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1. ACCEPTANCE OF PROPOSAL
1.1 By accepting a ThinkDigital quote or proposal, in writing, for (i) Implementation; (ii) use of the Solution; or (iii) any other Services or products stipulated in such proposal (“Offering”) (“Proposal”), you agree to comply with and be legally bound by the terms and conditions of this Terms and Conditions Agreement (“Agreement”).
1.2 This Agreement governs all aspects (including use) of the Solution and/or Offering and constitutes a binding legal agreement between the Customer and ThinkDigital. If the Customer does not agree to the terms and conditions set out in this Agreement, then it is not entitled to use or continue using the Solution and/or Offering.
In this Agreement (as hereinafter defined) -
2.1 no provision shall be construed against or interpreted to the disadvantage of any Party by reason of such Party having or being deemed to have structured or drafted such provision;
2.2 any reference to "days" shall be construed as being a reference to calendar days unless qualified by the word "business" in which instance a "business day" shall be any day other than a Saturday, Sunday and/or a public holiday as gazetted by the government of the Republic of South Africa from time to time;
2.3 any reference to "business hours" shall be construed as being the hours between 08h00 and 17h00 on any business day. Any reference to time shall be based upon South African standard time being Greenwich Mean Time plus 2 (two) hours;
2.4 any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in clause 3 or elsewhere within the Agreement, shall be given effect to as if it were a substantive provision within the body of the Agreement;
2.5 terms other than those defined in the Agreement and terms appearing in the lower case but which in the title case are defined in the Agreement, will be given their plain English meaning and those terms known in the information technology industry will be interpreted in accordance with their generally accepted meanings, unless the context otherwise indicates; and
2.6 where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail.
As used in this Agreement the following words bear the following meanings-
3.1 “Acceptance Criteria” shall have the meaning given to that term in clause 10.2;
3.2 “Acceptance Testing” shall have the meaning given to that term in clause 10.1;
3.3 “AFSA” shall have the meaning given to that term in clause 26.1;
3.4 “Agreement” means this Terms and Conditions Agreement together with any attachments hereto;
3.5 “Amendments” shall have the meaning given to that term in clause 7.1;
3.6 “Amended Implementation Plan” shall have the meaning given to that term in clause 7.7;
3.7 “Approved Sprint Schedule” shall have the meaning given to that term in clause 8.3;
3.8 “Business Day” shall have the meaning given to that term in the Companies Act 71 of 2008;
3.9 “Confidential Information” means all information disclosed in pursuance of the Proposal and/or the purpose of this Agreement whether in writing or orally;
3.10 “Customizations” means plug-ins, business models, templates, web applications, mobile applications or other elements that have been customized (including the source code thereof) for use with the ThinkDigital Platform in order to meet the business objectives of the Project;
3.11 “Customer Amendment Request” shall have the meaning given to that term in clause 7.2;
3.12 “Deliverables” means the user stories described in the Accepted Implementation Plan, and “Deliverable” shall refer to any one of them as the context may require;
3.13 “Dependencies” means the dependencies to be satisfied for the delivery of a Deliverable in accordance with the Sprint Schedule;
3.14 “Documentation” means, in respect of the Solution, the documentation prepared by ThinkDigital;
3.15 “Disclosing Party” means the Party disclosing the Confidential Information;
3.16 “Dispute” shall have the meaning given to that term in clause 26.1;
3.17 “Effective Date” means the date stipulated in the Proposal, notwithstanding acceptance of the Proposal and the terms of this Agreement by the Customer;
3.18 “End Users” means those persons and/or juristic persons that are able to log on to, and make use of, the Solution including the Customer’s clients, admin users and service providers;
3.19 “End User Customer” means any person or juristic person that purchases services through the Solution;
3.20 “Exclusions” means those items that are excluded from Implementation, as more fully set out in the Implementation Plan;
3.21 “Fees” means the (i) Licence Fee; (ii) Managed Service Fee; (iii) the Implementation Cost; (iv) if applicable, the Transaction Fees; and (v) if applicable, the Service Fees;
3.22 “Final Acceptance” means, following completion of the Final Testing Period, final acceptance of the Customizations by the Customer, in terms of which the Customer has tested and accepted (i) all Deliverables set out in the Implementation Plan and/or Sprint Schedules and/or the Final Sprint Schedule as the case may be; as well as (ii) the Customizations.
3.23 “Force Majeure” shall have the meaning given to that term in clause 25;
3.24 “Functional Specifications” means those high level functional specifications listed in the Proposal;
3.25 “Hosting” means the hosting of the Solution provided by ThinkDigital in terms of clause 15.1, and the word “Host” shall have the corresponding meaning;
3.26 “Implementation” means (i) development, configuration and/or Customization of plug-ins, business models, templates, web applications, mobile applications and other elements; as well as (ii) integration of third party products (including the source code), for use with the Platform, and the word “Implement” and “Implementing” shall have the corresponding meanings;
3.1 “Implementation Cost” shall have the meaning given to that term in the Proposal;
3.2 “Implementation Plan” means the project plan compiled by ThinkDigital governing execution of the Implementation, which Implementation Plan shall be sent by ThinkDigital to the Customer for written approval;
3.3 “Initial Licence Term” shall have the meaning given to that term in the Proposal;
3.4 “Intellectual Property” means any know-how (not in the public domain), invention (whether patented or not), design, trade mark (whether or not registered), or copyright material (whether or not registered), processes, process methodology (whether patented or not), and all other identical or similar intellectual property as may exist anywhere in the world which is not in the public domain and any applications for registration of such intellectual property;
3.5 "Intellectual Property Rights" means, in relation to any Intellectual Property, all and any: (i) proprietary rights thereto; or (ii) any other right, title, authority or entitlement held by any party in respect thereof, whether under license or otherwise;
3.6 “Licence” shall have the meaning given to that term in clause 14.1;
3.7 “Licence Fee” means the fee payable by the Customer to ThinkDigital for the Licence, Maintenance, and Hosting;
3.8 “Licence Keys” means a software licencing management and security tool or other device that allows the Customer to access the Solution, which tool or other device may have an expiration date;
3.9 “Licence Period” means the period during which the Solution is licenced by ThinkDigital to the Customer, which period shall commence on the date of the first Sprint Kick Off Meeting and shall endure until such time as (i) the Initial Licence Term or the Subsequent Licence Term(s) expire(s); and (ii) the Customer has not renewed the Licence for a Subsequent Licence Term in accordance with the provisions of clause 14.1;
3.10 “Limits” refers to any limits imposed by ThinkDigital on the Implementation, as more fully set out in the Implementation Plan;
3.11 “Maintenance” means maintenance and support of the Solution as provided by ThinkDigital in terms of clause 15.3, and the word “Maintain” shall have the corresponding meaning;
3.12 “Managed Service” means the managed service provided by ThinkDigital to the Customer, which managed service includes a specified number of hours of work for the implementation of any amendments, changes and/or improvements to the Solution as more fully contemplated in the Proposal;
3.13 “Managed Service Fee” means the fee payable by the Customer to ThinkDigital for the Managed Service, which fee is more fully set out in the Proposal;
3.14 “Parties” means the parties to this Agreement, being –
3.14.1 “ThinkDigital” means ThinkDigital Proprietary Limited (Registration Number 2013 / 177964 / 07) and its successors in title and assigns with its registered office at First Floor, Mac Mac Building, Maxwell Office Park, Magwa Crescent West, Waterfall City, Jukskei View, Johannesburg, South Africa;
3.14.2 “Customer” means the customer identified in the Proposal;
3.15 “Platform” means the ThinkDigital on demand platform and/or any other software or software platform defined in the Proposal;
3.16 “Project” shall have the meaning given to that term in the Proposal;
3.17 “Receiving Party” means the Party receiving the Confidential Information in terms of a disclosure made by the Disclosing Party;
3.18 “Related Party” shall mean any person or juristic person related to ThinkDigital as contemplated in section 2(1) of the Companies Act No. 71 of 2008;
3.19 “Response to the Customer’s Amendment Request” shall have the meaning given to that term in clause 7.3;
3.20 “Representatives” means, in respect of a Party, its directors, prescribed company officers, employees, professional advisors, partners or funders or any other person that (i) has a need to know the Confidential Information; and (ii) has agreed in writing to comply with the terms of this document;
3.21 “Services” means those services defined in the Proposal;
3.22 “Service Fees” means the fees payable by the Customer to ThinkDigital for the Services;
3.23 “Scope of Work” means the scope of work agreed between the Parties, which scope of work is more fully described in the Implementation Plan;
3.24 “Solution” means the packaged software solution to be used by End Users, being the Platform and the Customizations;
3.25 “Sprint” means an Implementation sprint during which ThinkDigital Implements particular Deliverable/s as identified by the Customer in the Sprint Kick Off Meeting;
3.26 “Sprint Kick Off Meeting” means the kick off meeting(s) to be held between the Parties, in terms of which the Parties agree to, among other things, prioritise certain Deliverables;
3.27 “Subsequent Licence Term” shall have the meaning given to that term in clause 14.1;
3.28 “Subsidiary” means any subsidiary company of the Customer, being a company of which the Customer holds 51% (fifty one percent) of the shareholding;
3.29 “ThinkDigital Amendment Request” shall have the meaning given to that term in clause 7.4;
3.30 “Transaction” means any transaction in terms of which the Customer or an End User receives payment from an End User Customer as a result of an End User Customer’s engagement with the Solution;
3.31 “Transaction Fees” means, if applicable, the transaction fees set out in the Proposal; and
4 COMMENCEMENT AND DURATION
4.1 This Agreement shall commence on the Effective Date and shall continue to remain of full force and effect until such time as the Licence Period comes to an end.
