GENERAL TERMS AND CONDITIONS
These terms and conditions (hereinafter collectively referred to as these "Terms") govern your access to and use of the www.agrirewards.co.za website and services as well as other SENWES GROUP WEBSITES AND MOBILE APPLICATIONS that link to or refer to these Terms (the "APPLICATIONS") and should be read together with the Senwes Bonus Scheme Rules. In the event of a conflict between these Terms and the Senwes Bonus Scheme Rules, the provisions of the Scheme Rules shall prevail.
By accessing or using the Applications or by creating a user account, you are agreeing to these Terms and entering into a legally binding contract with the Senwes Group. If you access or use the Applications as an employee or agent on behalf of another person or an entity, you also agree to these Terms on behalf of that person or entity and you represent and warrant that you have the authority to bind that person or entity to these Terms. Do not access or use the Applications if you are unwilling or unable to be bound by these Terms.
1.1.1. "Agrirewards," "we," "us," and "our" refer to Agrirewards, the Senwes Bonus Scheme, Senwes being incorporated as a public company in terms of the Company Laws of South Africa, with registration number 2012/179574/07;
1.1.2. "You" and "your" refer to you, as an individual participant to Agrirewards and user of the Applications and, if you use the Applications on behalf of another person or an entity also include that person or entity and by accessing the Application agreeing to these Terms;
1.1.3 "Senwes" means Senwes Limited, registration number: 1997/005336/06 and all of its related parties, subsidiaries and joint venture businesses from time to time as defined in the Companies Act, 71 of 2008, as amended, jointly hereinafter referred to as "the Senwes Group ";
1.1.4 "Senwes Bonus Scheme" the voluntarily bonus scheme designed as a loyalty Scheme for prospective or existing customers of Senwes, which terms and conditions for participation shall be governed by the Senwes Bonus Scheme rules, designed and approved by the Senwes Board of Directors at their sole discretion from time to time and to which you elect to participate in byaccepting the Scheme Rules and these Terms;
1.1.5 "Senwes IT" means the Information Technology services provider for the Senwes Group. You" and " your" refer to you, as an individual user of the Applications, and, if you use the Applications on behalf of another person or an entity also include that person or entity.
1.1.6. A "user" is anyone who accesses, views, browses, crawls, scrapes, or in any way uses the Applications.
1.2.1 "Content" means text, data, files, records, location information, messages, images, photos, audio, video, and all other forms of data or communication submitted or transmitted to, through, or otherwise made available in connection with the Applications. Note that none of the following definitions imply or create any ownership relationship between any party and any particular Content.
1.2.2 "Your Content" means Content that you control, including: (i) Content that you submit or transmit to, through, or in connection with the Applications; (ii) data, including machine, production, and other data, delivered to the Applications from Your Business; and (iii) Content originating with a third party where such third party has transferred control to you.
1.2.3 "Your Business" means the business and/or turnover that you do during a Senwes financial year with the Senwes Group, albeit be Grain delivered and stored, sales of equipment, credit, insurance related products or the acquisition of agricultural requisites or alike that you may conduct with the Senwes Group and which Senwes may use to calculate and allocate your Agrirewards;
1.2.4 "User Content" means Content that users submit or transmit to, through, or in connection with the Applications.
1.2.5 "Agrirewards Content" means Content that Agrirewards or the Senwes Group create, have created, make, have made, acquire or license, and make available in connection with the Applications.
1.2.6 "Third-Party Content" means Content that originates from parties other than you or the Senwes Group, which is made available in connection with the Applications and includes Content by major third party suppliers of the Senwes Group;
1.2.7 "Site Content" means all of the Content that is made available in connection with the Applications, including Your Content, User Content, Third-Party Content, and the Senwes Group Content.
2. Changes to these Terms
We may modify these Terms from time to time. When changes are made the revised version will be made available on this webpage. We will also update the notice at the Applications login. You should revisit these Terms on a regular basis as revised versions will be binding on you if you continue to use the Applications. Any such modification will become effective, going forward, upon our posting of new Terms. You understand and agree that your continued access to or use of the Applications after any modification to these Terms are posted on the Applications indicates your acceptance of the modified Terms . If you do not agree to any modified Terms, you must immediately stop using the Applications.
3. Using the Applications
To access or use the Applications, you must be 18 years or older and have the requisite capacity, power, and authority to agree to these Terms. You are not permitted to access or use the Applications if we have previously banned you from the Applications or closed your account.
3.2 Permission to Use the Applications
You may use the Applications only in compliance with these Terms. Your use of the Applications is at your own risk, including the risk that you might be exposed to Content that is inaccurate, objectionable, or otherwise inappropriate, and the risk that Content you choose to share in connection with the Applications may be misused by third parties.
