USER GENERAL TERMS AND CONDITIONS
made and entered into by and between:
OPENFARMS (PTY) LTD.
and
THE USER
1. INTRODUCTION
1.1 These Terms and Conditions (“Agreement”) govern the use of Onlyfarms.app, related mobi-sites and software applications (the “Website”) which is owned and operated by Openfarms (Pty) Ltd. ("Onlyfarms").
1.2 The Website is a digital platform that enables on-boarded farmers, buyers, investors, vendors, insurers and service providers (“Users”) to buy, sell, invest in and provide services ancillary or related to agriculture.
1.3 By registering on the Website and/or accessing the Website and/or using the Website, the User hereby agrees to be legally bound by this Agreement.
1.4 This Agreement applies to Users who are consumers for purposes of the Consumer Protection Act, 68 of 2008 (the “CPA”).
1.5 This Agreement contains provisions that appear in similar text and style which:
1.5.1 may limit the risk or liability of Onlyfarms or a third party;
1.5.2 may create risk or liability for the User;
1.5.3 may compel the user to indemnify Onlyfarms or a third party; and/or
1.5.4 serves as an acknowledgement, by the User, of a fact.
1.6 If the User does not understand this Agreement, it is its responsibility to ask Onlyfarms to explain before acceptance of the Agreement or continue using the Website.
1.7 This Agreement is not intended or understood to unlawfully restrict, limit or avoid any right or obligation, as the case may be, created for either the User or Onlyfarms in terms of the CPA.
1.8 The User must not use the Website if he/she does not agree with the terms and conditions contained herein.
1.9 Onlyfarms and the User (collectively referred to as the “Parties”) accordingly agree as set out herein.
2. COMMENCEMENT
This Agreement shall commence on the date the User registers on the website, alternatively uses or accesses the Website, thereby accepting the terms and conditions contained herein.
3. NON-COMPETE, NON-DIVERSION AND NON-DISCLOSURE
4. USE OF THE WEBSITE
4.1 To register as a User, the User must provide a unique username and password (“Credentials”) and provide certain information and personal details to Onlyfarms.
4.2 A User can only use the Website upon registration with Onlyfarms. The User’s Credentials will be needed to use and access the Website.
4.3 The User hereby agrees that once the correct Credentials to the User’s account have been entered, irrespective of whether the use of the Credentials is unauthorized or fraudulent, the User will be liable for payment of such order, save where the order is cancelled by the User in accordance with this Agreement.
4.4 The User hereby agrees to notify Onlyfarms immediately upon becoming aware of or reasonably suspecting any unauthorized access to or use of the User’s Credentials and to take reasonable and necessary steps to mitigate any resultant loss or harm.
4.5 Onlyfarms reserves its right to terminate unconfirmed and/or inactive accounts. In addition, Onlyfarms reserves its sole and absolute discretion to refuse or to terminate all or part of its services to the User for any reason whatsoever.
4.6 Onlyfarms may in its sole discretion terminate, suspend and modify the Website, with or without notice to the User. The User hereby agrees that Onlyfarms will not be liable to the User in the event that it chooses to suspend, modify or terminate the Website other than for processing any orders made by the User prior to such time, to the extent possible.
5. SERVICES AND AVAILABILITY
5.1 The User may place orders, which Users may accept or reject depending on circumstances including but not limited to Users growing capacity and non-compliance with any term of this Agreement.
5.2 Onlyfarms may accept an order depending on the availability of growing space, correctness of the information relating to the member, listed price and receipt of payment and/or payment authorisation by Onlyfarms for any order.
5.3 An agreement between Onlyfarms and the User shall only come into effect upon Onlyfarms’s acceptance of the order placed on the Website product. This is regardless of any communication from the Website stating that an order or payment has been finalised.
5.4 Prior to delivery of a Cannabis plant, the User may cancel an order at any time provided he/she does so before Onlyfarms receives a notice to dispatch or deliver the Cannabis plant.
5.5 The product agreement concluded on acceptance of the User’s order is solely between Onlyfarms and the User.
6. FEES AND PAYMENT
6.1 The User shall pay Onlyfarms a monthly payment as stipulated in the description of each subscription model (the "Usership Fee”). This Usership Fee is subject to change from time to time with reasonable notice to the User and Onlyfarms reserves the right to effect such change as and when it deems necessary.