4.2 Notwithstanding termination of this Agreement, the provisions set out in clauses 12.2 (non-solicitation of ThinkDigital’s employees), 13 (Intellectual Property Rights), 21 (Limitation of Liability) and 22 (Confidentiality) shall continue to be of full force and effect indefinitely.
5.1 The Customer wishes to use the Platform for the Project. In order to give effect to this –
5.1.1 ThinkDigital must complete the Implementation;
5.1.2 The Customer must acquire a Licence;
5.1.3 ThinkDigital must Maintain and Host the Solution; and
5.1.4 ThinkDigital may deliver the Managed Service.
6.1 Implementation requires (i) development, configuration and/or Customization of plug-ins, business models, templates, web applications, mobile applications and other elements; as well as (ii) integration of third party products (including the source code), for use with the Platform.
6.2 The Implementation Plan governs delivery of the Deliverables required to complete Implementation. As more fully explained in clause 8, the Deliverables must satisfy the Acceptance Criteria defined in the various Accepted Sprint Schedules.
6.3 Implementation (including the Implementation Cost) is subject to the Limits and Exclusions listed in the Implementation Plan.
7 CHANGES TO THE IMPLEMENTATION PLAN
7.1 During Implementation, ThinkDigital or the Customer may request an amendment and/or addition to the Implementation Plan (“Amendments”).
7.2 To the extent that an Amendment is required by the Customer, the Customer shall send ThinkDigital a written proposal specifying the Amendments to the Implementation Plan (the “Customer Amendment Request”).
7.3 ThinkDigital shall consider each Customer Amendment Request and shall further provide the Customer with a formal written response thereto within 10 (ten) business days of receipt of such request (the “Response to the Customer’s Amendment Request”).
7.4 To the extent that an Amendment is required by ThinkDigital, ThinkDigital shall send the Customer a written proposal specifying the Amendments to the Implementation Plan (the “ThinkDigital Amendment Request”).
7.5 The ThinkDigital Amendment Request or the Response to the Customer’s Amendment Request shall include the following information –
7.5.1 a summary of the work (amendments / additions) required;
7.5.2 reasons for inclusion;
7.5.3 a statement of the availability of ThinkDigital’s personnel and resources;
7.5.4 the impact the Amendments will have on (i) the Scope of Work; (ii) the due dates for delivery of the Deliverables as contemplated in an Approved Sprint Schedule; and/or (iii) completion of Implementation; and
7.5.5 the impact the Amendments will have on the Implementation Cost.
7.6 Upon receipt of the ThinkDigital Amendment Request or the Response to the Customer’s Amendment Request, the Customer shall have 5 (five) business days to review and advise ThinkDigital, in writing, of its acceptance or refusal to proceed with the Amendments.
7.7 Should the Customer wish to proceed with the Amendments on the terms set out in the ThinkDigital Amendment Request or the Response to the Customer’s Amendment Request, ThinkDigital shall amend the Implementation Plan appropriately to incorporate and reflect (i) the Amendments; and (ii) the contents of the ThinkDigital Amendment Request or the Response to the Customer’s Amendment Request, as the case may be (the “Amended Implementation Plan”).
7.8 The Parties shall execute the Amended Implementation Plan, which project plan shall be deemed to form part of this Agreement. Following signature of the Amended Implementation Plan –
7.8.1 ThinkDigital shall continue with Implementation of the Customizations in accordance with the provisions thereof; and
7.8.2 all references in this Agreement to Implementation Plan shall be deemed to refer to the Amended Implementation Plan.
7.9 For the avoidance of doubt, it is agreed between the Parties that, until such time as the Amended Implementation Plan is signed by both Parties, ThinkDigital shall not be required to Implement the Customizations in accordance with, or perform any services other than those described in, the Implementation Plan.
8.1 Implementation shall be conducted by ThinkDigital in accordance with a sprint methodology. As such, ThinkDigital will undertake numerous Sprints in order to deliver the Deliverables. At the commencement of each Sprint, the Parties shall meet for a Sprint Kick Off Meeting.
8.2 At the Sprint Kick Off Meeting, the Parties shall agree –
8.2.1 the Deliverables to be prioritised by ThinkDigital during the Sprint;
8.2.1 the Deliverables to be prioritised by ThinkDigital during the Sprint;
8.2.2 the Dependencies for each Deliverable;
8.2.3 if applicable, the Acceptance Criteria for each Deliverable; and
8.2.4 the due date for delivery of each Deliverable.
8.3 Within 2 (two) business days of conclusion of the Sprint Kick Off Meeting, ThinkDigital shall prepare and send to the Customer a Sprint Schedule for written approval. The Customer shall be required to provide ThinkDigital with written approval of the Sprint Schedule within 3 (three) business days of receipt thereof (“Approved Sprint Schedule”).
8.4 Following receipt of written approval of the Approved Sprint Schedule from the Customer, ThinkDigital shall commence with Implementation of the Deliverables identified therein for delivery to the Customer.
9.1 ThinkDigital shall use all reasonable efforts to deliver each Deliverable in accordance with the Approved Sprint Schedule.
9.2 The Customer acknowledges and agrees that the delivery of each Deliverable in accordance with the Approved Sprint Schedule is subject to satisfaction of certain Dependencies stipulated therein. To the extent that certain Dependencies have not been satisfied, the due date for delivery of a Deliverable shall be moved out by the corresponding number of days during which the Dependency remained unsatisfied.
9.3 ThinkDigital may, at its option, extend the due date for delivery of a Deliverable by giving written notice to the Customer. Collectively, such extensions shall not exceed 90 (ninety) days.
9.4 For the avoidance of doubt, failure by ThinkDigital to deliver a Deliverable in accordance with the Approved Sprint Schedule shall not be deemed to constitute a breach of this Agreement where –
9.4.1 such failure is as a result of an unsatisfied Dependency;
9.4.2 such failure is as a result of a Force Majeure;
9.4.3 ThinkDigital has extended the due date for delivery in accordance with the provisions of clause 9.3;
9.4.4 the Customer has issued ThinkDigital with written notice regarding its failure to deliver a Deliverable in accordance with the Approved Sprint Schedule and ThinkDigital has remedied such failure within 14 (fourteen) days of receipt of such notice; or
9.4.5 the Parties have agreed to extend the due date for delivery in writing (including by way of electronic communication).
