastructure as well as the costs of electronic communications (such as telephone costs and Internet access costs) resulting from their use are the sole responsibility of the User. It is the responsibility of the User to find out the price of use of said services from the operators concerned;
(v) guard against the risk of loss or hacking of data, files and programs by using regularly updated anti-virus software packages;
(vi) restrict access and observe the utmost confidentiality with regard to the modes of access to the Services, whatever they may be, and in general, to secure these modes of access in order to prevent the use of unauthorized Services;
(vii) not communicate Personal Data to AfriWell during the Connector test phases to establish interoperability with another software or application;
(viii) use the Services in compliance with (a) the legislation in force, in particular with regard to communication on the Internet, protection of Personal Data, protection of Intellectual Property and image rights; (b) the Public Health Code and (c) the code of ethics to which it is subject; and (c) in the context of a subscription to the Teleconsultation Service, to the regulations relating to telemedicine acts;
(ix) not to use the Services in a way that could damage the reputation of AfriWell;
(x) that the User Data does not prejudice the rights of third parties and to be authorized to reproduce and/or distribute them publicly. For images of the establishment including staff, the User declares to have obtained the consent of the person(s) photographed, with a view to the publication and dissemination of the images.
7.2 Furthermore, the User:
(i) is solely responsible for (a) its use of the Services and the use made by its Assistants; (b) User Data, Patient Master Data and the use thereof by Patients and other Healthcare Actors; and (c) the relevance, accuracy and completeness of said data and the Documents that it provides and stores on the AfriWell Platform.
(ii) guarantees AfriWell, its employees, and its representatives against any claim, action or request for compensation from a Patient, an Internet user, another User, a third party or a public authority and;
(iii) where applicable, indemnify AfriWell, its representatives for all costs (including legal fees, costs and expenses) and damages related to claims and legal actions relating to (a) the use of the Services by the User and his Assistants illegally, fraudulently, or not in accordance with the Contract or the User’s ethics, if applicable; (b) to User Data and its use by the User, his Assistants and/or Patients; (c) the violation of the Intellectual Property rights of AfriWell as well as of any third party, due to the use of the Services by the User and his Assistants; and (d) the content and quality of the information and Documents stored on the AfriWell Platform.
(iv) commits to use the Patient referral function to a Healthcare Actor via the AfriWell Platform in compliance with the fundamental principle of the patient’s free choice of practitioner, healthcare establishment and method of taking in charge.
7.3 The User is responsible for the consequences and/or damages related to any integration, not carried out by AfriWell, of third-party services/software on the AfriWell Platform. The User acknowledges that AfriWell cannot be held liable for the consequences and/or damages related, in whole or in part, to the integration mentioned above. Furthermore, in connection with the provision of a Connector between the AfriWell Platform and third-party software not provided by AfriWell, AfriWell is not liable for any damages that may result from developments that it does not own (which would, for example, be undertaken or licensed by the publisher of practice management software itself).
OBLIGATIONS, RESPONSIBILITIES AND GUARANTEES OF AFRIWELL
AfriWell commits to administer the AfriWell Platform in order to ensure the proper functioning of the Services and to ensure access to it. The User acknowledges that (i) the role of AfriWell is limited to that of a simple intermediary and technical service provider; and (ii) AfriWell assumes only an obligation of means in the performance of its obligations.
The User acknowledges that AfriWell cannot be held responsible for an interruption of Services or a delay in execution beyond its control and, in particular, that the provision of the Services depends on the reliability, availability and continuity of connections from a number of third parties (telecommunications network operators, the public Internet, the User’s Infrastructure, etc.) as well as the accuracy and integrity of the information provided by the ‘User. AfriWell may be required to suspend the Services for scheduled maintenance purposes by AfriWell or one of its subcontractors or in the event of a technical imperative (emergency maintenance). During the period of suspension, the Parties commit to do their best to limit the duration and consequences of such an event.
AfriWell may freely modify the technical infrastructure of its Platform, as long as the modification does not have the effect of reducing the performance of the Platform and the Services or reducing the commitments made by AfriWell. It is understood between the Parties that AfriWell cannot under any circumstances be held responsible for repairing any indirect damages suffered by Users when using the Services, such as (i) damages which do not result exclusively and directly from the failure of AfriWell’s Services and in particular operating losses, patient losses, contracts, earnings or anticipated savings, turnover; (ii) damage to honor and reputation.