6.3 The User shall pay all amounts used for transacting on the Onlyfarms platform into Onlyfarms’s bank account as set out below -
Bank:
Account number:
Branch code:
Reference:
6.4 Onlyfarms is committed to providing secure online payment facilities. All transactions are encrypted using appropriate encryption technology.
6.5 Payment shall be made by the User to Onlyfarms by direct bank deposit, instant electronic funds transfer (EFT), or credit card. Where a credit card is used, Onlyfarms may require additional information in order to authorise and/or verify the validity of payment. In such cases, the Website may not process the transaction, and Onlyfarms shall be entitled to withhold any services including payments of amounts due, owing and payable until such time as the additional information is provided and authorisation is obtained by Onlyfarms for the amounts. If such authorisation is not received, the order will be cancelled.
6.6 Once the User has selected a payment method, save for direct bank deposit, the User will be directed to a link to a secure site for payment of the applicable purchase price for the Cannabis plants.
7. SHIPPING AND DELIVERY
7.1 Onlyfarms provides access to several logistics suppliers for marketplace purchases and fulfilment of listed contracts. All delivery and tracking details including any special delivery charges of the order will be supplied to the User after checkout of the order by the logistics company appointed.
7.2 Onlyfarms cannot be held liable for the failure to fulfill deliveries under any circumstances whatsoever.
7.3 Onlyfarms simply refers users towards logistics suppliers for a referral fee and any agreement for the provision of logistics services does not entail any liability on Onlyfarms whatsoever in respect thereof.
8. RETURNS AND REFUNDS
8.1 Onlyfarms shall take all reasonable steps to ensure that goods and services purchased by users are delivered without any defects and in suitable packaging.
8.2 Onlyfarms accepts no liability for any loss suffered by the User.
9. UNDERTAKINGS AND LISTING CONDITIONS
9.1 The User undertakes that it shall not:
9.1.1 breach or circumvent any laws, third party rights or Onlyfarms’s policies;
9.1.2 fail to pay for the Services provided by Onlyfarms;
9.1.3 transfer its account including the Credentials on the Website to another User without the Website’s consent; and
9.1.4 infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights that belongs to or are licensed to the Website or another user registered on the Website.
9.2 Onlyfarms undertakes that it shall:
9.2.1 not to sell or make the User’s personal information available to any third party other than as provided in this Agreement;
9.2.2 provide secure online payment facilities encrypted using the appropriate encryption technology; and
9.2.3 take reasonable steps to ensure that the Website reflects the accurate description, availability, purchase price and delivery charges of any Cannabis related services.
10. LIMITATION OF LIABILITY
10.1 The use of the Website is entirely at the User’s own risk and the User assumes full responsibility for any risk or loss resulting from the use of the Website or reliance on any information on the Website.
10.2 Onlyfarms cannot be held liable for any inaccurate information published on the Website and/or any incorrect prices displayed on the Website, save where such liability arises from the gross negligence or wilful misconduct of Onlyfarms, its employees, agents or authorised representatives. The User is encouraged to contact Onlyfarms to report any possible malfunctions or errors by way of the Website’s help page.
10.3 Onlyfarms shall not be liable for any direct, indirect, incidental, special or consequential loss or damages which might arise from the User’s use of, or reliance upon, the Website or the content contained in the Website, or the User’s inability to use the Website, and/or unlawful activity on the Website and/or any linked third party website.
10.4 The Website disclaims liability for any damage, loss or expenses, whether direct, indirect or consequential in nature, arising out of or in connection with the User’s access to or use of the Website and/or any content therein unless otherwise provided by law.
10.5 The User hereby indemnifies Onlyfarms, its employees, agents and authorised representatives and holds any and all of them harmless against any claim, charge or criminal prosecution which may arise as a result of the User utilising the Website to deal or trade in or distribute or acquire any illegal substance or product, and Onlyfarms shall not be in any way responsible for any legal action or criminal prosecution which a User may face as a result of any misuse of the Website.
10.6 Whilst Onlyfarms shall do all things reasonably necessary to protect the User’s rights to privacy, including compliance with all applicable local laws, Onlyfarms cannot guarantee or accept any liability whatsoever for unauthorised or unlawful disclosure of the User’s personal information, whilst in Onlyfarms’s possession, made by third parties who are not subject to the Website’s control, unless such disclosure is as a result of the gross negligence or wilful misconduct of Onlyfarms, its employees, agents or authorised representatives.
