THE HAZE CLUB GENERAL TERMS AND CONDITIONS


made and entered into by and between


THE HAZE CLUB PROPRIETARY LIMITED AND THE MEMBER

 


1 INTERPRETATION

1.1 In these Terms and Conditions, unless the context clearly indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings –

1.1.1 “AFSA” means the Arbitration Foundation of Southern Africa;

1.1.2 “Cannabis Plant” means the plant grown by THC from the Member’s feminised seeds;

1.1.3 “Common Areas” means those parts of the THC Growing Facilities not actually sub-let to a Member but intended to be let for general use in common by all the Members, namely the drying and curing areas and the quarantine tent;

1.1.4 “Growth Cycle” means 12-14 weeks, depending on the strain of the product in question. This includes the time for seed propagation, vegetative growth, flowering, drying, and curing;

1.1.5 “Login Details” means the username and password allocated by THC to the Member on the to access the Services on the Website and the THC App;

1.1.6 “Force Majeure Event” means any circumstance not within a Party’s reasonable control including ―

1.1.6.1 acts of God, flood, drought, earthquake or other natural disasters;

1.1.6.2 any law or any action taken by a government or public authority, including an imposition of an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;

1.1.6.3 collapse of buildings, fire, explosion or accident; or

1.1.6.4 any plant disease and pests;

1.1.7 “Services” means the services provided by THC to the Member in terms of these Terms and Conditions;

1.1.8 “Members” means paying members who have registered on the Website or THC App;

1.1.9 “Order for Services” means an order placed by a Member on the Website or THC App for the provision of services by THC;

1.1.10 “Parties” means THC and a Member;

1.1.11 “Premises” means the property where THC conducts its business;

1.1.12 “South Africa” means the Republic of South Africa;

1.1.13 “Sub-Lease Agreement” means the agreement, annexed hereto as
Annexure A, entered into between THC and a Member, in terms of which the Member sub-lets a portion of the Premises wherein THC will grow a Cannabis Plant on the Member’s behalf;

1.1.14 “Transfer Date” means that date on which a Member’s feminised seeds are delivered to THC;

1.1.15 “Terms and Conditions” means the standard conditions of contract contained in this document;

1.1.16 “THC” means The Haze Club Proprietary Limited, registration number 2019/096535/07, a limited liability private company duly incorporated in accordance with the laws of the Republic of South Africa;

1.1.17 “THC App” means the THC software application to be made available for download via a link on the Website;

1.1.18 “THC Growing Facilities” means the portion of the Premises utilised by THC to grow, dry and cure a Member’s cannabis plant; and

1.1.19 “Website” means THC’s official website, which is owned and operated by THC.

 


2 INTRODUCTION


2.1 THC provides growing, harvesting and curing services (“Services”) to its Members via the internet on its Website. The Website is an online, private cannabis club that enables paying Members to provide THC with their own feminised seeds and enter into the Sub-Lease Agreement with THC for the purposes of sub-leasing one defined space in a dedicated grow house (“Member Designated Area”), wherein THC will grow, harvest and cure a Cannabis Plant on behalf of the Member.


2.2 The Member shall, at all times, remain the owner of the feminised seed(s) and resultant Cannabis Plant being grown by THC on its behalf. It is recorded that, as the Cannabis Plant shall be grown in the Member Designated Area sub-leased by the Member, possession and effective control of the Cannabis Plant will remain with the Member for the duration of a Growth Cycle.

2.3 THC has agreed to make available and provide the Services to Members on the terms and subject to the conditions set out in these Terms and Conditions.

2.4 These Terms and Conditions will apply to all Members who register on the Website. By clicking the “I have read and agree to the website terms and conditions” box when registering on the Website, the Member accepts the Terms and Conditions as set out below, and agrees to be bound by these Terms and Conditions.

 


3 APPLICABILITY OF THE CPA

3.1 These Terms and Conditions apply to users who are consumers for purposes of the Consumer Protection Act, 68 of 2008 (“CPA”).

