Membership
Agreement
SOCIAL CLUB
MEMBERSHIP AGREEMENT
entered into between
INFUSION (PTY) LTD T/A
INFUSION SOCIAL CLUB
and
THE CLIENT
WHEREAS Infusion (Pty) Ltd. (the “Club”) operates as a private, members-only, cannabis cultivation and social club for its members. Infusion facilitates the provision of professional horticultural services, packaging and administration services to its members such that they are enabled by the Club to collectively and privately cultivate cannabis plants, for their personal consumption, in private.
WHEREAS the Client is desirous of utilising the services of for the private cultivation, processing and packaging of the Client’s personal cannabis, for the Client’s personal use, in a private space, as required for the purposes set out herein, due to the Client’s personal circumstances in that they do not possess the requisite knowledge, skill, space or infrastructure to grow their personal cannabis to the high standard of quality and safety that they require;
WHEREAS the Client wishes to appoint the Club as an agent to lease out certain private, secure, cannabis cultivation space, as well as appoint a professional horticultural service provider to tend to the Client’s crop cultivated on that space, on their behalf for their personal use, as set out in Annexure A (“Grower Agreement”) hereto;
WHEREAS the professional horticultural service providers that the Club appoints on behalf of the Client, have represented to the Club that they possess the requisite skill and experience in rendering the horticultural expertise necessary to cultivate the desired crop for the Client, and has sufficient capacity and resources to perform the cultivation services in accordance with the terms of this Agreement and the Grower Agreement;
WHEREAS the Club does not sell, trade in, deal in, distribute or otherwise directly commercialise the cannabis crop cultivated in terms of this Agreement and the Growers Agreement. Rather the Club intends to remain at all times a facilitator of leases, professional horticultural services, processing, packaging and distribution services to its clients in respect of their privately and collectively owned, cultivated and consumed cannabis.
Accordingly, the Client and the Grower, enter into this Agreement with effect from the Commencement Date, subject to the conditions recorded herein, including all Annexures hereto. both the Client and the Club acknowledge that this Agreement is binding and the services provided herein are only permissible and valid when rendered directly through the Club and no other entity, individual or company providing the same or similar services. The Client further acknowledges that they will be held liable by INFUSION (Pty) Ltd for damages suffered by the Club due to any breach of this Agreement by the Client.
1. REGISTRATION
1.1. To be able to register successfully as a member, the Client must provide the Club with relevant information and personal details filled in on the club membership form on the Application. Upon approval and validation of these details, the Club will provide the Client with a unique username and password (“Credentials”) to access service-related offerings via the members portal.
1.2 By registering with the Club, the Client will:
1.2.1 become a private member of the Club;
1.3.2be given right of use of the application of the Club.
1.4.3 gain access to private facilities of the Club.
1.3. gain access to the private holding facilities and designated collection points of the Club for the collection of the Client’s personal cannabis.
1.4. By registering on the Application and/or accessing the Application and/or using the Application, the Client hereby agrees to be legally bound by this Agreement, regardless of whether the Client has expressly signed or assented to the terms and conditions contained in this Agreement, and in particularly has provided a valid identity document proving compliance with the minimum age for clients of 18 years.
2. CLUB MEMBERSHIP SERVICES
2.1. The service provider shall provide the Services to the Client as more fully set out hereinunder which Services the Client accepts in exchange for the Membership Fee.
2.2. The Parties have agreed to the terms and conditions upon which the service provider shall render the Services to the Client for which the Client shall pay.
2.3. The Client warrants that the services of INFUSION (Pty) Ltd have been procured solely for the cultivation of the crop for the Client’s own personal use and the Client warrants that he/she in no way intends to sell, deal in, trade, distribute or commercialise the harvest of cannabis in contravention of any Laws of the Republic of South Africa.
2.4. The Club warrants that the services rendered to the Client in terms of this agreement are solely for the private cultivation of cannabis for the Client’s personal use.
2.5. In the event that the Client contravenes the provisions contained in clause 2.1 – 2.4, the Client hereby indemnifies the Grower INFUSION (Pty) Ltd and all it’s service providers against all damages and/or claims, of a civil and/or criminal nature, arising from the Client’s contravention of the provisions contained in clause 2.1 – 2.4, to the extent that the Grower and INFUSION (Pty) Ltd are not found to be involved in the contravention under reference.