10.7 Should the User disclose his/her personal information to a third party, such as an entity which operates a website linked to the Website or anyone other than this Website, Onlyfarms shall not be liable for any loss or damage, howsoever arising, suffered by the User as a result of the disclosure of such information to the third party. Onlyfarms cannot regulate or control how the third party uses the User’s personal information, and as such the User should ensure that he/she reads the privacy policy of any third party.
11. INDEMNITY AND WARRANTIES
11.1 By using the Website, the User warrants that he/she is 18 (eighteen) years of age or older and of full legal capacity. Should the User be under the age of 18 (eighteen) or not legally permitted to enter into a binding agreement, then the User may only use the Website only with supervision of a parent or legal guardian. If the parent or legal guardian supervises the User and gives his/her consent, then such person agrees to be bound to this Agreement and to be liable and responsible for the User and all of the User’s obligations under this Agreement.
11.2 The User agrees that it is making use of the Website at its own risk, and that the Website is provided to the User on an “as is” and “as available” basis.
11.3 The User agrees that the Website cannot guarantee a continuous operation of or access to services on the Website. Functionality of listings and promotions may not occur in real time and such functionality is subject to delays beyond Onlyfarms’s control.
11.4 The User hereby indemnifies Onlyfarms against any loss, claim or damage which may be suffered by the User or any third party arising in any way from the User’s use of the Website and/or any linked third party website.
11.5 The Website itself and all information provided on the Website is provided “as is” without warranty of any kind, either express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, completeness, or noninfringement, as may be allowed in law.
11.6 In addition to the limitation of liability and disclaimers contained in this Agreement, Onlyfarms also makes no warranty or representation, whether express or implied, that the information or files available on the Website are free of viruses, spyware, malware, trojans, destructive materials or any other data or code which is able to corrupt, destroy, compromise, disrupt, disable, harm, jeopardise or otherwise impede in any manner the operation, stability, security functionality or content of the User’s computer system, computer network, hardware or software in any way. The User accepts all risk associated with the existence of such viruses, destructive materials or any other data or code which is able to corrupt, compromise, jeopardise, disrupt, disable, harm or otherwise impede in any manner the operation or content of a computer system, computer network, any handset or mobile device or the User’s hardware or software, save where such risks arise due to the gross negligence or wilful misconduct of Onlyfarms, its employees, agents or authorised representatives. The Website thus disclaims all liability for any damage, loss or liability of any nature whatsoever arising out of or in connection with the User’s access to or use of the Website.
11.7 In respect of all obligations and liabilities which arise in respect of this Agreement entered into by and between Onlyfarms and the User, the User hereby irrevocably and unconditionally accepts and undertakes all such obligations and liabilities, and hereby indemnifies Onlyfarms including its employees, directors, agents and/or sponsors, in respect of any claim, action, damage, loss, liability, cost or expense which the User may pay, suffer, incur, or be liable for, as a result of any claim by any person in connection with the Website or provision of the Services by Onlyfarms through the Website, due to any actions or omissions of the User, or any of its staff, contractors, agents, representatives or appointees, whether wilful or negligent.
11.8 Onlyfarms endeavours to provide accurate and up-to-date information on the Website. However, Onlyfarms cannot be held responsible and liable for any errors, inaccuracies damage caused as a result of the use of, inability to use the Website.
11.9 The User’s indemnification of Onlyfarms shall cover all legal actions, suits, proceedings, claims, demands, costs and expenses whatsoever, which may be brought against Onlyfarms or incurred or become due and payable by Onlyfarms arising from or in respect of Services rendered in respect of the User's Cannabis plants on the Website, including but not limited to, any claims arising out of the Services provided by Onlyfarms to the User.
11.10 The Website disclaims liability for any damage, loss or expenses, whether direct or indirect or consequential in nature, arising out of or in connection with the User’s access to or use of the Website and/or any content therein.