10.1 Following completion of each Sprint, the Customer shall, where applicable, test the relevant Deliverable/s for purposes of acceptance (“Acceptance Testing”). On the due date for delivery, ThinkDigital shall notify the Customer in writing that certain Deliverable/s are available for testing. The Customer shall be entitled to test the relevant Deliverable/s over a period of 5 (five) business days from the date of receipt of written notice from ThinkDigital.
10.2 The acceptance criteria for each Deliverable shall be the acceptance criteria identified in the Approved Sprint Schedule for the relevant Sprint (“Acceptance Criteria”).
10.3 If the Deliverable/s –
10.3.1 satisfy the Acceptance Criteria, the Deliverable/s shall be deemed to be satisfactory and the Customer shall promptly, and not later than the time period contemplated in clause 10.1, notify ThinkDigital of its acceptance of the Deliverable/s in writing.
10.3.2 do not satisfy the Acceptance Criteria, the Customer shall promptly, and not later than the time period contemplated in clause 10.1, provide ThinkDigital with written notice setting out which Acceptance Criteria the Deliverable/s have failed to meet.
10.4 Following receipt of the notice referred to in clause 10.3.2, ThinkDigital shall have 5 (five) business days to correct the deficiencies in the Deliverable/s. Thereafter, ThinkDigital shall notify the Customer in writing that the corrected Deliverable/s are available for testing. The Customer shall test the corrected Deliverable/s over a period of 5 (five) business days from the date of receipt of written notice from ThinkDigital.
10.5 If the corrected Deliverable/s –
10.5.1 satisfy the Acceptance Criteria, the corrected Deliverable/s shall be deemed to be satisfactory and the Customer shall promptly notify ThinkDigital of its acceptance of the corrected Deliverable/s in writing; or
10.5.2 do not satisfy the Acceptance Criteria, the Parties shall be entitled to repeat the procedure described in clauses 10.3.2 and 10.4.
10.6 Should ThinkDigital, after repeating the procedure described in clauses 10.3.2 and 10.4 above four times, fail to deliver corrected Deliverable/s to the Customer, the Customer shall be entitled to cancel this Agreement in accordance with clause 24.
10.7 Following acceptance of all Deliverables (as specified in the Implementation Plan and/or Agreed Sprint Schedules) by the Customer, the Customer shall be entitled to test the Customizations and/or Solution for a period of 1 (one) calendar month (“Final Testing Period”).
10.8 Following completion of the Final Testing Period, the Customer shall –
10.8.1 furnish ThinkDigital with written notice confirming Final Acceptance; or
10.8.2 meet with ThinkDigital to agree a list of items that require resolution, which items shall be captured and recorded in the final Sprint Schedule. The Customer shall be required to approval the final Sprint Schedule in writing within 3 (three) business days of receipt thereof (“Final Sprint Schedule”).
10.9 The Final Sprint Schedule shall specify the due dates for delivery of each of the Deliverable/s, as well as any Dependencies and Acceptance Criteria. Implementation undertaken by ThinkDigital in relation to the Final Sprint Schedule shall (i) not include any deliverables other than those set out in the Scope of Work; and (ii) be capped at a total number of 16 (sixteen) hours, whereafter, ThinkDigital shall provide the Customer with a quote for the remaining Implementation required for Final Acceptance.
10.10 For the avoidance of doubt, where the Customer fails to issue ThinkDigital with written notice in accordance with the provisions of this clause 10, the Customer shall, as contemplated in clause 10.3.1 or clause 10.8.1, be deemed to have accepted the Deliverable/s and/or the Customizations and/or the Solution as the case may be.
11 FEES, PAYMENT AND INVOICING
11.1 The Fees are stipulated in the Proposal. ThinkDigital will invoice the Customer for -
11.1.1 the Licence Fee, for the period concerned, at the commencement of the Initial Licence Term and/or Subsequent Licence Term(s), as the case may be;
11.1.2 portions of the Implementation Cost at certain intervals and on completion of certain Deliverables as more fully set out in the Proposal;
11.1.3 the Managed Service Fee at the end of each calendar month following Final Acceptance; and
11.1.4 the Transaction Fees at the end of each calendar month following Final Acceptance.
11.2 In regard to the Transaction Fees and the Managed Service Fee, on the last Business Day of each calendar month ThinkDigital shall provide the Customer with a written report and/or invoice detailing (i) the total number of Transactions that occurred during the course of the previous month; (ii) the cost payable per Transaction as set out in the Proposal; (iii) the total number of hours spent delivering the Managed Service; and (iv) if applicable, any additional hours of work not covered by the Managed Service Fee that require payment from the Customer.
11.3 The Customer shall make payment to ThinkDigital of any Fees stipulated in any invoice(s) within 30 (thirty) business days of receipt thereof. If a deposit is required in order for Implementation to commence, the Parties shall agree on such deposit amount in writing and payment thereof shall be made within 15 (fifteen) days of receipt of the deposit invoice by the Customer.
11.4 Any late payments shall accrue interest at a rate of 15% (fifteen percent) per annum from the date on which payment was due unless otherwise agreed to by the Parties in writing.
12 OBLIGATIONS OF THE CUSTOMER
12.1 The Customer hereby undertakes to use all reasonable and commercial efforts necessary to assist ThinkDigital in its performance of its duties and/or obligations under and in terms of this Agreement including, but not limited to, satisfying and/or facilitating the satisfaction of any Dependencies identified in the Implementation Plan.
12.2 The Customer warrants, represents and undertakes that it shall not, and the Customer warrants, represents and undertakes that it shall procure that its Representatives shall not, without the prior written approval of a duly authorised director of ThinkDigital, at any time for the duration of the Agreement and a period of 18 (eighteen) months following the termination of this Agreement, whether as proprietor, partner, director, shareholder, member, employee, consultant, contractor, financier, agent, representative, assistant, trustee or beneficiary of a trust, controller of any entity or otherwise and whether for reward or not, directly or indirectly:
12.2.1 encourage or entice or incite or persuade or induce any employee of ThinkDigital to terminate his employment by ThinkDigital; or
12.2.2 furnish any information or advice to any employee then employed by ThinkDigital or to any prospective employer of such employee or use any other means which are directly or indirectly designed, or in the ordinary course of events calculated, to result in any such employee terminating his employment by ThinkDigital and/or becoming employed by, or directly or indirectly in any way interested in or associated with any other company, close corporation, firm, undertaking or concern,or attempt to do so
12.3 To the extent that a ThinkDigital employee is successfully recruited by the Customer during the period described in clause 12.2, the Customer shall pay ThinkDigital R 1 000 000.00 (one million Rand).
13 INTELLECTUAL PROPERTY RIGHTS
13.1 The Customer retains all right, title and interest in and to the Customer’s Intellectual Property that is used in connection with the Implementation. For the avoidance of doubt, this shall include the Customer’s work flows, customer journeys, business process and business solutions that were shared with ThinkDigital during this course of this Agreement.
13.2 Subject to the Intellectual Property Rights of any third party, ThinkDigital and/or any Related Party retain(s) all right, title and interest in and to (i) ThinkDigital’s and/or Related Party’s Intellectual Property; (ii) ThinkDigital’s and/or Related Party’s Intellectual Property that is used in connection with and/or is embedded in the Solution; (iii) the Platform and related documentation; and (iv) the Customizations and related documentation.
13.3 The Customer undertakes, while this Agreement is in force and at any time thereafter, not to challenge the right, title and interest (including the Intellectual Property Rights) of ThinkDigital and/or Related Party in regard to the Solution, nor to assist any third party directly or indirectly to do so.
13.4 ThinkDigital hereby undertakes not to knowingly infringe on the Intellectual Property Rights of any third parties. To the extent that any material used by ThinkDigital in (i) the Platform; and/or (ii) the Customizations, belongs to a third party, ThinkDigital shall obtain a licence from such third party permitting the use of such matter and granting ThinkDigital the right to sub-licence use. To reduce or mitigate damages, it is agreed between the Parties that ThinkDigital may replace the Solution with a non-infringing product.
