Terms of Service
Thank you for using Agrista! We're happy you're here. Please read this Terms of Service agreement carefully before accessing or using Agrista. As it is such an important contract between us and our users, we have tried to make it as clear as possible.
1.1 The Agrista System is an internet based system comprising a spatial database, hardware, software, information intellectual property rights and other know-how which Agrista GmbH (Agrista) utilises to assist farmers in managing their financial resources and companies such as suppliers and offtakers in doing business with their farming clients.
1.2 The Agrista System can only be accessed by persons registered on the Agrista System. Registration is limited to:
farmers like yourself who have been invited to register on the Agrista System;
credit providers who provide funds to farmers pursuant to an agreement with Agrista (Financiers);
suppliers of goods and services to the agricultural industry who have registered on the Agrista System pursuant to an agreement with Agrista (Suppliers);
persons who buy or trade in the produce grown by farmers pursuant to an agreement with Agrista (Off-takers).
1.3 The Agrista System can be used in a variety of ways to deliver services to farmers: The Agrista System can for example be used to assist a farmer such as yourself by:
providing the farmer a place where the farmer can electronically store information (Data) regarding the farmer’s farming operations;
providing the farmer with management tools that can interrogate that Data in conjunction with other Data on the Agrista System;
enabling the farmer to transact electronically with the farmer’s Financiers, Suppliers, and Off-takers;
informing the farmer of the goods and services these parties can offer.
1.4 The Agrista System can also assist Financiers in managing Transactions with farmers.
Acceptance Of These Terms And Conditions
2.1 By registering on the Agrista System you _ (the Farmer) accept that your access to the Agrista System and your use of the services offered on the Agrista System is subject to these terms and conditions as amended from time to time.
2.2 You can de register from the Agrista System at any time in the manner provided on the Agrista System, but such deregistration shall not affect any Transactions that were concluded prior to that deregistration or which are incomplete at the time of that deregistration.
2.3 “Transactions” in the context of these terms and conditions means any agreement concluded on the Agrista System and includes any communication between parties on the Agrista System in connection with that agreement or any communication between parties on the Agrista System in contemplation of such an agreement and “Transact” shall have a similar meaning.
2.4 Agrista may change these terms and conditions from time to time. The Agrista System shall notify you of the time and date of such changes either when you log onto the Agrista System or via email. Such changes shall not apply to any Transaction entered into by you on the Agrista System prior to the change taking place. The version of these terms and conditions that applied at that time will continue to apply in respect of that Transaction.
The Registration Process
3.1 The registration process will require the Farmer to identify an email address at which the Farmer can be contacted and select a password which when used in conjunction with that email address will enable the Farmer to log onto the Agrista System. This is called The Farmer’s user name and the person using this user name (the Administrator) will enjoy all the Farmer’s access rights on the Agrista System.
3.2 The Agrista System allows the Administrator to issue other user names and passwords and determine the access and user rights that attach to those passwords. The Administrator may also change those passwords from time to time and even the user name and password of the Administrator.
3.3 Other parties with whom the Farmer transacts may require further procedures to be adopted in accessing, transacting for or paying for goods and services on the Agrista System.
3.4 It is critical that the Farmer keeps passwords registered to the Farmer confidential as all Transactions carried out on the Agrista System under a user name and password issued to the Farmer will be deemed be to have been carried out under in the name of the Farmer and under the Farmers authority unless the farmer can prove that the Farmer’s username and password that was used to access the Agrista System was unlawfully acquired as a direct result of Agrista’s negligent failure to observe Good Industry Practice in protecting the confidentiality and security of that user name and password on the Agrista System. “Good Industry Practice” for the purposes of this agreement means the exercise of such reasonable skill, care, prudence, efficiency and foresight as would reasonably be expected from a reasonably and suitably skilled, trained and experienced person engaged in the same type of undertaking and for the same or similar circumstances.
4.1 Communications sent within the Agrista System shall be deemed to have been received by the person to whom those communications are directed when that person next logs onto the Agrista System.
4.2 Electronic Communications that leave the Agrista System such as for example, emails and SMS messages are deemed to have been received by the recipient when that email leaves the information system controlled by the sender.
4.3 The Farmer may by logging onto the Agrista System as the Administrator changes the email address or addresses nominated by the Farmer from time to time provided that it is an address registered on the same domain as the user name referred to in clause 3.1. A notification of a change of an email address will only take effect when that change is registered on the Agrista System.