In addition, AfriWell cannot be held liable for acts (i) carried out by the User or a third party using the Services or acting on the User’s instructions, (ii) resulting from the User’s negligence or of a third party using the Services or acting on the instructions of the User, or (iii) and which does not comply with the applicable regulations and/or the Contract. AfriWell declines all responsibility in the event of a dispute, whatever the cause, between a User and a Patient, not directly attributable to AfriWell
In any event, in the event of proven fault by AfriWell with regard to the User, the entire liability of AfriWell and its representatives towards the User, under the Contract, is limited, all damages and penalties combined, to an amount equivalent to twelve (12) months of Subscription to the Service(s), at the origin of the damage, preceding the event giving rise to the damage.
The Parties will endeavor to achieve the objectives mentioned in the Contract. In particular, the Party which suffers from the non-performance of an obligation must take all reasonable measures to minimize the damage likely to result therefrom. Failing to act in this way, it can obtain from the other only reparation for the damage which it could not avoid. Any limitation of liability mentioned in the Contract cannot be applied when it must be set aside by application of the law and in particular in the event of (i) death or serious injury to physical integrity, (ii) gross negligence.
The Parties declare that the limitation of liability mentioned above is a substantial condition for the signing of the Contract.
SPECIFICS CONDITIONS FOR THE AGENDA SERVICE
AfriWell provides Users with an online Calendar Service, allowing them to set up one or more calendars and organize consultation time slots. Patients can search for a Health Actor on the afriwell.co Site and make an appointment online depending on the availability of said Health Actor.
Appointment management: The User is free to reschedule appointments made by Patients. AfriWell declines all responsibility in the event of cancellation of the appointment by the Patient or if he does not show up. AfriWell declines all responsibility in the event of a dispute, whatever the basis, between the User and a Patient.
Authorization management: The Administrator is responsible for setting the functions and privileges assigned to other authorized Users. He is required to respect the different levels of accessibility depending on the type of User. The Administrator undertakes to (i) revoke, suspend any authorization that is no longer required; and (ii) determine the duration of authorizations for each User. He undertakes to regularly check the authorizations and their duration.
SMS AND EMAILS SENT TO PATIENTS BY THE USER
Any User may use the functionality of sending SMS or emails to their Patients, whether or not they have an AfriWell account via the AfriWell Platform. These communications will be limited to SMS and emails (i) confirming, canceling or reminding appointments; (ii) information about sending Documents; (iii) information on reminders and (iv) information related to the care of the Patient or related to the organization of his activity. AfriWell declines all responsibility in the event of non-receipt of an SMS or email for technical reasons beyond its control.
The User undertakes to (i) not send any message contrary to the code of ethics which is applicable to him or which is applicable to the Healthcare Actor concerned by the making of an appointment and (ii) to process the Data personal character in accordance with applicable law and (iii) to deactivate the sending of SMS/Emails if the recipient objects.
SPECIFIC CONDITIONS FOR TELECONSULTATION SERVICES
11.1 As part of a subscription to the Teleconsultation Service, the User agrees to:
– check that the Patient is eligible for the Teleconsultation and that the conditions of quality, confidentiality and security necessary for this Teleconsultation are met;
– check the relevance of remote management of the Patient. The User must only carry out the Teleconsultation if it is adapted to the clinical situation of the Patient and, if necessary, direct the Patient to appropriate care or an emergency service;
– write a report at the end of the Teleconsultation, when the applicable regulations so require;
– not to record the Teleconsultation (the User however has the possibility of taking a screenshot of the teleconsultation if necessary and for the sole purpose of allowing a diagnosis to be established or to complete the Patient’s medical file);
– interrupt any Teleconsultation that does not meet the necessary safety and quality criteria.
11.2 Any User having access to a Teleconsultation Service, acknowledges having been informed that the Teleconsultation Service is intended to be used by Health Actors carrying out their activity on the territory and being, if necessary, registered on the Roll of the Order to which their profession is attached. AfriWell cannot be held liable for acts carried out in disregard of this provision. AfriWell cannot verify the location and place of residence of Users and Patients.