2.6. In the event that the Grower contravenes the provisions contained in clause 2.1 – 2.4, the Grower indemnifies the Client and INFUSION (Pty) Ltd against all damages and/or claims, of a civil and/or criminal nature, arising from the Grower’s contravention of the provisions contained in clause 2.1 – 2.4, to the extent that the Client and INFUSION (Pty) Ltd are not found to be involved in the contravention under reference.
2.7. The Client’s membership and Services will be terminated with immediate effect in the event that the Client contravenes the provisions contained in clause
2.1 – 2.4.
2.8. The membership model offered to the client by INFUSION (Pty) Ltd and the related services rendered by the Grower are in accordance with the law currently, notwithstanding this legal framework may therefore be subject to change as new legislation is drafted and enacted. The provisions of this Agreement are therefore also subject to change in accordance with the changing law.
2.9. Within a period of three months the Client will have their private and collectively owned cannabis made available to them under this agreement securely stored by INFUSION (Pty) Ltd.
2.10. Harvest and Collection:
2.10.1. The client undertakes to personally collect their cannabis crop within 14 (fourteen) days after notification from INFUSION (Pty) Ltd, which collection time must be pre-arranged with INFUSION (Pty) Ltd. The Client will further be required to provide proof of identification upon collection.
2.10.2. The harvest of the Client’s Cannabis crop includes the curing, drying and storing of the harvest by the Grower in a diligent and a professional manner, in accordance with the accepted practices and high professional standards currently used in performing these services. The Grower will safely store the Cannabis harvest and ensure that the harvest is correctly labelled to correspond with the client’s leased cultivation space.
4. PRIVACY
4.1. The Club facilitates leasing portions of a private horticultural cultivation facility and Social Clubs on behalf of and on instruction of their Clients. The Client leases a portion of land upon which the cannabis product is grown exclusively and upon instruction of the Client; transferred to the location of the Club; kept in a private holding space exclusively for the Client (to which only the Client and their proxy have access); and provides a private space to the Client to consume their own product within the confines of the Club, in exchange for a membership fee.
4.2. The Club shall take all reasonable measures to protect the Client’s privacy as more fully set out below.
4.3. Upon registration, the Club may require the Client to provide personal information which includes but is not limited to, name, surname, email address, physical address, gender, mobile number and date of birth.
4.4. Should the Client’s personal information change, he/she should inform the Club via reasonable notice and provide updates to the personal information as soon as reasonably possible to enable the Club to update the personal information.
4.5. The Client may choose to provide additional personal information to the Club, in which event the Client 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.
4.6. The Club will not, without the Client’s express consent:
4.6.1. Use the Client’s personal information for any purpose other than as set out below:
4.6.1.1. in relation to the Services;
4.6.1.2. to contact the Client regarding current or new goods offered or any of the Club’s divisions, affiliates and/or partners (to the extent that the Client has not opted out from receiving marketing material from the Club);
4.6.1.3. to inform the Client of new features, special offers and promotional competitions offered by the Club or any of its divisions, affiliates and/or partners (to the extent that the Client has not opted out from receiving marketing material from the Club); and
4.6.1.4. disclose the Client’s personal information to any third party other than as set out below:
4.6.1.4.1. to the Club’s employees and/or third-party service providers who assist the Club to interact with the Client through email or any other method, for the requesting of the Services;
4.6.1.4.2. to the Club’s divisions, affiliates and/or partners (including their employees and/or third-party service providers) in order for them to interact directly with the Client by email or any other method for purposes of sending the Client marketing material regarding any current or new offers by them (unless the Client has opted out from receiving marketing material from the Club);
4.6.1.4.3. to law enforcement, government officials, fraud detection agencies or other third parties when the Club 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
4.6.1.4.4. to service providers (under contract with the Club) who help with the parts of the Club’s business operations (fraud prevention, marketing, technology services, etc.).
4.7. The Club is entitled to use or disclose the Client’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 the Club, or to protect and defend the Club’s rights or property.
4.8. The Club 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 Client’s personal information are bound by appropriate and legally binding confidentiality obligations in relations to the Client’s personal information.
