1.1 The clause headings in this Agreement are for reference purposes only and shall not be used in the interpretation thereof.
1.2 Unless the context clearly indicates a contrary intention:-
1.2.1 expressions which denote any one gender shall include the other genders;
1.2.2 a person, shall include a natural person, company, partnership, close corporation or other legal personae;
1.2.3 the singular, shall include the plural and vice versa.
1.3 When any particular number of days is provided for the doing of any act or for any other purpose, the reckoning shall exclude the first day and shall include the last day which shall be a business day and shall include all Saturdays, Sundays and public holidays which occur during the period. For the purposes hereof, a "business day" shall mean a day that is not a Saturday, Sunday or public holiday.
1.4 Any schedule or annex to this Agreement shall be deemed to be incorporated herein and shall form an integral part of this Agreement.
1.5 If any provision in a definition is a substantive provision conferring any right or imposing any obligation on any party, then notwithstanding that it is only in the interpretation clause, effect shall be given to it as if it were a substantive provision in this Agreement.
1.6 In this Agreement, unless the context clearly indicates a contrary intention, words or phrases defined in this clause shall have the meanings assigned to them:
1.6.1 “SAAS” means the South African Arthoplasty Society, a voluntary asssociation with address Postnet Suite #033, Private Bag 30004, Danhof, Bloemfontein, 9301, care of Dr Lipalo Mokete, President at Orthopaedic Institute, Busamed Modderfontein Hospital, 4 Cransley Crescent, Linbro Park, Lethabong, Sandton, 2090 being duly authorised thereto.
1.6.2 “FELLOWSHIP” means a Fellowship in Hip and Knee Arthroplasty with NHS LOTHIAN in collaboration with Department of Orthopaedic Surgery of the University of Edinburgh, Scotland and The New Royal Infirmary, Edinburgh, Scotland, where the FELLOW will participate in all aspects of patient care at The New Royal Infirmary including clinics, educational meetings, research and varied surgical procedures.
1.6.3 NHS LOTHIAN is Scotland’s second largest health authority and provides healthcare to the populations of Edinburgh, Mid Lothian, East Lothian and West Lothian in Scotland.
1.6.4 EFFECTIVE DATE means the date when the FELLOWSHIP will commence as directed by NHS LOTHAIN.
1.7 This Agreement and the relationship of the parties in connection with the subject matter of this Agreement shall be governed and determined in accordance with the laws of South Africa.
1.8 The rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply.
2.1 SAAS negotiated the FELLOWSHIP with NHS LOTHIAN, whereafter the FELLOWSHIP was advertised inviting eligible applicant to apply for the FELLOWSHIP.
2.2 The FELLOW applied for the FELLOWSHIP, whereafter the FELLOW was selected by the selection and interview panel of SAAS after all eligible applicants were considered and interviewed (“selection process”).
2.3 SAAS herewith offers the FELLOWSHIP to the FELLOW and the FELLOW herewith accepts the FELLOWSHIP, which acceptance is subject to the terms and conditions as set out in this Agreement.
3. THE FELLOWSHIP:
SAAS herewith agrees and undertakes to nominate the FELLOW for the FELLOWSHIP at NHS LOTHIAN, subject to the terms and conditions of this Agreement.
4. WARRANTIES BY THE FELLOW:
The FELLOW warrants (i.e. guarantees) that:
4.1 All information given by the FELLOW in his/her application and interviews with the selection and interview panel of SAAS that led to the FELLOW being selected for the FELLOWSHIP (“selection process”) was true and complete.
4.2 All documents provided by the FELLOW during that selection process were true copies of genuine originals.
4.3 The FELLOW has not applied for a similar FELLOWHSIP or has been accepted for a similar FELLOWSHIP.
4.4 The FELLOW is currently within 9 months prior to and no more than 5 years after completion of his/her FC Orth SA or similar degree.
4.5 There is no reason why a VISA or registration with the General Medical Council in the United Kingdom, would be denied for the FELLOW, for instance, a criminal record, previous complaints at the Health Professions Council of South Africa (HPCSA), previous malpractice claims etc.