14.1 During the Licence Period, ThinkDigital hereby grants the Customer a non-exclusive, non-transferable right to use the Solution (“Licence”) subject to the Customer’s compliance with the provisions of this Agreement. The Customer shall be entitled, on the same terms and conditions set out in this Agreement, to renew the Licence for an additional Licence Term (“Subsequent Licence Term”) on 30 (thirty) days written notice to ThinkDigital (“Subsequent Licence Notice”). Upon expiry of this Agreement, the Customer will no longer have access to the Solution. In order to allow the Customer to use the Solution and access the Platform for the Licence Period, ThinkDigital shall deliver Licence Keys to the Customer.
14.2 Following receipt of the Subsequent Licence Notice by ThinkDigital and within 30 (thirty) days thereof, ThinkDigital shall advise the Customer, in writing, of the Licence Fee to be paid by the Customer for the Subsequent Licence Term.
14.3 The terms and conditions set out below govern the use of, and access to, the Solution and the basis on which it is licensed to the Customer. By contracting with ThinkDigital, the Customer is lawfully regarded as having agreed to the following:
14.3.1 The Solution, including without limitation, its object code and source code, whether or not provided to the Customer, constitutes Confidential Information. ThinkDigital owns exclusively and reserves all – and the Customer may not exercise any – right, title, and interest in and to the Solution, including without limitation, all Intellectual Property Rights in and to the Solution except to the extent of the limited Solution use licence granted to the Customer.
14.3.2 This Agreement does not constitute an agreement of sale and no title, Intellectual Property Rights or ownership rights to the Solution are transferred to the Customer pursuant to this Agreement. The Customer acknowledges and agrees that the Solution and all ideas, methods, algorithms, formulae, processes and concepts used in developing or incorporated in the Solution, all future updates or upgrades to the Solution, and all other improvements, revisions, corrections, bug fixes, hot fixes, patches, modifications, enhancements, releases, DATS, signature sets, upgrades and policy and database updates or other updates in, of, or to the Solution, all derivative works based on any of the foregoing and all copies of the foregoing are trade secrets and proprietary property of ThinkDigital, having great commercial value to ThinkDigital.
14.3.3 The use of the Solution depends on the nature of the licence purchased and may be subject to a particular number of Affiliates set forth in the Proposal.
14.3.4 The Customer may permit the use of the Solution in accordance with the terms of this Agreement by a Subsidiary only for so long as such entity remains a Subsidiary of the Customer. The Customer may also permit an authorised third party to access the Solution so long as such third party (i) is accessing the Solution solely on behalf of the Customer; and (ii) is subject to the terms set out in this Agreement. In addition to the foregoing, the Customer (i) shall provide ThinkDigital with a written notice confirming that a Subsidiary and. or authorized third party shall be using the Solution on behalf of the Customer; and (ii) acknowledges that it is responsible for any breach of the terms of this Agreement by the authorized third party or Subsidiary.
14.3.5 The Customer may not, and may not permit any third party to (i) decompile, disassemble or reverse engineer the Solution; or create or recreate the source code for the Solution; (ii) remove, erase, obscure or tamper with any copyright or any other product identification or proprietary rights notices, seal, or instruction that may appear in relation to the Solution or Documentation; or fail to preserve all copyright and other proprietary notices in respect of the Solution and Documentation; (iii) lease, lend or use the Solution for timesharing purposes, sell, market, licence, sublicense, distribute, or otherwise grant to any person or entity any right to use the Solution except to the extent expressly permitted in this Agreement; or use the Solution to provide, alone or in combination with any other product or dervice, any product or service to any person or entity, whether on a fee basis or otherwise; (iv) modify, adapt tamper with, translate, or create derivative works of the Solution or the Documentation; combine, merge any part of the Solution or Documentation with or into any other software or documentation; or refer to or otherwise use the Solution as part of any effort to develop software (including without limitation any routine, script, code or program) having any functional attributes, visual expressions or other features similar to those of the Solution or to compete with ThinkDigital or its Related Parties; (v) except with ThinkDigital’s prior written permission, publish any performance or benchmark tests or analysis relating to the Solution; or (vi) attempt to do any of the foregoing.
14.3.6 ThinkDigital has no obligation to indemnify or defend any claims asserted, in whole or in part, against (i) technology or designs that the Customer gave to ThinkDigital; or (ii) modifications or programming to the Solution that were made by anyone other than ThinkDigital.
14.3.7 The Customer hereby indemnifies and holds ThinkDigital or any Related Party harmless from any damages and costs which either of them may incur as a consequence of any infringements of Intellectual Property Rights of third parties caused by breach of this Agreement and/or the use terms of the Solution by the Customer, an End User, a Subsidiary and/or an authorized third party.
15 MAINTENANCE AND HOSTING
15.1 As from the date of Final Acceptance and subject to the Customer’s compliance with the provisions of this Agreement, ThinkDigital shall Host and Maintain the Solution for the duration of the Licence Period.
15.2 The terms and conditions set out below govern the use of the Solution domain and the Hosting services. By contracting with ThinkDigital, the Customer is lawfully regarded as having agreed to the following:
15.2.1 ThinkDigital reserves the right to move the Solution between web servers and internet backbones, both within South Africa and internationally as it deems necessary. If continued operation of the Solution gives rise to excessive traffic or use of system resources, various options for alternate arrangements will be presented by ThinkDigital to the Customer. ThinkDigital shall determine the best course of action for system use having regard to the views expressed by the Customer.
15.2.2 ThinkDigital reserves the right (but does not assume any obligation) to inspect the contents of data that the Solution transmits, receives or stores to ensure compliance with any application laws or industry codes of good practice.
15.2.3 The Customer is required to immediately and adequately respond to a denial of service attack (DOS/DDOS). If the Solution’s facilities are targeted by a DOS attack that affects ThinkDigital’s network, ThinkDigital shall be entitled to suspend the operation of the Solution for so long as is reasonably required to deal with such attack with such period not exceeding 72 hours without an alternative service in place.
15.2.4 ThinkDigital undertakes to back up the Customer’s data. Such back-ups will be made available to the Customer on reasonable written request, as and when such back-ups are available. ThinkDigital hereby undertakes to do all things reasonably necessary (including compliance with best industry practice) to ensure accurate, complete and up to date backups take place no less than once a day.
15.2.5 ThinkDigital will not be liable for any losses or damages relating to any incidents arising from such back-ups being provided (or not provided) to the Customer on request.
15.2.6 ThinkDigital reserves the right to manage the cloud environment according to international best practices for the overall benefit of all cloud hosted clients. In the event where the Solution use is negatively affecting the overall cloud environment, ThinkDigital shall notify in writing the Customer of such effect together with required actions the Customer must take to remedy such effect. Should the Customer fail to take reasonable actions within the period stipulated in the notice, ThinkDigital may, at its discretion, restrict server to limited IOPS (Input Output Operations per Second) where the Solution use is negatively affecting the overall cloud environment.
15.2.7 ThinkDigital guarantees that its hosting services will attain 99% (ninety-nine percent) availability (the “Uptime Guarantee”), subject to what is set out below.
15.2.8 The Uptime Guarantee is applicable only if the web server on which the Solution resides crashes or goes down at an unscheduled time. The Guarantee is not valid is there is any network problem between the Customer or End Users and the web server which prevents the Customer or the End User from seeing the web server (for instance). If the Customer or the End User’s ISP’s link to the respective data centre goes down or is faulty, but the web server that ThinkDigital hosts is still up, ThinkDigital is not responsible for the Customer or the End User not being able to reach the Solution.
15.2.9 ThinkDigital is not responsible if any third party operated network or service experiences problems and outages (i.e. all network solution and links, Customer or End User’s internet connection, firewall services managed by external parties). If applicable web server is up and running 98.49% of the time then the website will be deemed to have achieved 99% uptime.