11.3 The User acknowledges that his use of the Teleconsultation Services is at his own risk. The Teleconsultation Service is provided “as is” and is accessible without any guarantee of availability and regularity. AfriWell will make its best efforts to make the Teleconsultation Service accessible 24 hours a day, 7 days a week, except in the event of force majeure or an event beyond its control and subject to (i) maintenance periods, (ii ) possible breakdowns, (iii) technical hazards related to the nature of the Internet network, (iv) malicious acts, (v) damage to the hardware or software of AfriWell or third party partners.
11.4. Connected Account: As part of a subscription to Teleconsultation Services, the User may be required to create a Connected Account in order to receive online payments for Teleconsultations.
For the creation of his Connected Account by the Payment Service Provider (PSP), the User must cumulatively: (i) complete the PSP form with accurate, complete and up-to-date information; (ii) receive the PSP’s approval for the creation of its Connected Account; and (iii) accept without reservation the terms and conditions of the agreement with the PSP. The payment of the sums paid by the Patients by bank card/mobile money on the User’s Connected Account to his bank account will be made at the beginning of each month following the completion of the Teleconsultations, minus any reimbursements or compensatory debits, if any. for the benefit of Patients, in the event of disputes or opposition to payment.
11.5 Invoicing of the patient: The invoicing of Teleconsultation fees must be done in accordance with the regulations in force and in particular with the Public Health Code and the Code of Ethics applicable to the User.
When booking the Teleconsultation, the User validates the amount to be paid by the Patient.
The User will be personally responsible for the establishment of a care sheet for the Teleconsultation and its remote transmission to the health insurance, with a view to the possible reimbursement of the Patient.
12. MANAGEMENT OF DOCUMENTS IN THE PLATFORM
Users authorized for this purpose can (i) create Documents via the Platform, whether or not using the models made available by AfriWell; (ii) sign these via a Simple Electronic Signature; and (iii) transmit them to the recipients of its choice. They acknowledge and accept that the Document models made available on the Platform are offered for reference only, without any guarantee as to their accuracy and completeness.
It is the responsibility of each User to ensure that the legal requirements relating to the creation, content, signing, sending and archiving of Documents are respected.
13. SPECIFIC CONDITIONS FOR THE COURIER SERVICE
Any Health Actor User can use the Messaging Service via the AfriWell Platform to invite and/or communicate with other Health Actors.
In this context, the User commits to (i) not send any message contrary to the code of ethics which is applicable to him or which is applicable to the recipient; (ii) process Personal Data, including Health Data, in accordance with applicable law; and (iii) cease communicating via the Messaging Service if the recipient objects. As a reminder, the AfriWell Messaging Service is a secure exchange channel between Healthcare Actors by instant messaging and is not intended to be used as a storage location for data or documents relating to Patient monitoring. Healthcare Actor Users commit to regularly back up the data and documents exchanged by means of the Messaging Service.
14. SPECIFIC CONDITIONS FOR THE PRESCRIPTIONS TRANSMISSION SERVICE
The Prescription Transmission Service is available to Healthcare Professionals under the monopoly of pharmacists within the meaning of the Public Health Code, it being specified that Patients retain full and complete freedom of choice of their pharmacist. The User who accesses said service declares to be duly authorized to issue a Prescription according to the rules of practice of the profession of pharmacist, which is also guaranteed, where applicable, by the Subscriber who authorized, under his sole responsibility, this User. The User acknowledges that AfriWell is not responsible for the content and quality of the Prescriptions transmitted via its Platform. The User is free, and entirely responsible, for the follow-up that he gives, in accordance with the rules of exercise of his profession, upon receipt of a Prescription via the said service. The User can enter the delivery status of the Prescription he has thus received. The latter remains solely responsible for the status mentioned vis-à-vis other Users. The Eligible User who does not wish to access the Prescription Transmission Service acknowledges that he renounces to benefit from the functionalities of this service and that he can only receive from a Patient, on the AfriWell Platform, a Prescription that in degraded mode. The Prescription Transmission Service is not intended to serve as a storage location for data or documents. Users undertake to regularly back up the data and documents received through said service.
