IT IS HEREBY AGREED AS FOLLOWS:
1.1 WHEREAS the Client is desirous of using One Culture National for the cultivation of crops for the Client’s own personal use in a private space/residence, as required for the purposes set out herein, because the Client does not possess the requisite knowledge, skill, space or infrastructure to grow the crop; and
1.2 WHEREAS the Client has leased a Blockchain through One Culture National, being a 9 square meter piece of private land, which is not accessible to the public, as set out in Annexure A In terms of this Agreement the aforementioned specific Blockchain assigned to the Client will have a designated Grower, who will cultivate the Client’s crop on their behalf for the Client’s own private personal use, and
1.3 WHEREAS the service provider represents that he/she has the requisite skill and experience in rendering the horticultural expertise to cultivate the desired crop for the Client and has sufficient capacity and resources to perform the cultivation in accordance with the terms of this Agreement. The Grower acknowledges that the client has entered into this Agreement on reliance on through representation, and
1.4 WHEREAS neither the service provider or the Grower does not sell, trade in, deal, distribute or commercialise the crop but offers his skill and experience in cultivating the desired crop for the Client. The Client at all times remains the lawful owner of the crop.
1.5 Accordingly, the Client and the Grower enter into this Agreement on and with effect from the Commencement Date, on the terms and subject to the conditions recorded herein and subject to ANNEXURES A to C to this Agreement, and both the Client and the Grower acknowledge that this Agreement is binding and the services provided herein are only permissible and valid when rendered through One Culture National and no other entity, individual or company providing the same or similar services. The Client and Grower further acknowledge that they will be held liable by One Culture National for damages suffered due to any breaches of this agreement the illegal use of this One Culture National contract.
CANNABIS SUBSCRIPTION CONDITIONS
2.1.1 The Client warrants that the services of One Culture National have been procured solely for the cultivation of the crop for the Client’s own personal use and the Client warrants that he/she in no way intends to sell, deal in, trade, distribute or commercialise the harvest of Cannabis in contravention of any Laws of the Republic of South Africa.
2.1.2 The service provider warrants that the services rendered to the Client in terms of this agreement are solely for the cultivation of the crop for the Client’s own personal use and that both the Grower and client warrants that he/she in no way intends to use, sell, deal in, trade, distribute or commercialise the Client’s harvest of Cannabis in contravention of any Laws of the Republic of South Africa.
2.1.3 In the event that the Client contravenes the provisions contained in clause 2.1.1, the Client indemnifies the Grower and One Culture National against all damages and/or claims, of a civil and/or criminal nature, arising from the Client’s contravention of the provisions contained in clause 2.1.1, to the extent that the Grower and One Culture National are not found to be involved in the contravention under reference.
2.1.4 In the event that the Grower contravenes the provisions contained in clause 2.1.2, the Grower indemnifies the Client and One Culture National against all damages and/or claims, of a civil and/or criminal nature, arising from the Grower’s contravention of the provisions contained in clause 2.1.2, to the extent that the Client and One Culture National are not found to be involved in the contravention under reference.
2.1.5 The Client’s membership and Services will be terminated with immediate effect in the event that the Client contravenes the provisions contained in clause 2.1.1.
2.1.6 The subscription model offered to the client by One Culture National and the related services rendered by the Grower are in accordance with the law currently, notwithstanding this legal framework may therefore be subject to change as new legislation is drafted and enacted. The provisions of this Agreement are therefore also subject to change in accordance with the changing law.
2.2 Harvest and Collection
2.2.1 The client undertakes to personally collect their cannabis crop within 14 (fourteen) days after notification from One Culture National, which collection time must be pre-arranged with One Culture National. The Client will further be required to provide proof of identification upon collection.
2.2.2 The harvest of the Client’s Cannabis crop includes the curing, drying and storing of the harvest by the Grower in a diligent and a professional manner, in accordance with the accepted practices and high professional standards currently used in performing these services. The Grower will safely store the Cannabis harvest and ensure that the harvest is correctly labelled to correspond with the client’s unique Blockchain.
CLIENT DUTIES AND RESPONSIBILITIES
3.1.1 The Client confirms that he/she understands the contents of and accepts the specifications of the subscription model the client has selected..
3.1.2 The Client agrees that it is and will remain the sole lawful owner of the seed/s, crop/s and harvest/s produced on their assigned patch throughout the subscription period, and the rights contained herein may not be ceded or assigned to any third party. If the Client decides not to continue growing or elects to terminate this agreement then all product from his harvest will be disposed of and all plants will be destroyed. It is not permissible for the Client to remove any plant or crop once the agreement has been terminated.
3.1.3 The Client undertakes to pay the monthly subscription fee fpr membership and the fee for growing. Failure to pay the monthly subscription fee will result in a suspension of the services and the client will be afforded 14 (fourteen) days within which to rectify payment. Failure to rectify payment within 14 (fourteen) days will result in termination of the Subscription and Lease. It is noteworthy that without the requisite lease the Client will be operating not in accordance with the current laws.
3.1.4 The Client agrees that any additional services or specific inputs not included in the selected subscription model will be charged at an additional cost to the client as quoted and agreed between the parties in terms of the specific additional fee structure.