3.3 Site Availability
All or portions of the Applications may be modified, updated, interrupted, suspended or discontinued at any time, at our sole discretion, without notice or liability. We may also remove any Content from the Applications at our discretion, without notice or liability.
3.4 User Accounts
3.4.1 You must create an account and provide certain information about yourself to use some of the features that are offered through the Applications. You may create an account here:www.Agrirewards.co.za
3.4.2 If your contact information or other information related to your account changes, you must notify us promptly and provide current information. You may update your account here:www.Agrirewards.co.za
3.4.3 You are solely responsible for safeguarding the password and login identification that you use to access the Applications, and you agree not to disclose your password to any third party. You are responsible for any activity using your account, whether or not you authorised that activity. You agree to notify us immediately of any unauthorised use of your account. You may contact us about your account here.
3.4.4 You acknowledge and agree that if you wish to protect your transmission of data or files to the Applications, it is solely your responsibility to establish and use a secure connection to communicate with the Applications.
3.4.5 Your account is for your use only. In creating it, we ask that you provide complete and accurate information that we request from you. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, or create multiple accounts. If you use a pseudonym, take care to note that others may still be able to identify you based on Content you choose to share. We reserve the right to close your account at any time for any or no reason, without notice or liability.
3.5 Communications from the Senwes Group and other Users
By creating an account, you hereby agree to receive electronic communications in connection with the Applications. The Applications itself may enable such communications among you and other Users, and Agrirewards or Senwes IT may communicate with you regarding Site maintenance, availability, functionality, or other matters relating to your use of the Applications, subject to all applicable laws regarding corporate electronic communications.
4.1 Responsibility for Your Content (if applicable)
4.1.1 The Applications provide features that allow you to share Your Content with others. You understand that Your Content may be copied, used, modified, or distributed by any other user that receives or has access to Your Content and you agree that the Senwes Group has no responsibility or liability for any such activities. Please consider carefully what Content you choose to share on the Applications.
4.1.2 You are solely responsible for maintaining and protecting Your Content. You agree that the Senwes Group is not liable for any loss or corruption of your Content, or for any costs or expenses associated with backing up or restoring any of your Content.
4.1.3 You alone are responsible for Your Content, and once submitted to the Applications, it cannot always be withdrawn. You assume all risks associated with Your Content, including any third partyâ€™s reliance on its quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you personally identifiable. You represent that you own, or have the necessary permissions to use and authorise the use of Your Content as described herein, including the Senwesâ€™ Groupâ€™s use as recorded in Clause 5(b) below. You also represent that you have obtained all consents from employees or third parties that are necessary for you and the Senwes Group to comply with any applicable privacy laws in respect of Agrirewards provision of the Applications and its dealings with personal data as provided in Clause 6(B) below. You agree and understand that Your Content is not endorsed by the Senwes Group, and you will not imply that Your Content is in any way sponsored or endorsed by the Senwes Group.
4.1.4 All of the content as provided by the Senwes Group is protected by intellectual property rights of the Senwes Group, whilst some site content is protected by third party providers. You agree that you will not copy, upload, download, or share files from the Applications unless you have the right to do so. You are solely responsible and liable for what you copy, share, upload, download or otherwise use while using the Applications. You may expose yourself to liability if, for example, Your Content contains material that is false, misleading, deceptive or defamatory; violates any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; discloses non-public information about certain publicly traded businesses; contains material that is unlawful, including illegal hate speech or pornography; or violates or advocates the violation of any applicable law or regulation.
4.1.5 We may choose to review Site Content for compliance with our guidelines, but you acknowledge that the Senwes Group has no obligation to monitor any Content available through the Applications. We are not responsible for the accuracy, completeness, appropriateness, or legality of data, files, Site Content, or any other information you may be able to access using the Applications.
4.2 Our Right to Use Your Content
4.2.1 These Terms do not grant the Senwes Group any rights to Your Content or other intellectual property, except for the limited rights to use Your Content described below and in our Personal Information clause.
4.2.2 You grant the Senwes Group, subject to the Personal Information clause, the right to use Your Content as described in these Terms and as needed to provide all services and functionalities provided as part of the Applications, including, for example, hosting Your Content and sharing it at your direction. This permission extends to third parties engaged by the Senwes Group in connection with providing the Applications and associated services.
4.2.3 We may disclose your Content to outside third parties when it is reasonably necessary to (a) comply with any applicable law, regulation or court order; (b) protect the safety of any person from death or serious bodily injury; (c) prevent fraud or abuse against us or our users; (d) to protect our property rights; or (e) defend the Senwes Group or personnel from any legal proceedings arising out of Your Content.
