Terms & Conditions

1. Interpretation

1.1. In these Terms the following expressions shall have the meanings assigned to them hereunder and cognate expressions shall bear corresponding meanings:

1.1.1. “Confidential Information” shall mean any non-public information pertaining to either Party’s business. Confidential Information includes information disclosed by one Party to the other party about either Party’s business, and information developed and learned by either Party in the course of the Services. Confidential Information includes any and all information which by its nature is confidential, such as, without limitation information and documents concerning either Party’s  processes, suppliers, clients (including but not limited to master clients), customer lists, advertising and marketing plans, business strategies, profit margins, seasonal plans, goals, objectives and projections, compilations, analyses, and projections regarding  stores, product segments, product lines, suppliers, sales and expenses, files, trade secrets and patent applications (prior to their being public), salary, staffing and employment information (including information about performance of other executives), "know -how," techniques and any technical information not of a published nature relating, for example, to how either Party or (a master client) conducts its business.

1.1.2. “Data Protection Legislation” means any data protection or data privacy laws applicable to either Party, as such laws are amended from time to time, including but not limited to the Protection of Personal Information Act 4 of 2013, the Electronic Communications and Transactions Act 26 of 2005, the Promotion of Access to Information Act, 2 of 2000, the Consumer Protection Act 68 of 2008 and the GDPR, and any law of similar application in the jurisdiction of the Client.

1.1.3. “Fee” shall mean the fee payable by the Client to ThinkStory in terms of any quote, in terms of the business terms, or as otherwise agreed to or due by the Client.

1.1.4. “the Parties” shall mean ThinkStory and the Client collectively and “Party” shall mean any one of them, as determined by the context.

1.1.5. “Personal Information” shall mean personal information as defined in the Protection of Personal Information Act 4 of 2013 (or any similar legislation in the jurisdiction of the Client), including special personal information and any other applicable law related to the processing, protection, and privacy of personal data.

1.1.6. “Services” shall mean the services which ThinkStory will render to the Client as agreed to from time to time.

1.1.7. “Terms” shall mean these terms and conditions.

1.2. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.

1.3. When any number of days is prescribed in these Terms, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday. In reckoning any number of days, Saturdays, Sundays and public holidays shall not be included.

1.4. Expressions defined in these Terms shall bear the same meanings in schedules or annexures to these Terms which do not themselves contain their own conflicting definitions.

1.5. Reference to day/s, month/s or year/s shall be construed as Gregorian calendar day/s, month/s or year/s.

1.6. Where any term is defined within the context of any particular clause in these Terms, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of these Terms, notwithstanding that that term has not been defined in this interpretation clause.

1.7. The expiration or termination of these Terms shall not affect such provisions of these Terms that expressly provide that they will operate after any such expiration or termination or which must continue, by necessity, to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

1.8. The rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply.

1.9. Any reference in these Terms to a Party shall include a reference to that Party’s assigns expressly permitted under these Terms and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be.

1.10. The words “include”, “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding word/s.

1.11. The words “other” and “otherwise” shall not be construed eiusdem generis with any preceding words where a wider construction is possible.

1.12. Clause headings are for convenience only and shall not be used in their interpretation unless the context indicates a contrary intention.

1.13. Unless the context indicates a contrary intention, any expression which includes:

1.13.1. any gender includes the other genders;

1.13.2. a natural person includes an artificial person and vice versa; and

1.13.3. the singular includes the plural and vice versa.

2. The Services

2.1. ThinkStory undertakes that the Services will be performed in a professional and workmanlike manner.

2.2. The Client is obliged to provide ThinkStory with any and all information required by ThinkStory for it to effectively and properly render the Services.

2.3. Each Party undertakes to comply with all applicable laws, ordinances, rules, and regulations during the Term.

2.4. Nothing in these Terms shall limit or restrict ThinkStory’s ability to render the Services to any third party at any time during the Term or otherwise.

2.5. ThinkStory shall not be liable in any manner whatsoever for any delays in the Services caused by the culpable or negligent conduct of the Client (including its employees, contractors, agents, or any third party associated with the Client). Without limiting the generality of the aforegoing, the Client shall not be entitled to terminate these Terms or withhold payment of the Fee in circumstances where a delay caused by it (or the third parties referred to in the previous sentence) prevents performance of the Services.