3.1.5 The Client undertakes to personally obtain the seed/s of the desired crop from a supplier and One Culture National will assist to deliver the seed/s to the grower for cultivation.
3.1.6 The Client acknowledges that he/she has a limited visitation right to its Leased Blockchain 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 contained in Annexure B.
3.2.1 One Culture National will notify the Client when each of the Client’s harvests is ready for collection during the subscription period.
3.2.2 The Client is obliged to collect the harvest within 14 (fourteen) days after notification from One Culture National, which collection time must be pre-arranged with One Culture National.
3.2.3 The Client consents to the destruction of the harvest in the event that the harvest is not collected within 1 (one) month from the date of notification as contained in clause 2.2.1 above.
3.2.4 The Client acknowledges that it shall have no recourse against One Culture National or the Grower in the event that the client’s harvest is destroyed or damaged due to the client’s failure to collect the harvest within the prescribed time periods.
3.3 Confidentiality and non-circumvention
3.3.1 The Client, subject to the Confidentiality and Intellectual Property provisions contained in Annexure B, undertakes to keep the identity of the Grower, the location of the Leased Blockchain and the contents of the Grow Diary confidential throughout the period of subscription and indefinitely thereafter.
3.3.2 The Client undertakes to not approach the Grower directly for the procurement of the services of the Grower for the Client’s personal use not covered within the provisions of this Agreement, thereby circumventing One Culture National. In the event that the Client circumvents One Culture National, the Client will be liable for liquidated damages set at R100,000 incurred by One Culture National as professionally quantified, including but not limited to loss of income, reputational damage and legal costs.
GROWERS DUTIES AND RESPONSIBILITIES
4.1.1 On and from the commencement date, the Grower will provide the cultivating expertise as per the Client’s preference.
4.1.2 The Grower will not purchase the seed/s on behalf of the Client but will, upon request by the Client, offer advice on the type of seeds to be procured for the client’s desired personal use.
4.1.3 Upon delivery of the seed/s by the Client, the Grower will undertake to plant the seed/s and commence with the photographic and Grow Diary process of record keeping as required by One Culture National.
4.1.4 The Grower acknowledges that the Client is and will remain the sole lawful owner of the seed/s, crop/s and harvest/s produced on the Client’s assigned patch throughout the subscription period.
4.1.5 The Grower acknowledges that the cultivation of the crop/s for the Client is strictly for the personal use of the Client only.
4.1.6 The Grower undertakes to supply the subscription services promptly, diligently and in a professional manner, in accordance with the practices and high professional standards used in performing services similar to the Services herein.
4.1.7 The Grower acknowledges that the Client has a limited visitation right to the Client’s Leased Blockchain and supervised visitation thereto must be pre-arranged with One Culture National.
4.2 Harvest and related activities:
4.2.1 The Grower undertakes to carry out the harvesting and related activities as per the Client’s selected subscription model.
4.2.2 The Grower undertakes to safely store the harvest and to ensure that the harvest is correctly labelled to correspond with the client’s unique Blockchain.
4.2.3 The Grower will provide access to the Client for collection of the clients harvest at the prearranged date and time.
4.2.4 In the event that the harvest is not collected within the prescribed time periods as set out in clauses 2.2.2 to 2.2.4, the Grower will destroy the harvest and furnish the Client with proof thereof.
4.3 Confidentiality and non-circumvention
4.3.1 The Grower, subject to the Confidentiality and Intellectual Property provisions contained in Annexure B, undertakes to keep the identity of the Client, the location of the Client’s Leased Blockchain and the contents of the Grow Diary confidential throughout the period of subscription and indefinitely thereafter.
4.3.2 The Grower undertakes to not approach the Client directly to offer the services of the Grower for the Client’s personal use not covered by the provisions of this Agreement, thereby circumventing One Culture National. In the event that the Grower circumvents One Culture National, the Grower will be liable for liquidated damages as set at R100,000 incurred by One Culture National as professionally quantified, including but not limited to loss of income, reputational damage and legal costs.
COMMENCEMENT, DURATION AND TERMINATION
5.1 This Agreement shall commence on the date of signature of all parties hereto and shall continue for a period of 2 (two) years (Initial Period).
5.2 The client shall have the option to renew this Agreement after the Initial Period for a further 1 (one) year period and on the same terms and conditions contained herein between the Parties. Should the client elect to exercise the option as aforesaid, it shall do so by giving One Culture National 2 (two) months’ written notice prior to expiry of the Initial Period.
5.3 Upon expiry of the Initial Period referred to in clause 5.1, if the client does not exercise the option to renew this Agreement as set out in clause 5.2, this Agreement shall automatically terminate.
5.4 Upon expiry of this Agreement the Client will have 14 (fourteen) days within which to collect their seed/s and/or crop/s and/or harvest/s. The Client consents to the destruction of their seed/s and/or crop/s and/or harvest/s in the event that the such is not collected within 1 (one) month from the date of expiry of this Agreement.
5.5 Either the Client or One Culture National may terminate this Agreement subject to the termination provisions contained in clause 7.4 in Annexure B hereto.