4.3 Agrirewards Content and Software
4.3.1 Some use of the Applications may require you to download a client software package ("Software"). Agrirewards hereby grants you a limited, non sublicense-able, non assignable, non-exclusive, non-transferable, revocable license to use the Software, solely to access the Applications. Your license to use the Software is automatically revoked if you violate these Terms or any other related agreement with the Senwes Group in a manner that prejudices, limits, or infringes our intellectual property rights. We hereby reserve all rights not expressly granted in these Terms. You may not reverse engineer or decompile the Software, nor attempt to do so, nor assist anyone else to do so. We may update the Software on your device automatically when a new version is available.
4.3.2 These Terms do not grant you any right, title, or interest in the Applications, related software, or the Applications Content. You may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Agrirewards Content in whole or in part except as expressly authorised by the Senwes Group. The Software and other technology we use to provide the Applications are protected by copyright, trademark and other applicable laws of the Republic of South Africa. These Terms do not grant you any rights to use any of the Senwes Groupâ€™s trademarks, logos, domain names, or other brand features. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Applications and the Agrirewards Content and where appropriate, the Senwes Group Content are retained by us.
4.4. Third-Party Content
4.4.1 The Applications may contain Third-Party Content or links to third-party websites or resources. The Senwes Group does not control or endorse and is not responsible or liable for any such Third-Party Content, websites, or resources, or any related content, products, or services. You are solely responsible for your use of any such Third-Party Content, websites, or resources.
4.4.2 You agree to comply with the terms of any agreement with any other party that governs your access to any Third-Party Content.
4.4.2 If we provide you with any software under an open source license, there may be provisions in those licenses that expressly conflict with these Terms, in which case the open source license provisions will apply to such open source software to the extent of such conflict.
5. Guidelines and Policies
5.1. Acceptable Use
You agree not to, and will not assist, encourage, or enable others to use the Applications to:
5.1.1 Violate these Terms;
5.1.2 probe, scan, or test the vulnerability of any system or network;
5.1.3 send unsolicited communications, promotions or advertisements, or spam;
5.1.4 send altered, deceptive or false source-identifying information, including "spoofing" or "phishing";
5.1.5 modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Applications or Site Content (other than Your Content hosted on the Applications), except as expressly authorised by the Senwes Group;
5.1.6 access or search the Applications by any means other than our publicly supported interfaces (for example, "scraping");
5.1.7 use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Applications or any Site Content;
5.1.8 reverse engineer any portion of the Applications;
5.1.9 remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Applications or on any materials printed or copied from the Applications;
5.1.10 record, process, or mine information about other Site users;
5.1.11 access or view information about other Site users without authorisation;
5.1.12 reformat or frame any portion of the Applications;
5.1.13 take any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on Senwes IT infrastructure or otherwise make excessive traffic demands of the Applications;
5.1.14 attempt to gain unauthorised access to the Applications, user accounts, computer systems or networks connected to the Applications through hacking, password mining or any other means;
5.1.15 plant malware or otherwise use the Applications or any Site Content to distribute malware, computer viruses, spyware, worms, defects, Trojan horses or other items of a destructive nature;
5.1.16 use any device, software or routine that interferes with the proper working of the Applications, or otherwise attempt to interfere with the proper working of the Applications;
5.1.17 use the Applications to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Applications or Site Content;
5.1.18 remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Applications, features that prevent or restrict the use or copying of Site Content or features that enforce limitations on the use of the Applications;
5.1.19 publish any Content that is fraudulent or misleading;
5.1.20 violate any third party's rights, including without limitation any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
5.1.21 share your Site user account, access the Applications using another personâ€™s user account, or provide false or misleading information when establishing or using a Site user account;
5.1.22 promote or advertise products or services other than your own without appropriate authorisation;
5.1.23 impersonate or misrepresent your affiliation with any person or entity;
5.1.24 threaten, stalk, harm, bully, or harass others, or promote bigotry or discrimination;
5.1.25 publish, upload, or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred; or
5.1.26 violate applicable law in any way, or to violate the privacy of others, or to defame others.
5.2 Personal Information
5.2.1 You agree and specifically consent that we may collect, host, use, process, share, and disclose your personal information and Your Business as required in order to ensure voluntary participation in the Agrirewards, provide you products, services, customer support, product safety, marketing, promotions and for everyday business purposes as contemplated specifically in the Protection of Personal Information Act, No 4 of 2013, as amended.
5.2.2 We may collect information using Cookies and Other Data Collection Technologies and this information is treated as Personal Information.
5.2.3 We may also collect Data based on your Business.
5.2.4 We may collect and use your Personal Information and your Business for statistical purposes, but the Personal Information and your Business will be unidentifiable.
5.2.5 We do not disclose Personal Information and your Business. We may however share Personal Information and your Business with our affiliates, suppliers, dealerships and business partners who may use the information for the purposes indicated above.
5.2.6 Additionally we may disclose Personal Information of your Business where required by law or in connection the sole purpose of doing business with the Senwes Group.