4.9. Notwithstanding anything to the contrary, the Club shall not retain the Client’s personal information longer than the period for which it was originally needed, unless it is required by law to do so, or the Client consents to the retaining of such information for a longer period.
4.10. The Client hereby warrants that it shall provide to the Club all the requested information as set out in the Information Sheet or on the Application.
4.11. Given the sensitive nature of the information provided, the Club hereby warrants that:
4.11.1. it has complied and shall remain to comply with all provisions of the Protection of Personal Information Act 4 of 2013;
4.11.2. all relevant checks, tests, safeguards and procedures in terms of the aforesaid Act have been followed and adequately adhered to; and
4.11.3. all relevant permissions, waivers, authorisation, approvals and necessary consent has been obtained.
4.12. The Client hereby indemnifies the Club against any and all claims that may arise as a result of a failure on the part of the Club to comply with any provision of the Protection of Personal Information Act 4 of 2013.
5. USE OF APPLICATION
5.1. The Application is a web-based, online, private portal that provides access to the information of Clients of their privately and collectively owned cannabis and by-products produced and sourced by Clients of the Club.
5.2. The Client may only use the Application after successful registration with the Club. The Client’s Credentials will be needed to use and access the portal.
5.3. Access may also be granted on-site at all physical locations of the Club on scrutiny of a completed and signed application form on-site.
5.4. The Client hereby agrees that once the correct Credentials to the Client’s account have been entered, irrespective of whether the use of the Credentials is unauthorized, the Client will be liable for payment of such membership, save where the membership is cancelled by the Client in accordance with this Agreement.
5.5. The Club reserves its right to terminate unconfirmed and/or inactive accounts. In addition, the Club reserves its sole and absolute discretion to refuse or to terminate all or part of its services to the Client for any reason whatsoever.
5.6. The Club may in its sole discretion terminate, suspend and modify the Application, with or without notice to the Client. The Client hereby agrees that the Club will not be liable to the Client in the event that it chooses to suspend, modify or terminate the Application other than for processing any orders made by the Client prior to such time, to the extent possible.
6. DURATION
6.1. This Agreement shall commence on the date of signature of all parties hereto and shall continue for a period of 2 (two) years (Initial Period).
6.2. The client shall have the option to renew this Agreement after the Initial Period for a further 1 (one) year period and on the same terms and conditions contained herein between the Parties. Should the client elect to exercise the option as aforesaid, it shall do so by giving INFUSION (Pty) Ltd 2 (two) months’ written notice prior to expiry of the Initial Period.
6.3. Upon expiry of the Initial Period referred to in clause 6.1, if the client does not exercise the option to renew this Agreement as set out in clause 6.2, this Agreement shall automatically terminate.
6.4. Upon expiry of this Agreement the Client will have 14 (fourteen) days within which to collect their seed/s and/or crop/s and/or harvest/s. The Client consents to the destruction of their seed/s and/or crop/s and/or harvest/s in the event that the same is not collected within 1 (one) month from the date of expiry of this Agreement.
6.5. Either the Client or INFUSION (Pty) Ltd may terminate this Agreement subject to the termination provisions contained in clause 16 and 17.
6.6. Each party hereto confirms that they have read, understood and accepts the terms and conditions contained herein and in all and any attachment hereto.
7. FEES, DEDUCTIONS AND PAYMENTS
7.1. The Parties agree that the Client shall be liable to pay the Membership Fee in advance, as set out on the member`s indemnity form, which payment will commence on the Registration Date and thereafter on the same day of each subsequent month, or as agreed between the Club and the Client.
7.2. All payments made by the Client to the Club shall be made without set-off and/or deduction.
7.3. In due course as the Club develops, Clients shall become entitled to allied and affiliate programs; such extra membership entitlements might require additional levies.
7.4. All payments made by the Client to the Club shall be inclusive of VAT (if applicable) unless otherwise stipulated.
7.5. The Membership Fee is subject to change from time to time with reasonable notice to the Client and the Club reserves the right to effect such change within its discretion.
7.6. The Client shall pay the Membership Fee into the Club’s bank account, which details are set out on the membership form.