3.2 These Terms and Conditions contain provisions that –

3.2.1 may limit the risk or liability of THC; and/or

3.2.2 may create risk or liability for the Member; and/or

3.2.3 may compel the Member to indemnify THC.

3.3 The Member’s attention will be drawn to these Terms and Conditions as they are important and should be carefully noted. Such clauses will be identified in bold.

3.4 If there is any provision in these Terms and Conditions that the Member does not understand, it is the responsibility of the Member to request THC explain same before accepting these Terms and Conditions.

3.5 Nothing in these Terms and Conditions is intended to or must be understood to lawfully restrict, limit or avoid any rights or obligations, as the case may be, created for either the Member or THC in terms of any applicable laws. To the extent that these Terms and Conditions expressly conflict with any law which is applicable to the Member or THC, the provisions of such law shall prevail, unless otherwise agreed and such agreement is permitted in law.

 


4 COMMENCEMENT AND DURATION


These Terms and Conditions shall commence on the date the Member registers on the Website, thereby accepting these Terms and Conditions, until terminated in accordance with its terms or as agreed by the Parties in accordance with clause 17 below.

 


5 REGISTRATION AND MEMBERSHIP

5.1 In order to access the Services a prospective member will be required to register on the Website.

5.2 THC may from time to time determine conditions and criteria for Membership and refuse applications from persons who do not comply with such conditions and criteria.

5.3 No person shall have the right to demand Membership, notwithstanding that he/she may satisfy any eligibility criteria. THC has the discretion to adjudicate, accept or reject membership applications, as it may deem appropriate and in the best interests of THC.

5.4 Upon registering on the Website and accepting these Terms and Conditions an agreement is created between the Member and THC, and the Member may place an Order for Services.

 


6 MEMBER OBLIGATIONS

6.1 By registering on the Website, the Member acknowledges to THC that the Member –

6.1.1 has viewed, read and understood these Terms and Conditions;

6.1.2 will be solely responsible for maintaining the confidentiality of their Login Details;

6.1.3 will be solely responsible for activities that occur under their account; and

6.1.4 will not, in any manner, divulge or publicise their Login Details. It is specifically recorded that Login Details may only be used by the persons to whom they have been allocated.

6.2 Without prejudice to any other rights it may have, THC will be entitled to terminate a Member’s access to the Website immediately and without notice, if Login Details are in any manner divulged or publicised by the Member.

6.2.1 The Member hereby warrants that its Login Details shall –

6.2.1.1 be used for their sole or personal use; and

6.2.1.2 not be disclosed to any third party.

6.2.2 THC is indemnified by the Member for any damages suffered or losses
incurred from the use or misuse of a Member’s Login Details, whether by a Member or by a third party.

 


7 SERVICES

7.1 Availability of Services

7.1.1 The Member may place an Order for Services on the Website, which THC may accept or reject depending on circumstances including, but not limited to –

7.1.1.1 THC’s growing capacity;

7.1.1.2 non-compliance by a Member with any term of these Terms and Conditions;

7.1.1.3 availability of growing space;

7.1.1.4 the correctness of the information relating to the Member and/or the feminised seed provided by the Member; and

7.1.1.5 receipt of payment of Membership Fees.

7.2 Once THC has accepted the Order for Services, the Member shall be required to deliver to THC the feminised seeds which the Member wishes THC to grow on its behalf.

7.3 Nature of Services

7.3.1 Once the Member’s feminised seeds are received by THC the Member is assigned the Member’s Designated Growing Area within the THC Growing Facility. The Member will be informed by THC on the Website and/or the THC App of its allocated Member Designated Area on confirmation of the Order for Services. The Sub-Lease Agreement between the Member and THC will commence immediately upon THC’s confirmation of Order for Services in accordance with Annexure A.

7.3.2 The Member’s feminised seeds will be grown, dried and cured in the Members Designated Growing Area and in the Common Areas.