EACH PARTY HERETO CONFIRMS THAT THEY HAVE READ, UNDERSTOOD AND ACCEPTS THE TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANNEXURE A AND B TO THIS AGREEMENT.
ANNEXURE A – BLOCKCHAIN LEASE AGREEMENT BETWEEN LAND OWNER AND CLIENT
1. DETAILS OF LAND OWNER
Will be revealed to member upon request as each grower requests that they be permitted to liaise with each member to clarify any issues prior to identifying the exact location where cultivation occurs
1.1. Name: To be verified
1.2. Physical Address: To be verified
1.3. Identity Number: To be verified
1.4. Contact Details: Can be made available to a member upon written request
2. DETAILS OF LESSEE (CLIENT) – To be completed electronically
2.2. Physical Address:
2.3. Identity Number:
2.4. Contact Details: ;
3. LEASE, DESCRIPTION AND USE OF PROPERTY
3.1. The Client hereby agree to lease the 9 square meter patch of land identified by One Culture National using the unique three-word address given to the patch by the What3Words geolocation blockchain, this allocated parcel of land utilised for cultivation has a specific What 3 Words blockchain address which is registered by One Culture and earmarked for each member. This blockchain address remains confidential and can be identified to the member upon request.
3.2. The Land Owner hereby gives consent to the Client (Lessee) to use the land for crop cultivation purposes, including the cultivation of cannabis for the lessees own personal private use.
3.3. The 9 square meter patch of land is let to the Lessee for cultivation purposes only and shall not be used for any other purpose whatsoever, including but not limited to occupation, building, renovations or additions.
3.4. This agreement of lease shall be tied to the concurrent signing of a horticultural service level agreement for the cultivation of aforesaid crops. Termination of the horticultural Service will result in the termination of the Lease agreement and vice versa.
3.6. The Lessee will pay a monthly subscription service for the lease and horticultural services. This subscription fee will include the payment of water and electricity consumed by the cultivation process.
4. COMMENCEMENT, DURATION AND TERMINATION
4.1. This Agreement shall commence on the date of signature of all parties hereto and shall continue for a period of 2 (two) years (Initial Period).
4.2. The Lessee shall have the option to renew this Agreement after the Initial Period for a further 1 (one) year period and on the same terms and conditions contained herein between the Parties. Should the Lessee elect to exercise the option as aforesaid, it shall do so by giving One Culture National 2 (two) months’ written notice prior to expiry of the Initial Period.
4.3. Upon expiry of the Initial Period referred to in clause 4.1, if the client does not exercise the option to renew this Lease as set out in clause 4.2, this Lease Agreement shall automatically terminate.
5. SUBLETTING AND ASSIGNMENT
5.1. The Lessee –
5.1.1. shall not give up occupation of the property or any portion thereof;
5.1.2. shall not be entitled to sublet the property;
5.1.3. shall not be entitled to cede any of its rights or delegate any of its obligations under this agreement of lease without the prior written consent of the other party.
ANNEXURE B – STANDARD TERMS AND CONDITIONS
Definitions and Interpretation
1.1 In this Agreement, the following words shall, unless otherwise stated or inconsistent with the context in which they appear, bear the following means and other words derived from the same origins as such words (that is cognate words), shall bear corresponding meanings:-
1.1.1 “Agreement” shall mean this Agreement and any Annexures and Specifications thereto, as may be amended in writing by the Parties from time to time;
1.1.2 “Annexure” shall mean any annexure to this Agreement, initialled by the Parties for identification purposes;
1.1.3 “Business Day” shall mean any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
1.1.4 “the Blockchain/Leased Blockchain” shall mean the unique three word address given to the leased 9 square meter patch of land of the Client (situated within the private property of the Lease Holder) using the What3Words geolocation blockchain;
1.1.5 “Cannabis” shall mean a plant from the genus cannabis plants family;
1.1.6 “Client” shall mean an adult male/female, with identity number , presently residing at , , , , ,
1.1.7 “Clone” shall mean making an exact genetic copy of a cannabis plant with a cut off piece (“cutting”) from the parent plant;
1.1.8 “Commencement Date” shall mean the , notwithstanding the Signature Date;
1.1.9 “Confidential Information” shall mean all information confidential to a Party including,vto the extent that it is not freely and publicly available, the identity of the parties, the location of the Blockchain, client records, commercial, financial, technical, scientific and research information, trade secrets, passwords, or other secret codes, information disclosed with the permission of third parties in which the third parties have confidentiality rights, information legally protected from disclosure, any information the unauthorised disclosure of which could reasonably be expected to cause harm or risk to the Disclosing Party and any other information designated by the Disclosing Party as confidential or which is manifestly confidential;
1.1.10 “Crop” shall mean the cultivated plants of the client;
1.1.11 “Cure/Curing” shall mean the process whereby the yield from the crop is dried and preserved for the client;
1.1.12 “Duration” shall mean the duration of this Agreement as set out in clause 1.4;
1.1.13 “Grow Diary” shall mean the records kept by the Grower of the Gardening Services provided to the Client’s crop, which records will be made available to the Client to track the progress of the crop’s growth and health; The Grower will provide a detailed overview of the type of water, nutrients and feeds, growing medium, ventilation system, lighting system, pruning, harvesting, and curing that the Grower will provide for the selected subscription model and desired personal use of the Client;
1.1.14 “Initial Period” shall mean the period as set out in clause 1.4.1;