4.6 The FELLOW is a member of the SAOA and registered with the HPCSA and is in good standing with these institutions and a good ambassador for SAAS.
4.7 The FELLOW has performed at least 10 (ten) total joint arthroplasties as primary surgeon and 15 (fifteen) as an assistant.
4.8 The FELLOW will at all times obey all the rules and codes of conduct of NHS LOTHIAN and/or Department of Orthopaedic Surgery of the University of Edinburgh, Scotland and/or The New Royal Infirmary, Edinburgh, Scotland and/or the General Medical Council in the United Kingdom, with commitment and dedication.
4.9 The FELLOW will notify SAAS in writing immediately, if NHS LOTHIAN and/or Department of Orthopaedic Surgery of the University of Edinburgh, Scotland and/or The New Royal Infirmary, Edinburgh, Scotland and/or the General Medical Council in the United Kingdom and/or HPCSA and/or SAOA:
4.9.1 Refuses to register, admit or enroll the FELLOW; or
4.9.2 Suspends or expels the FELLOW; or
4.9.3 Institutes disciplinary proceeding against the FELLOW.
5. DURATION OF THE FELLOWSHIP:
5.1 The FELLOWSHIP is anticipated to be for a period between 6 (six) and 12 (twelve) months, depending on the requirements and conditions as prescribed by NHS LOTHIAN, and will commence on the EFFECTIVE DATE. SAAS will inform the FELLOW in writing as soon as the commencement date has been confirmed by NHS LOTHIAN.
5.2 It is recorded and the FELLOW accepts, that the duration of the FELLOWSHIP is not determined by SAAS and any changes to the anticipated period is solely in the discretion of NHS LOTHIAN and/or Department of Orthopaedic Surgery of the University of Edinburgh, Scotland and/or The New Royal Infirmary, Edinburgh, Scotland and any changes prescribed by them will not constitute a breach of the terms and conditions of this Agreement by SAAS.
6. STIPEND AND EXPENSES:
6.1 The FELLOW confirms and agrees that SAAS will not be responsible for and/or obliged to pay any of the expenses and living expenses of the FELLOW relating to the FELLOWSHIP and that the FELLOW will be responsible to pay all his expenses in relation therewith, such as travelling expenses to and from Scotland, rent, food, transport etc.
6.2 It is recorded that the FELLOW may receive, for the period of the FELLOWSHIP, a monthly stipend and other remunerations from NHS LOTHIAN, the amount and detail thereof to be determined by NHS LOTHIAN in its sole discretion and as may be agreed upon between the FELLOW and NHS LOTHIAN. It is recorded, and the FELLOW agrees and understands, that SAAS is not involved nor responsible in any way for the payment of any such stipends and remuneration, that it do not form part of any of the terms and conditions of this Agreement and that the FELLOW will have no recourse and or claim against SAAS should he/she not receive or be paid such amounts.
7. PAYMENTS TO NHS LOTHIAN:
7.1 It is recorded that, in terms of the agreement between SAAS and NHS LOTHIAN for the FELLOWSHIP, the FELLOWSHIP is conditional upon SAAS making regular payments of an agreed amount to NHS LOTHIAN for the duration of the FELLOWSHIP.
7.2 It is further recorded that SAAS will endeavor to secure a sponsorship to cover between 80% and 85% of the said monthly payments to NHS LOTHAIN and that the balance will be paid by SAAS from its own funds.
7.3 It is agreed between the parties that in the event of SAAS contribution, as set out above in this clause 7, is more than 35% of the total amount payable to NHS LOTHIAN for any reason whatsoever, or SAAS is not able to secure a sponsorship before the EFFECTIVE DATE, SAAS will be entitled to terminate this Agreement in its sole discretion, by giving the FELLOW written notice to that effect. Neither party will have any claims against each other in the event of such termination and this Agreement will be ab initio void as between the parties.