15.2.10 The Guarantee does not apply to any scheduled downtime for maintenance of any of ThinkDigitals web servers. If there is scheduled maintenance to be done, the Customer will be notified at least 24 hours in advance. In the event of an important security vulnerability update being required, this may result in the notification period being shortened, dependent upon the severity of the security vulnerability identified. The Customer will be kept informed of the progress of the update. The scheduled maintenance will as far as is reasonably possible be done after hours and the web server downtime will be kept to a minimum.
15.2.11 The Guarantee does not apply if ThinkDigital suspends the service of the Solution as a result of the Customer’s breach of the terms and conditions of the Agreement.
15.2.12 Third party monitoring service reports may not be used for justification due to a variety of factors including the monitor’s network capacity / transit availability. The uptime of the server is defined as the reported uptime from the operating system and the applicable Web Server which may differ from the uptime reported by other individual services.
15.2.13 Disputes arising from this clause 15.2 must be submitted in writing and shall not exceed the fees paid to ThinkDigital for hosting services. No direct or indirect losses or damages may be claimed.
15.2.14 ThinkDigital will not be liable for any loss or damage, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, delict, or otherwise which may be suffered as a result of or which may be attributable, directly or indirectly, to the operation of the Solution.
15.2.15 ThinkDigital will not be liable for any indirect or consequential loss, damage, cost or expense of any kind, irrespective of how such damage or loss was caused, whether arising under contract, delict or otherwise, including, and not limited to, data loss or corruption, loss of profits, contracts, operation time and goodwill.
15.2.16 Neither ThinkDigital, nor its employees, affiliates, agents, third party information providers, merchants, licensers or the like, warrant that its hosting service will not be interrupted or error-free; nor do they make any warranty as to the results that may be obtained from the use of the service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the service.
15.2.17 ThinkDigital expressly limits its liability to the Customer for damages suffered due to any non-accessibility time or other down time to the pro-rata monthly hosting fee during the system unavailability. ThinkDigital specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
15.3 The terms and conditions set out below govern the Maintenance of the Solution by ThinkDigital. By contracting with ThinkDigital the Customer is lawfully regarded as having agreed to the terms and conditions set out below:
15.3.1 ThinkDigital will install updates, patches, upgrades and bug fixes in respect of the Solution as and when these become available.
15.3.2 ThinkDigital will provide telephonic and online support to the Customer in respect of the Solution during the term of this Agreement (“Support”). Such Support shall comprise telephonic support and, if necessary, on-site support. Support shall address (i) any technical questions that the Customer may have regarding the use and operation of the Solution; as well as (ii) any problems that the Customer may experience when using or operating the Solution (the “Support Objectives”).
15.3.3 Telephonic support
ThinkDigital shall provide a telephone support desk staffed by support personnel who shall be available on Business Days during the hours of 08h30 to 17h00 Central African Time to address the Support Objectives.
Office hours: 08h30 – 17h00
Contact Person: Jarred Cowley
Contact number: +2711 804 3740
15.3.4 Onsite support
If there is a request for on-site support at the Customer’s premises to resolve any Support Objectives, such request should ideally be made by the Customer in writing at least 3 (three) Business Days in advance to allows for travel and staffing arrangements to be made.
15.3.5 Process to follow when logging a call for Support
220.127.116.11 Should a Customer experience any problems relating to the Solution and require Support, the Customer shall follow the procedure set out in this clause 15.3.5;
18.104.22.168 The Customer shall forward a detailed problem description to firstname.lastname@example.org and include available information to best describe the issue. The following information shall, where possible, be included in the problem description –
22.214.171.124.1 the impact the problem has on the Customer’s environment and business;
126.96.36.199.2 relevant database or system logs where possible;
188.8.131.52.3 screen prints of error messages displayed;
184.108.40.206.4 any recent changes that may have contributed to the problem.
220.127.116.11 Upon receiving an email from the Customer requesting Support, the call will be logged with ThinkDigital’s call logging system, it will be assigned a priority in accordance with clause 18.104.22.168 and it shall be assigned to appropriate personnel for resolution. Such individual will call the Customer within the timeframe allocated to the priority of the Customer’s case.
22.214.171.124 Priorities are as follows:
Priority: 1- Very High
- Type: Platform Failure
- First response whithin: 1 hour
- Customer Update: 3 hours
Priority: 2- High
- Type: Urgent
- First response whithin: 2 hours
- Customer Update: 3 hours
Priority:3 - Medium
- Type: High Priority
- First response whithin: 3 hours
- Customer Update: 3 hours
Priority: 4 - Low
- Type: Pending Service
- First response whithin: Same day
- Customer Update: As needed
126.96.36.199 The Customer hereby acknowledges that:
188.8.131.52 technical and software engineers as well as any software developers should not be contacted directly; and
184.108.40.206 the relevant project manager or ThinkDigital lead should be contacted regarding the Support required; and
220.127.116.11 the agreed procedures should be followed when any technical or other problems need to be logged with ThinkDigital as this will allow for the correct issue recording and management of client feedback.
15.3.6 Priorities are assigned based on problem urgency and the effect the situation has on the Customer’s business. The priority of the case will determine the targeted initial response time. The recording of the support issue must record the impact the problem has on the Customer’s environment. Such recordal will allow the technical support contact and other personnel to best address the problem for the Customer’s business.
Support does not include any third party software or hardware support services, nor support of any enhancements to any of the foregoing. Upon request and if available, ThinkDigital shall provide the Customer with contact information for applicable third party support service suppliers. ThinkDigital will not be responsible for correcting any errors not reproducible by it on the unmodified Solution or errors caused by: (a) use of the Solution in a manner for which it was not designed or approved by ThinkDigital; or (b) accident, negligence, or misuse of the Solution.
15.3.8 Limitation of Liability
18.104.22.168 ThinkDigital will not be liable for any loss or damage, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, delict, or otherwise which may be suffered as a result of or which may be attributable, directly or indirectly, to the Maintenance of the Solution.
22.214.171.124 ThinkDigital will not be liable for any indirect or consequential loss, damage, cost or expense of any kind, irrespective of how such damage or loss was caused, whether arising under contract, delict or otherwise, including, and not limited to, data loss or corruption, loss of profits, contracts, operation time and goodwill.
126.96.36.199 Neither ThinkDigital, nor its employees, affiliates, agents, third party information providers, merchants, licensers or the like, warrant that the Maintenance will not be interrupted or error-free; nor do they make any warranty as to the results that may be obtained from the use of the service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the service.
188.8.131.52 ThinkDigital expressly limits its liability to the Customer for damages suffered due to any Maintenance to the portion of the Licence Fee attributable to the Maintenance.
16 MANAGED SERVICE
16.1 From the date of Final Acceptance and until such time as this Agreement is terminated in accordance with its terms, ThinkDigital shall provide the Customer with the Managed Service. The scope of the Managed Service shall be agreed between the Parties and defined in the Proposal. In exchange for the Managed Service, the Customer shall pay ThinkDigital the Managed Service Fee in accordance with clause 11.
16.2 The Customer shall notify ThinkDigital in writing of any amendments and/or work it may require pursuant to the Managed Service. ThinkDigital shall, within 3 (three) business days of receipt of such notice, notify the Customer of the intended due dates for delivery of the work required. If necessary and depending on the nature of the work required to be delivered pursuant to the Managed Service, ThinkDigital shall be entitled to invoke the sprint methodology defined in clause 8. As such, the provisions of clauses 8, 9 and 10 shall govern the relationship between the Parties in such instances.
17.1 The scope of the Services is defined in the Proposal. ThinkDigital warrants that it will take all reasonable steps to ensure that the Services will be performed by qualified personnel in a professional manner conforming with the generally accepted industry standards and practices.
17.2 Except as expressly set out in the Proposal, all warranties, conditions, representations and terms whether express or implied by statute, common law, custom, trade usage, or otherwise, including without limitation any implied terms, conditions or warranties of satisfaction quality, fitness for a particular purpose or non-infringement are hereby excluded to the fullest extent permitted by law. As such, ThinkDigital does not warrant the results of any Services.