1.1.15 “Intellectual Property Rights” shall mean all current and future intellectual property rights of any kind whatsoever and however embodied which may subsist or be capable of protection wheresoever in the world, including (without limitation) growing techniques, growing designs, methods and processes of growing and planting, irrigation systems, cloning of plants, controls, gardening skill sets, specialist lighting designs, Grow Diaries, growth records, patents, trademarks, present and future rights of copyright, rights in and to designs, rights in and to inventions, topography rights, rights in and to trade secrets, rights in and to: trade names, business names, domain names and logos, the right to keep information confidential and private, rights in and to know-how, rights in and to databases (including rights of extraction), and all rights and forms of protection of a similar nature or having equivalent effect to any of them which may subsist or be capable of protection as at the Commencement Date or thereafter wheresoever in the world, whether or not any of these is registered and including applications for any such rights or registration thereof and any goodwill related to or arising from such rights;
1.1.16 “Land Owner” shall mean the person/entity that has the appropriate land and infrastructure and on which land the cultivation of the client’s crop will be carried out in terms of the Lease Agreement between the Client and the Land Owner;
1.1.17 “Lease Agreement” shall mean the Agreement of Lease entered into between the Land Owner, and the Client, in respect of the leased 9 square meter patch of land. The Lease Agreement is annexed hereto as Annexure A;
1.1.18 “License/s” shall mean the API (Application Programme Interface), License Number which One Culture holds permitting One Culture to use the Apps with What3Words and the Grow Buddy Grow Diary;
1.1.19 “Grower” shall mean [ One Culture approved grower who is responsible for cultivation of Cannabis as well as other plants ], the person who possesses the necessary skill and experience and who will carry out the Gardening Services to cultivate the client’s crop;
1.1.20 “Parties” shall mean the Grower and the client and “Party” shall mean any one of them, as the context may require;
1.1.21 “Patch of Land” shall mean the 9 square metre portion of land assigned to the client by One Culture National using What3Words blockchain technology on which the client’s crop/s will be cultivated;
1.1.22 “Personal Information” shall have the meaning ascribed to it in terms of POPI;
1.1.23 “POPI” shall mean the Protection of Personal Information Act No. 4 of 2013;
1.1.24 “Seed/s” shall mean the seeds obtained by the client from a trusted supplier to be delivered to the Grower;
1.1.25 “Service Fee” shall mean the charges payable by the client in terms of the selected subscription for the horticultural Services.
1.1.26 “Services” shall mean the Gardening Services provided by the Grower in cultivating the client’s crop.
1.1.27 “Signature Date” shall mean the date of signature of this Agreement by the last party signing;
1.1.28 “VAT” means value-added tax as levied from time to time in terms of the Value Added Tax Act, No 89 of 1991, as amended.
1.1.29 “What3Words” shall mean the global addressing blockchain system that has divided the world into a grid of 3 meter by 3 meter squares and assigned each one a unique 3 word address.
1.2 In this Agreement:
1.2.1 “laws” shall mean all constitutions; statutes; regulations; by-laws; codes; ordinances; decrees; rules; judicial, arbitral, administrative, ministerial, departmental or regulatory judgements, orders, decisions, rulings, or awards; policies; voluntary restraints; guidelines; directives; compliance notices; abatement notices; agreements with, requirements of, or instructions by any government body; and the common law, and “law” shall have a similar meaning, as governed within the Republic of South Africa;
1.2.2 references to a South African statutory provision will include any subordinate legislation made from time to time under that provision and will include that provision as modified or re-enacted from time to time;
1.2.3 words importing the masculine gender include the feminine and neuter genders and vice versa; the singular includes the plural and vice versa; and natural persons include artificial persons and vice versa;
1.2.4 references to a “person” include a natural person, company, close corporation or any other juristic person or other corporate entity, a charity, trust, partnership, joint venture, syndicate, or any other association of persons;
1.2.5 if a definition imposes substantive rights and obligations on a Party, such rights and obligations shall be given effect to and shall be enforceable, notwithstanding that they are contained in a definition;
1.2.6 any definition, wherever it appears in this Agreement, shall bear the same meaning and apply throughout this Agreement unless otherwise stated or inconsistent with the context in which it appears;
1.2.7 if there is any conflict between any definitions in this Agreement then, for purposes of interpreting any clause of the Agreement or paragraph of any Annexure, the definition appearing in that clause or paragraph shall prevail over any other conflicting definition appearing elsewhere in the Agreement;
1.2.8 where any number of days is prescribed, those days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which event the last day shall be the next succeeding Business Day;
1.2.9 where the day upon or by which any act is required to be performed is not a Business Day, the Parties shall be deemed to have intended such act to be performed upon or by the next succeeding Business Day;
1.2.10 any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated as having not been written (i.e. pro non scripto) and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction;
1.2.11 references to any amount shall mean that amount exclusive of VAT, unless the amount expressly includes VAT;
1.2.12 the rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (i.e. the eiusdem generis rule) shall not apply, and whenever the word “including” is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given;
1.2.13 The expiration or termination of this Agreement shall not affect any such of the provisions of this Agreement which are expressly provided to operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the relevant provisions themselves do not provide for this;
2.1 The Grower must :-
2.1.1 perform the Services at a standard that is consistent with levels of performance achieved by well managed operations performing services similar to the Services in any place in the world, having regard to the environment in which the Services are being provided. To avoid doubt, the Services must always be provided at the levels identified or higher;
2.1.2 comply with all applicable laws;
2.1.3 at all times act so as to endeavour to minimise the likelihood of an occurrence that may lead to the termination or breach of this Agreement; and
2.1.4 provide the Gardening Services in an open and transparent manner, which shall include, but not be limited to: (i) at all times allowing the Client reasonable access to the Grow Diary; and (ii) not effecting any changes to the Gardening Services or any manner in which the Services are performed or executed without the prior agreement of the client.