7.3.3 The Member shall be allowed to access the Member’s Designated Growing Area and the Common Areas (depending on the stage of the Cannabis Plant’s Growth Cycle), and as agreed between the Member and THC.

7.3.4 Each Member shall only be entitled to request the Services, and THC shall only be obliged to provide such Services, for a maximum of 2 Cannabis Plants at any one time.

7.3.5 Once THC has completed the drying and curing process the Member shall be advised, via the Website or on the THC App, that their Cannabis Plant is ready for collection. Collection or delivery will then be arranged between the Parties in accordance with clause 12 below.

7.4 Restrictions

7.4.1 Except to the extent expressly permitted in these Terms and Conditions or required by law –

7.4.1.1 the Member must not permit any unauthorised person to access or use the Services;

7.4.1.2 the Member must not use the Services to provide services to third parties;

7.4.1.3 the Member must not use the Services –

7.4.1.3.1 in any way that is illegal, fraudulent or harmful; or

7.4.1.3.2 in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.


8 SUBSEQUENT PLANTS

8.1 It is recorded that should a Member order a subsequent plant, THC is hereby authorised by the Member to propagate a Member’s existing plant to grow subsequent plants in respect of that Member.

8.2 The growth cycle in respect of each subsequent plant is approximately 2 to 3 months (strain dependent) after the previous plant has been provided to the Member.

 


9 THC OBLIGATIONS

9.1 THC undertakes to –

9.1.1 provide the Services strictly in accordance with these Terms and Conditions;

9.1.2 to keep a written register of all Members and Orders for Services; and

9.1.3 promptly notify the Member upon becoming aware of circumstances that may reasonably be expected to jeopardise the performance or timely performance of the Services or any part of thereof.

9.2 Notwithstanding the above, THC –

9.2.1 does not warrant that the Member’s use of the Services will be uninterrupted or error-free, nor that the Services will meet the Member’s requirements; and

9.2.2 is not responsible for any delays, delivery failures, low yields, or any other loss or damage resulting from the provision of Services, save where such liability arises from the gross negligence or wilful misconduct of THC, its employees, agents or authorised representatives.

9.3 The Member acknowledges that the Services may be subject to limitations, delays and other problems inherent in the provision of such Services.

 


10 MEMBERSHIP FEES AND PAYMENT


10.1 The membership fee (“Membership Fee”) payable by a Member shall be dependent on the membership option selected by the Member on the Website at registration. Currently, four membership streams exist, with the following amounts payable –

10.1.1 should a Member register for a 3-month trial membership, the Membership Fee shall be a monthly fee of R1,320.00, payable for three months;

10.1.2 should a Member register for the Services in respect of one cannabis plant, the Member shall pay a monthly amount of R949.00;

10.1.3 should two Members wish to share the Service in respect of one jointly-owned cannabis plant between them, the Members shall pay a monthly amount of R699,00 per person; and

10.1.4 should three Members wish to share the Service in respect of one jointly-owned cannabis plant, the three Members shall pay a monthly amount of R485,00 per person.

10.2 The Membership Fee is subject to change from time to time with reasonable notice to the Member and THC reserves the right to effect such change as and when it deems necessary.

10.3 Payment shall be made by the Member to THC’s designated bank account by credit card. Upon payment of the Membership Fee THC 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 THC shall be entitled to withhold any Services including the delivery of any Cannabis Plant, until such time as the additional information is provided and authorisation is obtained by THC for the amounts. If such authorisation is not received, the Order for Services will be cancelled.

 


11 COLLECTION OR DELIVERY
11.1 Once the Cannabis Plant has been cured and the Member has been informed via the Website or THC App that it is ready to be collected, the Member may elect to –

11.1.1 personally collect his/her cured Cannabis Plant from the Premises; or

11.1.2 authorise THC to, on his/her behalf, arrange a courier service to deliver the cured Cannabis Plant directly to the Member’s directed address.