5.3 Copyright and Trademark Disputes
The Senwes Group respects the intellectual property rights of others and expects its Site users to do the same. If you are a copyright or trademark owner, authorised to act on behalf of one, or authorised to act under any exclusive right under copyright or trademark, you agree to promptly report any alleged copyright or trademark infringements taking place on or through the Applications by providing a written notice with the following information:
5.3.1 Identification of the copyrighted work or trademark that you claim has been infringed;
5.3.2 Identification of the allegedly infringing Content, and information reasonably sufficient to permit Senwes IT to locate it on the Applications (e.g., the URL for the web page on which the content appears);
5.3.3 A statement by you that you have a good faith belief that the use of the content identified in your notice in the manner complained of is not authorised by the copyright/trademark owner, its agent, or the applicable law;
5.3.4 A statement by you that you attest, under penalty of perjury, that the information in your notice is accurate and that you are the copyright/trademark owner or otherwise authorised to act on the owner's behalf; and
5.3.5 Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
Deliver the notice to us at the following address:
Attention: The Company Secretary
1 Charel de Klerk Street
PO Box 31
We will delete any Content that infringes or that we suspect infringes any third party rights at our sole discretion. It is our policy to terminate relationships regarding Content with parties who repeatedly infringe the intellectual property rights of others.
6. Services Provided
6.1 All services included in the agreement shall be those chosen by you on the list of services provided on the Agrirewards website.
6.2 You shall annually be responsible to elect the Services and the Participation to the Agrirewards and Agrirewards shall accept no responsibility for your failure to exercise this election.
7 Suggestions and Improvements
We welcome your feedback. By sending us any ideas, suggestions, documents or proposals ("Feedback"), you agree that (i) your Feedback does not contain the personal, confidential, or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, publish, distribute and sublicense the Feedback, but the Senwes Group shall not be obliged to implement any feedback or recommendations received.
You agree to indemnify, defend, and hold the Senwes Group, dealers, suppliers, licensors and partners, and the prescribed officers, directors, employees, agents and representatives of each of them harmless, including legal costs (on an attorney own client scale basis), and liabilities, from any claim or demand made by any third party arising out of or relating to (i) your access to or use of the Applications, (ii) your violation of these Terms, (iii) any products or services purchased or obtained by you in connection with the Applications other than those purchased or obtained from the Senwes Group, or (iv) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. You agree that the Senwes Group may, at your expense, assume the exclusive defence and opposition and control of any matter for which you are required to indemnify us and you agree to co-operate at your own cost with our defence of these claims. You agree not to settle any matter without the prior written consent of the Senwes Group. Agrirewards will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
9. Disclaimers, Limitations of Liability, and Consumer Guarantees
9.1 Disclaimers and Limitations of Liability
PLEASE READ THIS CLAUSE CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE SENWES GROUP. EACH OF THE SUBCLAUSES BELOW APPLIES SUBJECT TO CLAUSE 9(B) BELOW AND ONLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED.
9.1.1 THE APPLICATIONS ARE MADE AVAILABLE TO YOU ON AN "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" BASIS. YOUR USE OF THE APPLICATIONS IS AT YOUR OWN DISCRETION AND RISK. THE SENWES GROUP MAKES NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE APPLICATIONS, ITS SAFETY OR SECURITY, SITE AVAILABILITY OR UPTIME, OR THE APPLICATIONS CONTENT. ACCORDINGLY, THE SENWES GROUP ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE APPLICATIONS CONTENT.
9.1.2 THE SENWES GROUP MAKES NO CLAIMS OR PROMISES WITH RESPECT TO ANY SITE USER OR OTHER THIRD PARTY. ACCORDINGLY, THE SENWES GROUP IS NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM ITS ACTIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER USER MISUSES YOUR CONTENT OR IDENTITY. YOUR USE OF THIRD PARTY CONTENT IS AT YOUR OWN DISCRETION AND RISK.
9.1.3 THE SENWES GROUP EXPRESSLY HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO ANY PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES ON THE APPLICATIONS, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY AND NON-INFRINGEMENT. NO VERBAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF ONE OF THE SENWES GROUP COMPANIES SHALL CREATE A REPRESENTATION OR WARRANTY.
9.1.4 YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE APPLICATIONS, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE APPLICATIONS.
9.1.5 THE SENWES GROUP MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE APPLICATIONS OR THESE TERMS IS LIMITED TO THE ANNUAL LICENCE FEE THAT YOU AS USER PAID FOR UTILISING THE APPLICATIONS (IF SO APPLICABLE).
9.1.6 SUBJECT TO ANY LIMITATION IN ACCORDANCE WITH PREVAILING LEGISLATION, THE SENWES GROUP SHALL, UNDER NO CIRCUMSTANCES, BE LIABLE FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES; (ii) LOSS OF PROFITS, BUSINESS, OR USE; (iii) REPUTATIONAL HARM, OR (iv) LOSS OF INFORMATION OR DATA.