11.11 For the avoidance of doubt, the User indemnifies Onlyfarms and holds it harmless for any and all damages or loss (including but not limited to loss of money, goods, goodwill or reputation) resulting directly or indirectly from:
11.11.1 from the Services provided via the Website;
11.11.2 the use of or inability to use the Website;
11.11.3 pricing, promotion, displaying or shipping on the Website;
11.11.4 delays or disruptions on the Website;
11.11.5 glitches, bugs, errors or inaccuracies of any kind on the Website; and 11.11.6 viruses or other malicious software obtained through the Website. 12. PRIVACY POLICY
12.1 Onlyfarms shall take all reasonable measures to protect the User’s privacy as more fully set out below.
12.2 Upon registration on the Website, Onlyfarms may require the User to provide personal information which includes but is not limited to, name, surname, email address, physical address, gender, mobile number and date of birth.
12.3 Should the User’s personal information change, he/she should inform Onlyfarms via the Website and provide updates to the personal information as soon as reasonably possible to enable Onlyfarms to update the personal information.
12.4 The User may choose to provide additional personal information to Onlyfarms, in which event the User agrees to provide accurate and current information, and not to impersonate or misrepresent any person or entity or falsely state or otherwise misrepresent an affiliation with anyone or anything.
12.5 Onlyfarms will not, without the User’s express consent:
12.5.1 use the User’s personal information for any purpose other than as set out below: 12.5.1.1 in relation to the Services;
12.5.1.2 to contact the User regarding current or new goods offered on the Website or any of Onlyfarms’s divisions, affiliates and/or partners (to the extent that the User has not opted out from receiving marketing material from Onlyfarms);
12.5.1.3 to inform the User of new features, special offers and promotional competitions offered by Onlyfarms or any of its divisions, affiliates and/or partners (to the extent that the User has not opted out from receiving marketing material from the Website); and
12.5.1.4 to improve the Website’s functionality and the User’s experience on the Website by, for example, monitoring the User’s browsing habits, or tracking the User’s activity; or
12.5.2 disclose the User’s personal information to any third party other than as set out below:
12.5.2.1 to the Website’s employees and/or third party service providers who assist Onlyfarms to interact with the User through the Website, email or any other method, for the requesting of the Services or when delivering the Cannabis plant to the User;
12.5.2.2 to Onlyfarms’s divisions, affiliates and/or partners (including their employees and/or third party service providers) in order for them to interact directly with the User by email or any other method for purposes of sending the User marketing
material regarding any current or new offers by them (unless the User has opted out from receiving marketing material from the Website);
12.5.2.3 to law enforcement, government officials, fraud detection agencies or other third parties when Onlyfarms believes in good faith that the disclosure of personal information is necessary to prevent physical harm or financial loss, to report or support the investigation into suspected illegal activity, or to investigate violations of this Agreement; and
12.5.2.4 to Onlyfarms’s service providers (under contract with Onlyfarms) who help with the parts of Onlyfarms’s business operations (fraud prevention, marketing, technology services etc.). However, our contracts dictate that these service providers may only use the User’s information in connection with the services they perform for the Website and not for their own benefit.
10.5.3 Onlyfarms is entitled to use or disclose the User’s personal information if such use or disclosure is required in order to comply with any applicable law, subpoena, order of court or legal process served on Onlyfarms, or to protect and defend Onlyfarms’s rights or property. In the event of a fraudulent online payment, Onlyfarms is entitled to disclose relevant personal information for criminal investigation purposes or in line with any other legal obligation for disclosure of the personal information which may be required of it.
10.5.4 Onlyfarms shall ensure that all of its employees, third party service providers, divisions, affiliates and partners (including their employees and third party service providers) having access to the User’s personal information are bound by appropriate and legally binding confidentiality obligations in relations to the User’s personal information.
10.5.5 Notwithstanding anything to the contrary, Onlyfarms shall not retain the User’s personal information longer than the period for which it was originally needed, unless the Website is required by law to do so, or the User consents to the Website retaining such information for a longer period.
11 CHANGES TO THE TERMS OF USE
Onlyfarms reserves its right to amend, update, change or replace any part of this Agreement and provisions contained herein at its sole and absolute discretion. Any amendment, update, change or replacement of this Agreement and provisions shall be delivered to the User by way of email, and the continued use of and access of the Website following any amendment, update, change or replacement of provisions shall constitute acceptance of same.
12 AVAILABILITY OF WEBSITE AND TERMINATION
12.1 Onlyfarms will use reasonable endeavours to maintain the availability of the Website, except during scheduled maintenance periods, and is entitled to discontinue providing the Website services or any part thereof with or without notice to the User.
12.2 Onlyfarms may, in its sole and absolute discretion, terminate the Agreement if the User fails to comply with any of the provisions contained herein.
