GENERAL TERMS AND CONDITIONS
made and entered into by and between:
ONE CULTURE NATIONAL PTY LTD (2019/369153/07)
1.1 These Terms and Conditions (“Agreement”) govern the use of www.oneculture.co.za, related mobi-sites and software applications (the “Website”) which is owned and operated by One Culture National (“OCN“).
1.2 The Website is an online, private Cannabis Club that enables paying members (“Members”) to enter into a sub-lease agreement with OCN for the purposes of subleasing three defined spaces in a dedicated grow house wherein OCN will grow, harvest and cure a cannabis plant (“Cannabis“) on behalf of the Member.
1.3 By registering on the Website and/or accessing the Website and/or using the Website, the Member hereby agrees to be legally bound by this Agreement.
1.4 This Agreement applies to Members 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 OCN or a third party;
1.5.2 may create risk or liability for the Member;
1.5.3 may compel the user to indemnify OCN or a third party; and/or
1.5.4 serves as an acknowledgement, by the Member, of a fact.
1.6 If the Member does not understand this Agreement, it is its responsibility to ask OCN 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 Member or OCN in terms of the CPA.
1.8 The Member must not use the Website if he/she does not agree with the terms and conditions contained herein.
1.9 OCN and the Member (collectively referred to as the “Parties”) accordingly agree as set out herein.
This Agreement shall commence on the date the Member registers on the website, alternatively uses or accesses the Website, thereby accepting the terms and conditions contained herein.
3.1 OCN operates a Cannabis growing facility service on behalf of the Member which enables the growth of the highest quality Cannabis, from germination, to drying and curing (the “Services“). All Services provided to a Member will take place in that Member’s designated growing area.
3.2 Upon the conclusion of an agreement between the Member and OCN for the provision of Services, the Member shall be required to deliver to OCN the seed or seeds which the Member wishes OCN to grow on its behalf.
3.3 Once the seeds are received, each Member is assigned three fixed, demarcated areas within the OCN growing facility within which the plant is grown, dried and cured on the Member’s behalf.,.
3.4 The Client acknowledges that he/she has a limited visitation right to the OCN grow facility and supervised visitation thereto must be pre-arranged with One Culture National. The Client further undertakes to abide by the visitation safety and security regulations as stipulated by OCN from time to time.
3.5 Each Member shall only be entitled to request the Service, and OCN shall only be obliged to provide such Services, for a maximum of 2 (two) Cannabis plants, for each of the subscription models selected by the Member, at any one time.
3.6 Once OCN has completed the drying and curing process, the Member shall be advised that their Cannabis plant is ready for collection. Collection will then be arranged between the Parties.
3.7 The Member shall, at all times, remain the owner of any Cannabis plant being grown on its behalf. Further, and as the Cannabis plant shall be grown in areas designated for the Member, possession and effective control of the Cannabis plant will remain with the Member for so long the duration of the Cannabis plant’s lifecycle. OCN shall provide the Services only.
4. USE OF THE WEBSITE
4.1 To register as a Member, the Member must provide a unique username and password (“Credentials”) and provide certain information and personal details to OCN.
4.2 A Member can only use the Website upon registration with OCN. The Member’s Credentials will be needed to use and access the Website.
4.3 The Member hereby agrees that once the correct Credentials to the Member’s account have been entered, irrespective of whether the use of the Credentials is unauthorized or fraudulent, the Member will be liable for payment of such order, save where the order is cancelled by the Member in accordance with this Agreement.
4.4 The Member hereby agrees to notify OCN immediately upon becoming aware of or reasonably suspecting any unauthorized access to or use of the Member’s Credentials and to take reasonable and necessary steps to mitigate any resultant loss or harm.
4.5 OCN reserves its right to terminate unconfirmed and/or inactive accounts. In addition, OCN reserves its sole and absolute discretion to refuse or to terminate all or part of its services to the Member for any reason whatsoever.
4.6 OCN may in its sole discretion terminate, suspend and modify the Website, with or without notice to the Member. The Member hereby agrees that OCN will not be liable to the Member in the event that it chooses to suspend, modify or terminate the Website other than for processing any orders made by the Member prior to such time, to the extent possible.