7.7. Payment shall be made by the Client to the Club by direct bank deposit, instant electronic funds transfer (EFT), or credit card. Where a credit card is used, the Club may require additional information in order to authorize and/or verify the validity of payment. If such authorization is not received, the order will be cancelled.
7.8. Any increase in the Club’s cost of supplying services caused by any level of governmental law, regulation, tax, or other burden imposed after the date of this Agreement on the ownership, storage, processing, production, distribution or use of the Cannabis covered by this Agreement will be added to the price under this Agreement after notice of such increase has been provided to the Client.
8. CLIENT, CLUB & GROWER WARANTIES
8.1. The Client:
8.1.1. The Client confirms that he/she understands the contents of and accepts the specifications of the membership model the Client has selected.
8.1.2. The Client agrees that it is and will remain the sole lawful owner of the seed/s, crop/s and harvest/s produced on their assigned cultivation space throughout the membership period, and the rights contained herein may not be ceded or assigned to any third party. If the Client decides not to continue growing or elects to terminate this agreement then all product from his harvest will be disposed of and all plants will be destroyed. It is not permissible for the Client to remove any plant or crop once the agreement has been terminated.
8.1.3. The Client undertakes to pay the monthly membership fee for membership and the fee for growing. Failure to pay the monthly fees will result in a suspension of the services contemplated herein and the client will be afforded 14 (fourteen) days within which to rectify payment. Failure to rectify payment within 14 (fourteen) days will result in termination of the Membership and Lease. It is noteworthy that without the requisite lease in place, Client will not be operating within the confines of this Agreement and may be in breach of the law.
8.1.4. The Client agrees that any additional services or specific inputs not included in the selected membership model will be charged at an additional cost to the client as quoted and agreed between the parties in terms of the specific additional fee structure.
8.1.5. The Client undertakes to personally obtain the seed/s of the desired crop from a supplier and INFUSION (Pty) Ltd will assist to deliver the seed/s to the Grower for cultivation.
8.1.6. The Client acknowledges that he/she has a limited visitation right to the cultivation space and supervised visitation thereto must be pre-arranged with INFUSION (Pty) Ltd. The Client further undertakes to abide by the visitation safety and security regulations as set in Annexure B (“Code of Conduct”).
8.1.7. If the Client does not understand this Agreement, it is the Client’s responsibility to ask the Club to explain before acceptance of the Agreement or continue using the Application.
8.1.8. The Client hereby agrees to uphold the rules of the club set out in Annexure B (“Code of Conduct”) and Annexure C (“Constitution”) attached hereto.
8.2. The Club warrants that it shall:
8.2.1. at all times ensure that in choosing its service providers, the highest standards of quality and processing of the Client’s cannabis in all its formats, including raw flower, oil, distillates, edibles and all future formats, are adhered to;
8.2.2. take all reasonable precautions to guard against any loss to the Client through the failure of the Club, its employees, partners, agents, contractors, representatives and/or associates to execute their respective commitments properly and on time and to carry out the Services as agreed;
8.2.3. ensure that the Services shall be carried out in accordance with the industry best practices in which the Services are to be performed;
8.2.4. timeously advise the Client of any circumstances or events which may prevent or inhibit the Club in the carrying out of the Services;
8.2.5. not action any work, beyond the scope of the Services, without obtaining the prior written approval of the Client;
8.2.6. issue detailed and complete invoices and statements timeously, where applicable;
8.2.7. carry out, conscientiously all such functions and duties as are reasonable upon the instruction of the Client;
8.2.8. observe the standards and principles set out by the Club, from time to time, in the conduct of its business; and
8.2.9. abide by the current and future customs, rules, policies and regulations of the industry, including respecting the membership holder’s right to privacy and complying with the provisions of the POPI Act which regulates the manner in which the Club collects, processes, stores, shares and destroys any personal information which you have provided us.
8.3. The Grower:
8.3.1. On and from the commencement date, the Grower will provide the cultivating expertise as per the Client’s preference.
8.3.2. The Grower will not purchase the seed/s on behalf of the Client but will, upon request by the Client, offer advice on the type of seeds to be procured for the client’s desired personal use.
8.3.3. Upon delivery of the seed/s by the Client, the Grower will undertake to plant the seed/s and commence with the photographic and Grow Diary process of record keeping as required by INFUSION (Pty) Ltd.