The High Court of South Africa (North Gauteng High Court (Pretoria) shall have exclusive jurisdiction in respect of any matter flowing from this agreement and South African law shall apply.
11. Term and Termination
11.1 The agreement shall, irrespective of the date of signature hereof, commence on
the date of installation of the device and shall endure indefinitely until such time that you discontinue the use of the Applications: Should you fail to pay the subscription fee or licence costs as required from time to time, the Applications will be no longer made available to you.
11.2. We reserve the right to suspend or end the Applications at any time, with or without cause, and with or without notice. We may also suspend or terminate your use of the Applications immediately upon giving written or electronic notice to you at any time if you are not complying with these Terms, or use the Applications in any way that would cause us legal liability or disrupt other personsâ€™ use of the Applications, provided that, if your non-compliance or use is capable of remedy, we first provide you with written notice requiring remedy within 30 days and your non-compliance or use remains unremedied at the end of that period. Any such action could prevent you from accessing your account, the Applications, Your Content, Site Content, or any other related information.
11.3 In the event of any termination, whether by you or us, Clauses 1, 5, 6, 8 - 12 of these Terms will continue in full force and effect, including our right to use Your Content as detailed in Clause 5.
11.4 Should you wish to terminate the use of the Applications at any time, no fees or services shall be redeemable.
12. General Terms
12.1 Except as otherwise stated in Clause 5(4) above, nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
12.2 Except as otherwise stated in Clause 4(5) above, these Terms contain the entire agreement between you and us regarding its subject matter, and supersede any prior agreement between you and us on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms.
12.3 We are under no obligation to enforce these Terms on your behalf against another Site user. While we encourage you to let us know if you believe another Site user has violated these Terms, we reserve the right to investigate and take appropriate action at our sole discretion.
12.4 Any failure by the Senwes Group to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision. Any failure of the Senwes Group to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
12.5 If any provision of these Terms is found to be unenforceable or invalid, that provision shall be severable from the remainder of these Terms to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
12.6 Your rights and/or obligations may not be ceded or delegated in whatsoever manner and may not be sublicensed or transferred. The Senwes Group shall be able to assign or transfer any rights and obligations without limitation. Any assignment attempted to be made in violation of these Terms shall be void.
12.7 You and the Senwes Group are independent contractors, and not agents, legal partners, or engaged in any employment or partnership relationship.
12.8 The Clause titles in these Terms are for convenience only and have no legal or contractual meaning and effect.
12.9 No amendment to this agreement shall be applicable or enforceable unless as published on the AGRIREWARDS/Senwes Groupâ€™s website
SENWES BONUS SCHEME RULES
Purpose: the Senwes Bonus Scheme ("the Scheme") aims to create and sustain long-term relationships with Senwes Customers by rewarding them regularly for the business with the Senwes Group and Member Companies, thereby enhancing the customer relationship based on trust and high levels of devotion.
Senwes is committed to ensure customer satisfaction and loyalty and will strive to the highest level of customer service. The Senwes Board of Directors shall be the custodian of the Scheme and shall ensure just and equitable treatment of all Participants.
1. Definitions and interpretation
In this Scheme document, the following words shall, unless otherwise stated or inconsistent with the context in which they appear, bear the following meanings and other words derived from the same origins as such words (that is, cognate words) shall bear corresponding meanings:
1.1 "The Act" means the Companies Act, 71 of 2008 as amended;
1.2 "the Accrued Allocation" means Allocations made to Participants and in terms of which a Participant has the personal right to receive compensation, as determined by the Board, at a future date as specified for each Allocation made during the Scheme Period and in accordance with the terms of the instrument as contemplated in 2.2.3 made during the Scheme Period;
1.3 "the Allocation" means the annual allocationcredited and/or payable by means of cash, debt, or otherwise, to the Participant, subjectto the provisions of clause 2.2 based on the value ofthe Business and which will be credited as such in the accounting records of the Company;
1.4"Annual Allocation Period"means 12 months being the Senwes financial year currently 1 May to 30 April, which the Board may amend from time to time during the Scheme Period;
1.5 "the Board" means the Board of Directors of Senwes Limited;
1.6 "the Business" means the Business that the Senwes Group or related party, as defined in the Act, or Member Company conducts from time to time;
1.7 "Business Day" means any day other than a Saturday, Sunday or gazetted national public holiday in the Republic of South Africa;
1.8 "Effective date" means 1 May 2016, subject to the approval of the Scheme by the Board of Senwes;
1.9 "the Customer" means any customer of the Senwes Group of Companies, from time to time;
1.10 "The Company" means Senwes Limited;