5. SERVICES AND AVAILABILITY
5.1 The Member may place orders, which OCN may accept or reject depending on circumstances including but not limited to OCN’s growing capacity and non-compliance with any term of this Agreement.
5.2 OCN may accept an order depending on the availability of growing space, correctness of the information relating to the member and/or the Cannabis seed, listed price and receipt of payment and/or payment authorisation by OCN for any order.
5.3 An agreement between OCN and the Member shall only come into effect upon OCN’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 Member may cancel an order at any time provided he/she does so before OCN receives a notice to dispatch or deliver the Cannabis plant.
5.5 The product agreement concluded on acceptance of the Member’s order is solely between OCN and the Member.
6. FEES AND PAYMENT
6.1 The Member shall pay OCN a monthly payment as stipulated in the description of each subscription model (the “Membership Fee”). This Membership Fee is subject to change from time to time with reasonable notice to the Member and OCN reserves the right to effect such change as and when it deems necessary.
6.2 The subscription models and associated monthly Membership Fees payable to OCN are:
6.2.1 Outdoor: Plant cultivated outdoors; Monthly Membership Fee R200 (two hundred rand)
6.2.2 Greenhouse: Plant cultivated in a greenhouse; Monthly Membership Fee R400 (four hundred rand)
6.2.3 Indoor: Plants cultivated indoors; Monthly Membership Fee R 500 (five hundred rand)
6.2.4 Mothering: Plants cultivated indoors; Monthly Membership Fee R 500 (five hundred rand)
6.3 The Member shall pay the Membership Fee into OCN’s bank account as set out below –
Account number: TBC
Branch code: TBC
Reference: Order #
6.4 OCN is committed to providing secure online payment facilities. All transactions are encrypted using appropriate encryption technology.
6.5 Payment shall be made by the Member to OCN by direct bank deposit, instant electronic funds transfer (EFT), in cash at any local One Culture Social Club, or credit card. Where a credit card is used, OCN 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 OCN shall be entitled to withhold any services including delivery of any Cannabis plant, until such time as the additional information is provided and authorisation is obtained by OCN for the amounts. If such authorisation is not received, the order will be cancelled.
6.6 Once the Member has selected a payment method, save for direct bank deposit, the Member 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 OCN will offer delivery of the Cannabis plants by courier directly to the Member’s home, office or local One Culture Social Club, anywhere in South Africa. All delivery and tracking details including any special delivery charges of the order will be supplied to the Member after checkout of the order.
7.2 Cannabis plant delivery charges are included in the Membership Fee, for so long as delivery is to any local One Culture Social club within city limits of all major cities in South Africa. Delivery outside of these areas will need to be agreed between OCN and the Member and an additional fee may be charged in OCN’s discretion.
7.3 In the case where the Website accepts the Member’s order, OCN will deliver the Cannabis plant to the Member as soon as reasonably possible after the Cannabis plant has been cured (“Delivery Period”).
7.4 OCN shall notify the Member in the event that OCN is unable to deliver the Cannabis plant during the Delivery Period, or at all. The Member may, within 14 days of receiving the notification elect whether or not to cancel the order for the Cannabis plant. Should the Member elect to cancel the order, OCN shall reimburse the Member all amounts paid by the Member for the specific order within 14 days of such cancellation, subject to compliance with any applicable cancellation policies and procedures applicable from time to time.
7.5 Prior to delivery of the Cannabis plant, the Member will receive an email notification confirming delivery at an address nominated by the Member. Should the Member fail to respond to the email notification, OCN will assume that no change in address has been made and OCN will deliver the Cannabis plant to the address nominated by the Member.
7.6 OCN’s obligation to deliver the Cannabis plant to the Member is fulfilled upon delivery of the Cannabis plant to the physical address nominated by the Member for delivery. OCN is not responsible for any loss or unauthorised use of the Cannabis plant after the Cannabis plant has been delivered to the physical address nominated by the Member.
7.7 Should the Member provide OCN with incorrect address details for the delivery of the Cannabis plant, the Member will be liable for a double fee payable to the courier service which will be debited from the Member’s account.
