THINK TANK SOFTWARE SOLUTIONS (PTY) LTD STANDARD TERMS AND CONDITIONS (SEPTEMBER 2018)

In these terms and conditions ‘we’ or ‘us’ means Think Tank Software Solutions (Pty) Ltd and ‘software’ means any software supplied or supported by us. References to the ‘Agreement’ shall mean these terms and conditions and (if applicable) a signed purchase order.

These terms and conditions shall apply to all transactions conducted with us.

  1. Purchase orders

A purchase order is required for orders larger than R10,000. If there is any conflict between a purchase order and these terms and conditions, the provisions of the purchase order shall prevail.

  1. Pricing
    • All estimates are subject to exchange rate changes at any time. Prices will be confirmed on receiving the signed purchase order from the customer.
    • Prices are subject to final confirmation with our supplier.
    • Payment for all software and software maintenance is required before we can place the order with our suppliers.
    • Quotations may be revised due to unforeseen circumstances e.g. edit set commit failure due to power failure, hard drive failure, network connectivity loss, invalid license codes being received and/or used.
    • The time taken to commit changes to a database are approximations, as it is dependent on the number of records in the database.
    • Items with zero quantity are not included in this proposal. This excludes all incidental costs (e.g. travel costs, accommodation, travel time etc). Travel and accommodation for out of town customers needs to be arranged for by the customer.
    • Out of town training is payable in advance.
    • Invoices are payable within 14 days of receipt without deduction by electronic transfer.
    • Any amounts not paid on the due date will bear interest calculated monthly in arrears at the prime rate plus 2% compounded monthly from the due date until the actual date on which payment is received.
  2. Maintenance and support
    • We will not provide maintenance and support services unless we have entered into a separate support agreement with the customer setting out the terms and conditions of such maintenance and support.
    • Should we not be able to provide support within the time quoted we shall provide a report indicating why and what the recommended next action should be to resolve the issue.
  3. Warranties
    • We will render our services using competent and trained staff and with due and proper care, maintaining high professional standards at all times.
    • Any software we develop or provide will be free of patent defects.
    • We warrant, to our knowledge, but without having conducted any due diligence, that the use of the software does not infringe any intellectual property of a third party.
    • We warrant that we are lawfully entitled to grant any software licence we grant to you.
    • Subject to the above warranties, software and services provided by us are provided on an “as is” basis, without warranty of any kind, whether express or implied.
  4. Training

Unless otherwise specified in a purchase order, training is in a classroom environment (at the customer’s offices) for no more than 3 users per session and the customer must provide a projector. Training manuals are not included unless specified.

  1. Software
    • Third-party software is supplied subject to the supplier’s separate terms and conditions in addition to these terms and conditions.
    • The customer acknowledges that it is entitled to install and use any software provided for internal purposes only. In amplification of the aforegoing, and without limiting the generality thereof, the customer may not, unless the purchase order specifies otherwise:
      • transfer to any other person or entity any of the rights to the software;
      • sell, rent, sub-license or lease the software;
      • translate, modify, create derivative works or adaptations based on the software; and/or
      • reverse engineer, decompile, disassemble or otherwise attempt to discover the underlying ideas or algorithms of the software.
    • Save as is expressly in a purchase order, the customer is specifically prohibited from creating any copies of the software.
    • Should the customer be entitled in terms of a purchase order to sublicense all or part of the rights granted to it, the customer will:
      • be responsible for the acts or defaults any such sub-licensee as if they were the acts or defaults of the customer;
      • ensure that any such sub-licensee performs the customer’s obligations in terms of these terms and conditions and the purchase order as if it were the customer, including the payment of any licence fee; and
      • enforce its rights against any such sub-licensee in favour of us and, to the extent that the customer fails, refuses, is unwilling and/or unable to do so, it undertakes to cede, assign, transfer and make over to and in favour of us all such right, title or interest it might have under such sublicence which we could reasonably require to enforce such right.
    • The customer’s sole remedy, in the event that (i) the software fails to perform in accordance with the specifications set out in a purchase order signed by us; or (ii) any defects or errors in the software become apparent, will be to demand that we remedy such non-performance/fault.
    • The customer acknowledges and agrees that the software is designed for and intended to be installed and used on hardware that meets a particular specification. The customer is responsible for ensuring that the hardware on which the software is installed, conforms in all respects with the specifications therefor, as indicated by us.  We will not be obliged to provide software support, nor be obliged to rectify any non-performance or failure of the software where the hardware on which the software is installed, does not conform to such specifications.
  2. Our use of customer information
    • The customer acknowledges and agrees that we may collect and use information pertaining to the customer and its assets, including but not limited to business and technical information about the customer’s hardware and information gleaned from the customer’s use of the software. We may use the customer’s data, including the analysis of usage patterns and the extraction of aggregated information, to facilitate the provision of updates and to provide support and other services to the customer and our other customers.
    • Notwithstanding the provisions of clause 1, we will only disclose customer data in an aggregated form or in a manner that does not identify the customer or its assets or specific transactions to which the information relates.
  3. Network charges
    • The customer acknowledges that the use of the software may require a telecommunications network and that a third party telecommunications provider may levy a fee based on the amount of data, bandwidth and/or air time utilised when Installing or using the software (collectively, the ‘’Network Charges”).
    • Fees levied by us do not include Network Charges. The customer is liable directly to the telecommunications provider for any such Network Charges, and expressly waives any possible claim against us for payment of Network Charges incurred.
  4. Liability
    • IN NO EVENT SHALL WE OR OUR EMPLOYEES OR AGENTS BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY LOSSES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND ANY OTHER TORT CLAIMS) ARISING OUT OF OR RELATED TO THE SOFTWARE (BUT EXCLUDING ANY SUCH LOSSES RELATING TO OUR FRAUD, GROSS NEGLIGENCE, OR WILFUL MISCONDUCT).
    • Without derogating from the generality of the aforegoing, we will have no liability to the customer or a third party with respect to loss of goodwill, profit or business or for any special, indirect or consequential loss or damage, whether in delict or in contract, even if it has been advised of the possibility of such damages.
    • To the extent that our liability cannot be disclaimed in law, our aggregate liability for losses to the customer and any third party, for any reason and upon any cause of action, will be limited to the amounts paid to us by the customer in the two months preceding the cause of action.
  5. Intellectual property rights