15. INTELLECTUAL PROPERTY
The AfriWell Services and all the elements that compose them are, unless otherwise specified, the exclusive property of AfriWell or its subcontractors. AfriWell warrants that it owns (i) the intellectual property rights attached to the Platform and the various Services made available to the Subscriber; and/or (ii) the exploitation right allowing it to grant the user license below.
No stipulation of the Contract can be interpreted as an assignment of Intellectual Property rights
15.1 – Rights granted:
AfriWell grants, to the User, for the duration of the Contract:
(i) a personal, non-exclusive, non-assignable and non-transferable right to use the AfriWell Platform for the Services subscribed.
(ii) a personal right to use, reproduce and distribute its trademarks and/or logos in the User’s establishment or on its professional documents for the strict purpose of informing Patients of the possibility of making an appointment online with the User. Such use of trademarks and logos by the User must be carried out in accordance with AfriWell’s instructions, guidelines and/or charter for the use of trademarks and logos. Any other use, such as the use of the AfriWell brand as part of an online advertising system, to promote its own services or third-party services, is prohibited.
15.2 – Restrictions
The User agrees not to (i) attempt to access or copy the source codes of the AfriWell Platform; (ii) use the AfriWell Platform for purposes other than using the Services; (iii) create copies of the AfriWell Platform; (iv) reproduce, correct, extract, modify, translate into any language or language, reuse, arrange, adapt, decompile (except and only to the extent expressly permitted by applicable law), or incorporate the AfriWell Platform in another software or create derivative works based on the AfriWell Platform, whatever the means and the medium; (v) resell, rent, or commercially exploit the AfriWell Platform, nor assign/grant the AfriWell Platform to a third party; (vi) perform penetration testing or attempt to obtain a denial of service on the Services.
The User acknowledges that any violation of this article constitutes an act of counterfeiting under civil and criminal law.
The User understands and agrees that the AfriWell Platform is a standard SaaS solution provided “as is” to the Subscriber and is not intended to meet any specific requirements of the latter. AfriWell excludes, to the extent permitted by law, any warranty of any kind.
All licensed third-party software, whether or not integrated into the AfriWell Platform and/or the Services, will be subject to the license terms applicable to such software.
16. PROTECTION OF PERSONAL DATA
The Personal Data Protection Agreement describes the respective roles and obligations of the User and AfriWell regarding the Processing of Personal Data carried out in the context of the performance of the Services. By signing the Contract, the User and AfriWell commits to respect the stipulations obtained Agreement.
AfriWell has made available to the User on its Site a personal data
protection policy containing information on the other Processing carried out by AfriWell.
Each Party guarantees to ensure the strict confidentiality of the Confidential Information shared during the pre-contractual and post-contractual phases, as well as during the execution of the Contract. As such, each Party commits to (i) only use the Confidential Information for the sole purpose of performing the Contract and to the strict extent necessary; (ii) take all necessary precautionary and protective measures to preserve the confidentiality of the Confidential Information of the other Party and to prevent access by unauthorized persons and, at a minimum, offer them the same degree of protection only to its own Confidential Information; (iii) not to disclose or reproduce the Confidential Information of the other Party, except to or for its members, employees, agents or service providers (a) who will need to have access to this Confidential Information to fulfill the obligations of which the Party in question is bound by the Contract, or (b) who has standing to hear under the Contract. In addition, AfriWell may disclose the terms of the Contract (i) to its accountants, auditors, banks and sources of financing or any other adviser of AfriWell subject to professional secrecy and (ii) to advisers or experts who have signed a confidentiality agreement.
In all cases, the Party receiving the Confidential Information guarantees compliance with this confidentiality undertaking by the persons having knowledge of the Confidential Information, whether in particular its employees or subcontractors.
The obligation of confidentiality will remain valid for a period of five (5) years after the expiry, for any reason whatsoever, of the Contract. Notwithstanding the foregoing, each Party may disclose Confidential Information without the consent of the other Party, to the strict extent that such disclosure is required by a competent authority or pursuant to a legal or ethical obligation.
