Website Usage Terms and Conditions
By accessing, using and/or interacting with the Website in any way or at any time, each User signifies his agreement:
- with this Agreement (and its entire content); and
- to be bound by this Agreement (and its entire content).
- Using, accessing and/or interacting with the Website indicates and records a User's acceptance of this Agreement. If a User does not accept this Agreement in full, and/or does not agree to be bound by this Agreement in full, he must not continue to access, use and/or interact with the Website (or any part thereof).
In this Agreement:
- clause headings are for convenience only and shall not be used in its interpretation; and
- unless the context clearly indicates a contrary intention an expression which denotes any gender includes the other genders, a natural person includes an artificial person and vice versa and the singular includes the plural and vice versa; and
- the use of the word "including" followed by specific examples shall not be construed as limiting the meaning of the general wording preceding it and general words that follow specific words in a list, shall not be construed as referring only to the types of things identified by the specific words; and
- if any provision in a definition is a substantive provision conferring rights or imposing obligations on Freshlinq or any User, effect shall be given to it as if it were a substantive clause in the body of the Agreement, notwithstanding that it is only contained in the definition.
- This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the Republic of South Africa.
- The terms of this Agreement shall not be interpreted against Freshlinq who procured its preparation and drafting.
In this Agreement, and unless the context clearly indicates a different intention, the
following expressions bear the meanings given to them below and equivalent expressions
will have similar meanings:
- "Act" - means the Companies Act, Act 71 of 2008;
- "Agreement" - means these Website Terms and Conditions of Use;
"Applicable Laws" - means any and all laws and/or regulations applicable to any User's:
- use of, access of and interaction with the Website;
- use of, access of and/or interaction with the Services; and
- production, packaging, labelling, marketing, sale, distribution and/or acquisition of fresh produce;
- "Buyers" - means the fresh produce buyers/acquirers registered as "buyers" with Freshlinq from time to time;
"Domain Names" - "Domain Names" – means the domain name/s and/or internet address/es via which the Website is accessible, and more specifically:
- www.fgxplatform.co.za and
- "Freshlinq"- means Freshlinq (Pty) Ltd (Registration Number: 2010/012927/07) t/a Freshlinq, freshlinq.com, a private company duly incorporated under and in terms of the laws of the Republic of South Africa;
- "Group of Companies" - bears the meaning assigned to such term in and via the Act;
- "Login Details" - means any username and/or password assigned to a User by Freshlinq from time to time, in order to enable the User to use, access and/or interact with certain (normally/generally restricted) parts of the Website;
- "Materials" - "Materials" – means and includes the design, layout, look, appearance, graphics and documents in/on the Website, as well as other content in/on the Website such as articles, stories and other text;
- "Producers" - means the fresh produce producers or suppliers registered as "producers" with Freshlinq from time to time;
- "Registration Form" - means the registration form/s to be completed and submitted to Freshlinq, in order to be registered by/with Freshlinq as a Service Provider, Buyer and/or Producer and in order to gain access to, use of and/or interaction with the Services and certain (normally/generally restricted) parts of the Website;
- "Services" - means the facilitation services offered by Freshlinq via the Website, and more specifically the fresh produce transaction facilitation services in terms of which Freshlinq facilitates the interaction between Producers, Service Providers and Buyers in them, amongst each other, offering fresh produce for sale, negotiating fresh produce sale and purchase transactions and purchasing fresh produce;
"Service Providers" - means the market agents and/or other entities registered as "service providers" with Freshlinq from time to time. These include, but are not limited to:
- Agencies or "fresh produce agent" as defined in the Agricultural Produce Agents Act, Act 12 of 1992
- Levy Boards
- Credit Providers and
- Market Authorities;
- "T&C's" - means Freshlinq's applicable terms and conditions (relating to Service Providers, Buyers and/or Producers, as may be applicable), which are to be accepted (along with submission of a Registration Form) in order to be registered as a Service Provider, Buyer and/or Producer with and by Freshlinq;
- "Users" - means all of the natural and/or juristic persons who access, use and/or interact with the Website from time to time collectively, and "User" means any of them as the context requires, including Service Providers, Buyers and/or Producers;
- "Website" - means and includes the website(s) accessible via the Domain Names, each associated microsite(s) and each sub-page, owned, operated and maintained by Freshlinq.