1.11 "Member Company" means any company in the Senwes Group, a subsidiary, related party and/or any other company that the Board resolved to appoint as a Member Company for purposes of the Scheme and which shall upon appointment and acceptance become a "Scheme Member" within the meaning of the Scheme;
1.12 "the MOI" means the Memorandum of Incorporation of Senwes Limited adopted and approved by shareholders of Senwes limited from time to time and registered as such at the Companies Office in terms of the Act;
1.13 "the Participant" means a customer of the Senwes Group who has accepted the terms and provisions of the Scheme in writing (electronically or otherwise) and "Participants" shall bear in plural a similar meaning;
1.14 "the Scheme" means the Senwes Bonus Scheme for Customers of the Senwes Group approved (and amended) from time to time by the Board, subject to the MOI and the Act as provided in this Scheme Rules;
1.15 "the Scheme Member" means a Member Company in the Senwes Group appointed as such and which has accepted the appointment ;
1.16 "the Settling Entity" means the Scheme Member or any Company in the Senwes Group, that shall be obliged to settle the Annual Allocations towards Participants as nominated and appointed by the Board, subject to acceptance as such as determined in these Scheme Rules;
1.17 "the Scheme Period" means the period as from the Effective date until such date that the Scheme is terminated in whatsoever manÂner;
1.18 "Senwes" means a public company registered as such in terms of the Act with registration number 1997/005336/06;
1.19 "the Senwes Group" means the group of companies that Senwes has established and which conducts business with Customers in terms of the provision of goods and services within the commercial agricultural sector within the Republic of South Africa, including a Scheme Member, whichever the context may provide;
1.20 "Tax" means tax levied in terms of the Income Tax Act, no, 58 of 1962, as amended or any value-added tax levied in terms of the Value-Added Tax Act no 89 of 1991, as amended.
1.21 "Value of the Business" the business conducted with a Participant with the Senwes Group, or with the intervention of the Senwes Group, or with a Scheme Member at any time during an Annual Allocation Period, and which will be used to calculate the Allocation to the Participant, which, inter alia, may include:
â€¢ An amount per ton of Grain commodities handled and/or stored;
â€¢ Grain tonnages procured;
â€¢ Credit extended;
â€¢ Equipment purchased;
â€¢ Retail business; and/or
â€¢ Procurement of farming requisites, insurance and inputs in whatsoever manner.
1.22 "Unclaimed Allocations" means Allocations made to Participants which have been returned to, or could not be effected by the Settling Company in whatsoever manner and the Participant (s) is unable to be traced after reasonable attempts were made by Senwes as to determine the contact details of such Participant.
1.23.... Words importing -
â–ª the singular shall include the plural and vice versa;
â–ª the masculine shall include the feminine and vice versa; and
â–ª Natural persons shall include bodies corporate and vice versa.
1.24 Where applicable, the provisions of clause 1 of shall impose substantive obligations as provided therein.
1.25 Expressions defined in the Act shall bear the meanings assigned to them in the Act.
1.26 Clause headings have been inserted for convenience only and shall not be taken into consideration in interpretation.
1.27 In the interpretation of the Scheme Rules the contra proferentem rule of interpretation shall not apply, nor shall these Scheme Rules be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of these Scheme Rules.
1.28 The Scheme Rules shall be governed, construed and interpreted according to the laws in force for the time being and from time to time in the Republic of South Africa.
2. Establishment of the Scheme
2.1 The Scheme is hereby established for the Scheme Period in terms of which Allocations will be made to Participants during the Annual Allocation Period based on the Value of the Business that such Participant has conducted with the Senwes Group or Scheme Member.
2.2 The Board is authorised in its absolute and sole discretion to determine the following in terms of the Scheme:
2.2.1 The business units and/or Member Companies that will be contributors as Scheme Members and with which Participants conducted Business with during the Annual Allocation Period and which will determine the Allocations to Participants based on the Value of the Business conducted as such;
2.2.2 the percentage of the Net Profit before Tax, or any similar basis, available as an Allocation to all Participants based on the Value of the Business of such a Participant with the Senwes Group after provisions has been made for distributions to shareholders in terms of section 46 of the Act, which amount will be the "Annual Scheme Allocation" to Participants;
2.2.3 The nature of the Allocation and the benefits attached thereto i.e. whether such Allocation will be in the form of cash consideration, debt or a redeemable equity instrument, as well as the Settling Entity who will be responsible for settling the Allocation.
2.2.4 The Member Company (ies) that may become Scheme Members which shall be appointed by the Board subject thereto that:
18.104.22.168 The Member Company's Board of Directors accepted the nomination to become a Scheme Member prior to the Effective date of the Scheme or prior to the Annual Allocation Period and undertakes that it shall compensate the Participants as a Settling Entity in the Scheme as provided herein in accordance with and mutandis mutandis on the basis as provided in clause 2.5 below, and
22.214.171.124 The Member Company shall abide and agree to amendments to the Scheme and the obligations that the Board may direct and issue from time to time.
