Terms & Conditions
THINK TANK SOFTWARE SOLUTIONS (PTY) LTD
STANDARD TERMS AND CONDITIONS (APRIL 2024)
These terms and conditions consist of three sections:
SECTION 1 – TERMS AND CONDITIONS APPLYING TO ALL TRANSACTIONS
1. Pricing
- 1.1 Invoices are payable within 14 days of receipt without deduction or set-off by electronic transfer. Without prejudice to any other remedy available to us we may suspend our services if invoices remain unpaid for 30 days (in the case of licensing) and 60 days (in the case of professional services and support).
- 1.2 Any amounts not paid on the due date will bear interest compounded monthly in arrears at the prime rate of the Supplier’s bank plus 2% from the due date until the actual date on which payment is received.
2. Warranties
- 2.1 We will render our services using competent and trained staff and with due and proper care, maintaining high professional standards at all times
- 2.2 Any software we develop or provide will be free of patent defects.
- 2.3 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.
- 2.4 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.
3. Software
- 3.1 Third-party software is supplied subject to the supplier’s separate terms and conditions and end-user agreements in addition to these terms and conditions, which supplier’s terms and conditions, insofar as is relevant, are incorporated into these terms and conditions. These terms and conditions include
- https://www.ivanti.com/company/legal/support-terms
- https://www.ivanti.com/support/global-renewal-policies-and-practiceshttps://www.ivanti.com/companylegal/saas
- https://www.ivanti.com/company/legal/eula
- https://www.ivanti.com/support/global-renewal-policies-and-practices
- 3. 2 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 our quotation specifies otherwise:
- 3.2.1 transfer to any other person or entity any of the rights to the software;
- 3.2.2 sell, rent, sub-license or lease the software;
- 3.2.3 translate, modify, create derivative works or adaptations based on the software; and/or
- 3.2.4 reverse engineer, decompile, disassemble or otherwise attempt to discover the underlying ideas or algorithms of the software.
- 3.3 Save as is expressly set out in our quotation, the Customer is specifically prohibited from creating any copies of the software.
- 3.4 The Customer’s sole remedy, in the event that (i) the software fails to perform in accordance with the specifications set out in our quotation; or (ii) any defects or errors in the software become apparent, will be to demand that we remedy such non-performance/fault.
- 3.5. The Customer shall ensure that the environment provided for software provided by us:
- 3.5.1. meets the minimum specifications prescribed by us;
- 3.5.2. is appropriately sized based on the anticipated workload; and
- 3.5.3. encompasses all necessary security measures, including but not limited to firewall settings, port configurations, and other relevant security protocols.
4. Our use of Customer information
- 4.1 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.
- 4.2 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.
5. Network charges
- 5.1 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”).
- 5.2 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.
6. Liability
- 6.1 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).
- 6.2 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.
- 6.3 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.
7. 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:
- 7.1 obtain for the Customer the right to continue using the software or parts thereof, which constitute the infringement;
- 7.2 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;
- 7.3 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
- 7.4 withdraw the software and refund to the Customer all fees paid by it.
8. Third party links and services in software
- 8.1 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”).
- 8.2 Certain Third Party Services may display, include or make available content, data, information, applications or materials from third parties (collectively “Third Party Materials”).
- 8.3 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.
- 8.4 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.
- 8.5 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.
- 8.6 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.
9. Non-solicitation
If the Customer recruits an employee of ours and such recruitment leads to the employee terminating his employment with us, whether such recruitment takes place during the period set out in our quotation or within twelve months of the expiry or termination thereof , then the Customer shall be liable for the payment to the Supplier of 50% of the employee’s full annual remuneration package as paid by us to our employee, inclusive of all benefits and allowances.
10. References
The Customer agrees to act as a reference in respect of software solutions and/or professional services provided by us, and to reasonably cooperate with us in connection with the production of marketing material and case studies in connection with the use by the Customer of the same, granting us the right to display the Customer’s logo (provided always that the Customer shall not incur any costs in connection with the abovementioned activities).
11. Force majeure
- 11.1 Neither party will incur any liability to the other party for any loss or damage resulting from any delay or failure to perform if such failure or delay is caused by circumstances beyond the relevant party’s reasonable control including, without limitation, flood, fire, acts of war, terrorism, earthquake and acts of God; however, inability to meet financial obligations is expressly excluded.
- 11.2 We shall not be liable for any failure or delay in performing our obligations on account of the Customer’s failure to perform its obligations.
12. Arbitration
- 12.1 Any dispute arising out of or in connection with these terms and conditions, our quotation and/or the Customer’s purchase order shall be referred to arbitration in accordance with the expedited rules of the Arbitration Foundation of Southern Africa by an arbitrator chosen by the Foundation. The arbitration shall be held in Cape Town.