12.3 The User hereby agrees that Onlyfarms will not be liable to the User in the event that it chooses to suspend, modify or terminate the Website other than for processing any orders made by the User prior to such time, to the extent possible.
12.4 Should the User fail to comply with its obligations under this Agreement, including any incident involving payment of the purchase price of an order, this may lead to a suspension and/or termination of the User’s access to the Website without any prejudice to any claim for damages or otherwise which Onlyfarms may have against the User.
12.5 Onlyfarms is entitled, for purposes of preventing suspected fraud and/or where it suspects that the User is abusing the Website and/or has created multiple user profiles to take advantage of a promotion intended by Onlyfarms to be used once-off by the User, to blacklist the User on the Website’s database (including suspending or terminating the User’s access to the Website), refuse to accept or process payment on any order, and/or to cancel any order concluded between the User and Onlyfarms, in whole or in part, on notice to the User. Onlyfarms shall only be liable to refund the User money already paid and accepts no other liability which may arise as a result of such blacklisting and/or refusal to process any order.
12.6 The User may, at any time, choose to terminate use of the Website, with or without notice to Onlyfarms.
13 GENERAL
13.1 Ownership and Copyright
The contents of the Website, including any material, information, data, software, icons, texts, graphics, lay-outs, images, sound clips, advertisements, video clips, trade names, logos, trade-marks, designs, service marks which are displayed on or incorporated on the Website (“Website Content”) are protected by law, including but not limited to copyright and trademark law. The Website Content is the property of Onlyfarms, its advertisers and/or sponsors and/or licensed to Onlyfarms.
13.2 Electronic Communications
The User hereby agrees and consents to receiving communication from the Website or any of its divisions electronically in accordance with the privacy laws of South Africa.
13.3 Warrant of Authority
Each Party, and the signatories hereto warrants to the other Party that it has the power, authority and legal right to sign and perform this Agreement and that this Agreement has been duly authorised by all necessary actions of its directors and constitutes valid and binding obligations on it in accordance with the terms of this Agreement.
13.4 Implementation and Good Faith
The Parties undertake to do all such things, perform all such acts and take all steps or procure the doing of all such things, the performance of all such acts and the taking of all such steps, as may be necessary or incidental to give or be conducive to the giving of effect to the terms, conditions and import of this Agreement. The Parties shall at all times during the continuance of this Agreement observe the principles of good faith towards one another in the performance of their obligations in accordance with the terms of this Agreement. This implies that they shall (i) at all times during the term of this Agreement act reasonably, honestly and in good faith; (ii) perform their obligations arising from this Agreement diligently and with reasonable care; and (iii) make full disclosure to each other of any matter that may affect the execution of this Agreement.
13.5 Whole Agreement
This Agreement constitutes the whole Agreement between the Parties as to the subject matter hereof and no Agreement, representations or warranties between the Parties other than those set out herein are binding on the Parties.
13.6 Cession and Delegation
The Parties agree that neither Party shall be entitled to cede, in whole or in part, any of its rights, or sub-license, delegate or sub-contract, in whole or in part, any of its rights or obligations, arising from this Agreement without the prior written consent of the other Party.
13.7 Variation
No addition to or variation, consensual cancellation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all the Parties or their duly authorised representatives.
13.8 Governing Law and Jurisdiction
The validity of this Agreement, its interpretation, the respective rights and obligations of the Parties and all other matters arising in any way out of it or its expiration or earlier termination for any reason shall be determined in accordance with the laws of South Africa. The Parties hereby consent to the adjudication of any dispute, to the degree that such dispute is not otherwise regulated in terms of this Agreement, by any South African court of competent jurisdiction; in accordance with, and in amplification of which, the Parties hereby specifically consent to the exclusive jurisdiction of such court. Nothing in this clause 13.8 or this Agreement limits the User’s right to approach any court, tribunal or forum of competent jurisdiction in terms of the Consumer Protection Act, No.
68 of 2008.
13.9 Relaxation
No latitude, extension or time or other indulgence which may be given or allowed by any Party to any other Party in respect of the performance of any obligation hereunder or enforcement of any right arising from this Agreement and no single or partial exercise of any right by any Party shall under any circumstances be construed to be an implied consent by such Party or operate as a waiver or a novation of, or otherwise affect any of that Party's rights in terms of or arising from this Agreement or estop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
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