8. OBLIGATIONS OF THE FELLOW:
8.1 The FELLOW’s obligations in terms of this Agreement will be the following and the FELLOW confirms that each of these obligations is material to this Agreement:
8.1.1 to successfully and without interruption complete the FELLOWSHIP, within the time period allocated by NHS LOTHIAN and/or Department of Orthopaedic Surgery of the University of Edinburgh, Scotland and/or The New Royal Infirmary, Edinburgh, Scotland;
8.1.2 fulfil all the requirements of the FELLOWSHIP and/or the conditions employment of the FELLOW by and as determined by NHS LOTHIAN and/or Department of Orthopaedic Surgery of the University of Edinburgh, Scotland and/or The New Royal Infirmary, Edinburgh, Scotland;
8.1.3 not make himself/herself guilty of any misconduct at NHS LOTHIAN and/or Department of Orthopaedic Surgery of the University of Edinburgh, Scotland and/or The New Royal Infirmary, Edinburgh, Scotland, whilst completing the FELLOWSHIP;
8.1.4 not to withdraw from the FELLOWSHIP without the prior written approval of SAAS;
8.1.5 furnish SAAS with satisfactory proof of registration at the General Medical Council in the United Kingdom within 45 days from the EFFECTIVE DATE;
8.1.6 not to contravene the code of conduct and regulations of the General Medical Council in the United Kingdom;
8.1.7 to report about his/her FELLOWSHIP quarterly to the President of SAAS;
8.1.8 to present a paper at the biennial South African Arthroplasty Conference held in South Africa, the date to be confirmed by SAAS; and
8.1.9 to either return to South Africa within 2 (two) months after completion of the FELLOWSHIP or refund SAAS the total amount that has been paid by SAAS to NHS LOTHIAN, as provided for in clause 7 above, within 3 (three) months after completion of the FELLOWSHIP. A certificate signed by the President of SAAS shall be prima facie proof of the indebtedness of the FELLOW to SAAS for the amount as set out in this clause 8.1.9 and will be sufficient to apply for any judgement in any competent Court against the FELLOW.
8.2 The FELLOW herewith agrees and undertakes to pay the following fines as a result of the non-compliance with the above obligations, which non-compliance will be determined by the Executive Committee of SAAS in its sole discretion:
8.2.1 should the FELLOW fails to comply with the provisions of clause 8.1.7 above, a fine of ZAR20,000.00 (Twenty Thousand South African Rand) must be paid by the FELLOW to SAAS, within 3 (three) months after the end of the quarter in which the FELLOW’s report was due; and
8.2.2 should the FELLOW fails to comply with the provisions of clause 8.1.8 above, a fine of ZAR40,000.00 (Forty Thousand South African Rand), must be paid by the FELLOW to SAAS within a month after the end of the conference referred to in clause 8.1.8.
8.3 The Executive Committee of SAAS may in its sole discretion decide to deviate from the provisions of clause 8.2 above.
9. TERMINATION OF AGREEMENT AND REPAYMENT:
9.1 If the FELLOW:
9.1.1 fails to fulfil any warranty contemplated in this Agreement and specifically any of the warranties as set out in clause 4 above;
9.1.2 fails to complete the FELLOWSHIP successfully;
9.1.3 is expelled or suspended from the FELLOWSHIP by either NHS LOTHIAN and/or Department of Orthopaedic Surgery of the University of Edinburgh, Scotland and/or The New Royal Infirmary, Edinburgh, Scotland University;
9.1.4 fails to register with the General Medical Council in the United Kingdom as provided for in clause 8.1.5 above; and/or
9.1.5 commits any breach of any term of this Agreement and specifically any of the obligations as set out in clause 8 above, and fails to remedy that breach within 10 (ten) calendar days after being called upon in writing to do so;
SAAS will be entitled, in its entire discretion, to terminate the FELLOWSHIP and this Agreement.
9.2 If SAAS elects to terminate the FELLLOWHSHIP in terms of clause 9.1 above, SAAS will be entitled, in its entire discretion, to claim repayment from the FELLOW the total amount that has been paid by SAAS to NHS LOTHIAN, as provided for in clause 7 above.