- This Agreement, and all of the terms and conditions recorded herein, apply to the Website (and each part thereof) and each User's use of, accessing of and/or interaction with the Website (and each part thereof).
- Freshlinq is not liable for the content in/on the Website. Each User must pay particular attention to the Limitation of Liability and Content Disclaimer sections of this Agreement.
Each User must read this Agreement carefully. Together with Freshlinq's Website Privacy and Usage Policy
(available at freshlinq.com/Privacy)
and Regulatory Disclosures (available at freshlinq.com/Disclosures),
this Agreement governs Freshlinq's relationship with each User in relation to the Website (and each part thereof) and each User's use of, accessing of and/or interaction with the Website.
Changes/Amendments to Agreement and Freshlinq's Website Privacy and Usage Policy
- Freshlinq reserves the right, in Freshlinq's sole and absolute discretion, to amend this Agreement and Freshlinq's Website Privacy and Usage Policy at any time, in any way and for any reason whatsoever. Freshlinq will publish the amended Agreement in/on the Website. Any amendments shall come into effect immediately once published in/on the Website.
- It is each User's responsibility to review this Agreement regularly and to ensure that the User agrees with any amendments to this Agreement. If a User does not agree with any amendments to this Agreement, he must not continue to access, use and/or interact with the Website (or any part thereof).
- Freshlinq has made, and continues to make, the Website available to each User for the User's commercial use. Freshlinq may modify, withdraw and/or deny access to the Website at any time.
- Users who access the Website, and/or who utilise/engage the Services, do so at their own initiative, and are therefore absolutely responsible and liable for compliance with the Applicable Laws.
Each User agrees to comply with all Applicable Laws which govern their use of the Website and the Services, as well as to adhere to generally acceptable Internet, E-Mail, E-Commerce and Electronic Communications Etiquette. In this regard each User agrees, amongst other things, not to:
- take any action aimed at deceiving or misleading any person, attempt to impersonate or misrepresent his affiliation to any person or forge headers or otherwise manipulate identifiers in order to disguise the origin of anything posted or transmitted through the Website;
- submit any person's personal information to Freshlinq without that person's informed and prior consent;
- gather or attempt to collect personal information about third parties without their knowledge or consent for commercial, political, religious, charity or similar purposes;
- violate the privacy of any person or attempt to (or actually) gain unauthorised access to any person's Freshlinq account (or Freshlinq account details), including (without being limited to) through hacking, password mining or any other means;
- attempt to (or actually) gain unauthorised access to the Website or such parts of the Website as is generally restricted to him;
- use the Website to post or transmit anything which is defamatory, discriminatory, obscene, offensive, threatening, abusive, harassing, harmful, hateful, immoral or which carries any pornography, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person's personality rights;
- copy, modify, create an adaptation of, reverse engineer, decompile or otherwise attempt to extract the Website's source code (or any source code of any software in/on the Website or associated with the Website) or any part thereof, unless this is expressly permitted or required by law or unless Freshlinq has provided its prior written consent thereto;
- use the Website in any manner which could damage, impair, overburden and/or disable the Website (and/or any software in/on the Website or associated with the Website) or interfere with any other User's Freshlinq account, Website and/or Services use;
- use the Website to post anything which contains viruses, malware or any other destructive features, regardless of whether or not damage is intended;
- use the Website to make fraudulent offers to sell or buy products, items and/or services or to offer or solicit for any type of scam (albeit financial or otherwise) such as "pyramid schemes" and "chain letters";
- use the Website in a manner that may infringe the intellectual property rights (including copyrights or trademark rights) or other proprietary rights of others; and/or
- otherwise use the Website to engage in any illegal, unlawful and/or immoral activity.
- The Website and all the Materials contained in/on it are protected by intellectual property rights, including copyrights and trademark rights, and either belongs to Freshlinq or are licensed to Freshlinq to use. A User may not copy, distribute, redistribute, publish, republish and/or otherwise make the Website and/or Materials available to anyone else without Freshlinq's prior written consent.
- Any unauthorised copying, reproduction, retransmission, distribution, dissemination, sale, publication, broadcast or other circulation and/or exploitation of the Website and/or Materials will constitute an infringement of the aforementioned intellectual property rights.