4.4 The Farmer agrees that:
any email address or cell number nominated by the Farmer is an address to which emails and SMS’ may be addressed;
any email or SMS sent from such an address is an email from the Farmer.
Rights In Data
5.1 The Agrista System includes a spatial database of electronic information (Data).
5.2 this Data is compiled by Agrista into an electronic database (the Database).
5.3 The quality of the services offered on the Agrista System depends to a large extent on the quality of Data in the Database and the extent to which persons entitled to access and use the Agrista System can access and use that Database.
5.4 Data is sourced in a number of different ways, including from persons such as the Farmer.
5.5 The circumstances in which the Farmer will be required to load Data onto the Database are numerous. They include for example:
Data that the Farmer is obliged to load:
in registering on the Agrista System or in issuing usernames or passwords or in making changes to the above;
in connection with a Transaction concluded on the Agrista System.
Data other than that referred to above which the Farmer loads onto the Database in order to store that Data make use of services offered to the farmer by Agrista on the Agrista System.
5.6 The Agrista System identifies Data loaded onto the Database in relation to inter alia:
when the Data was loaded onto the Database;
who loaded the Data onto the Database;
the purpose for which the Data was loaded onto the Agrista System; and
whether that Data is personal in nature. Data is deemed to be personal if it identifies a person by name registration, identity or other official identifier such as a VAT or Income Tax number or address.
5.7 All Data loaded onto the Database using a user name and password of the Farmer is deemed to belong to the Farmer.
5.8 The Farmer warrants in relation to that Data (Farmers Data) that:
the Farmer is entitled to load the Farmer’s Data onto the Database and that in doing so the Farmer is not infringing any proprietary or other rights that a third party may have in respect of that Data;
the Farmer’s Data is to the best of the Farmer’s knowledge true and correct. The Farmer specifically undertakes in this regard that the Farmer:
will not permit Farmer’s Data which the Farmer knows is false or incorrect to be loaded onto the Database.
the Farmer will immediately notify Agrista upon learning that Farmer’s Data may be false or incorrect.
5.9 The Farmer indemnifies Agrista and holds it harmless and all and any losses of whatsoever nature Agrista may suffer on account the use of or reliance on Farmer’s Data which the Farmer knows is false or incorrect.
5.10 Farmer’s Data which is sent to another person registered on the Agrista System becomes that person’s Data and Data sent by such persons to the Farmer becomes Farmer’s Data but is not subject to the warranties referred to in clause 5.8.
5.11 Farmer’s Data loaded onto the Agrista System for the purpose of a Transaction with the Financier, a Supplier, or an Off-taker is identified as having been supplied to the Financier, Supplier or Off-taker and for the purposes of that Transaction. The Agrista System will allow the Financier or Supplier or Off-taker unrestricted access to that Data;
5.12 The Agrista System does not allow third parties access to a Farmer’s personal information except in connection with a Transaction. Suppliers cannot for example use the Agrista System to address an offer for goods or services to the Farmer personally unless the Farmer agrees to this.
5.13 Agrista treats all Farmer’s Data as confidential unless that Data:
is publicly available at the time it is loaded on the Agrista System of its disclosure or becomes publicly available (other than as a result of disclosure by Agrista acting contrary to these terms and Conditions); or
was already Data lawfully in Agrista’s possession (as can be demonstrated by its written records or other reasonable evidence) free of any restriction as to its use or disclosure prior to its being so disclosed; or
following such disclosure, becomes available to Agrista (as can be demonstrated by its written records or other reasonable evidence) from a source other than the Farmer, the Financier, Supplier or Off-taker, which source is not bound by any duty of confidentiality owed, directly or indirectly, to the Farmer in relation to such Data.
5.14 These undertakings shall not prevent Agrista from using Farmer’s Data:
in a manner that does not enable a person from linking that Farmer’s Data to the personal information on the Agrista System;
compiling, using and trading in compilations of Data or Data profiles that contain extracts from Farmer’s Data as long as such profiles or compilations cannot be linked to any specific Person by a third party;
5.15 The Farmer shall be entitled to modify Farmer’s Data or remove that Data from the Agrista System at any time. Such modification or removal shall not prevent Agrista from:
making a copy of that Data for archival and record purposes; or
continuing to use such Data in the manner contemplated in clause 5.14.