3.1 The Client must:
3.1.1 Comply with all applicable laws;
3.1.2 at all times act so as to endeavour to minimise the likelihood of an occurrence that may lead to the termination or breach of this Agreement;
SAFETY AND SECURITY
4.1 On the arrangement of visitation by the Client to the Client’s Leased Blockchain serviced by the Grower. The Grower will provide the Client with a briefing before entering the private lease area. This briefing will include but is not limited to:
4.1.1 clearly explaining what actions will and will not be allowed within the lease area to prevent crop contamination;
4.1.2 preventing the Client from directly accessing the blockchain lease of another Client.
REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of the Grower
5.1.1 The Grower hereby gives the warranties and guarantees as set out in this Agreement and in this clause 5.
5.1.2 The Grower warrants that for the Duration of this Agreement:
22.214.171.124 it shall be capable of providing the Services in accordance with the terms of this Agreement;
126.96.36.199 the provision of the Services and the performance of this Agreement will not infringe any rights (including Intellectual Property Rights) of any person;
188.8.131.52 he has full legal capacity and power to:
184.108.40.206.1 enter into this Agreement and carry out the Services that this Agreement contemplates;
220.127.116.11.2 ensure that the Services are provided in an accurate, timely and consistent manner.
5.1.3 The Grower will:-
18.104.22.168 Supply the Services promptly, diligently and in a professional manner, in accordance with the practices and high professional standards used in performing services similar to the Services herein; and
22.214.171.124 Use adequate products and tools to perform the Services in a quality manner;
5.1.4 The Grower will comply at all times during the term with all privacy and data protection laws of the Republic of South Africa in relation to the collection, use and disclosure of any Personal Information in the Data in accordance with this Agreement;
5.2 Representations and Warranties of the Client
5.2.1 The Client hereby gives the warranties and guarantees as set out in this Agreement and in this clause 5.
5.2.2 The Client warrants that for the Duration of this Agreement:
126.96.36.199 It is and shall remain the legal owner of the seed/s provided to the Grower, the individual plant/s, crop/s and the harvest/s;
188.8.131.52 That the Services of the Grower have been procured solely for the cultivation of the crop in order for the Client to use his own personally grown harvest for personal use and the Client warrants that he/she in no way intends to sell, deal in, trade, distribute or commercialise the Client’s cured harvest of Cannabis in contravention of any Laws of the Republic of South Africa;
184.108.40.206 the provisions of this Agreement will not infringe any rights (including Intellectual Property Rights) of any person;
5.3 Reliance on representations and warranties
The Grower acknowledges that the Client has executed this Agreement and has agreed to take part in the services that this Agreement contemplates in reliance on the representations and warranties that are made or repeated in this clause and in this Agreement.
INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
6.1.1 The Parties agree that, except where expressly indicated otherwise in this Agreement, including in any Annexures to this Agreement, all Intellectual Property Rights are owned by One Culture National as indicated in this clause 6 and shall be the exclusive property of One Culture National.
6.1.2 The specific cultivation techniques utilised by the Grower in this Agreement shall remain the exclusive intellectual property of the Grower.
6.1.3 The Client acknowledges and agrees that, save as set out in this Agreement, all rights (including Intellectual Property Rights), title and interest in Data, documents, Reports, software, systems and other material made available to the Client by One National shall remain vested in One Culture National.
6.1.4 The parties specifically agree that the Intellectual Property in respect of any and all software or computer programs developed or utilised in respect or in connection with this Agreement, whether developed exclusively for One Culture National under this Agreement or otherwise, shall at all times remain vested in One Culture National or the rightful owner thereof, notwithstanding anything to the contrary contained in this Agreement.
6.1.5 The Client acknowledges and agrees further, that all Intellectual Property Rights which are conceived and created by any agents or third parties on behalf of One Culture National in connection with this Agreement and the Services shall vest and remain vested in One Culture National.
6.1.6 This Agreement, save as specifically provided otherwise in this Agreement, does not constitute a license to the Parties to use any of One Culture National’s Intellectual Property Rights at any time without the prior written consent of One Culture National.
6.1.7 One Culture National shall be solely responsible for and shall obtain any and all rights, licenses, releases, consents, waivers, and clearances necessary to make use of any creative materials used and/or incorporated as part of the Services and used and/or incorporated in or necessary to the performance of the Services.