3. Payment

3.1. Should the relationship between the Client and ThinkStory terminate for any reason whatsoever before the Services can be fully rendered, the Client shall be obliged to compensate ThinkStory for Services rendered up until date of cancellation.

3.2. Should any invoice not be paid in part or in full by or on the date the payment for such invoice is due:

3.2.1. the amount outstanding shall attract interest at the prime rate of interest as published by ThinkStory’s bankers, plus 5% from the due date until date of payment, compounded monthly in arrears;

3.2.2. ThinkStory shall be entitled to suspend rendering any further Services until such time as the amount outstanding is paid; and/or

3.2.3. ThinkStory shall be entitled to summarily cancel these Terms, without prejudice to any of its rights in law or arising from these Terms.

4. Confidentiality

4.1. In the course of the provision of Services, each Party (“the Disclosing Party”) may share Confidential Information with the other Party (“the Receiving Party”). In order to protect such Confidential Information, the Receiving Party undertakes in favour of the Disclosing Party that:

4.1.1. all information disclosed, shown or provided by or on behalf of the Disclosing Party to the Receiving Party, including the Receiving Party’s agents, representatives, advisers or employees shall be kept confidential and the Receiving Party shall not disclose, whether in writing or orally, in whole or in part, Confidential Information to any person;

4.1.2. the Receiving Party shall not use, either directly or indirectly, any Confidential Information for any purpose whatsoever, except where otherwise agreed to in writing;

4.1.3. all Confidential Information shall remain the property of the Disclosing Party;

4.1.4. the Receiving Party warrants and undertakes in favour of the Disclosing Party that it is obligated not to use or disclose the Confidential Information obtained in the course of these Terms, and the Receiving Party shall take all reasonable steps to ensure that the Confidential Information is not used or disclosed by itself.

4.2. The confidentiality undertakings in this clause 4 shall survive the termination of these Terms and shall continue for a period of one year following the termination of these Terms.

4.3. The Receiving Party acknowledges that if it breaches any term of this clause 4, such breach will cause irreparable harm and give rise to a claim by the Disclosing Party against the Receiving Party.

4.4. Each Party shall maintain strict confidentiality in relation to the terms and conditions of these Terms and shall only reveal any of the terms and conditions of these Terms with the prior written consent of the other Party.  Notwithstanding the provisions of the previous sentence, each Party shall be able to make disclosure of the terms and conditions of these Terms to their professional advisors, as required by any applicable law, or for purposes of litigation.

5. Warranties And Indemnities

5.1. Both Parties warrant that they are under no disability, prohibition or restriction, whether contractual or otherwise which restricts their ability to enter into and to perform in terms of these Terms.

5.2. The Client warrants that, in providing any Personal Information to ThinkStory during the negotiation or implementation of these Terms:

5.2.1. it has the right to provide the Personal Information to ThinkStory;

5.2.2. ThinkStory will be lawfully entitled to use the Personal Information for the purpose for which it was provided to ThinkStory;

5.2.3. The Client has and will comply with any Data Protection Legislation.

5.2.4. The Client agrees and hereby indemnifies, saves and holds ThinkStory harmless from any and all claims and any and all harm, loss, damage, injury (whether directly, indirect, consequential or otherwise suffered by ThinkStory, its directors, employees, agents, as a result of or in connection with the Services rendered by ThinkStory to the Client in terms of these Terms from whatsoever cause arising.

6. Limitation Of Liability

6.1. Each Party’s liability to the other under these Terms shall be limited to an amount equivalent to amounts paid to ThinkStory by the Client over the six months preceding the event giving rise to a liability in terms of these Terms.

7. Intellectual Property

7.1. The Client hereby grants to ThinkStory (and ThinkStory’s contractors as necessary) a limited, non-exclusive, royalty-free licence to use, reproduce and modify any intellectual property of the Client provided to ThinkStory (including but not limited to trademarks) for the purposes of providing the Services.

8. Processing Of Personal Information

8.1. Each Party shall comply with the provisions of all Data Protection Legislation, that apply in relation to any Personal Information processed in connection with these Terms and/or the Services and render such assistance and co-operation as may be reasonably necessary or reasonably requested by the other Party, including, but not limited to the provision of information regarding the existence, applicability, and the extent of application of data protection laws to Personal Information.

8.2. Each Party shall ensure that appropriate technical and organisational measures shall be taken by it against unauthorised or unlawful processing of Personal Information and against the accidental loss or disclosure or destruction of or damage to such Personal Information.  

