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*Terms and Conditions
Technofresh (hereinafter referred to as Technofresh), sells the right to use the software application known as the "Market Reconciliation Systems" (MRS) and access to electronic data collected on behalf of the subscriber from specified South African Fresh Produce Markets. The access to the data is via the Internet and through the Technofresh Web Site, www.technofresh.co.za, by the subscriber keying in a valid log-in ID and password specifically granted to the subscriber. In order for the subscriber to be issued with a valid log-in ID and password, Technofresh requires the subscriber to conclude this Technofresh Service Agreement and the subscriber hereby binds himself to this agreement.
INTERPRETATION IN THIS AGREEMENT:
"effective date" - means when the subscriber receives his log-in ID and password "password" - means the word or device or sign given by Technofresh to the subscriber that will entitle the subscriber to gain access to Technofresh`s computer network "service" - means any service as may be provided by Technofresh in terms hereof "subscription" - means any amount payable to Technofresh as stated in this agreement and, where applicable, includes the monthly connection fee, usage fees, monthly fees for closed user groups of Technofresh, any interest outstanding, all current amounts due and amounts that must still become due.
Technofresh, with effect from the effective date, hereby grants to the subscriber the use and enjoyment of its web site to gain access to the data collected on the subscribers behalf from the South African Fresh Produce Markets as per the terms and conditions set out herein. The subscriber hereby acknowledges receipt of such access and agrees: that the log-in ID and password will be used for his/her personal use only not to give or make available in any way his/her personal log-in ID and password to any other person for such person`s use ("unauthorized use") and undertakes to maintain the confidentiality of such log-in ID and password in the event that any unauthorized use takes place, to pay immediately, on demand made by Technofresh, all such costs involved in the use of such subscriber`s log-in ID and password
Technofresh shall use reasonable endeavours to keep the system available at all times, however, the subscriber agrees that Technofresh shall not be liable to the subscriber or any other person or entity whatsoever in respect of (and the subscriber or any such person or entity shall have no claim against Technofresh and the subscriber hereby indemnifies and holds Technofresh free from liability in respect of) any loss or damage: caused by or arising from any fact or circumstances beyond the reasonable control of Technofresh or if such loss or damage is consequential or incidental loss or damage or which is as a result of any downtime, outage, interruption in or unavailability of the system attributable to any cause whatsoever, including but not limited to: repairs and maintenance, any breakdown of whatever nature and howsoever arising in any of the services provided by Telkom (including, but not limited to, line failure) as well as by any other external communications networks and by the networks of Internet service providers other than Technofresh. Technofresh shall use its best endeavours to notify the client of any maintenance and repairs which may result in the system being unavailable but does not warrant that notice shall be given to the client prior to such maintenance and repairs being undertaken. Without limiting the generality of the above the subscriber indemnifies and holds Technofresh harmless against any and all losses, injury, damage, penalties or claims of whatever nature and howsoever arising from or in connection with the service hereby made available by Technofresh.
Technofresh assumes no responsibility for and has no control over the performance of external communication networks to which the service is connected and the Client accordingly indemnifies Technofresh against it. This also covers the networks of the Internet Service Providers other than Technofresh.
HELP AND ASSISTANCE
Technofresh will provide a Help Desk service to it`s Subscribers regarding the software usage, data availability, network performance and billing. The Help Desk will be available during the hours 8h00 to 16h30 Monday to Friday excluding South African public holidays. The Help Desk can also be contact via the web page or email at email@example.com.
PAYMENT OF CHARGES
The subscriber shall pay the subscription, charges and charge rates as set out in the standard price list applicable as at the effective date and subject to any increases or decreases introduced by Technofresh from time to time. The subscriber`s bank account as detailed above shall be debited with the monthly subscription fee for the previous month`s usage as per the standard subscription rates and number of markets from which data is collected. The debit order will be processed within the first 3 working days of the new month. The monthly fees for any premium services as may be offered from time to time from Technofresh to which the subscriber has subscribed will also be deducted at the beginning of each month. In the event that the subscriber fails to pay any amount which may become due by the subscriber to Technofresh in terms hereof on the due date for such payment, then, without prejudice to any of the rights granted to Technofresh in terms hereof: any such amount not paid on due date shall bear interest at the rate of 2% above the prime overdraft rate charged by First National Bank Ltd. calculated and compounded daily in advance as from the due date (both dates inclusive); Technofresh shall be entitled to take all such further steps, without notice, as may be necessary to recover such monies from the subscriber, and/or to suspend the service to the subscriber until such time that the subscriber has fulfilled his/her obligations in terms hereof, or to terminate this agreement. The subscriber agrees that he/she shall pay all costs associated with the recovery of monies including legal fees on an attorney and client basis. Technofresh shall give the subscriber 30 days notice of any increase or decrease in the rates set out in its standard price list should Technofresh in its sole discretion elect to increase or decrease such rates, and the subscriber shall be bound to such adjustments. The adjustments in such amended standard price list shall take effect on the date of expiry of the written notice. The subscription charges set out herein and all other payments due in terms hereof shall be paid free of exchange and without deduction or set-off by way of a direct debit order (drawn against the subscriber`s nominated current banking account) in favour of Technofresh`s bankers, or in such other manner as Technofresh may from time to time determine and at such address as Technofresh may elect. The subscriber shall sign all such forms and do all such things as may be necessary to give effect to the foregoing. The subscriber shall not be entitled during the currency of this agreement to withhold payment of any amount by reason of any alleged breach by Technofresh. In addition the subscriber shall not be entitled to any setoff, discount, refund or other credit in respect of any unavailability of the service.