- 12.2 Nothing contained in this clause shall prohibit a party from approaching any court of competent jurisdiction for urgent interim relief.
13. General
- 13.1 Any professional services to be provided by us may be carried out by our specialised subsidiary Think Tank Professional Services (Pty) Ltd.
- 13.2 Neither party shall cede, delegate or assign all or any of its rights and/or obligations without the prior written consent of the other party.
- 13.3 These terms and conditions, our quotation and the Customer’s purchase order and all matters incorporated therein by reference contain all the express provisions agreed to by the parties with regard to the subject matter of the aforegoing and the parties waive the right to rely on any alleged express provision not contained therein.
- 13.4 No party may rely on any representation which allegedly induced that party to enter into an agreement unless the representation is recorded in these terms and conditions and/or our quotation, save that nothing in this clause shall limit a party’s liability for fraud or fraudulent misrepresentation.
- 13.5 No contract varying, adding to, deleting from or cancelling these terms and conditions and/or our quotation, and no waiver of any right under same shall be effective unless reduced to writing and signed by or on behalf of the parties.
- 13.6 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 these terms and conditions and/or our quotation, nor shall it in any way prejudice that party’s rights or preclude that party from exercising any of its rights in the future.
- 13.7 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 these terms and conditions and/or our quotation.
- 13.8 These terms and conditions shall be interpreted and implemented in accordance with the law of the Republic of South Africa.
- 13.9 Neither these terms and conditions nor any quotation authorises any party to act as the agent of the other, nor does it create a partnership, joint venture or similar relationship between the parties.
SECTION 2 – TERMS AND CONDITIONS APPLYING TO SERVICES
14. Professional Services Engagement Process
- 14.1 Business Analysis and Solution Design Sign-off: We will conduct a Business Analysis workshop to confirm the requirements of the proposed solution required by the Customer as well as to validate the quoted hours to ensure the outputs can be delivered within that time. We will prepare a Solution Design Document or Statement of Work and share with Customer. The Customer will review and provide formal sign-off on Solution Design by signing the Solution Design Document.
- 14.2 Configuration and Testing: We will configure the solution as per the signed off Solution Design Document and will perform technical testing.
- 14.3 User Acceptance Testing (UAT): The Customer must produce documented test cases to be used during UAT. Our Consultant will ensure that the configuration is available in the relevant UAT Instance and ready for User Acceptance Testing. The Customer will perform User Acceptance Testing and report any issues or bugs via an issue log. Our consultant will investigate and address issues for retesting. Acceptance will be deemed when the Customer provides us with a UAT sign-off or one week after testing (in the absence of the Customer informing us of any issues or bugs via an issue log), whichever is the sooner.
- 14.4 Deployment to Production and Go Live: Following the User Acceptance Testing and acceptance, we will move the Configuration to the Production Instance. The Customer will be requested to confirm closure by signing a project closure document but in the absence of such a document project closure will be deemed one week after successfully (in our reasonable opinion) promoting the Configuration to production environment. We will conduct a Post Implementation Review Survey after project closure.
2. Quotations and exclusions
- 15.1 A signed quotation is required before we can place any order with our suppliers. The Customer agrees that these terms and conditions are incorporated into the signed quotation. If we, in our discretion, decide to proceed in the absence of a signed quotation but rather on a purchase order, the Customer agree that these terms and conditions are incorporated into the purchase order notwithstanding anything to the contrary contained in the purchase order.
- 15.2 The hours required for delivery are estimated based on the information available at the time of quoting. The actual hours may be higher or lower depending on the completeness of the information provided. If further information subsequently emerges we will communicate with the Customer and will get consent before proceeding. An additional signed quotation may be required.
- 15.3 Quotations may also be revised due to unforeseen circumstances eg. exchange rate fluctuations.
- 15.4 The following services will not be provided unless explicitly referred to in the quotation:
- 15.4.1 Meetings;
- 15.4.2 Process design workshops, documentation, creation of test cases, project management and related meetings.
- 15.4.3 Installation/configuration/development of any software other than the software we are installing (‘Software’), accessories, attachments, machines, peripheral equipment, systems or other devices not supplied by us;
- 15.4.4 Rectification or the recovery of lost or corrupted data arising from any reason other than our negligence.
- 15.4.5 Software services rendered more difficult because of any changes, alterations, additions, modifications or variations not performed by us to the Software, or any other software;
- 15.4.6 Attendance to faults caused by using the Software outside design or other specifications or outside the provisions laid down in any documentation or manual supplied with the Software;
- 15.4.7 diagnosis or rectification of problems not directly associated with the Software; and
- 15.4.8 repairs or replacements necessitated by accidental damage, operator errors or assistance on hardware usage or service calls necessitated by causes external to the Software such as failures in the hardware on which the Software is operational.