9. Breach

9.1. Should either Party breach any provision of these Terms ("the Defaulting Party") and fail to remedy such breach within 14 days of receiving written notice from the other Party ("the Aggrieved Party") requiring it to do so, then the Aggrieved Party shall be entitled, without prejudice to any other rights that it may have, whether under these Terms or in law, to cancel these Terms without notice or to claim immediate specific performance of all of the Defaulting Party's obligations, whether or not due for performance, in either event without prejudice to the Aggrieved Party's right to claim damages.

9.2. In circumstances where ThinkStory terminates these Terms arising from any breach of the terms of these Terms by the Client, it shall be entitled to the full Fee, which Fee shall become due, owing and payable on demand by ThinkStory from the Client.

10. Domicilium

10.1. The Parties choose domicilium citandi et executandi for all purposes of the giving of any notice, the serving of any process and for any other purpose arising from these Terms the address listed above or at such other address, not being a post office box, of which the Party concerned may notify the other in writing.

10.2. Any notice given in terms of the Agreement shall be in writing and shall:

10.2.1. if delivered by hand be deemed to have been duly received by the addressee on the date of delivery;

10.2.2. if posted by prepaid registered post be deemed to have been received by the addressee on the 10th (tenth) business day following the date of such posting;

10.2.3. if transmitted by e.mail, be deemed to have been received by the addressee 1 (one) business day after the successful transmission thereof;

10.3. Notwithstanding anything to the contrary contained in these Terms, a written notice or communication actually received by one of the Parties from another including by way of e.mail transmission shall be adequate written notice or communication to such Party.

11. No Variation

11.1. No addition to, variation of, novation, or agreed cancellation of these Terms shall be of any force or effect unless in writing and signed by or on behalf of the Parties.

12. Sole Agreement

12.1. This Agreement constitutes the sole record of the Agreement between the Parties and supersedes all previous Agreements.  Neither Party shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein.

13. No Waiver

13.1. No relaxation or indulgence which any Party may grant to any other shall constitute a waiver of the rights of that Party and shall not preclude that Party from exercising any rights which may have arisen in the past or which might arise in the future.

14. Force Majeure

14.1. Neither Party to these Terms shall be liable for any loss suffered by the other party arising out of the prevention of performance of either Party's obligations due to any cause which the Parties could not and cannot reasonably and practicably avoid including but not limited to storm, earthquake, pandemic, flood, riot, national state of emergency, war or any other force majeure occurrence which prevents the fulfilment of the obligations in terms of these Terms.

14.2. In the case of force majeure, the Party whose performance is delayed or prevented shall immediately give notice in writing to the other Party.  If either Party's performance is delayed by such a cause, the Party whose performance has been delayed shall be entitled to an extension of a period not exceeding 15 days for the performance of its obligations in terms of these Terms.  If the performance is or will be delayed for a period longer than 15 days, performance shall be deemed to have been prevented.

14.3. If any Party's performance is prevented by such a cause, the Parties shall either negotiate in good faith for a period of 30 days and make any adjustments and/or refunds of the considerations set forth in these Terms and/or alter the obligations to be undertaken in terms of these Terms.  If an Agreement cannot be reached within 30 days, then these Terms shall terminate and the Parties shall make good such financial adjustments between them as they between them may deem to be equitable.

15. Costs

15.1. Each Party shall bear its own costs of and incidental to the negotiation, preparation, settling, signing and implementation of these Terms.

16. Assignment And Subcontracting

16.1. Neither Party shall be entitled to cede its rights or assign its obligations to any third party without the prior written consent of the other Party.

16.2. ThinkStory shall be entitled to subcontract its obligations in these Terms to any third party it deems appropriate, subject to ThinkStory remaining primarily obliged to fulfil the Services to the Client.

17. No Partnership Or Employment

17.1. This Agreement shall not be deemed to create any partnership, joint venture or employment relationship between the Parties.

18. Counterpart

18.1. The signature by any Party of a counterpart of these Terms shall be as effective as if that Party had signed the same document as all of the other Parties.

19. Governing Law

19.1. These Terms and the agreement between the Parties relating to the Services shall be governed and interpreted in accordance with the procedural and substantive laws of the Republic of South Africa and the parties hereby consent to the jurisdiction of the South African courts in the event of any dispute or litigation arising between them.