2.3 Subject to clauses 2.5, the Board shall determine the Annual Scheme Allocation, after due consultation with Scheme Members, as a bonus based on the Value of the Business of each Participant and the ratio in terms of which a Participant has contributed to the profitability of the Senwes Group and/or any other eligibility criteria relating to such Business as it may from time to time determine by taking into account, inter alia, the net realisable gross profit of Senwes and/or Scheme Members from:
a) Senwes Grainlink business activities based on, inter alia, tons delivered, stored and/or sold to Senwes Grainlink;
b) Retail business activities (gross profit basis in relation to and based on individual Participants' turnover);
c) Senwes Equipment business activities (gross profit basis in relation to and based on individual Participants' turnover);
d) Senwes Credit Extension (based on average credit extended);
e) Tradevantage Grain (based on grain commodity tons sold); and
f) Any other companies or business units in the Senwes Group.
2.4 Each Participant's Allocation for the Annual Allocation Period shall be credited against a Participant's name in a Register of Participants and provided for in the annual financial and accounting records of the Company and each Participant shall be provided with a statement that will reflect the Allocation subject to finalisation as determined in clause 2.5.1 below.
2.5 During the Scheme Period, the Board may:
2.5.1 On or before the expiry of the Annual Allocation period, but shall by no later than 3 (three) months thereafter, determine each Participants' Allocation whereafter Participants shall be advised thereof by written communication by no later than 6 (six) months after such a determination;
2.5.2 The calculation of the Allocation, the crediting thereof and payment thereof by means of cash or otherwise as may be determined at the sole discretion of the Board, shall be final and binding on the Participants and Scheme Members.
2.6 Allocations are declared on the Value of the Business conducted within the Annual Allocation period to Participants and any liability to taxation, howsoever and whenever arising, or any other levies, deductions or withholdings in respect of an Allocation will be for the account of the Participant.
3. Powers of the Board and Rights of Participants
3.1 The Board shall be authorised to:
3.1.1. Credit the Allocation to a Participant as determined in clause 2.5.2 above;
3.1.2. Utilise the Allocations that have been made for the sole benefit of the Company or relevant Scheme Member: provided that the Register of Allocations shall be accounted separately; and
3.1.3. Utilise Allocations as security for credit facilities (monthly accounts and production credit) at Senwes Credit in accordance with the Senwes Credit Policy as determined annually at the sole discretion of the Board, based inter alia on a fair value (after discounting) basis. Such amounts shall be ceded and pledged as security for existing and future debts of Participants should the Allocation be utilised as provided herein.
3.1. 4 appoint any of the companies in the Senwes Group as Scheme Members to make Allocations to Participants or to determine the most appropriate instrument as to provide Allocations in whatsoever manner as it may determine at its sole discretion and to appoint Settling Entities, subject to clause 2.2.4 above.
3.2 It is recorded and agreed that the Allocations to Participants shall:
3.2.1 Not be capable as to be paid out before the date indicated by the Board for each Allocation made in terms of the Scheme and in accordance with the term of the instrument as contemplated in 2.2.3.: Provided that should a Participant's estate be declared insolvent, or be sequestrated or should a Participant pass away the Accrued Allocations shall only be paid to beneficiaries or creditors after termination of the Scheme Period. However, the executor/ trustee of the Participant's Estate may request that the Accrued Allocations be sold to another Participant or Scheme Member who shall then pay the fair value (to be determined) of these Accrued Allocations to the Estate.
3.2.2 with the exception of the Senwes Group, not be capable of attachment or execution by third party creditors of the Participant; and/or
3.2.3 not bear interest or grant any other benefit to the Participant, except as to the actual payment of Accrued Allocation after termination of the Scheme Period.
4. Termination of the Scheme and payment of Allocations
4.1 The Scheme shall terminate on the occurrence of any of the following events:
4.1.1An effective resolution to wind up Senwes is adopted and registered; or
4.1.2 a binding order is made by a court having jurisdiction for the winding-up of Senwes or a Scheme Member; or
4.1.3 The Board of Senwes adopts a resolution to terminate the Scheme,
provided that Participants shall be paid the aggregate of the Allocations as per the Register of Participants credited until date of actual termination of the Scheme as determined by the Board into their designated bank accounts within a period of 30 (thirty) business days after the occurrence of any of the events above.
4.2 All unclaimed Allocations may be invested or otherwise made use of by the Directors for the benefit of the Company until claimed, provided that Allocations unclaimed for a period of 3 (three) years (or such longer period as the law may prescribe for the prescription of a claim) from the date on which they were declared, may be declared forfeited by the Directors for the benefit of the Company.