8.3.4. The Grower acknowledges that the Client is and will remain the sole lawful owner of the seed/s, crop/s and harvest/s produced on the Client’s assigned patch throughout the membership period.
8.3.5. The Grower acknowledges that the cultivation of the Client’s crop/s is strictly for the personal use of the Client only.
8.3.6. The Grower undertakes to supply the professional horticultural services in respect of the Client’s crops promptly, diligently and in a professional manner, in accordance with the practices and high professional standards expected of a professional horticultural expert specialising in cannabis cultivation.
8.3.7. The Grower acknowledges that the Client has a limited visitation right to the Client’s Leased cultivation space and supervised visitation thereto must be pre-arranged with INFUSION (Pty) Ltd.
9. WAIVERS
9.1. The Club does not warrant any specific level of strength, potency or concentration in respect of the Cannabis.
9.2. The Client hereby indemnifies the Club and its dispensers and practitioners and holds them harmless against any and all claims of whatsoever nature and howsoever arising in relation to the use, possession or transport of the Client’s Cannabis as obtained by the Client through the Club, or any rights and obligations contained in this Agreement, specifically the provision by the Club of the Services, direct or indirectly, and whether such claim arose as a result of any negligent conduct on the part of the Club.
9.3. Neither Party shall be liable for any consequential, indirect, general or punitive damages arising in terms of this Agreement.
10. RELATIONSHIP BETWEEN THE PARTIES
10.1. The Parties record that the Club shall fulfil its obligations in terms of this Agreement as an independent contractor, and not as a labour broker, employee or agent of the Client.
10.2. Save as otherwise provided herein, neither Party shall be entitled to bind the other Party to any obligation of any nature whatsoever or to incur any liability on behalf of the other Party, whether in contract or otherwise.
11. LIABILITY
11.1. The use of the services provided by the Club is entirely at the Client’s own risk and the Client assumes full responsibility for any damage or loss resulting from the use of the Services.
11.2. The Club cannot be held liable for any inaccurate information published on the Client’s Information Sheet and/or any incorrect prices displayed on the Client’s Information Sheet, save where such liability arises from the gross negligence or wilful misconduct of the Club, its employees, agents or authorised representatives.
11.3. The Club shall not be liable for any direct, indirect, incidental, special or consequential loss or damages which might arise from the Client’s use of, or reliance upon, the Services contemplated in this Agreement.
11.4. The Client hereby indemnifies the Club, 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 Client utilising any Cannabis to deal or trade in or distribute or acquire any illegal substances or products, and the Club shall not be in any way responsible for any legal action or criminal prosecution which a Client may face as a result of any misuse of the Services or Cannabis.
11.5. The Client’s indemnification of the Club shall cover all legal actions, suits, proceedings, claims, demands, costs and expenses whatsoever, which may be brought against the Club or incurred or become due and payable by the Club arising from or in respect of Services rendered in respect of the Client’s Cannabis, including but not limited to, any claims arising out of the Services provided by the Club to the Client.
11.6. Whilst the Club shall do all things reasonably necessary to protect the Client’s rights to privacy, including compliance with all applicable local laws, the Club cannot guarantee or accept any liability whatsoever for unauthorised or unlawful disclosure of the Client’s personal information, whilst in the Club’s possession, made by third parties who are not subject to its control, unless such disclosure is as a result of the gross negligence or wilful misconduct of the Club, its employees, agents or authorised representatives.
12. SHIPPING AND DELIVERY
12.1. The Club will offer delivery of the Cannabis by courier directly to the Client’s home or office, anywhere in South Africa. Delivery details including the delivery fees of the order will be supplied to the Client.
12.2. Delivery fees associated with the Client’s cannabis are not included in the Membership Fee. Delivery fees will be charged separately and in accordance with the Club’s courier service fee. The Club’s designated courier will be responsible for delivery of the Client’s Cannabis to the Client’s specified geographical area. The Client’s geographical area will be selected by the Client on the Application.
12.3. To the extent that the Application accepts the Client’s order, the Club will notify the Client of the date of the expected delivery, which expected delivery may be agreed upon as between the Club and the Client.
12.4. The Club shall notify the Client in the event that the Club is unable to deliver the Client’s Cannabis during the Delivery Period.