In order to ensure the security and reliable operation of the system to all subscribers, Technofresh hereby reserves the right to take whatever action Technofresh finds necessary to preserve the security and reliability of the system. The subscriber acknowledges that he/she is prohibited from utilising Technofresh services to compromise the security or tamper with system resources or account(s) on computer(s) at Technofresh, or at any other site.
USE OF MATERIAL
Without limiting the above, the subscriber undertakes to abide by all laws applicable to the intellectual property rights (including but not limited to: title, copyright, trade marks, and patents) of any and all data and/or information retrieved from the service including those expressly or impliedly specified by Technofresh or by any of the local or foreign service providers or any laws governing the provision of the service. The subscriber may not resell the information, or use the information for monetary gain, unless permitted to do so in writing by Technofresh and/or the Information Provider. Technofresh disclaims any warranty as to the quality or accuracy of information or fitness for a particular purpose. Technofresh makes no warranty as to the accuracy or quality of any information on the Internet. © The Copyright Act of 1992 protects the Technofresh products from replication for the purpose of sale and/or distribution by whatever means interpreted by the law. It is a criminal offence to copy the Technofresh software or manuals.
The subscriber hereby indemnifies and holds Technofresh and any other person free from liability for loss or damage of whatever nature and howsoever arising from the subscriber`s use of the service and/or failure to perform its obligations in terms of this agreement, including but not limited to its failure to comply with the above guidelines, and with any other requirements of Technofresh as may be imposed from time to time.
Should the subscriber be in default of any payment due in terms of this agreement or fail to observe and perform any of the other terms, conditions or obligations of this agreement, then Technofresh shall be entitled, but not obliged, in its sole discretion and without prejudice to any of its rights that it may have in law, including the right to claim damages, without notice, to do the following: claim immediate payment of all amounts payable in terms of this agreement, whether or not such amounts are due; and/or immediately suspend the services provided for in this agreement until such time that all such outstanding amounts have been paid and/or immediately terminate this agreement, retain all monies already paid by the subscriber and to recover all legal costs, including costs on the attorney and client scale.
CERTIFICATE OF INDEBTEDNESS
The amount of the subscriber`s indebtedness to Technofresh and the fact that such indebtedness is due and payable shall be determined and proved by a certificate signed by Technofresh (or by one of Technofresh`s directors, whose appointment, qualification and authority need not be proved). The certificate shall be binding on the subscriber, be prima facie of the amount due, owing and payable by the subscriber to Technofresh and shall be deemed to be a liquid document for the purpose of obtaining provisional sentence and/or any other judgement against the subscriber.
CESSION AND DELEGATION
The subscriber shall not cede any of his/her rights nor delegate any of his/her obligations hereunder. Technofresh shall be entitled to cede and transfer or delegate to any third party at its absolute discretion all or any of its rights or obligations under this agreement.
The subscriber hereby irrevocably consents to the jurisdiction of the Magistrate`s Court in the Republic of South Africa in respect of any proceedings that may be initiated by Technofresh arising out of this agreement, provided that Technofresh shall be entitled, in its sole discretion, to institute such proceedings in the High Court of South Africa and, in such event, the subscriber consents to the jurisdiction of the said court.
TERMINATION OF AGREEMENT
The agreement can be terminated upon prior written notice of 1 calendar month, after an initial period of not less than 6 months for the MRS system and on a month by month basis for "FRESH STATS", by either party. Termination will not result in any refund by Technofresh of pre-payments made to Technofresh. On account of termination, no refund will be made and outstanding balances remain valid and have to be settled within 30 days of termination.
· The parties acknowledge and agree that this agreement sets out the whole of the agreement between them and that there are no other agreements, guarantees or representations, either verbal or in writing, in regard thereto upon which any party is relying in concluding this agreement. No variation of this agreement shall be binding unless recorded in writing and signed by the parties. The subscriber agrees that by furnishing his/her bank details, he/she consents to Technofresh deducting the amount of his/her subscription and other charges from the account specified