8. RETURNS AND REFUNDS
8.1 OCN shall take all reasonable steps to ensure that Cannabis plants are delivered without any defects and in suitable packaging.
8.2 Should the Member receive Cannabis plants which turn out to be defective or otherwise of poor quality, the Member shall notify OCN within a reasonable period after he/she becomes aware of the defect or poor quality, but in any event within 5 (five) days after delivery of the Cannabis plant. Importantly, such defects shall relate only to the Services rendered in respect of the Cannabis plant. OCN accepts no liability for the quality of the Cannabis plant itself, which will have been supplied (in seed form) by the Member.
8.3 To the extent that OCN is not able to properly grow the Member’s Cannabis plant due to poor quality or defective seeds having been supplied to OCN, which OCN shall determine in its sole discretion, OCN accepts no liability for any loss suffered by the Member.
9. UNDERTAKINGS AND LISTING CONDITIONS
9.1 The Member undertakes that it shall not:
9.1.1 breach or circumvent any laws, third party rights or OCN’s policies;
9.1.2 fail to pay for the Services provided by OCN in respect of the Member’s Cannabis plant;
9.1.3 transfer its account including the Credentials on the Website to another Member
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 OCN undertakes that it shall:
9.2.1 not to sell or make the Member’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 Member’s own risk and the Member 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 OCN 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 OCN, its employees, agents or authorised representatives. The Member is encouraged to contact OCN to report any possible malfunctions or errors by way of the Website’s help page.
10.3 OCN shall not be liable for any direct, indirect, incidental, special or consequential loss or damages which might arise from the Member’s use of, or reliance upon, the Website or the content contained in the Website, or the Member’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 Member’s access to or use of the Website and/or any content therein unless otherwise provided by law.
10.5 The Member hereby indemnifies OCN, 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 Member utilising the Website to deal or trade in or distribute or acquire any illegal substance or product, and OCN shall not be in any way responsible for any legal action or criminal prosecution which a Member may face as a result of any misuse of the Website.
10.6 Whilst OCN shall do all things reasonably necessary to protect the Member’s rights to privacy, including compliance with all applicable local laws, OCN cannot guarantee or accept any liability whatsoever for unauthorised or unlawful disclosure of the Member’s personal information, whilst in OCN’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 OCN, its employees, agents or authorised representatives.
11. INDEMNITY AND WARRANTIES
11.1 By using the Website, the Member warrants that he/she is 18 (eighteen) years of age or older and of full legal capacity. Should the Member be under the age of 18 (eighteen) or not legally permitted to enter into a binding agreement, then the Member may only use the Website only with supervision of a parent or legal guardian. If the parent or legal guardian supervises the Member and gives his/her consent, then such person agrees to be bound to this Agreement and to be liable and responsible for the Member and all of the Member’s obligations under this Agreement.
11.2 The Member agrees that it is making use of the Website at its own risk, and that the Website is provided to the Member on an “as is” and “as available” basis.
11.3 The Member 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 OCN’s control.
11.4 The Member hereby indemnifies OCN against any loss, claim or damage which may be suffered by the Member or any third party arising in any way from the Member’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, OCN 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 Member’s computer system, computer network, hardware or software in any way. The Member 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 Member’s hardware or software, save where such risks arise due to the gross negligence or wilful misconduct of OCN, 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 Member’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 OCN and the Member, the Member hereby irrevocably and unconditionally accepts and undertakes all such obligations and liabilities, and hereby indemnifies OCN including its employees, directors, agents and/or sponsors, in respect of any claim, action, damage, loss, liability, cost or expense which the Member 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 OCN through the Website, due to any actions or omissions of the Member, or any of its staff, contractors, agents, representatives or appointees, whether wilful or negligent.
11.8 OCN endeavours to provide accurate and up-to-date information on the Website. However, OCN 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 Member’s indemnification of OCN shall cover all legal actions, suits, proceedings, claims, demands, costs and expenses whatsoever, which may be brought against OCN or incurred or become due and payable by OCN arising from or in respect of Services rendered in respect of the Member’s Cannabis plants on the Website, including but not limited to, any claims arising out of the Services provided by OCN to the Member.