11.2 If the Member elects clause 11.1.2 above as a mode of delivery, the Parties agree that THC will organise the courier service in THC’s capacity as a duly authorised agent of the Member for and on the Member’s behalf. Accordingly, the agreement between the courier service provider and the Member will be concluded in the name of the Member and not in THC’s name.

11.3 THC will not be liable for any loss or damage suffered by the Member during the delivery process.

11.4 The cost of delivery is included in the Membership Fee.

 


12 RISK AND BENEFIT

12.1 Possession and control of the Member’s feminised seeds and the resultant Cannabis Plant shall be given by the Member to THC on the Transfer Date. Notwithstanding possession and control –

12.1.1 all the benefit and risk of ownership of the feminised seed(s) and resultant Cannabis Plant shall remain with the Member and shall not transfer to THC;

12.1.2 it is agreed between the Parties that THC will not –

12.1.2.1 be entitled to nor have any claim in respect of the feminised seed(s) or the resultant Cannabis Plant;

12.1.2.2 be liable for any risks or costs in respect of the feminised seed(s) or the resultant Cannabis Plant;

12.1.2.3 be labile for claims, losses or liabilities arising from any defects, failure or hazards in the feminised seed(s) or the resultant Cannabis Plant, save where such liability arises from the gross negligence or wilful misconduct of THC, its employees, agents or authorised representatives; and

12.1.2.4 be liable for any damage or injury caused to the Member or any third party on account of the delivery of the Cannabis Plant, save where such liability arises from the gross negligence or wilful misconduct of THC, its employees, agents or authorised representatives, in accordance with clause 11 above.


13 LIMITATION OF LIABILITY


13.1 The use of the Website or THC App 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 THC App or reliance on any information on the Website or THC App.

13.2 THC cannot be held liable for any inaccurate information published on the Website or THC App and/or any incorrect prices displayed on the Website or THC App, save where such liability arises from the gross
negligence or wilful misconduct of THC, its employees, agents or authorised representatives. The Member is encouraged to contact THC to report any possible malfunctions or errors by way of the Website’s help page.

13.3 The Member indemnifies THC 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 THC App or the content contained therein, or the Member’s inability to use the Website or THC App, and/or unlawful activity on the Website or THC App and/or any linked third party website.

13.4 The Member hereby indemnifies THC, 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 or THC App to deal or trade-in or distribute or acquire any illegal substance or product, and THC 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 or THC App.

 


14 INDEMNITY AND WARRANTIES

14.1 By using the Website or THC App, the Member warrants that he/she is 18 (eighteen) years of age or older and of full legal capacity.

14.2 The Member agrees that the Website or THC App cannot guarantee continuous operation of or access to services on the Website or THC App. The functionality of listings and promotions may not occur in real-time and such functionality is subject to delays beyond THC’s control. The Member hereby indemnifies THC 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 or THC App and/or any linked third party website.

14.3 In addition to the limitation of liability and disclaimers contained in these Terms and Conditions, THC also makes no warranty or representation, whether express or implied, that the information or files available on the Website or THC App 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.

14.4 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 THC, its employees, agents or authorised representatives.

 


15 PRIVACY POLICY

15.1 THC will not, without the Member’s express consent –

15.1.1 use the Member’s personal information for any purpose other than as set out below –

15.1.1.1 in relation to the Services –

15.1.1.1.1 to contact the Member regarding current or new goods offered on the Website or THC App; or

15.1.1.1.2 any of THC’s divisions, affiliates and/or partners (to the extent that the Member has not opted out from receiving marketing material from THC);

15.1.1.1.3 to inform the Member of new features, special offers and promotional competitions offered by THC 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 or THC App); and

15.1.1.1.4 to improve the Website’s or THC App’s functionality; or

15.1.1.2 disclose the Member’s personal information to any third party other than as set out below –

15.1.1.2.1.1 to the Website’s or THC App’s employees and/or third-party service providers who assist THC to interact with the Member through the Website or the THC App, email or any other method, for the requesting of the Services or when delivering the Cannabis plant to the Member;

15.1.1.2.1.2 to THC’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;

15.1.1.2.1.3 material regarding any current or new offers by them (unless the Member has opted out from receiving marketing material from the Website or THC App);

15.1.1.2.1.4 to law enforcement, government officials, fraud detection agencies or other third parties when THC 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 these Terms and Conditions; and

15.1.1.2.1.5 to THC’s service providers who assist with parts of THC’s business operations.