5.16 Farmer’s Data may as a result of it being used on the Agrista System result in the generation of further Data. That Data is not Farmer’s Data and will belong to Agrista unless it was generated in connection with a Transaction referred to in clause 5.11 in which case it shall belong to the Financier, Supplier or Off-taker to whom it was supplied.
5.17 All other obligations that Agrista may have to protect the confidentiality of Farmer’s Data supplied in respect of Transactions on the Agrista System with the Financier or a Supplier are specifically excluded.
6.1 Suppliers may by agreement with Agrista publish product lists and price lists onto the Agrista System and amend, update and remove those price lists and product lists from time to time.
6.2 Suppliers cannot use the Agrista System to directly solicit business from a farmer. Agrista may however with the farmer’s permission notify the farmer individually on the Agrista System of a Supplier’s goods and services.
The Farmer And Suppliers
7.1 A Supplier may, with the consent of the Farmer, negotiate and enter into in agreements with the Farmer on the Agrista System in which event the following shall apply:
a Farmer may submit an enquiry pertaining to the purchase of goods or services to the Supplier (either directly or through the Supplier’s representative or on the Agrista System or otherwise) pursuant to which the Supplier may, make an offer to the Farmer on the Agrista System;
the offer shall include at least:
details of the goods or sevices (including price and quantity);
the delivery point;
the delivery window;
The terms and conditions that will apply;
other relevant information.
the Farmer may:
accept the offer unconditionally (save for any applicable cooling off period imposed by either the Electronic Communications and Transactions Act 2002 or the Consumer Protection Act 2008) on the Agrista System in which event a binding agreement will come into existence between the Farmer and the Supplier on that acceptance;
reject the offer or make a counter offer in which event no agreement shall come into existence.
If a Supplier or Farmer requires that acceptance is conditional on finance being provided by the Financier and the Financier has approved the Supplier on the Agrista System as a merchant (the Merchant) then the offer shall also be sent to that Financier on the Agrista System in which event a binding agreement between the Farmer and the Merchant will come into existence between:
the Farmer and the Merchant regarding the purchase and sale of the goods or services;
the Financier and the Farmer on the one hand the Financier and the Merchant on the other regarding payment;
will come into existence between on acceptance on the Agrista System by the Financier.
the terms upon which the Financier grants finance shall be the Financier’s Standard Terms as published on the Agrista System.
7.2 The Farmer agrees:
and shall ensure that the Supplier/Merchant also agrees that they will both confirm:
delivery of the Products bought in terms of the agreement referred in clause 7.1(d); and
the VAT inclusive price owing by the Farmer in respect thereof;
in the manner provided on the Agrista System.
that where applicable, the Farmer shall give notice of any right to return the products under a cooling-off provision in terms of the Electronic Communications and Transactions Act or any relevant provision of the Consumer Protection Act of 2008 in the manner provided on the Agrista System.
that the confirmation referred to in clause7.2(a)shall:
be conclusive as between the Farmer and the Merchant as regards packaging description and quantities recorded in that confirmation but not as regard quality or any other factor.
shall on receipt by the Financier entitle the Financier to pay the Merchant the amount or balance stated therein on behalf of and for the account of the Farmer subject to the availability of the Farmer’s funds and the Financier’s standard terms upon which the Financier agrees to make payment to Merchants provided the notice referred to in clause 7.2(a) has been communicated to the Financier on the Agrista System, and the Financier has not received the notice referred to in clause 7.2(b).
7.3 Agrista shall exercise Good Industry Practice in ensuring that the Agrista System :
sends a data message recording the terms of the offer referred to in clause 7.1(b) and the acceptance referred to in clause 7.1(c) and 7.1(d) and the delivery referred to in clause 7.2 as well as any other communications between the parties concerning that Transaction to the nominated user names of the parties to whom such offer, acceptance or delivery notification or other communications are addressed on the Agrista System;
sets offers submitted by the Supplier to expire as stipulated by the Suppliers but in any event no later than the elapse of 7 days;
records all data messages sent and received in such a manner that enables that information to be admitted and used as evidence in a South African arbitration or court of law should this be required.
7.4 The Farmer acknowledges that Agrista’s only obligation in connection with the sale the Products is to provide an electronic platform on which the Transactions referred to in this clause can take place.
7.5 Save as set out in clause 7.4 the Farmer indemnifies Agrista and holds it harmless against and all and any claims or losses of whatsoever nature Agrista may suffer whether under the Consumer Protection Act 68 of 2008 as amended or otherwise and howsoever arising from a Transaction referred to in this clause 7.