18.1 – Suspension with notice
In the event of (i) non-compliance by the User with the stipulations of the Contract or (ii) behavior by the User that is inappropriate or likely to harm AfriWell or the physical or mental integrity of the Patients, or (iii) violation of the laws and regulations in force, AfriWell gives formal notice to the User and, where applicable, the Subscriber, upon notification sent by any means, to remedy the fault(s) charged within seven (7) calendar days following the date of notification before automatically suspending or limiting the User’s access to all or part of the Services. Improper behavior means any defamatory, indecent, inappropriate, threatening, hateful, offensive remarks made orally or in writing.
AfriWell sends by any means a notification including a statement of the reasons leading to the decision to suspend or limit access to all or part of the Services at the time when this decision to suspend or limit takes effect. AfriWell is not required to provide the statement of reasons referred to above when it is subject to a legal or regulatory obligation not to provide the specific facts or circumstances or the reference to the applicable reason(s), or when the User has repeatedly breached the Agreement.
18.2 Suspension without notice
In the event of serious danger – imminent or proven – for one or more Patients, or for the reputation of AfriWell, AfriWell may suspend or limit the User’s access to all or part of the Services without notice.
AfriWell sends by any means a notification including a statement of the reasons leading to the decision to suspend or limit access to all or part of the Services at the time when this decision to suspend or limit takes effect.
AfriWell is not required to provide the statement of reasons referred to above when it is subject to a legal or regulatory obligation not to provide the specific facts or circumstances or the reference to the applicable reason(s), or when the User has repeatedly breached the Agreement.
18.3 Consequences of suspension
During the period of suspension, the User can retrieve User Data, the history of his appointments as well as, where applicable, the Basic Patient Data for which he is the Data Controller.
AfriWell decides unilaterally on the follow-up to be given to the suspension of the Contract, including its termination.
19.1 Termination whithout fault
The User acknowledges being informed that all or part of the Services may be terminated by the Subscriber or AfriWell, without the latter having to justify their decision and without compensation. In this context, the User is informed that AfriWell must respect a notice of six (3) months and the Subscriber a notice of fifteen (15) days.
19.2 Termination for fault
In the event of the User’s fault, such as the use of one or more Services (a) contrary to the stipulations of the Contract; (b) contrary to laws and regulations (c) unethical, or (d) likely to harm the reputation of AfriWell, or the physical or mental integrity of Patients or in an improper manner, AfriWell may terminate, without compensation for the benefit of the User and by any means, the entire Contract or part of the Services, subject to thirty (30) days’ notice from the date of effective suspension of the Services pursuant to Article 18.
AfriWell will not be required to comply with the above notice and provide reasons for termination for fault in the event that (i) it is subject to a legal or regulatory obligation to terminate the provision of all Services, ( ii) exercises a right of termination for an imperative reason provided for by national law or (iii) can provide evidence that the User has repeatedly breached the Agreement.
The User acknowledges and accepts that in the event of termination for his fault, any month started remains due.
19.3 Consequences of termination
Any termination of the Contract by AfriWell or the Subscriber automatically terminates the right of access to the Services by the User.
Furthermore, the User acknowledges that (i) the Use of the Services is only possible within the framework of a Subscription taken out by a Subscriber and (ii) in the event of termination or suspension of the Subscription, the user will no longer be able to access the Services or his User Account. For all questions related to the Subscription, the User agrees to contact the Subscriber first.
Outgoing reversibility: Before the effective termination of the services concerned and at no additional cost, AfriWell undertakes, at the request of the User, to:
(i) make available to him within fifteen (15) calendar days following his written request (a) the history of his appointments (b) all the User Data held by AfriWell on behalf of of the User;
(ii) provide assistance in the context of outgoing reversibility. The data mentioned in the article above will be made available in a standard structured text format that can be used and is likely to ensure that this format is read in the future.
Once the provision has been made by AfriWell, the User can recover up to two (2) months after the effective termination of the service concerned and by his own means the data mentioned above for which he is the Data Controller.
The User acknowledges having all the rights and/or authorizations necessary to be able to recover this data and Documents.
Once this deadline has passed:
● All data and Documents contained are deemed to have been fully recovered by the User.