15.1.1.3 THC 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, an order of court or legal process served on THC, or to protect and defend THC’s rights or property. In the event of fraudulent online payment.

15.1.1.4 THC 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.

15.1.1.5 Notwithstanding anything to the contrary, THC shall not retain the Member’s personal information longer than the period for which it was originally needed, unless the Website or THC App is required by law to do so, or the Member consents to the Website or THC App retaining such information for a longer period.

 


16 CHANGES TO THE TERMS OF USE

THC reserves its right to amend, update, change or replace any part of these Terms and Conditions and provisions contained herein at its sole and absolute discretion. Any amendment, update, change or replacement of these Terms and Conditions 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.

 


17 BREACH

17.1 If any Party breaches any material provision or term of these Terms and Conditions (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fails to remedy such breach within 14 days from receipt of written notice requiring it to do so (or, if it is not reasonably possible to remedy the breach within 14 days, within such a further period as may be reasonable in the circumstances, provided that the Party in breach furnishes evidence, within the period of 14 days, to the reasonable satisfaction of the other Party that it has taken whatever steps are available to it to commence remedying the breach) then the aggrieved Party shall be entitled, without notice, in addition to any other remedy available to it by law or under these Terms and Conditions, including, to cancel the agreement or to claim specific performance of any obligations, whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved Party’s right to claim damages.

17.2 Should the agreement between THC and Member created by these Terms and Conditions be terminated or cancelled for any reason, THC shall, without prejudice to any other rights which the Member may have –

17.2.1 immediately cease to provide the Services;

17.2.2 shall be entitled, at its election, to –

17.2.2.1 destroy any Cannabis Plants that it still holds on behalf of the Member; or

17.2.2.2 after the expiry of 2 weeks, an employee of THC or another Member, may claim ownership of a Cannabis Plant which has not been collected by the Member; and

17.2.3 all amounts then owing by the Member in terms of these Terms and Conditions shall become immediately due and payable.

17.3 THC shall upon any termination of these Terms and Conditions in terms of this clause 17 be entitled, at its discretion, to cancel all unexecuted orders for Services.

 


18 MEMBER CANCELLATION


The Member may cancel an Order for Services on written notice, via email to THC, provided that the Member cancels the order at least 30 days prior to the conclusion of one Growth Cycle, failing which, THC shall be entitled to retain the full Membership Fee and the Member forfeits ownership of the Cannabis Plant.

 


19 FORCE MAJEURE


19.1 If THC is prevented from or delayed in performing any obligation under these Terms and Conditions due to a Force Majeure Event or for any reason beyond the reasonable control of THC, THC shall be excused from performing or timeously performing that particular obligation for the duration of that prevention or delay.

19.2 THC shall inform the Member, in writing, of that prevention or delay as soon as reasonably possible after the circumstances causing such prevention or delay have arisen, but in any event no later than 48 hours after the commencement of such prevention or delay.

19.3 THC shall do everything reasonably possible to prevent, avoid or limit the duration of the effects of any such prevention or delay. Upon termination of the circumstances giving rise to any such prevention or delay, THC shall give written notice thereof to the Member.

19.4 While any such prevention or delay continues, the Parties shall continue to comply with their obligations under these Terms and Conditions which are not affected by it, to the extent that they are able wilfully to do so, and these Terms and Conditions shall be extended by the period for which such prevention or delay endures.

19.5 If any such suspension or delay continues for more than 30 days then either party shall be entitled by written notice to the other to terminate these Terms and Conditions.