12.5. In the event that the Client’s Cannabis cannot be delivered in any given month for any reason whatsoever, the Club shall communicate this to the Client as soon as reasonably practical. Where the order was cancelled as a result of events within the Club’s control, the Club shall reimburse the Client all amounts paid by the Client for the month in which no delivery could take place, subject to compliance with any applicable cancellation policies and procedures applicable from time to time. To the extent that delivery of any Cannabis became impossible for any reason beyond the control of the Club, the Club shall not be obliged to refund the Client the Membership Fee for the month in question but may elect to do so in its sole and absolute discretion.
12.6. Prior to delivery of the Cannabis, the Client will receive an email notification confirming delivery at an address nominated by the Client. Should the Client fail to respond to the email notification, the Club will assume that no change in address has been made and the Club will deliver the Cannabis to the address nominated by the Client.
12.7. The Club’s obligation to deliver the Cannabis to the Client is fulfilled upon delivery of the Cannabis to the physical address nominated by the Client for delivery. The Club is not responsible for any loss or unauthorized use of the Cannabis after the Cannabis has been delivered to the physical address nominated by the Client.
12.8. Should the Client provide the Club with incorrect address details for the delivery of the Cannabis, the Client will be liable for a double fee payable to the courier service which will be debited from the Client’s account.
13. RETURNS AND REFUNDS
13.1. In the event that the Club accidentally provides the wrong Cannabis to the Client, or if the Cannabis is not as described on the Information Sheet, the Client shall be entitled to notify the Club and the Club shall use its Best Endeavours to correct the error, based on the Client’s complaint, at no additional charge.
13.2. The Club shall take all reasonable steps to ensure that the Cannabis is delivered by the Club without any defects and in acceptable packaging.
13.3. Should the Client receive damaged, unusable or poor-quality Cannabis, the Client shall notify the Club within a reasonable period after he/she becomes aware of the defect or poor quality, but in any event within 3 (three) days after delivery of the Cannabis and the Club shall use its Best Endeavours to remedy the complaint. Importantly, such defects shall relate only to the Services rendered in respect of the Cannabis, and not the Cannabis itself, which is the Client’s property.
14. GENERAL
14.1. This Agreement is concluded solely between the Club and the Client.
14.2. The Client is not permitted to cede, sell, transfer, donate or alienate its membership in any way or form to another person, or use the same action in order to sell, distribute or deal with the cannabis in any way or form.
14.3. To the extent that a Client cancels its membership with the Club at any time, the Client shall remain liable for all Membership Fees up to and until cancellation of the order, as well as all reasonable costs incurred by the Club in providing the Services which it has yet to recover.
14.4. To the extent that that the Club is unable to provide the requisite volume of Cannabis on behalf of the Client as per the Information Sheet for any reason whatsoever, the Club may, in its discretion, supplement the shortfall of Cannabis from its own stocks of privately and collectively owned cannabis, belonging to all Members of the Club.
14.5. The Club may accept an order depending on the correctness and accuracy of the information provided by the Client, and upon receipt of payment and/or payment authorisation by the Club of the relevant Membership Fee.
14.6. The Club 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 Client by way of email, and the continued use of and access of the service following any amendment, update, change or replacement of provisions shall constitute acceptance of same.
15. CONFIDENTIALITY
15.1. The Grower, subject to the Confidentiality and Intellectual Property provisions contained in Annexure B (“Code of Conduct”), undertakes to keep the identity of the Client, the location of the Client’s leased cultivation space and the contents of the Grow Diary confidential throughout the period of membership and indefinitely thereafter.
15.2. The Grower undertakes to not approach the Client directly to offer the services of the Grower for the Client’s personal use not covered by the provisions of this Agreement, thereby circumventing INFUSION (Pty) Ltd. In the event that the Grower circumvents INFUSION (Pty) Ltd, the Grower will be liable for liquidated damages as set at R 100 000.00 (One Hundred Thousand Rand) incurred by INFUSION (Pty) Ltd as professionally quantified, including but not limited to loss of income, reputational damage and legal costs.
16. TERMINATION
16.1. The Club will use reasonable endeavours to maintain the availability of the Application, except during scheduled maintenance periods, and is entitled to discontinue providing the Application services or any part thereof with or without notice to the Client.