6.2 Confidential Information
6.2.1 Title to the Confidential Information
220.127.116.11 The Parties acknowledge that all rights, title and interest in and to the Confidential Information vests in the Party disclosing the Confidential Information (“the Disclosing Party”) and that the Party receiving the Confidential Information (“the Receiving Party”), has no claim of any nature in and to the Confidential Information and the provision of Confidential Information by the Disclosing Party to the Receiving Party does not constitute in any way an implied license to use the Confidential Information other than as expressly set out in this Agreement.
18.104.22.168 The Receiving Party shall under no circumstances challenge the Disclosing Party’s right, title and interest in and to the Confidential Information.
6.2.2 Period of Confidentiality
The provisions of this clause 6.2 shall remain in force indefinitely.
6.2.3 Non-Disclosure Agreements
22.214.171.124 The Receiving Party irrevocably undertakes to maintain the confidentiality of any Confidential Information to which the Receiving Party is allowed access by the Disclosing Party, whether before or after the Commencement Date of this Agreement. The Receiving Party will not divulge or permit to be divulged to any person any aspect of such Confidential Information otherwise than may be allowed in terms of this Agreement.
126.96.36.199 The Receiving Party shall take all such steps as may be reasonably necessary to prevent the Confidential Information falling into the hands of an unauthorised third party.
188.8.131.52 The Receiving Party shall take all such steps as may be reasonably necessary to keep all Confidential Information safe and secure and to take all such steps as may be reasonably necessary to protect it against theft, damage, loss, unauthorised access (including access by electronic means).
184.108.40.206 The Receiving Party shall not make use of any of the Confidential Information, including making copies thereof, for a purpose other than providing the Services and complying with the terms and conditions of this Agreement, or as required by mandatory applicable law, without the prior written consent of the Disclosing Party.
220.127.116.11 The Receiving Party shall not, directly or indirectly, detract from, expand on, amend, decompile, reverse engineer, use, exploit, permit the use of, or in any other manner whatsoever apply the Confidential Information for its benefit or the benefit of any other person or for any purpose whatsoever other than providing the Services and complying with the terms and conditions of this Agreement.
18.104.22.168 The Receiving Party shall not use or attempt to use the Confidential Information in any manner which will cause or be likely to cause injury or loss to the Disclosing Party.
22.214.171.124 All Confidential Information furnished to the Receiving Party by the Disclosing Party pursuant to this Agreement will remain the property of the Disclosing Party and upon the request of the Disclosing Party will be returned to the Disclosing Party. The Receiving Party will not make copies of any such documentation without the prior written consent of the Disclosing Party.
126.96.36.199 Any material of a confidential nature which comes into the possession of the Receiving Party or one of its shareholders, directors, officers, employees or agents, or which is generated by the Disclosing Party, or one of its shareholders, directors, officers, employees or agents, after the Commencement Date:
188.8.131.52.1 shall be deemed to form part of the Confidential Information of the Disclosing Party;
184.108.40.206.2 shall be deemed to be the property of the Disclosing Party;
220.127.116.11.3 shall not be copied, reproduced, published or circulated by the Receiving Party; and
18.104.22.168.4 shall be surrendered to the Disclosing Party on demand, unless the Disclosing Party provides its prior written consent to the contrary.
22.214.171.124 If the Receiving Party is unsure as to whether any information is Confidential Information, it shall treat same as Confidential Information and seek the Disclosing Party’s written clarification as to whether it constitutes Confidential Information or not.
6.2.4 Acknowledgments and Undertakings
126.96.36.199 The Receiving Party acknowledges that the undertakings contained herein are fair and reasonable and are reasonably required by the Disclosing Party to protect its Confidential Information.
188.8.131.52 It is further acknowledged and undertaken by the Receiving Party that should any Confidential Information provided by the Disclosing Party to the Receiving Party, directly or indirectly, conflict in any way with the business of the Receiving Party, the Receiving Party shall in writing and in detail advise the Disclosing Party of such conflict of interest upon which the Disclosing Party shall have all the rights and remedies afforded it in terms of this Agreement or any other business or co-operation agreement flowing from or being an integral part of such agreement.
184.108.40.206 The above undertakings by the Receiving Party relating to confidentiality shall not apply to information which:
220.127.116.11.1 is in fact lawfully in the public domain at the Commencement Date; or
18.104.22.168.2 lawfully comes into the public domain after the Commencement Date otherwise than as a result of the conduct of the Receiving Party or one of its shareholders, directors, officers, employees or agents; or
22.214.171.124.3 the Receiving Party is compelled to disclose in terms of a lawful court order.
126.96.36.199 The onus of proving the facts necessary to sustain any one of the exceptions listed in subparagraphs 188.8.131.52.1 to 184.108.40.206.3 rests with the Receiving Party.