8.1 For the purposes of this clause “Proprietary Rights" means all intellectual property rights, including all rights of copyright, in the Agrista System but excludes copyright in Data that is owned by The Farmer:
8.2 The Farmer Acknowledges Agrista’s:
ownership of the Proprietary Rights; or
Its right to make use on the Agrista System of the Proprietary Rights of insofar they may be owned by third parties.
9.1 Agrista shall take reasonable steps to ensure that the servers that the Farmer accesses using the Agrista System are free of viruses;
9.2 The Farmer shall exercise reasonable care in ensuring that its computers that access the Agrista System are free of viruses and do not transmit viruses when being used to access the Agrista System.
9.3 Agrista shall be entitled to block the Farmer’s access to The Agrista System at any time and without prior notice if it is reasonably of the opinion that a computer used by the Farmer to access the Agrista System is infecting the Agrista System and suspend further access for so long as Agrista is reasonably of the opinion that the Agrista System will still be at risk.
Agrista gives no warranties other than those expressly set out in this agreement. All other warranties including any warranties that may be implied by law are excluded.
Limitation of Liability
Unless the parties specifically agree otherwise in writing:
11.1 neither party shall have any liability for any consequential loss or damage suffered by the other howsoever arising from any done or not done pursuant to an agreement that is subject to these General Terms and Conditions;
11.2 each party indemnifies the other and holds it harmless against a claim from any third party arising from that party’s breach of these terms and conditions;
11.3 Agrista’s liability for any claim arising from this agreement shall be limited to R1 000 000,00. (One Million Rands).
Neither party shall be liable to the other for any damage or loss which may be suffered as a result of force majeure which for the purpose of these terms and conditions include any circumstance which is beyond the reasonable control of the party claiming force majeure and includes but is not limited to civil commotion, mob violence, changes in legislation, sabotage, boycott, labour disputes, strikes, lockouts, fire, explosion, disruptions in the supply of essential services such as electricity and telecommunications and breakdown of machinery.
The sale of the Agrista System shall automatically result in the assignment to the purchaser of the parties rights and obligations under any agreement to which these terms and conditions apply.
14.1 Save as otherwise provided in this agreement, if any dispute arises between the parties at any time in regard to:
any matter arising out of or relating to this agreement;
the interpretation of this agreement;
the termination of this agreement or any matter arising out of the termination of this agreement;
a claim for rectification of this agreement;
then the parties shall endeavour to resolve their differences by a process of negotiation. If the parties are not able to reach agreement, the dispute shall be submitted to and decided upon by arbitration.
14.2 The arbitration shall be held in Western Cape, South Africa.
14.3 The arbitrator shall be such person as may be mutually agreed upon between the parties. If the parties fail to reach agreement regarding the appointment of an arbitrator, either party may request the Arbitration Foundation of Southern Africa to appoint an arbitrator in which event the standard administrative procedures, schedule of costs and the Rules of the Arbitration Foundation of Southern Africa shall apply.
14.4 The language to be used in the arbitration proceedings shall be English.
14.5 The arbitrator may:
rely upon his own expert knowledge and experience;
receive and take into account such written and oral evidence as he shall determine to be relevant, whether or not admissible in law, and attribute such weight to it as he shall deem appropriate;
make one or more interim awards;
appoint an assessor, valuer or other expert to assist him.
14.6 This clause will remain in force notwithstanding the termination of the agreement of which it forms a part.
15.1 Nothing done or not done pursuant to these standard terms and conditions or deemed to constitute a partnership between the parties will constitute either party as the agent of the other for any purpose.
15.2 The exercising or non-exercise of any right granted pursuant to these General Terms and Conditions is not a waiver of that right.
15.3 Any amendment of these General Terms and Conditions will not be binding on the parties unless amended in terms of clause 1.6 or agreed by the Parties in writing on the Agrista System.
15.4 If any term or condition set out in these General Terms and Conditions is or becomes illegal, invalid or unenforceable in any jurisdiction, that illegality will not affect:
the legality, validity or enforceability in that jurisdiction of any other term or condition of this agreement; or
the legality, validity or enforceability in other jurisdictions of that or any other provision of this agreement.
15.5 This agreement shall in all respects shall be construed in accordance with the laws of the Federal Republic of Germany and all disputes, actions and other matters in connection with this shall be determined in accordance with that law.