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 Member’s access to or use of the Website and/or any content therein.
11.11 For the avoidance of doubt, the Member indemnifies OCN 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.
12.1 OCN shall take all reasonable measures to protect the Member’s privacy as more fully set out below.
12.2 Upon registration on the Website, OCN may require the Member 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 Member’s personal information change, he/she should inform OCN via the Website and provide updates to the personal information as soon as reasonably possible to enable OCN to update the personal information.
12.4 The Member may choose to provide additional personal information to OCN, in which event the Member 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 OCN will not, without the Member’s express consent:
12.5.1 use the Member’s personal information for any purpose other than as set out below:
22.214.171.124 in relation to the Services;
126.96.36.199 to contact the Member regarding current or new goods offered on the Website or
any of OCN’s divisions, affiliates and/or partners (to the extent that the Member has not opted out from receiving marketing material from OCN);
188.8.131.52 to inform the Member of new features, special offers and promotional competitions offered by OCN or any of its divisions, affiliates and/or partners (to the extent that the Member has not opted out from receiving marketing material from the Website); and
184.108.40.206 to improve the Website’s functionality and the Member’s experience on the Website by, for example, monitoring the Member’s browsing habits, or tracking the Member’s activity; or
12.5.2 disclose the Member’s personal information to any third party other than as set out below:
220.127.116.11 to the Website’s employees and/or third party service providers who assist OCN to interact with the Member through the Website, email or any other method, for the requesting of the Services or when delivering the Cannabis plant to the Member;
18.104.22.168 to OCN’s divisions, affiliates and/or partners (including their employees and/or third party service providers) in order for them to interact directly with the Member by email or any other method for purposes of sending the Member marketing
material regarding any current or new offers by them (unless the Member has opted out from receiving marketing material from the Website);
22.214.171.124 to law enforcement, government officials, fraud detection agencies or other third parties when OCN 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
126.96.36.199 to OCN’s service providers (under contract with OCN) who help with the parts of
OCN’s business operations (fraud prevention, marketing, technology services etc.). However, our contracts dictate that these service providers may only use the Member’s information in connection with the services they perform for the Website and not for their own benefit.
12.5.3 OCN is entitled to use or disclose the Member’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 OCN, or to protect and defend OCN’s rights or property. In the event of a fraudulent online payment, OCN 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.
12.5.4 OCN 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 Member’s personal information are bound by appropriate and legally binding confidentiality obligations in relations to the Member’s personal information.
12.5.5 Notwithstanding anything to the contrary, OCN shall not retain the Member’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 Member consents to the Website retaining such information for a longer period.
OCN 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 Member 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.
14. AVAILABILITY OF WEBSITE AND TERMINATION
14.1 OCN 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 Member.
14.2 OCN may, in its sole and absolute discretion, terminate the Agreement if the Member fails to comply with any of the provisions contained herein.
14.3 The Member hereby agrees that OCN will not be liable to the Member in the event that it chooses to suspend, modify or terminate the Website other than for processing any orders made by the Member prior to such time, to the extent possible.
14.4 Should the Member 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 Member’s access to the Website without any prejudice to any claim for damages or otherwise which OCN may have against the Member.
14.5 OCN is entitled, for purposes of preventing suspected fraud and/or where it suspects that the Member is abusing the Website and/or has created multiple user profiles to take advantage of a promotion intended by OCN to be used once-off by the Member, to blacklist the Member on the Website’s database (including suspending or terminating the Member’s access to the Website), refuse to accept or process payment on any order, and/or to cancel any order concluded between the Member and OCN, in whole or in part, on notice to the Member. OCN shall only be liable to refund the Member money already paid and accepts no other liability which may arise as a result of such blacklisting and/or refusal to process any order.
14.6 The Member may, at any time, choose to terminate use of the Website, with or without notice to OCN.
15.1 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 OCN, its advertisers and/or sponsors and/or licensed to OCN.
15.2 Electronic Communications
The Member 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.
15.3 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.
15.4 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.
15.5 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.
15.6 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.
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.
15.8 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 Member’s right to approach any court, tribunal or forum of competent jurisdiction in terms of the Consumer Protection Act, No. 68 of 2008.
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.