220.127.116.11 The Receiving Party shall immediately after becoming aware of circumstances as contemplated in sub-paragraphs 18.104.22.168.1 to 22.214.171.124.3 above, advise the Disclosing Party in writing of such circumstances and if the Receiving Party is confronted with legal action to disclose the information received under this Agreement, the Receiving Party shall promptly notify the Disclosing Party and give the Disclosing Party the opportunity to resist such legal action. The Receiving Party shall reasonably assist the Disclosing Party in obtaining a protective order to ensure that any portion of the information required to be disclosed be used only for the purpose for which a court issues an order, or for such other purposes as required by law. The Disclosing Party shall bear the legal expenses.
6.2.6 Public Statements
126.96.36.199 The Parties shall not publicly disclose the terms of this Agreement, the identities of the parties to this Agreement and the location of the Leased Blockchain, without the prior written consent of the parties to the Agreement.
7.1 Force Majeure
7.1.1 None of the Parties shall be liable for a failure to perform any of its obligations insofar as it proves:
188.8.131.52 that the failure was due to an impediment beyond its control;
184.108.40.206 that it could not reasonably be expected to have taken the impediment and its effects upon the Party’s ability to perform into account at the time of the conclusion of this Agreement;
7.1.13 that it could not reasonably have avoided or overcome the impediment or at least its effects.
7.1.2 Clauses 220.127.116.11 to 18.104.22.168 shall collectively be referred to as “Force Majeure” events.
7.1.3 An impediment, as aforesaid, may result from enumeration not being exhaustive: events such as the following:
22.214.171.124 Municipal power outages and/or load-shedding;
126.96.36.199 war, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage;
188.8.131.52 acts of God, including, but not limited to natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning;
184.108.40.206 explosions, fires, destruction of machines, of factories and of any kind of installations;
220.127.116.11 boycotts, strikes and lockouts of all kinds, go-slows, occupation of factories and premises, and work stoppages;
18.104.22.168 trade disputes;
22.214.171.124 acts or restraints of governments, including, but not limited to the imposition of restrictions on the cultivation of Cannabis;
126.96.36.199 acts of authority, whether lawful or unlawful;
188.8.131.52 enactment of legislation preventing the One Culture National from lawfully providing the services contained herein.
7.1.4 As soon as practicable after the occurrence of a Force Majeure event, the Party affected will give notice in writing to the other Party of the impediment and its effect on his/her ability to perform.
7.1.5 Relief from liability for non-performance by reason of the provisions of this clause shall commence on the date upon which the Party seeking relief gives notice of the impediment relied upon and shall terminate upon the date upon which such impediment ceases to exist; provided that if such impediment continues for a period of more than 90 (ninety) consecutive days either of the Parties shall be entitled to terminate this Agreement.
7.2 Relationship of Parties
7.2.1 This Agreement does not constitute a partnership or joint venture between the Client, the Grower and One Culture National.
7.2.2 This Agreement is one of the utmost good faith and the Parties undertake to do all such things and take all reasonable and necessary steps to procure the doing of such things as may be necessary to give or be conducive to the giving of effect to the terms, conditions, import and spirit of this Agreement.
7.2.3 The Parties shall avoid causing the other parties hereto to contravene any applicable law, licence condition, government approval or administrative requirement.
7.3 Governing Law and Legislation
7.3.1 This Agreement shall be deemed to have been made in the Republic of South Africa and the construction, validity and performance of this Agreement shall be governed in all respects by the law of the Republic of South Africa.
7.3.2 One Culture National shall in respect of all matters arising in the fulfilment of this Agreement, including the rendering of the Services, comply at its own expense with all laws, regulations and by-laws and requirements of local or other authorities that are applicable to this Agreement and the Services to be rendered, including but not limited to POPI and the Consumer Protection Act no. 68 of 2008.
7.3.3 The Parties shall take all necessary steps, in accordance with good industry practice to prevent any fraudulent activity by either Party and/or by any of the Parties’ suppliers, agents, contractors, sub-contractors and/or their employees in connection with the receipt of monies. Either Party shall notify the other Party immediately if it has reason to suspect that any fraud has occurred or is occurring or is likely to occur.
7.3.4 The Parties shall not offer or give or agree to give, to any employee, agent, servant or representative of the other Party any gift, commission or other consideration of any kind as an inducement or reward for doing, refraining from doing, or for having done or refrained from doing, any act in relation to the obtaining or execution of this Agreement or any contract or any other agreements with either Party, or for showing or refraining from showing favour or disfavour to any person in relation to this Agreement or a contract or any other agreements with the Parties.
7.3.5 Where the Grower or its employees, servants, sub-contractors, suppliers or agents or anyone acting on the Service Provider’s behalf, or where the Client, is found guilty of conduct that materially impacts on this Agreement and is prohibited in relation to this Agreement or any law, the Client or the Grower shall notify the other Party as soon as it becomes aware of such conduct. The Parties shall then endeavour to resolve any dispute arising from such conduct in accordance with the provisions of the Dispute Resolution Clauses contained in this Agreement.
7.4 Breach and Termination
7.4.1 Without prejudice to any pre-existing liability of either Party to the other, the Client may, by written notice, terminate this Agreement forthwith by giving One Culture National at least 2 (two) months written notice of termination in which event, One Culture National shall be entitled to claim payment due in terms of actual services rendered (to be determined until date of final termination, being 2 (two) months from the date of cancellation) together with a sum equal to 25% (twenty-five percent) of the remaining service fee as an estimate of liquidated damages.