● Access to User Data is no longer permitted.
AfriWell reminds the User of his legal obligation to archive Basic Patient Data in accordance with the Public Health Code. AfriWell does not provide archiving services which remain under the full and sole responsibility of each User.
20. FORCE MAJEURE
The case of force majeure suspends the obligations of the Party concerned during the time when the force majeure will come into play. Nevertheless, the Parties will endeavor to minimize the consequences as far as possible. If a case of force majeure renders one of the Parties unable to fulfill its contractual obligations under the Contract for more than thirty (30) consecutive days, either Party may terminate the Contract after sending a registered letter with acknowledgment of receipt. The Parties will then no longer be bound by their obligations, with the exception in particular of those resulting from the “Intellectual Property”, “Confidentiality”, “Protection of Personal Data” and “Liability” articles herein, without any indemnity or penalty, for whatever reason, is due on either side.
21.1 Waiver: the fact, for one or other of the Parties, of not availing itself of one or more stipulations of the Contract may in no case imply the renunciation by this Party to avail itself of them later.
21.2 Partial nullity: in the event that certain stipulations of the Contract are inapplicable for any reason whatsoever, including due to an applicable law or regulation, AfriWell and the User will remain bound by the other stipulations of the Contract and will endeavor to remedy the inapplicable clauses in the same spirit as that which prevailed during the conclusion.
21.3 Agreement of proof: the Parties expressly agree that any document signed in a dematerialized manner under the Contract (i) constitutes the original of said document; (ii) has the same probative value as a writing signed by hand on paper and can validly be opposed to the Parties; (iii) is likely to be produced in court, as documentary evidence, in the event of litigation. Consequently, the Parties acknowledge that any document signed in a dematerialized manner constitutes proof of the content of the said document, of the identity of the signatory and of his consent to the obligations and consequences of facts and law which arise from the document signed in a dematerialized manner. The termination or expiry of the Contract cannot call into question the probative force of the documents signed in a dematerialized manner before the date of its termination/expiration.
21.4 Means of proof: in order to establish the damage (proven or supposed) to the reputation of AfriWell or to the physical or mental integrity of the Patients, AfriWell may rely on messages from Patients sent to AfriWell which it will have previously anonymized in order to guarantee the confidentiality of their exchanges, as long as the content of the messages does not allow them to be identified.
21.5 Feedback: if a User provides comments or suggestions to AfriWell regarding the functionality or performance of the Services (including the identification of errors or improvements), the User agrees to grant AfriWell without restriction or payment, all right, title and interest therein.
21.6 Rights and permissions: each Party declares that it has the rights and permissions necessary to enter into the Contract and perform the obligations mentioned therein.
21.7 Independence: it is perfectly clear between the Parties that each of them is acting hereunder as an independent contractor and that neither Party can be considered as the employee, agent, distributor, principal or representative of the other Party.
21.8 Professional activities: the User acknowledges (i) that he is acting within the framework of his professional activity exercised in the territory selected during his Subscription. Consequently, the User acknowledges that he has neither the quality of consumer nor the quality of non-professional, and that as such he cannot benefit from the provisions of the Consumer Code.
21.9 Modification: AfriWell reserves the right to modify the said TOS at any time, in particular to take into account an evolution of the Services or legal and/or regulatory developments, respecting a notice period of thirty (30) days from the notification of change.
The Parties agree that the notice period does not apply in the event that AfriWell:
(i) must comply with a legal or regulatory obligation requiring it to modify the Contract in a way that does not allow it to meet the notice period;
(ii) must exceptionally modify the Contract to deal with an unforeseen and imminent danger linked in particular to fraud, malware, spam, data breach or other cybersecurity risk.
All Users are informed that the only authentic version of the CU is the one found online in their User account, which they acknowledge and accept without restriction. The User is required to refer to the online version of the CU on the date of his access and each use of the Services.
In the event of modifications linked to a legal or regulatory development resulting in new obligations for AfriWell not mentioned in the Contract, AfriWell may integrate new modules into its Services and offer a new subscription for them to the User.
21.10 Technical Support, Complaint Handling and Assistance:
AfriWell makes available to the User on his Account a help center – “contact us” section allowing him to access the AfriWell FAQ as well as the various means of communication, a contact form.