 


20 DISPUTE RESOLUTION


20.1 In the event of there being any dispute or difference between the Parties arising out of these Terms and Conditions, the said dispute or difference shall, on written demand by any Party, be submitted for resolution firstly by way of negotiation and in the event of that failing, by way of mediation and in the event of that failing, by way of arbitration. The reference to negotiation and mediation is a pre-condition to the parties having the dispute resolved by arbitration.

20.2 A dispute shall arise if the dispute and particularity thereof is communicated by one Party to the other in writing.

20.3 Within 21 days of the communication in clause 20.2 above, the Parties shall seek an amicable resolution to such dispute by referring such dispute to representatives of each of the Parties concerned for their negotiation and resolution of the dispute. The representatives shall be authorised to resolve the dispute.

20.4 In the event of the negotiation envisaged in 20.3 above failing for whatsoever reason or cause, any Party may, within 21 days of such failure,
refer the dispute for resolution by way of mediation. The negotiation shall be deemed to have failed if one of the parties declares in writing that it has failed.

20.5 Mediation

20.5.1 The mediation shall be conducted by a mediator selected by agreement between the Parties, and failing such agreement within 7 days after a written request by any Party to the other for such mediation, nominated on the application of any Party by the President for the time being of the Cape Law Society or its successor.

20.5.2 The mediator shall as he/she deems fit, follow formal or informal proceedings and receive evidence on submissions orally or in writing, sworn or unsworn at joint meetings, with the Parties or separately from any person who can assist in the formulation of his opinion, provided that –

20.5.2.1 each Party shall be given reasonable opportunities of presenting evidence and submissions and of responding to evidence and submissions of the other Party;

20.5.2.2 each Party shall be given full details of any evidence on submissions received by the mediator from the other Party or any other person otherwise than at a meeting where both Parties are present.

20.5.3 The mediator shall have the power to propose to the Parties compromise settlements or agreements in disposal of the whole or portion of the dispute.

20.5.4 The mediator shall as soon as reasonably as practicable give to each of the Parties his written opinion on the dispute, recording the details of any agreement reached between the Parties during the mediation.

20.5.5 The mediator’s opinion shall become binding on the Parties only to the extent correctly recorded as being agreed by the Parties in the mediator’s written opinion or otherwise as recorded in writing by all Parties subsequent to the mediator’s opinion.

20.6 Arbitration

20.6.1 In the event of the mediation envisaged in 20.4 failing, any Party may, within 21 days thereafter, by written notice to the others, submit the said dispute or difference to arbitration in Cape Town in accordance with the AFSA rules, which arbitration shall be administered by AFSA.

20.6.2 Should AFSA, as an institution, not be operating at that time or not be
accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by agreement between the parties to the dispute or failing agreement within 10 business days of the demand for arbitration, then any party to the dispute shall be entitled to forthwith call upon the chairperson of the Cape Bar Council to nominate the arbitrator, provided that the person so nominated shall be an advocate of not less than 10 years standing as such. The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the parties to the dispute.

20.6.3 Nothing herein contained shall be deemed to prevent or prohibit a party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.

20.6.4 Any arbitration in terms of this clause 20 (including any appeal proceedings) shall be conducted in camera and the Parties shall treat as confidential details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.


20.7 The provisions of this clause 20 will continue to be binding on the Parties notwithstanding any termination or cancellation of these Terms and Conditions.

20.8 The Parties agree that the written demand by a party to the dispute in terms of clause 20.1 that the dispute or difference be submitted to arbitration, is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969.

 


21 GENERAL

21.1 Ownership and Copyright

The contents of the Website, including any material, information, data, software, icons, texts, graphics, layouts, images, sound clips, advertisements, video clips, trade names, logos, trade-marks, designs, service marks which are displayed on or incorporated on the are protected by law, including but not limited to copyright and trademark law. The Website Content is the property of THC, its advertisers and/or sponsors and/or licensed to THC.

21.2 Electronic Communications

The Member hereby agrees and consents to receive communication from the Website or any of its divisions electronically in accordance with the privacy laws of South Africa.