7.4.2 If either Party commits a breach of this Agreement and fails to remedy such breach within 14 (fourteen) days of the date of receipt of written notice requiring the defaulting Party to remedy such breach, then the other Party shall be entitled, at its option, to either:
184.108.40.206 claim immediate specific performance (with or without claiming damages); or
220.127.116.11 cancel the Agreement and claim and recover any damages suffered by it.
7.4.3 Either Party (as may be applicable) shall be entitled to terminate this Agreement with immediate effect in the event of:
18.104.22.168 Failure to comply with all applicable laws within a period of 14 (fourteen) days from being called upon to do so in writing;
22.214.171.124 any party is liquidated, whether compulsorily or voluntarily or compromises with its creditors or takes or suffers any similar action in in consequence of debt or goes into business rescue.
7.5 Dispute Resolution
7.5.1 It is the intent of the Parties to resolve issues arising out of or relating to this Agreement in a constructive and bona-fide way that reflects the concerns and commercial interests of each Party.
7.5.2 Any dispute or controversy between the Parties, in regard to any matter arising out of this agreement or its interpretation or their respective rights and obligations under this Agreement or its cancellation or any matter arising out of its cancellation, shall initially be referred in writing by the Party raising the dispute to each Party’s representative or his/her designee with settlement authority for attempted resolution.
7.5.3 The Parties’ representatives will use commercially reasonable efforts to discuss the dispute and attempt to resolve the dispute as soon as practicable and without the necessity of any formal proceedings.
7.5.4 If the dispute cannot be resolved/settled by the Parties’ representatives or his/her designee with settlement authority within 20 (twenty) Business Days of referral, either Party may refer the dispute to an independent arbitrator such as an advocate of the Bar.
7.6 Assignment and Cession
7.6.1 The Parties may not cede or assign any of its rights or sub-contract any of its obligations under this Agreement without the prior written consent of the other Party.
7.6.2 The Grower shall be entitled to appoint assistants in order to effectively render the Services contained in this Agreement and the Grower remains responsible for all obligations on its part in terms of this Agreement and its Annexures.
7.7.1 The Parties choose as their respective domicilium citandi et executandi for all purposes under this Agreement, whether in respect of Court process, notices or other documents or communications of whatsoever nature, at their respective addresses contained in this Agreement.
7.7.2 Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, but it shall be competent to give notice by e-mail.
7.7.3 Any Party may by notice to any other Party change the physical address chosen as its domicilium citandi et executandi vis-à-vis that Party to another physical address in the
Republic of South Africa or it’s telefax number or e-mail address: Provided that the change shall become effective vis-à-vis that addressee on the third Business Day from the deemed receipt of the notice by the addressee.
7.7.4 Any notice to a Party:
126.96.36.199 sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at its domicilium citandi et executandi shall be deemed to have been received on the seventh Business Day after posting (unless the contrary is proved);
188.8.131.52 delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi shall be deemed to have been received on the day of delivery (unless the contrary is proved); or
184.108.40.206 sent by e-mail to its chosen e-mail stipulated in this Agreement, shall be deemed to have been received on the date of despatch (unless the contrary is proved).
7.7.5 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
7.8 Entire Agreement
7.8.1 This Agreement constitutes the whole agreement between the Parties relating to the subject matter hereof.
7.8.2 No amendment or consensual cancellation of this Agreement or any provision or term thereof, including this clause, and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement shall be binding unless recorded in a written document signed by both of the Parties, subject to the condition that no such amendment or cancellation of this Agreement or any provision or term thereof, including this clause, may be made by electronic mail. Any such amendment or cancellation of this Agreement or any provision or term thereof, including this clause, must be reduced to a printed document and physically signed by both Parties; no electronic signatures shall be acceptable or valid. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
7.8.3 No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement shall operate as an estoppel against either Party in respect of its rights under this Agreement; nor shall it operate so as to preclude such Party thereafter from exercising its rights strictly in accordance with this Agreement.
8.1 Any binding provision or term of this Agreement which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be treated as pro non scripto and severed from the balance of this Agreement, without invalidating the remaining binding provisions and terms of this Agreement or affecting the validity or enforceability of such provision or term in any other jurisdiction.
9.1 The liabilities of both Parties are governed by the terms, representations, warranties, procedures, indemnities, expressly recorded in the Agreement and Annexures. Any form of consequential and indirect losses or damages are specifically excluded, notwithstanding anything to the contrary contained in this Agreement.
ANNEXURE C – SUBSCRIPTION MODELS
1.1 Outdoor, being a plant that is cultivated outside, whether covered or not by shade netting or other material, with or without additional lighting and light depravation measures.
1.2 Greenhouse, being a plant that is cultivated inside a greenhouse, equipped with climate control and pollen filters, with or without additional lighting and light depravation measures.
1.3 Indoor, being a plant that is cultivated inside a building or structure, equipped with climate control and pollen filters and with artificial lighting.
1.4 Mothering, being a plant that is cultivated outdoor, greenhouse or indoor and kept in a vegetative state for the purpose of producing clones.