A User may print and/or download Materials from the Website for the User's own commercial use provided that:
- no Materials are modified in any way;
- no graphics are used separately from accompanying text;
- Freshlinq's copyright and trade mark notices appear in all copies and the User acknowledges the Website as the source of the Material; and
- if the User has Freshlinq's permission (as contemplated above) to provide these Materials to another person(s), the User must ensure that the other person(s) is/are made aware of these restrictions.
- The information in/on the Website (and the Materials) are intended to provide general information regarding Freshlinq, the Website, the Services and/or other information which may be of interest to Users. It is not intended to provide exhaustive treatment of any subject dealt with.
- The information in/on the Website (and the Materials), including all research, opinions and/or other content, is not intended to and does not constitute financial, accounting, tax, legal, investment, consulting and/or other professional advice or services (albeit professional in nature or otherwise).
- Users must not make any commercial decisions based on the information in/on the Website (and the Materials), without first obtaining independent professional advice with regard thereto.
- The Website (and the Materials) may include technical, typographical and/or other inaccuracies and each User is urged to contact Freshlinq to confirm all information contained in/on the Website (and the Materials) before placing any reliance thereon. Changes are periodically made to the information in/on the Website (and the Materials) and these changes will be incorporated in new editions/versions of the Website (and the Materials). Freshlinq reserves the right to alter and/or amend any criteria and/or information set out in/on the Website (and the Materials) without notice.
- Freshlinq makes reasonable effort to update the information provided via the Website (and the Materials) in a timely manner. Freshlinq cannot however (nor does it) warrant, represent, undertake, purport and/or guarantee that the information provided via the Website (and the Materials) are accurate, complete and/or reliable. Freshlinq shall not be bound by or under, nor shall it be liable or accountable (in any form or manner) for or under, any information contained in/on the Website (and the Materials).
- Before making any decision to use, access, interact with, enrol with/for and/or subscribe to the Website and/or the Services, each User is required to ensure, confirm and familiarise itself with all information contained in/on the Website (and the Materials), including its accuracy and correctness.
- Freshlinq shall not be liable, responsible, at risk and/or accountable to any User (or anyone else), albeit as relates to damages or otherwise, for any delay in the display, or for the non-display, of any information in/on the Website (and the Materials).
- External links in/on the Website (and Materials) may be provided for the Users' convenience. Such external links are however beyond the control of Freshlinq and as such Freshlinq cannot (nor does it) warrant, represent, undertake, purport and/or guarantee that the information provided via the websites associated with any external links are accurate, complete and/or reliable. Freshlinq further cannot (nor does it) warrant, represent, undertake, purport and/or guarantee the integrity of any external links in any way, manner or form whatsoever.
- Freshlinq cannot (nor does it) accept or incur any risk, responsibility, accountability and/or liability, albeit as relates to damages or otherwise, for enabling any User to link to any other website, for the contents of any other website, for the security of any other website, or for any consequence of any User acting upon the contents of such other website.
- No endorsement and/or approval of any third parties or their advice, opinions, information, products and/or services is expressed and/or implied by any information in/on the Website (and the Materials).
- No User (or anyone else) may establish a hyperlink, frame, metatag or similar reference, whether electronically or otherwise, to the Website (or any part thereof) without obtaining Freshlinq's prior written consent thereto, which consent may be withheld by Freshlinq in its sole and absolute discretion.
- Nothing in/on the Website (and Materials) is intended to be, nor should it be construed, as an offer to enter into a contractual relationship between Freshlinq and a User (or anyone else), except for this Agreement which governs the relationship between Freshlinq and the Users in relation to the Users' use of, accessing of and/or interaction with the Website.
All Services offered by Freshlinq:
- are subject to completion of, and submission to (and acceptance by) Freshlinq, of the requisite Registration Forms and other documentation nominated by Freshlinq in this regard from time to time; and
- are governed by the relevant Registration Forms, T&C's and this Agreement. To the extent that there is a conflict between this Agreement and the T&C's, the T&C's shall prevail, but only to the extent of the conflict.
- Freshlinq reserves the right to reject, at Freshlinq's sole and absolute discretion, any application submitted (albeit via a Registration Form or otherwise) for access to, use of and/or provision of the Services.
- Freshlinq shall not have any liability, risk, responsibility and/or accountability towards any User (or anyone else), albeit for damages suffered or otherwise, resulting, albeit directly or indirectly, from the accessing, use and/or provision of the Services by/to any User (or anyone else).