17.3 To the extent that the Customer suffers any direct loss under or in connection with the Services or (whether under statute, contract, indemnity, delicit or otherwise) which is not pursuant to this Agreement and for which ThinkDigital is liable in law, the total aggregate liability (direct loss only) of ThinkDigital to the Customer shall not exceed the Service Fees.
17.4 ThinkDigital may use certain ThinkDigital proprietary software and documentation (“ThinkDigital Toolkit”) in performing the Services. The ThinkDigital Toolkit is owned by ThinkDigital or its Related Parties, who shall at all times retain all rights, title and interest therein. The Customer agrees not to use it for any purpose, relicense, copy in whole or in part, (except for an archival copy or copies made in the course of automatic backups), modify, reverse engineer, decompile or disassemble the ThinkDigital Toolkit.
It is the intention of the Parties to, acting together, pursue the Project and/or the intention of the Proposal. Accordingly, the Parties hereby acknowledge and agree that neither of them shall, during the term of this Agreement Circumvent the other or take any action which would adversely affect or otherwise hinder or frustrate the Project and/or the intention of the Proposal.
19 THINKDIGITAL'S WARRANTIES
19.1 ThinkDigital warrants that –
19.1.1 it has sufficient right, title and interest in and to the Solution and Documentation to grant the licenses as set forth in this Agreement;
19.1.2 as at the date of Final Acceptance of the Solution, the Solution shall be free from material reproducible programming errors and defects in workmanship and materials and shall substantially conform to the Functional Specifications when maintained and operated in accordance with the ThinkDigital’s instructions and/or the Documentation.
19.2 The warranties set out in this Agreement are the only warranties granted by ThinkDigital. Accordingly, ThinkDigital disclaims all other warranties express or implied including but not limited to any implied warranties or merchantability or fitness for a particular purpose.
20.1 It is agreed between the Parties that –
20.1.1 the Parties may, at the election of the Customer, enter into an escrow agreement with an escrow agent, being a financial institution agreed to between the Parties in writing, for purposes of regulating their relationship in respect of the Customization or other source code;
20.1.2 the Parties shall negotiate and in good faith agree those events which shall give rise to the release of the Customization or other source code by the escrow agent in the escrow agreement;
20.1.3 ThinkDigital shall, within 7 (seven) days, deliver a copy of the Customization or other source code to the escrow agent following conclusion of the escrow agreement;
20.1.4 for the duration of the escrow agreement, ThinkDigital shall deposit all updates, enhancements and modifications relating to the Customization or other source code as well as associated documentation with the escrow agent; and
20.1.5 the Customer hereby agrees and undertakes to pay for all fees and/or costs associated with formalising the escrow agreement, including, but not limited to, the payment of any fees to the escrow agent for the duration of the escrow agreement.
20.2 Failing conclusion of an escrow agreement between the Parties, ThinkDigital shall, in exchange for a reasonable fee (being the cost required to repacked the Customizations or other source code for purposes of delivery to the Customer), release the source code for the Customizations or otherwise to the Customer where ThinkDigital –
20.2.1 ceases to carry on business;
20.2.2 is placed under provisional or final liquidation;
20.2.3 passes a resolution for voluntary winding-up;
20.2.4 takes steps to wind-up on the grounds of its inability to pay its debts;
20.2.5 compromises with its creditors;
20.2.6 resolves voluntarily to begin business rescue proceedings or has business rescue proceedings commenced against it as contemplated in the Companies Act, 2008; or
20.2.7 makes an assignment for the benefit of creditors.
21 LIMITATION OF LIABILITY
21.1 The Parties agree that they shall be liable to the other for -
21.1.1 losses which constitute direct damages where such damages are caused by a breach of any Intellectual Property and/or Confidential Information undertaking contained in this Agreement; and
21.1.2 all losses which arise out of their dishonesty or gross negligence regardless of whether such losses arise out of contract or delict.
21.2 It is agreed further between the Parties that the maximum aggregate liability, if any, of ThinkDigital under or in connection with this Agreement (whether arising under any indemnity, in contract, breach of warranty, claims by third parties or otherwise) shall –
21.2.1 in the case of Services, not exceed the Service Fees;
21.2.2 in the case of Implementation, not exceed the Implementation Cost;
21.2.3 in the case of the Licence, not exceed the portion of the Licence Fees allocated to the Licence;
21.2.4 in the case of Hosting, not exceed the portion of the Licence Fees allocated to Hosting;
21.2.5 in the case of Maintenance, not exceed the portion of the Licence Fees allocated to Maintenance,
paid by the Customer to ThinkDigital under and in terms of this Agreement.
22.1 The Receiving Party undertakes -
22.1.1 to treat as strictly confidential and not to divulge or permit to be divulged, in any other manner, to any third party any of the Confidential Information without the prior written consent of the Disclosing Party other than to its Representatives.
22.1.2 to take all reasonable steps to protect the Confidential Information and keep it secure from unauthorised persons, adopting reasonable standards of care and safeguards; and
22.1.3 not to use or exploit the Confidential Information for any purpose whatsoever other than strictly in relation to and for the purposes of considering, evaluating, negotiating or advancing the Potential Transaction.
22.2 The above undertakings shall not apply to -
22.2.1 Confidential Information which at the time of disclosure by the Disclosing Party is published or is otherwise generally available to the public;
22.2.2 Confidential Information which after disclosure by the Disclosing Party is published or otherwise becomes generally available to the public otherwise than through any breach of the terms of this document by the Receiving Party or its Representatives;
22.2.3 Confidential Information which the Receiving Party demonstrates was known by the Receiving Party before the date the Confidential Information is disclosed to it by the Disclosing Party and which the Receiving Party is entitled to freely disclose to third parties;
22.2.4 Confidential Information which the Receiving Party demonstrates was rightfully acquired from others who do not owe a confidentiality obligation to the Disclosing Party; or
22.2.5 Confidential Information which the Receiving Party is required to disclose by applicable law.
22.3 Unless absolutely necessary, the Customer shall not disclose to ThinkDigital any personally identifiable information related to the Customer’s employees or clients or otherwise (“Personal Information”). When the Customer is required to provide Personal Information to ThinkDigital, the Customer shall notify ThinkDigital and comply with all applicable laws and either (i) convert the Personal information into fictitious test data; or (ii) encrypt the Personal Information and forward to ThinkDigital the appropriate de-encryption key/ technology.
23 TITLE AND LIMITED RIGHTS
The disclosure of any Confidential Information to the Receiving Party or the Representatives does not confer upon the Receiving Party or the Representatives any rights or license or proprietary rights of whatsoever nature in and to such Confidential Information.
24.1 If a Party commits a material breach of this Agreement (the “breaching Party”) and fails to remedy such breach within 14 (fourteen) days of notice thereof from the Party affected by the breach (the “non-breaching Party”), the non-breaching Party shall be entitled, in addition to any other rights and remedies that it may have in terms this Agreement or otherwise, to terminate this Agreement upon written notice to the breaching Party, without prejudice to any claims which the non-breaching Party may have for damages against the other.
24.2 To the extent that this Agreement is terminated by ThinkDigital –
24.2.1 the Customer shall immediately cease use of the Solution;
24.2.2 the Customer shall, within 7 (seven) days of such termination, deliver to ThinkDigital all copies and portions of the Solution and related materials and Documentation in its possession furnished by ThinkDigital under this Agreement;
24.2.3 all amounts payable or accrued to ThinkDigital under this Agreement shall become immediately due and payable; and
24.2.4 all rights and licences granted to the Customer under this Agreement shall immediately terminate.
24.3 It is agreed between the Parties that in the event of termination of this Agreement the Customer shall (i) be entitled to claim a refund for any fees paid by it to ThinkDigital in respect any Deliverables not delivered to it prior to the date of termination of the Parties’ working relationship; (ii) not be entitled to claim a refund for any fees paid by it to ThinkDigital for any and all Licence Fees; and (iii) be required to make payment of the Licence Fee for the duration of the Licence Period stipulated in the Proposal.