21.3 Warrant of Authority

Each Party warrants to the other Party that it has the power, authority and legal right to perform these Terms and Conditions and that these Terms and Conditions have been duly authorised by all necessary actions of its directors and constitutes valid and binding obligations on it in accordance with these Terms and Conditions.

21.4 Implementation and Good Faith

21.4.1 The Parties shall at all times during the continuance of these Terms and Conditions observe the principles of good faith towards one another in the performance of their obligations. This implies that they shall –

21.4.1.1 at all times during the term of these Terms and Conditions act reasonably, honestly and in good faith;

21.4.1.2 perform their obligations arising from these Terms and Conditions diligently and with reasonable care; and

21.4.1.3 make full disclosure to each other of any matter that may affect the execution of these Terms and Conditions.

21.5 Whole Agreement

These Terms and Conditions constitute 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.

21.6 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 subcontract, in whole or in part, any of its rights or obligations, arising from these Terms and Conditions without the prior written consent of the other Party.

21.7 Governing Law and Jurisdiction

21.7.1 The validity of these Terms and Conditions, their interpretation, the respective rights and obligations of the Parties and all other matters arising in any way out of these Terms and Conditions or their 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 these Terms and Conditions, 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.

21.7.2 Nothing in this clause 21.7 or in these Terms and Conditions 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.

21.8 Relaxation

No latitude, extension of 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 these Terms and Conditions 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 these Terms and Conditions or estop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.

 


ANNEXURE A – Offer to Sub-lease 

1 Irrevocable Offer

1.1 Registration on the Website and an Order for Services by a Member shall constitute an irrevocable offer by the Member to hire the Member Designated Area (which includes the right to utilise the Common Areas), which offer shall remain irrevocable for a period of 14 days from the date of placing the order on the Website. The irrevocable offer shall be available for acceptance by THC at any time during such period.

1.2 Upon acceptance of the offer by THC, by means of sending of a written confirmation of Order for Services on the Website, together with a confirmation of the Member Designated Area, an agreement shall come into effect between THC and the Member in terms of which THC sub-lets the Member Designated Area to the Member. It being recorded that there will be no further requirements for this Sub-Lease Agreement to come into effect.

2 Sub-Lease Terms

2.1 THC hereby lets and the Member hires the Member Designated Area.

2.2 The sub-lease shall commence within 2 weeks after the Transfer Date (“Sub-Lease Commencement Date”), and
shall endure for the duration of a single Growth Cycle (“Sub-Lease Period”).

2.3 Should THC be unable to give the Member occupation of the Member Designated Area so as to comply with the Sub-Lease Commencement Date and provided that such delay is not due to the gross negligence of THC, its employees or agents, the Member shall –

2.3.1 have no claim whatsoever against the THC for damages of whatsoever nature;

2.3.2 have no right to cancel the Sub-Lease Agreement; and

2.3.3 accept occupation on such later date on which the Member Designated Area becomes available.

2.4 In the event of a delay as envisaged in clause 2.3 above, the Sub-Lease Commencement Date shall be the date on which the Member Designated Area shall become available for occupation; provided that if the Member Designated Area is not reasonably capable of occupation within 3 months of the anticipated Sub-Lease Commencement Date then either Party shall be entitled to terminate the Lease by giving the other Party at least 1 month’s written notice to that effect, and neither Party shall have any claim against the other arising from such termination.

2.5 Notwithstanding the Sub-Lease Period, in the event that THC in its sole discretion should elect to demolish, reconstruct, redevelop, renovate, improve and/or extend the property or the Member Designated Area, then THC shall be entitled to terminate the sub-lease agreement upon giving the Member no less than 1 month’s written notice of its election and neither Party shall have any claim whatsoever against the other arising from such earlier termination.

3 Rent

3.1 The rental amount due to THC shall be 10% of the Membership Fee payable by a Member based on their membership option.

3.2 The rental amount is included in the Membership Fee and will be taken directly from the Membership Fee paid by the Member.