16.2. The Club may, in its sole and absolute discretion, terminate the Agreement if the Client fails to comply with any of the provisions contained herein.
16.3. The Client hereby agrees that the Club will not be liable to the Client in the event that it chooses to suspend, modify or terminate the Application other than for processing any transactions entered into by the Client prior to such time, to the extent possible.
16.4. Should the Client fail to comply with its obligations under this Agreement, including any incident involving payment of the Membership Fee, this may lead to a suspension and/or termination of the Agreement without any prejudice to any claim for damages or otherwise which the Club may have against the Client.
16.5. The Club is entitled, for purposes of preventing suspected fraud and/or where it suspects that the Client has created multiple profiles to take advantage of a promotion intended by the Club to be used once-off by the Client, to blacklist the Client, refuse to accept or process payment on any order, and/or to cancel any order concluded between the Client and the Club, in whole or in part, on notice to the Client.
16.6. The Club shall only be liable to refund the Client money already paid (at its sole and absolute discretion) and accepts no other liability which may arise as a result of such blacklisting and/or refusal to process any transaction.
16.7. The Client may, at any time, choose to terminate use of the Application, with or without notice to the Club.
17. BREACH
17.1. Should either Party:
17.1.1. fail to meet any of its payment obligations in terms of this Agreement, as and when such payment becomes due;
17.1.2. terminate or attempt to terminate this Agreement prior to the discharge of all of the Client’s obligations in terms of this Agreement;
17.1.3. commit any fraudulent or wilful misconduct in the performance of this Agreement;
17.1.4. have made any incorrect, false or misleading representation, statement or warranty in this Agreement, or in any other document provided or required in connection with this Agreement, alternatively any representation, statement or warranty becomes incorrect, false or misleading during the term of this Agreement and fail immediately to advise the other Party of such change in writing; or 17.1.5. commit any breach of any other provision of this Agreement and fail to remedy same within 7 (seven) days of receipt of notice from the Club calling on the Client to remedy;
17.1.6. same shall constitute a material breach of this Agreement and, without prejudice to any other rights which the non-defaulting Party may have in law, shall entitle the non-defaulting Party, without providing any further notice to the defaulting Party, to terminate this Agreement and recover any and all damages which it may have suffered as a result of such termination.
18. VARIATION, INDULGENCE AND WAIVER
18.1. This agreement constitutes the whole of the agreement between the parties relating to the subject matter thereof, and no amendment, alteration, addition, variation or consensual cancellation will be of any force or effect unless reduced to writing and signed by the parties.
18.2. This agreement, along with all annexures attached hereto, contains all the terms and conditions agreed to by the parties. The parties acknowledge that there are no understandings, representations, other terms or conditions, whether oral or written, and whether express or implied which induced either party to this agreement to entering into the agreement, other than those set out herein. It is hereby further specifically recorded that the Client is not bound by any warranties, representations, undertakings or the like, whether express or implied, with regard to the membership, membership model, the grower service or any other service provided herein to the Client, save those set out in this agreement and the annexes hereto. The Client acknowledges that it is fully acquainted with all of the affairs of the business.
18.3. The Client hereby waives any right of rectification in regard to this agreement as well as reliance on the benefits of the contra preferentum rule, the scope and meaning of which the Client hereby acknowledge to be fully acquainted with.
18.4. No act of relaxation on the part of the parties in regard to the carrying out of any of the obligations in terms of this agreement shall prejudice or be deemed to be a waiver of any of the rights in terms hereof, and no waiver of any of the terms and conditions of this agreement will be binding for any purpose unless expressed in writing and signed by the party giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party in exercising any right, power or privilege will operate as a waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
18.5. No concession or any other indulgence which may be granted by INFUSION (Pty) Ltd to the Client whether in respect of time for payment or otherwise in regard to the terms and conditions of this Agreement shall be deemed to be a waiver or estoppel of or affect, prejudice or derogate from the rights of INFUSION (Pty) Ltd under this Agreement.
18.6. The liability of the Client/s (if more than one) to INFUSION (Pty) Ltd for payment of the purchase price and fulfilment of the other obligations herein imposed the Client, shall be joint and several.