25 FORCE MAJEURE
No Party shall be liable to the other for any losses which are a result of any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by: fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country or any other cause beyond the reasonable control of such Party; provided that: (i) the non-performing Party is without fault in causing such default or delay; and (ii) such default or delay could not have been prevented by reasonable precautions; and (iii) such default or delay cannot reasonably be circumvented by the non-performing Party through the use of alternate sources, work around plans or other means (“Force Majeure”).
26 DISPUTE RESOLUTION
26.1 Any disputes arising from or in connection with this Agreement (a “Dispute”) shall be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa ("AFSA") by an arbitrator agreed to in writing by the Parties or, failing such agreement within 5 (five) business days after it is requested by any Party, appointed by the chair of AFSA. There shall be a right of appeal as provided for in article 22 of the aforesaid rules.
26.2 Each Party to this Agreement -
26.2.1 expressly consents to any arbitration in terms of the aforesaid rules being conducted as a matter of urgency; and
26.2.2 irrevocably authorises the other Party to apply, on behalf of both Parties to such dispute, in writing, to the secretariat of AFSA in terms of article 23(1) of the aforesaid rules for any such arbitration to be conducted on an urgent basis.
26.3 If AFSA no longer exists then the arbitrator shall be appointed by the President for the time being of the Law Society of the Northern Provinces of South Africa and the arbitration shall be conducted in accordance with the Arbitration Act No. 42 of 1965.
26.4 Notwithstanding anything to the contrary in this clause 26, any Party shall be entitled to apply, on an urgent basis, for an interdict or for an order of specific performance from any court of competent jurisdiction.
26.5 For the purposes of clause 26.4 and for the purposes of having any award made by the arbitrator being made an order of court, each of the Parties hereby submits itself to the non-exclusive jurisdiction of the Gauteng Local Division, Johannesburg in the High Court of South Africa.
26.6 This clause 26 is severable from the rest of this Agreement and shall remain in full force and effect notwithstanding any termination or cancellation of this Agreement.
27 NOTICES AND DOMICILIUM
27.2 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 email.
27.3 Either Party may by notice to the other Party change the physical address chosen for notices and execution to another physical address in South Africa or its email address, provided that the change shall become effective on the 5th (fifth) business day from the receipt (or deemed receipt) of the notice by the addressee.
27.4 Any notice to a Party -
27.4.1 delivered by hand to a responsible person during ordinary business hours at the physical address chosen in clause 27.1 as its address for notices and execution shall be deemed to have been received on the day of delivery; or
27.4.2 sent by email to its chosen email address stipulated in clause 27.1, shall be deemed to have been received on the date and at the time recorded by the recipient’s email server (unless there is evidence to the contrary that it was delivered on a different date or at a different time).
27.5 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by the person named in clause 27.1 on behalf of a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen address for notices and execution set out in clause 27.1.
28.1 Severability: Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated as if it had never been written (pro non scripto) and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
28.2 Governing Law: This Agreement shall in all respects (including its existence, validity, interpretation, implementation, termination and enforcement) be governed by the law of the Republic of South Africa. For purposes of applying for urgent relief and in respect of any matters which cannot be resolved in accordance with clause 26, the Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of South Africa (Gauteng Division, Johannesburg), in any dispute arising from or in connection with this Agreement.
28.3 No Cession of Assignment: Save for a cession or assignment to a Related Party, no Party shall be entitled to cede, assign, transfer, encumber or delegate any of its rights, obligations and/or interest in, under or in terms of this Agreement to any third party.
28.4 Counterparts: This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts together shall constitute one and the same instrument.
28.5 Whole Agreement: This Agreement constitutes the sole record of the agreement between the Parties in relation to the subject matter hereof. To the extent permissible by law, no Party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not. This Agreement supersedes and replaces any other discussions, agreements and/or understandings, whether oral or written, between the Parties in respect of the subject matter hereof. No oral undertaking not to sue (pactum de non petendo) shall be of any force or effect.
28.6 No Variation: No addition to, variation, amendment, novation or agreed cancellation of this Agreement or any provision or term hereof or of any agreement or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of this Agreement or of any agreement or other document issued pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver, relaxation or suspension, signed by the Party granting such extension, waiver, relaxation or suspension). Any such extension, waiver, relaxation or suspension which is so given or made shall be strictly construed as relating to the matter in respect whereof it was made or given.
28.7 No Extension of Time or Waiver or Relaxation: No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against any Party in respect of its rights under this Agreement, nor shall it operate so as to preclude such Party thereafter from exercising its rights strictly in accordance with this Agreement.
The conditions set forth herein shall apply to all transactions for the supply of products and/or services entered into, or to be entered into, between ThinkDigital (Pty) Ltd, Registration Number 2013/177964/07, hereinafter referred to as “the Company”, and the purchaser being any legal person, firm, partnership, close corporation or company, hereinafter referred to as “the Buyer”. “Item(s)” means any products and/or services offered by the Company on its platform. By placing an order on the Company for any Item you agree to be bound by these terms, which establishes a contractual relationship between you and the Company. If you do not agree to these Terms, you may not place an order on the Company for any Item. These Terms expressly supersede prior agreements or arrangements with you.
Any order placed by the Buyer on the Company, and accepted by the Company, may not be cancelled, in whole, or in part, or varied in any manner whatsoever, unless confirmed in writing by the Company.
2. Pricing, Product & Services Specifications and Errors
2.1. Quoted prices are net and exclusive of VAT, unless otherwise stated.
2.2. The Company will not be required to execute an order or compensate a Buyer for any loss if the Company made an error when presenting the item or service, formulating its characteristics or stating its price, and i) it should have been clear to the Buyer that such involved a printing error; or ii) if the Buyer should not, under the circumstances, have reasonably relied on the Company delivering the particular item or service, with stated characteristics, at that price.
3.1. Payment shall be:
3.1.1. in South African Rand;
3.1.2. in full, without deduction or set-off;
3.1.3. accepted via debit card, credit card (Visa or Mastercard) and direct transfer (EFT). Online credit card and debit card transactions will be facilitated through the PayGate payment platform. PayGate maintains Payment Card Industry (PCI) compliance and as such PayGate is responsible for securely storing, processing and transmitting card data to the PCI compliance standard. By placing an order on the Company, you agree that the terms and security policy found on PayGate’s website (www.paygate.co.za), as amended from time to time, will apply.
3.2. The Company takes all reasonable steps to scrutinise all transactions to prevent attempted fraud and a transaction may be refused if the Company is not satisfied with its legitimacy.
The services constitute a technology platform that enables users of the Company’s mobile application or website to access the services or products supplied by independent third-party providers of such services and products, under agreement with the Company (“Third-Party Providers”).
5. Third-Party Providers
6. Delivery of Items
6.1. All prices of the products posted on the website are exclusive of delivery costs. Delivery costs, where applicable, will be stated separately when settling the order and may vary for each order.
6.2. The Company endeavours to supply items ordered, provided that the Company has such items in stock, to the delivery address within 5 days of the order confirmation and the required receipt of payment.
6.3. Any time or date specified for delivery by the Company or the Buyer, in respect of any sale, shall be approximation and guide only. Time shall not be of the essence and the delivery periods are of an indicative nature only. Failure to receive the order on or before the anticipated delivery date or time will not constitute a breach of the terms and conditions of the order.
6.4. The Company endeavours to effect delivery on any date specified by it or agreed upon by it but does not give any warranties of whatsoever nature or kind and it shall not be held responsible for any damages of whatsoever nature, or loss of profit, or any consequential or indirect damages which the Buyer may suffer as a result of such later delivery.
6.5. The risk in and to the products purchased shall pass to the Buyer upon delivery. Such delivery will be deemed to have been affected upon tender of the products for acceptance by the Buyer, or the Buyer’s agent, during business hours, at the Buyers place of business or such other place nominated by the Buyer, or the Company’s place of business, if the Buyer elects to collect the products.