In the event that any third party succeeds in its claim for the infringement of its intellectual property, the customer’s sole remedy against us shall be to demand that us, at our discretion and within 30 (thirty) days of the customer’s use of the software having been found to infringe such intellectual property:

  • obtain for the customer the right to continue using the software or parts thereof, which constitute the infringement;
  • replace the software or the parts thereof which result in the infringement, with other software which does not infringe and which in all respects operates substantially in accordance with the infringing software;
  • alter the software in such a way so as to render the customer’s use thereof non-infringing while still in all respects being substantially in accordance with the infringing software; or
  • withdraw the software and refund to the customer all fees paid by it.
  1. Third party links and services in software
    • Use of the software may result in the customer accessing third party’s web sites or using third party’s services (collectively “Third Party Services”).
    • Certain Third Party Services may display, include or make available content, data, information, applications or materials from third parties (collectively “Third Party Materials”).
    • The customer acknowledges that there may be additional terms and conditions associated with the use of Third Party Services and Third Party Materials and will read and accept these terms and conditions beforehand.
    • To the extent that the customer accesses and uses the Third Party Services and Third Party Materials, such access and use will be at its sole risk and we shall not have any liability to the customer for Third Party Services or Third Party Materials that may be found to be defective, faulty, inaccurate or incorrect.
    • The customer acknowledges and agrees that we provide Third Party Services and Third Party Materials as a convenience to the customer and are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Services or Third Party Materials.
    • We do not warrant or endorse and do not assume and will not have any liability or responsibility to the customer or any other person, for any Third Party Services or Third Party Materials.
  2. Breach and termination
    • If the customer or we materially breach these terms and conditions and/or a signed purchase order and fails to remedy the breach within 30 (thirty) days of written notice to do so then that party shall be in default which shall entitle the other party to terminate the Agreement on written notice.
    • In the event that the Agreement expires, is terminated or cancelled by either party, or otherwise ceases to be of force and effect for whatever reason:
      • it shall be without prejudice to any existing rights and/or claims that a party may have against the other party;
      • all amounts payable by the customer to us as at the date of termination or cancellation, shall become immediately due and payable; and
      • all rights and obligations of the parties contained in the Agreement shall forthwith be terminated (save for those obligations of the customer which specifically or by their nature survive the termination of the Agreement) and in particular, the customer shall have no right to access or use the software, in any manner whatsoever, and we shall have no further obligations to provide the customer with access to the software or provide support.
    • All provisions of the Agreement which, to give effect to the meaning, needs to survive its termination, shall remain in full force and effect after termination.
  3. Force majeure
    • Failure on the part of a party to comply with any of the terms and conditions of the Agreement shall not give rise to any claim for damages or for termination or cancellation in so far as (i) such failure has arisen from an event not reasonably foreseeable (“Event of Force Majeure”) and (ii) the party invoking the provisions of this clause has: (i) taken all reasonable alternative measures with the object of carrying out its obligations and avoiding failure, and (b) taken all reasonable steps to remove the cause of such failure and to comply with its obligations under the Agreement with the minimum delay.
    • Such party shall notify the other party in writing as soon as reasonably possible of the circumstances constituting an Event of Force Majeure and giving rise to its failure to perform and shall thereafter further notify the other party, as soon as reasonably possible, of the removal or cessation of such circumstances.
    • If an Event of Force Majeure continues for a period exceeding 30 (thirty) days, either party shall be entitled to terminate the Agreement.
  4. Arbitration
    • Any dispute arising out of or in connection with the Agreement or the subject matter of the Agreement, shall be referred to arbitration in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”). The arbitration shall be held in Cape Town.
    • Nothing contained in this clause shall prohibit a party from approaching any court of competent jurisdiction for urgent interim relief.
  5. General
    • Neither party shall cede, delegate or assign all or any of its rights and/or obligations in terms of the Agreement without the prior written consent of the other party.
    • The Agreement contains all the express provisions agreed to by the parties with regard to the subject matter of the Agreement and the parties waive the right to rely on any alleged express provision not contained in the Agreement.
    • No party may rely on any representation which allegedly induced that party to enter into the Agreement, unless the representation is recorded in the Agreement, save that nothing in this clause shall limit a party’s liability for fraud or fraudulent misrepresentation.
    • No contract varying, adding to, deleting from or cancelling the Agreement, and no waiver of any right under the Agreement, shall be effective unless reduced to writing and signed by or on behalf of the parties.
    • No relaxation or indulgence which may be granted by any party to the other shall be construed as a waiver by any party of any of that party’s rights arising out of the Agreement, nor shall it in any way prejudice that party’s rights or preclude that party from exercising any of its rights in the future.
    • If any undertaking is or becomes unenforceable for any reason, it shall be severable from, and not affect any of, the other undertakings or the rest of the Agreement.
    • The Agreement shall be interpreted and implemented in accordance with the law of the Republic of South Africa.
    • The Agreement does not authorise any party to act as the agent of the other, nor does it create a partnership, joint venture or similar relationship between the parties.