21.11 Satisfaction survey: AfriWell reserves the right to punctually send satisfaction surveys by e-mail to any User aimed at evaluating the quality of AfriWell’s Services. The User has no obligation towards AfriWell to respond to them.
21.12 Fight against fraud and corruption:
AfriWell is committed to a process of prevention and fight against fraud and corruption, and expects that any person or company in relation with AfriWell adheres to the same principles and respects the regulations in force.
Consequently, each User commits to (i) not practice fraud or corruption, in any form whatsoever, in the context of his relations with AfriWell; (ii) take all reasonable measures to ensure that its managers, employees, subcontractors, agents or other third parties under its control comply with this obligation; (iii) inform AfriWell without delay of any conflict of interest or event which may be brought to its attention and which could result in obtaining an undue advantage, during its relationship with AfriWell.
Any violation of the obligations defined in this article will be considered as a serious breach authorizing AfriWell to terminate the Services without notice or compensation, subject to all damages that AfriWell could claim as a result of this breach.
21.13 Beta Version: AfriWell may offer the User to try beta versions of certain Services. These beta services are provided for evaluation purposes only. The User acknowledges that these beta services may contain bugs, errors and other problems and accepts them “as is”, without warranty of any kind. AfriWell (i) is not responsible for problems related to the use of beta services by the User; (ii) may discontinue use with seven (7) business days notice; (iii) may delete all data contained in such beta versions, without liability.
21.15 Interpretation: words in the singular include the plural and vice versa. A reference to a document, standard, legislative provision, code or other document implies any modification or update of this document, standard, legislative provision or code.
21.16 Recommended minimum configuration: The User undertakes to maintain an Infrastructure respecting a minimum configuration for optimal use of the Services and the AfriWell Platform.
21.17 Upon termination of the Contract, the following articles remain in force between the Parties: price – invoicing – terms of payment – intellectual property – consequences of termination – confidentiality – limitation of liability – applicable law.
22. AMICABLE SETTLEMENT – APPLICABLE LAW AND ATTRIBUTION OF JURISDICTION
Prior to any contentious action, AfriWell and the User will seek, in good faith, to settle amicably all disputes between them relating to the validity, interpretation, performance or non-performance, interruption, termination or the denunciation of the present Conditions of Use and this, for some causes and on some bases that it is, by writing by Registered Letter Accused of the exposing the difficulties encountered and the resulting requests. AfriWell and the User must confront their points of view and make all the useful findings to enable them to find a solution to the conflict between them.
AfriWell and the User will endeavor to find an amicable agreement within sixty (60) days from the notification by one of them of the need for an amicable agreement,
Except to preserve their right of action or to avoid imminent damage, no legal action could be admissible before the present procedure for the amicable settlement of disputes provided for above has come to an end.
Except to preserve their right of action or to avoid imminent damage, no legal action may be admissible before the present procedure for the amicable settlement of disputes provided for above has come to an end.
If, at the end of the sixty (60) day period provided for above, no amicable agreement has been reached, the Parties may engage in an attempt at mediation. As this procedure is voluntary, it is understood that the Parties may terminate it at any time. In the event that a mediation attempt is initiated, AfriWell and the User undertake to participate in it in good faith and to share the total cost of this mediation. AfriWell will bear a reasonable share of this total cost, taking into account the validity of the arguments and the conduct of the User, without this sum being able to exceed half of the costs. AfriWell puts the name of the mediators selected by AfriWell at the Subscriber’s first request.
Any difficulties relating to the validity, application or interpretation of the Contract will be submitted, in the absence of an amicable agreement between AfriWell and the User, to the competent Courts within the jurisdiction of the Court of Appeal of Pointe-Noire, to which AfriWell and the User attribute territorial jurisdiction, regardless of the place of performance or the domicile of the defendant. This allocation of jurisdiction also applies in the event of summary proceedings, multiple defendants or warranty claims.
August 2022 version, AfriWell Health SARL
Office 104, Tchikobo – Pointe-Noire, Republic of Congo
Email: firstname.lastname@example.org – RCCM: CG-PNR-01-2021-B13-00328