6.6. No carrier, as agent of the Company, shall be obliged to enter the premises of the Buyer to enable offloading of products. However, if the delivery vehicle enters the Buyer’s premises, it shall be deemed to do so at the Buyer’s specific instance and request, and in that event the Company and/or its agent carrier shall accept no liability for damage or loss occasioned to the Buyer or any third-party, arising in any way from such entry and exit from the Buyer’s premises, or from the offloading, or from any negligent act or omission of the Company or its agent carrier during the course of entering, exiting or offloading. Further, the Buyer hereby indemnifies and holds the Company harmless against liability for any such damage or loss.
7. Returns / Refunds Policy
7.1. The Company shall return products or refund Buyers in accordance with Sections 55 and 56 of the Consumer Protection Act 68 of 2008 and its Returns/Refunds Policy set out below.
7.2. Products may not be returned unless the incorrect product has been supplied or the product is damaged or faulty upon delivery. In such an instance the Company will exchange the product on condition that: i) the product is returned in its original condition - including packaging, documentation, warranty cards, manuals and accessories; and ii) the Buyer returns the product within seven days of receipt and confirms same by sending a written notice to email@example.com (within abovementioned seven day period); iii) All returns must be shipped freight (and insurance) prepaid. The onus is on the Buyer to ensure that the products returned are received by Company within 10 days of written notice.
7.3. On receipt and acceptance of returned product Company will make all reasonable effort to exchange said product, but if replacement is not possible, Company will refund the purchase price, including delivery costs. Such amount will be refunded within 30 days of cancellation, beginning on the day written notice was given.
7.4. Should a product be damaged in any way or missing any parts or accessories at the time of delivery, please notify us within 3 days by logging a return with firstname.lastname@example.org. Breakages not reported within 3 days will not be refunded.
7.5. The faulty product will be collected from the Buyer at no charge. Once the Company has inspected the product and validated the return, the Company will repair/replace the product as quickly as possible (if such a repair is possible/if the Company has the same product in stock as a replacement). If the Company is unable to repair or replace the product, it will credit the Buyer’s account with the purchase price of the product (note: a cash refund may be requested in lieu of store credit if preferred).
7.6. What constitutes a defect? Any material imperfection in the manufacture of a product or any characteristic of a product which makes the product less acceptable than one would reasonably be entitled to expect in the circumstances. The following will NOT be regarded as defects and will not entitle you to a return under this clause 7.6:
7.6.1. faults resulting from normal wear and tear;
7.6.2. damage arising from negligence, user abuse or incorrect usage of the product;
7.6.3. damage arising from electrical surges or sea air corrosion;
7.6.4. damage arising from a failure to adequately care for the product;
7.6.5. damage arising from unauthorised alterations to the product;
7.6.6. where the specifications of a product, although accurately described on the website and generally fit for its intended purpose, do not suit you; and
7.6.7. in relation to unboxed packages, signs of handling and/or repackaging.
8. Reservation of Ownership and Appropriation of Payments
8.1. Notwithstanding anything hereinabove or elsewhere contained, ownership of the products shall remain vested in the Company, until the Buyer has made full payment of the purchase price. No latitude or extension of time given to the Buyer shall in any way vitiate or novate the Company’s rights hereunder. In the event of any default on the part of the Buyer, the Company shall, without prejudice to any other rights it may have, and without notice, be entitled, on demand, to obtain return of the products, in so far as payment for the products has not been made in full.
8.2. The Company is not obliged to accept returned products where the Buyer has made an error in its order, and the Buyer remains fully liable for the full price of the products so ordered.
6. Limitation of Company’s Liability
8.3. The Company does not give any warranty against defects, whether latent, patent or otherwise, in the Items supplied. The Company does not give any warranties or guarantees of any other nature or make any representations whatsoever in respect of the Items, or of its fitness for any particular purpose, whether or not that particular purpose is, or could be, deemed to be known to the Company. The Company shall be deemed to be unaware of the particular purpose for which any product is purchased.
8.4. The Company shall not be liable under any circumstances whatsoever, for any loss of profit or other special damages, arising from: i) its failure to meet its obligations under this agreement; and/or ii) any negligent act or omission.
8.5. The onus shall be on the Buyer to satisfy itself that the Items supplied are fit for the purpose for which the Items are to be used. There is no obligation on the Company to guarantee the Item suitability.
8.6. No agreement, warranty, condition, representation, promise, statement or undertaking, whether made before after a sale, shall be binding on the Company unless contained herein or confirmed by the Company in writing.
9. Personal Data
9.1. The Company shall take all reasonable steps to protect the personal information of Buyers. For the purpose of this clause, "personal information" shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000.
9.2. The Company will store the data provided by Buyers in a data file. Such data will be used to execute buyers' orders and will be kept for as long as is necessary to handle any complaints about the execution of an order. No data will be passed on to third parties if such should jeopardise the Buyer's privacy.
10.1. No variation, amendment or alteration of these Conditions of Sale shall be of any force or effect unless reduced to writing and signed by duly authorised representatives of the Company and the Buyer.
10.2. The Buyer agrees that a signature of one of its employees, or any person purporting to represent the Buyer at the delivery address supplied by the Buyer, on a delivery note or waybill of the Company, or its carrier agent, will be proof of delivery of the products.
10.3. The Company may, at its sole discretion, change these Terms and Conditions or any part thereof at any time without notice.
11. Warranty Period
11.1. Third-Party Providers warrant that the products sold by the Company will be free from defects in materials or workmanship, under normal use and service, for the appropriate warranty period. The length and extent of the warranty period will depend on the period given by the Third-Party Providers and will be communicated to the Buyer for each order.
11.2. The Company, or Third-Party Providers, the shall not be liable under this warranty for any products that the Buyer alleges are defective, where: i) those products have been repaired or altered by some any person other than the Company’s designated personnel or authorised representative, unless such repair or alteration was effected pursuant to prior written approval of the Company; or ii) where the Buyer fails to notify the Company of any alleged defect within the period of the warranty; or iii) where the products have been altered or damaged in any way which the Company reasonably believes to materially affect the performance and reliability of the products, or where the products have been subjected to misuse, neglect or accident.
12. Force Majeure
If performance in terms of this agreement becomes wholly or partially impossible due to causes beyond the control of the Company, such causes include, but are not be limited to: war, civil insurrection, natural disaster, vis maior, Government action and industrial disputes, then the Company shall be permitted to terminate the agreement at its discretion. If deliveries of Items will be delayed as a result of such causes, the Company will not be considered as being in breach of the agreement.
13.1. Where the Buyer, in any way, breaches the terms of the agreement, and does not remedy its breach within 24 hours of verbal or written notice calling upon it to do so, then the Company, in its discretion may terminate this agreement and claim: i) return of the products; ii) payment equal to the current market value of the Items; iii) any damages it may have sustained as a result of the Buyers breach of the agreement. The Company may, in addition to the above, elect to retain any monies already received from the Buyer, to settle any damages which it may have sustained as a result of the Buyer’s breach of the agreement.
13.2. The Company and the Buyer agree that all disputes will be adjudicated in the Magistrate’s Court in accordance with the Laws of the Republic of South Africa.
If the Buyer is in anyway in breach of the agreement and the Company engages the services of an attorney to collect the whole or portion of the amount owing to it by the Buyer, or to sue for any other damages as a result of breach by the Buyer, the Buyer shall be liable to pay all costs occasioned as a result thereof, including collection charges and costs on an attorney and own client scale.
15. Domicilium Citandi Et Executandi
The Company chooses as its domicilium citandi et executandi for all purposes under this agreement, whether in respect of court process, notice, or other documents or communication of whatsoever nature at: ThinkDigital, Mac Mac Building, Maxwell Office Park, Magwa Crescent West, Waterfall City, Jukskei View, South Africa, 2090.
Version A – January 2019.