- If a User concludes a contract with a third party who is named and/or referred to in/on the Website (and/or the Materials), it is the User's responsibility to ensure that the User is comfortable with the terms and conditions of that contract and to take professional financial and/or legal advice in that regard.
No Recommendation or Representation
- The fact that Freshlinq has made the Website (and Materials) available to the Users is neither a recommendation that the Users enter into a particular transaction nor a representation that any Services described in/on the Website (and Materials) is/are suitable or appropriate for any User.
Transmission of Information
- Each User's attention is drawn to the fact that information transmitted via the electronic communication is susceptible to monitoring, collection and interception. Each User solely bears any and all risk, liability, responsibility and accountability associated (albeit directly or indirectly) with transmitting his information (or any other information) via electronic communication.
- Freshlinq will not be liable, accountable, responsible and/or at risk for any loss, harm, cost, claim, expense and/or damage suffered by any User as a result of transmitting any information to Freshlinq, to any other User and/or via the Website.
- Freshlinq reserves the right to request independent verification of any information transmitted to it, by anyone, via electronic communication.
- Any and all unsolicited information (albeit confidential or proprietary information) sent to Freshlinq via electronic commutation cannot be guaranteed to remain confidential. If a User needs to send information to Freshlinq and the User is concerned about the security of this information, the User is to contact Freshlinq and Freshlinq will advise the User of the most appropriate method of transmission.
- By using the Website or communicating with Freshlinq by electronic means, each User consents and acknowledges that any and all agreements, notices, disclosures, or any other communication satisfies any legal requirement, including but not limited to the requirement that such communications should be in writing.
- Freshlinq cannot (nor does it) warrant, guarantee, represent, purport and/or undertake that the Website will be compatible with all or any hardware and/or software which the User may use and/or implement from time to time.
- Freshlinq will not have any liability, risk, responsibility and/or accountability towards any User (or anyone else), albeit for damages or otherwise, due to any User's hardware and/or software not being compatible with the Website at any time whatsoever or for any reason whatsoever.
- Login Details are valid for only one User and for use at one terminal at any one time, and no part of a User's Login Details may be distributed and/or disseminated by a User (or on a User's behalf) to third parties in any way.
- A User may not authorise or permit a third party to make use of his Login Details.
Website Inaccessible and/or Inoperable
- The Website may be inaccessible and/or inoperable from time to time for any reason, including due to equipment (hardware) malfunctions, software malfunctions, periodic maintenance procedures or repairs and/or causes beyond Freshlinq's reasonable control.
- Freshlinq will not be liable, at risk, responsible and/or accountable, to any User (or anyone else) for any interruption, malfunction, downtime, inaccessibility, inoperability and/or other failure of the Website at any time whatsoever, for any reason whatsoever and/or in any manner or form whatsoever.
Changes to the Website, Website Features and/or Criteria
- Freshlinq reserves the right to discontinue, withdraw, amend, vary, alter and/or modify the Website (and Materials) to any extent whatsoever, at any time whatsoever and in its sole and absolute discretion, without notice to any User.
- Freshlinq may add new features to the Website, and/or modify, amend, alter, vary, discontinue and/or withdraw existing features of/to the Website to any extent whatsoever, at any time whatsoever and in Freshlinq's sole and absolute discretion, without notice to any User.
- Freshlinq may discontinue, withdraw, alter, amend, vary and/or modify any criteria and/or information set out in/on the Website (and Materials) to any extent whatsoever, at any time whatsoever and in Freshlinq's sole and absolute discretion, without notice to any User.
Viruses and Back-Ups
- Each User's attention is drawn to the fact that internet access, e-commerce and/or electronic communication, may expose Users to viruses, malware and other malicious items. It is each User's sole and absolute liability and responsibility to ensure that he has sufficient anti-virus software and protocols in place, so as to safeguard himself, his hardware, his software and his data against virus, malware and/or other maliscious attacks/infections.
- It will at all times be an remain each User's sole and absolute responsibility and liability to ensure that he procures and maintains sufficient back-ups of any and all of his data.
- Freshlinq will never be liable, at risk, responsible and/or accountable towards any User (or anyone else), albeit for damages or otherwise, as a result of the User's hardware, software and/or data being infected with, and/or corrupted by, any viruses, malware and/or other maliscious items, and/or as a result of the User failing to procure and maintain sufficient data back-ups.