16. Fees and additional costs
- 16.1 We will invoice the Customer monthly or on completion of each agreed milestone (as per the quotation).
- 16.2 Each invoice will be supported by the time sheets for that specific month / milestone as well as running reconciliation of hours used and the current balance.
- 16.3 In addition to the quoted fees, the Customer will be required to pay:
- 16.3.1 the actual costs of accommodation, transport (including car hire) and flights if we are required to travel outside of Cape Town or Johannesburg;
- 16.3.2 the cost of any additional materials used supplied; and
- 16.3.3 payments made by us to any government, telecommunications or municipal authority, which relates to the rendering of the Services.
17. Additional terms
- 17.1 The Customer must inform us of any faults or problems in the Software as soon as possible after any such fault or problem is discovered and provide our personnel with reasonable access to all equipment associated with the system on which the Software is operating.
- 17.2 All meetings will be remote, unless otherwise agreed. Each party must give the other notice of all items to be discussed at a meeting by no later than 16h00 two business days preceding the day on which the meeting is to be held. In the case of an adhoc meeting i.e. the consultant is not already booked for the Customer for the full day, and the Customer is a no-show or cancels the meeting less than 3 hours before starting the full time scheduled will be billed.
SECTION 3 – TERMS AND CONDITIONS APPLYING TO SUPPORT
NB: Please refer to the Annexure for Service Desk Processes & Operating Procedures and a breakdown of the support procedure including communication channels, categorisation, incident process and change approval processes
18. Support
- 18.1 The Customer must appoint representative/s who are authorised to request support. The Customer may replace your authorised representative/s by written notice to us. We will not be required to provide support unless requested to do so by your authorised representative/s.
- 18.2 Escalation procedures are set out in the annexure hereto.
- 18.3 All meetings will be remote, unless otherwise agreed. Meetings will count towards the support hours. Each party must give the other notice of all items to be discussed at a meeting by no later than 16h00 two business days preceding the day on which the meeting is to be held.
19. Support Hours
- 19.1 In the case of monthly support agreements, should the allocated hours not be used in any one month the unused hours may be rolled over and used in the following three months only.
- 19.2 Time sheets will be shared with the Customer the end of each month along with invoices.
20. Fees
- 20.1 All amounts quoted exclude VAT.
- 20.2 We will invoice on a monthly basis.
- 20.3 In the case of multi-year contracts, unless otherwise stated in our quotation, fees will increase on each anniversary of the date of commencement of our agreement by CPI. (“CPI” means the average rate of change (expressed as a percentage) in the Consumer Price Index for all metropolitan areas as published in the Government Gazette by Statistics South Africa, or such other index which may replace it.)
- 20.4 Please refer to the annexure for the procedure to be followed in the event that all allocated support hours have been utilised and there is still work that needs to be done.
- 20.5 All after-hours work is charged at time and a half.
21. Additional terms
- 21.1 Unless agreed to otherwise by the parties, we will not provide any of the following services:
- 21.1.1 support of accessories, attachments, machines, peripheral equipment, systems or other devices not supplied by us or any software other than the software we have agreed to support (‘Software’);
- 21.1.2 rectification or the recovery of lost or corrupted data arising from any reason other than our own negligence;
- 21.1.3 support rendered more difficult because of any changes, alterations, additions, modifications or variations, not performed by us, to the Software, or any other software;
- 21.1.4 attendance to faults caused by using the Software outside design or other specifications or outside the provisions laid down in any documentation or manual supplied with the Software;
- 21.1.5 diagnosis or rectification of problems not directly associated with the Software;
- 21.1.6 repairs or replacements necessitated by accidental damage, operator errors or assistance on hardware usage or service calls necessitated by causes external to the Software such as failures in the hardware on which the Software is operational.
ANNEXURE
Service Desk Processes & Operating Procedures
A breakdown of the support procedure including communication channels, categorisation, incident process and change approval processes.
DEFINITION
Incident
An Incident is defined as ‘any event which is not part of the standard operation of a service, and which causes, or may cause, an interruption to, or a reduction in the quality of a service’.
Incident Management
Incident management ensures that normal service operation is restored as quickly as possible, and the business impact is minimized.
Service Request
A Service Request is defined as any request for a New Service, Feature or Function that is not currently accessible within the Product, Process or Environment.
Request Fulfilment
Request Fulfilment ensures that the new service is provision and delivered within the agree time.
Change
The addition, modification, or removal of anything that could impact IT Services
Change Management
The Process responsible for controlling the Lifecycle of all Changes. The primary objective of Change Management is to enable beneficial Changes to be made, with minimum disruption to IT Services.