5.1 This clause is a separate, divisible agreement from the rest of this Scheme Rules and shall:
5.1.1 not be or become void, voidable or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or superÂvening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the Scheme and not to this clause. The Parties intend that any such issue shall be subject to arbitration in terms of this clause;
5.1.2 remain in effect even if the Scheme terminates or is cancelled;
5.1.3 not be subject to the fulfilment or waiver of the Suspensive Condition.
5.2 Save as expressly provided elsewhere in this Scheme Rules, any dispute arising out of or in connection with this Scheme Rules or the subject matter of this Scheme Rules including any dispute concerning:
5.2.1 the existence of the Scheme apart from this clause;
5.2.2 the interpretation and effect of the Scheme;
5.2.3 the Parties' respective rights or obligations under the Scheme;
5.2.4 the rectification of this Scheme Rules;
5.2.5 the breach, termination or cancellation of this Scheme Rules or any matter arising from the breach, termination or cancellation thereof; and
5.2.6 damages in delict, compensation for unjust enrichment or any other claim, whether or not the rest of this Scheme Rules, apart from this clause, are valid and enforceable,
shall first be referred to the Chief Executive Officer of Senwes (or his nominee) and if still not resolved by such persons within 15 days (or such additional period as the Parties may agree to), such matter shall be decided by arbitration as set out in this clause.
5.3 Any Party ("Claimant") may demand by notice to another Party ("Respondent") that a dispute be determined by arbitration in terms of this clause by written notice.
5.4 The arbitration will be held and will be completed as soon as possible:
5.4.1 in accordance with the provisions of South African law;
5.4.2 in Johannesburg, in the English language; and
5.4.3 in the presence of only the arbitrator, his assistant(s) and recording staff if the arbitrator so requires, the legal and other representatives of the Claimant and Respondent who wish to be present or represented, and only if and for so long as the arbitrator may permit, such witnesses as either of the Claimant or Respondent may wish to call to present expert or other evidence.
5.5 The arbitrator shall be one who is acceptable to both Claimant and Respondent and, if the matter in dispute is, or matters are, principally:
5.5.1 a legal or deemed legal matter, a practising attorney or advocate of at least 15 years' standing;
5.5.2 an accounting matter, a practising chartered accountant of at least 15 years' standing; or
5.5.3 any other matter, any independent person.
5.6 Should the claimant and respondent fail to agree whether a dispute is principally a legal, accounting or other matter within five days after the arbitration has been demanded by notice as aforesaid, the dispute will be deemed to be principally a legal matter.
5.7 Should the claimant and respondent fail to agree on an arbitrator within 14 days after the giving of notice in terms of 5.3, the arbitrator will be appointed at the request of either or both of the Claimant and/or the Respondent by the President for the time being of the Law Society of the Northern Province or its successor in law.
5.8 The decisions of the arbitrator will be final and binding on the Claimant and the Respondent and at the instance of either of them may be made an order of any court to whose jurisdiction the Claimant and the Respondent are or either of them is subject.
5.9 The arbitrator will be entitled to make such award, including an order for specific performance, interdict, damages or penalty or otherwise as he at his sole discretion may deem fit and appropriate and to deal as he deems fit with the issue of costs, including if applicable, costs on an attorney and own client scale, and his own fees and expenses. The arbitrator shall be entitled to receive and rely on expert advice and/or expert evidence in reaching his determination.
5.10 The arbitration shall be governed by the Arbitration Act 42 of 1965 or any replacement Act and shall take place in accordance with the Commercial Arbitration Rules of the Arbitration Foundation of Southern Africa or such other procedures or rules as the arbitrator may direct at his sole discretion.
5.11 The arbitrator need not strictly observe the principles of law and may decide the matters submitted to him according to what he considers equitable in the circumÂstances.
5.12 If two or more disputes are referred to arbitration at the same time, some being of an accounting or general nature and others of a legal nature, unless otherwise agreed, such disputes shall all be deemed to be legal matters and shall be referred for determination to a single arbitrator in accordance with this clause 5.
5.13 Notwithstanding the provisions of this clause 5, the High Court of South Africa shall have jurisdiction to determine any proceedings instituted by way of notice of motion by any of the Parties to this Scheme Rules against the other Parties thereto in which interim relief, or urgent final relief, is claimed howsoever arising out of or in connection with this Scheme Rules.
6. Communication to Participants and Members
The terms and provisions determined by the Board as provided for in clauses 2.2 shall be communicated to Scheme Members and Participants in the most appropriate manner as the Board may determine from time to time.
It is hereby recorded that Scheme Members and Participants:
7.1 Shall be required to comply with prevailing legislation from time to time and more specifically shall be required to provide "know your client information" as required and defined in terms of the Financial Intelligence Centre Act no 38 of 2001, as amended from time to time;
APPROVED AND ADOPTED BY THE SENWES BOARD ON 20 APRIL 2016