- Freshlinq has taken reasonable precautions in an attempt to ensure that viruses, malware and other maliscious items are removed from the Website, but at the same time, Freshlinq cannot ensure that no viruses, malware and/or other malicious items are contained in/on the Website. Freshlinq assumes no accountability, liability, risk and/or responsibility in this regard and each User is requested and urged to take all necessary precautions to safeguard the User's computer, software and data before downloading any information from the Website.
- The Website (and Materials) is intended for Users who access the Website within the borders of the Republic of South Africa. The content of the Website (and Materials) is not directed to any person and/or individual living and/or carrying on business outside of the Republic of South Africa. Due to the aforementioned, Freshlinq cannot (nor does it) warrant, represent, undertake, purport and/or guarantee that the Website (and Materials) or the information in/on the Website (and Materials) complies with or is appropriate for use in other countries.
- Any entity forming part of Freshlinq's Group of Companies, any entity connected to Freshlinq's Group of Companies, and any shareholder/director/employee of any of the aforementioned entities, may have a position or interest in the Website and/or in any Services recommended in/on (and/or provided via) the Website (and Materials).
- Freshlinq's undertakings and policies regarding the Users' personal information, is outlined in Freshlinq's Website Privacy and Usage Policy (available at freshlinq.com/Privacy).
Limitation Of Liability
- Any User's use of and reliance on the Website (and Materials) is entirely at the User's own risk, liability, responsibility and accountability. The Website (and Materials) is provided "As Is" and "As Available".
The Website is made available for public access, use and/or interaction on the basis that Freshlinq excludes and discounts, to the extent lawfully permitted, any and all of its liability, responsibility, risk and accountability whatsoever for any losses, damages, costs, claims, expenses and/or demands howsoever arising (and by whomever suffered or incurred) out of:
- using, accessing and/or interacting with the Website;
- out of access, use and/or provision of the Services; and/or
- out of reliance upon the Website and/or the Materials.
- Freshlinq shall never be liable and/or accountable for any indirect, special and/or consequential damages, losses, costs, expenses, claims and/or demands suffered by any User (or anyone else).
- Freshlinq shall never be liable and/or accountable for any damages, losses, costs, expenses, claims and/or demands suffered by any User (or anyone else) (albeit of a direct nature), unless Freshlinq incurs liability and accountability under and in terms of the provisions of this Agreement and same was caused by the grossly negligent and/or malicious acts and/or neglects of Freshlinq.
- This Agreement does not exclude or limit Freshlinq's liability towards any User, for as far as (and only to the extent that) such exclusion and/or limitation is legally prohibited.
- If any claim or dispute arises in relation to this Agreement or a User's accessing of, use of (and/or interaction with) the Website, such claim or dispute will be submitted to the exclusive jurisdiction of the South African courts.
- Notwithstanding that stated above, any party to the dispute or claim may, at its sole option prior to the commencement of litigation, refer such claim or dispute to arbitration in South Africa before a single arbitrator. The arbitrator shall be appointed, on the application of either party to the dispute, by the Arbitration Foundation of South Africa. The arbitrator's award shall be final and binding on the parties to the dispute. The venue for the arbitration shall be Pretoria.
- If any part of this Agreement is found by any court or other competent authority to be invalid, unlawful or unenforceable then such part shall be severed from the rest of this Agreement which shall continue to be valid and enforceable to the fullest extent permitted by law.
Should a User breach any one or more of the provisions of this Agreement, which shall be determined in Freshlinq's sole and absolute discretion (and which decision shall be final), then Freshlinq shall be entitled, without prejudice to any other rights Freshlinq may have, to:
- without notice, suspend or terminate the User's Freshlinq account, Website access and/or Services use;
- hold the User liable for any costs, expenses, claims, damages and/or demands Freshlinq incurs or suffers, or may incur or suffer, as a result of the User's misconduct; and/or
- notwithstanding Freshlinq's Website Privacy and Usage Policy (available at freshlinq.com/Privacy), disclose any information relating to the User, whether public or personal, to all persons affected by the User's breach.
- Each User herewith indemnifies Freshlinq, and undertakes to hold Freshlinq completely harmless, for and regarding each and every claim, demand, damage, cost, liability and/or expense which Freshlinq may suffer or incur as a result of the User breaching any of the terms and/or conditions of this Agreement.