9.3 Any amount payable by the FELLOW to SAAS in terms of this Agreement, will bear interest at the prime lending rate of Investec Bank on overdraft facilities for clients in the private sector. Interest will be compounded monthly in arrears.
9.4 A certificate signed by the President of SAAS shall be prima facie proof of the indebtedness of the FELLOW to SAAS for any amount payable by the FELLOW to SAAS in terms of this Agreement, and will be sufficient to apply for any judgement in any competent Court against the FELLOW.
9.5 The FELLOW will not be allowed to raise technical legal defences against any claim which SAAS may bring against the FELLOW in terms of this Agreement, including any defence that any amount claimed or interest was not accurately determined, or that it was not actually paid out on behalf of the FELLOW, or that there were errors of calculation, or that there was some other condition or formality necessary before SAAS could commence legal proceedings.
9.6 The FELLOW agrees that any Magistrate’s Court having jurisdiction at the FELLOW’s chosen service address, will have full jurisdiction in respect of such legal proceedings, in spite of the fact that the amount of SAAS’s claim may exceed the normal limits of that court’s jurisdiction.
9.7 The FELLOW will be responsible for all legal costs incurred by SAAS, including collection commission and disbursements, on an attorney and own client basis.
10. ADDRESSES FOR SERVICE:
The Parties hereby select the address respectively set out opposite its name below as its address at which all legal notices, legal processes and other related communications must be delivered to it for the purposes of this Agreement.
10.1 SAAS at:
Dr Lipalo Mokete, President at
Orthopaedic Institute, Busamed Modderfontein
Hospital, 4 Cransley Crescent, Linbro Park, Lethabong,
10.2 Any notice or communication required or permitted to be given in terms of this agreement will be valid and effective only if in writing and delivered by hand or by post or telefax or e-mail.
10.3 Either party may by written notice to the other party change its chosen address to another physical address, provided that the change will become effective on the fourteenth (14th) business day after receipt of the notice by the addressee.
10.4 Any notice sent to a party and contained in a correctly addressed envelope and -
10.4.1 sent by prepaid registered post to it at its chosen address; or
10.4.2 delivered by hand to a responsible person during ordinary business hours at its chosen address will be deemed to have been received, in the case of clause 10.4.1, on the seventh (7th) business day after posting, unless the contrary is proved, and in the case of clause 10.4.2 on the day of delivery.
10.5 Any notice sent by telefax to a party at its telefax number or by e-mail to a party at its e-mail address, will be deemed, unless the contrary is proved, to have been received within two (2) hours of transmission where it is transmitted during normal business hours, or within twelve (12) hours of the first business day after it is transmitted outside those business hours.
11. CESSION AND ASSIGNMENT:
No part of this Agreement may be ceded, assigned, trans¬ferred or made over by either Party without having secured the prior written consent of the other Party.
12. ENTIRE AGREEMENT:
This Agreement, together with all of the attachments referenced herein, constitute the entire agreement between the parties, and supersedes all proposals, advertisements, promotional materials, oral and written, between the parties on this subject.
13.1 No party will have any claim or right of action arising from any undertak¬ing, representation or warranty not included in this Agreement.
13.2 No failure by a party to enforce any provision of this Agreement will constitute a waiver of such provision or affect in any way a party's right to require the performance of such provision at any time in the future, nor will a waiver of a subsequent breach nullify the effectiveness of the provision itself.
13.3 No agreement to vary, add to or cancel this Agreement will be of any force and effect unless reduced to writing and signed by the parties to this Agreement.
13.4 Any invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity of any other of its provisions.
13.5 In the event that there is any conflict between the terms and conditions contained in any attachment hereto, and the terms and conditions contained in the body of this Agreement, then the terms and conditions contained in the body of this Agreement shall prevail.
13.6 Neither party shall hold itself out as agent, partner or as representative of the other not shall either party be entitled to bind the other or make any representation or statement of whatever nature for or on behalf of the other.
13.7 All costs incurred by either party in the negotiation and execution of this agreement shall be for such party's own account.