Capital Harvest Proprietary Limited ("Capital Harvest") has established an internet-based, online service through which clients of Capital Harvest can access their own profile in order to:
view and peruse statements; and/or
request drawdown of available funds from their revolving credit facilities held with Capital Harvest for transfer to their nominated bank account.
(the "Online Profile")
The Client hereby instructs Capital Harvest to accept any request for a drawdown received from the Client via the Online Profile ("Electronic Instruction").
The Client accepts and acknowledges that:
an Electronic Instruction will only be deemed to have been received by Capital Harvest once Capital Harvest has confirmed receipt thereof, or responded thereto, whichever the earlier;
if there is any doubt as to whether an Electronic Instruction has been received and/or processed by Capital Harvest, it shall be the responsibility of the Client to contact Capital Harvest before resubmitting the Electronic Instruction;
any disbursement of funds by Capital Harvest in terms of an Electronic Instruction is strictly subject to adherence by the Client to all terms and conditions contained in the loan agreement applicable to the revolving credit facility and/or the term loan facility (as the case may be) to which the Electronic Instruction relates; and
Capital Harvest will not be required to act on the Client's instructions unless there is a sufficient available balance under the Client's facility.
The Client understands that this indirect communication method carries greater risks than face-to-face communications and the Client is solely responsible to ensure only authorised access to the Online Profile. The Client is aware that the risks associated with this indirect communication method includes the risk that the Client's communication may be intercepted or changed without the Client's knowledge or consent or that unauthorised Electronic Instructions may be sent to Capital Harvest. The Client agrees and accepts these risks and is solely responsible for ensuring that Capital Harvest receives Electronic Instructions only from authorised persons. The Client will be solely responsible if the same Electronic Instruction is sent more than once.
Capital Harvest makes no representations as to the accessibility and/or suitability of the Online Profile via any of the Client's devices, including but not limited to any hardware, software or consumable material, in order to gain access to or use of the Online Profile.
The Client hereby unconditionally and irrevocably indemnifies Capital Harvest and holds Capital Harvest harmless against any claim or action for any loss or damage that the Client or any other person suffers as a result of the Client utilizing the Online Profile, unless such demand, claim or action arose as a direct consequence of the gross negligence or willful misconduct of Capital Harvest or any of its employees.
Without limiting the generality of clause 6, the Client waive all its rights in relation to, and indemnifies and hold Capital Harvest harmless, against, any loss or damage brought about by:
delay or failure by Capital Harvest to act on any instruction given using the services;
malfunction, failure or unavailability of any system, hardware, software or equipment;
destruction of any data, power failures or corruption of storage media;
natural phenomena, riots, acts of vandalism, sabotage, terrorism or any other event beyond Capital Harvest 's control;
interruption or distortion of communication links or reliance by any person on incorrect, illegible, inaudible, incomplete or inaccurate information or data contained in any instructions received by Capital Harvest;
use, misuse, abuse or possession of any third-party software, including, without limitation, any operating system software, browser software or any other software packages or programs;
breach of security or any destruction or accessing of the Client's data or any destruction or theft of or damage to any of the Client's equipment;
any loss or damage, which the Client or any other party may suffer due to unauthorised interception and/or monitoring;
any loss or damage if the Client didn't take reasonable steps to safeguard the account, the access codes and/or follow the steps recommended by Capital Harvest from time to time;
loss or damage arising from the unauthorised use of the service channel including where a user exceeds their authority;
the Client divulging any confidential information and/or permitting unauthorised persons from having access to and/or using the services;
failure to adhere to any terms and conditions applicable to the online service and/or by the supplying of incorrect information or by the failure or unavailability of third-party facilities or systems or the inability of a third party to process a transaction;
confidential information/documentation requested using the online service coming to the knowledge of third parties; or
fraudulent, false or altered instructions given using the services.
Capital Harvest undertakes to ensure, to the best of its ability, that the Online Profile is provided to the Client in a secure and reliable environment. Although Capital Harvest takes reasonable care to secure the Online Profile, Capital Harvest will not be liable for any kind of loss or damage the Client may suffer, including direct, indirect, special, incidental or consequential damages, because of the Client's use of, or inability to use, the Online Profile. This will not apply where the loss/damage arose because of Capital Harvest's negligence or intent.
The Online Profile may be unavailable from time to time due to routine maintenance or emergency repairs or because of the unavailability of electricity, telecommunication systems or networks. For the duration of such unavailability the Client will contact Capital Harvest on other available channels.
The Client acknowledges and understands that Capital Harvest will terminate the Client's use and access to and/or prohibit the Client's future access to use the Online Profile immediately and without notice to the Client if:
the Client has breached the terms and conditions of this Waiver or any other agreement with Capital Harvest;
the Client provides incorrect or inaccurate information to Capital Harvest; and/or
the Client has committed (or attempted) fraudulent conduct directly or indirectly;
In the event that Capital Harvest terminates the Client's access to the Online Profile as contemplated in clause 10, Capital Harvest will not be liable for any losses or damages, of any nature, suffered by the Client or a third party. Capital Harvest's rights in this regard are expressly reserved.
For all purposes, the Client warrants and confirms:
That all information the Client provided at any time to Capital Harvest using the Online Profile, will in all respects be current, complete, and accurate;
That the Client is solely responsible for maintaining the confidentiality and secrecy of its access codes, and the access codes shall at all times be safeguarded by the Client; and
By making use of the Online Profile, the Client consents to its collection, processing, storage and sharing of the Client's personal information within Capital Harvest in the ordinary course of its business.
The Client acknowledges that Capital Harvest will never request that the Client provides it with personal information relating to the Online Profile such as access codes.