Website Terms and Conditions of Use: These Terms and Conditions (“the Terms and Conditions”) are published on www.birdlasser.com (“the Website”) and govern your (“the User”) use of the LEJINT (Pty) Ltd (“Provider”) BirdLasser mobile application (“the App”) downloadable from various online app stores. By accessing and using the App, the User agrees to be bound by the Terms and Conditions set out in this legal notice. If the User does not wish to be bound by these Terms and Conditions, the User may not access, display, use, download or install the App, and/or otherwise copy or distribute Content obtained at the Website and/or generated by the App.
Updating of these Terms and Conditions: Provider reserves the right to change, modify, add to or remove from portions or the whole of these Terms and Conditions from time to time. Changes to these Terms and Conditions will become effective upon such changes being posted to the Website. It is the User’s obligation to periodically check these Terms and Conditions at the Website for changes or updates. The User’s continued use of the App following the posting of changes or updates will be considered notice of the User’s acceptance to abide by and be bound by these Terms and Conditions, including such changes or updates.
Supplier of services details: In accordance with the disclosure requirements of the Electronic Communications and Transactions Act (“ECTA”), Act No 25 of 2005, the supplier of services offered for sale, hire or exchange by way of an electronic transaction, makes the following information available to consumers: (a) The Provider is the supplier of the service and is a private profit company with limited liability duly registered and incorporated under the laws of South Africa registration number: 2013/210222/07 with its physical address at 42 Esmeralda Crescent, Robindale, Randburg. Supplier’s place of registration is Randburg and Supplier will accept legal service at 42 Esmeralda Crescent, Robindale, Randburg. Supplier’s director and office bearer is: W Harris (Managing Director) The main business of Provider is supply of App services; (b) Provider’s website is www.birdlasser.com and its email address is email@example.com; (c) Provider is a member of the supplier’s self-regulatory body the Digital Media and Marketing Association. (d) Provider subscribes to the suppliers’ code of conduct available at http://www.dmasa.org/home/about-us/ (e) Goods and/or Services: Provider supplies consumer profiling and database creation for targeted marketing strategies; (f) Terms and conditions of download: Goods and services offered through this App by Provider are strictly on an “as is” basis without charge, unless specified otherwise. Warranties and representations are hereby expressly excluded. The services are available instantly with download of the App and registering an account. Downloaded information cannot be returned. In case of defect, User may notify Provider within 24 hours of becoming aware of defect by email to the following address firstname.lastname@example.org. User’s cooling-off rights under s 44 of ECTA do not apply in terms of s 42 of ECTA, due to downloads being computer software. (g) Payment: App content and services are supplied at no charge, unless the User specifically agreed to a paid subscription. (h) Complaints and disputes: User may file a complaint via the “Contact us” service of the website www.birdlasser.com. Currently Supplier does not subscribe to any alternative dispute resolution code or mechanism.
Copyright and Intellectual Property Rights:
Limited License to the User: • Provider will register an account for a User to access the App with User’s Facebook login identification or other means that may become available in future. • Subject to the further terms of these Terms and Conditions, a non-exclusive, non-transferable, limited and revocable right is granted to User to access, display, use, download and otherwise copy the current and future Content for the purposes agreed to by User and Provider. • User will be enabled to contribute material (“Contributed Content”) via uploading in the App, which Contributed Content may include, but is not limited to, sound recordings, image recordings, written notes and geolocation data linked to the written notes and recordings • Ownership of all rights, including Intellectual Property Rights, in and to Contributed Content shall be vested in Provider and Registered User shall not be entitled to any compensation. • Registered User warrants that all Contributed Content created and/or submitted to Provider shall be wholly originally created by Registered User and shall not infringe upon or violate: – the right to privacy; – the right to personal integrity; nor – constitute a libel or slander against; nor – violate any common or statutory law rights; or – any other rights (constitutional rights) of any natural or legal person. • The Registered User agrees to indemnify the Provider, its successors, assigns, licensees, officers, directors and employees and hold them harmless from and against any and all claims, liability, losses, damages, costs, expenses (including but not limited to attorney’s fees), judgments and penalties arising out of the Registered User’s breach of warranties under this Agreement. • Contributed Content (uploaded by any User) may be reproduced, duplicated, copied or otherwise commercially exploited by the Provider without financial compensation to the User. • Contributed Content (uploaded by any User) may not be reproduced, duplicated, copied or otherwise commercially exploited by the User without prior written agreement with the Provider (see paragraph Usage Conditions of Contributed Content). • The license does not allow the User to collect product or service listings, descriptions or other information displayed here, and does not allow any derivative use of the App or the Content for the benefit of another merchant. • The User may not frame nor use framing technologies to enclose the Provider Website or the App Content nor any part thereof without the express written consent of Provider. • Provider and the Owners, their affiliates or subsidiary reserve the right in their sole discretion to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion. • Any unauthorised use terminates this license.
Usage Conditions of Contributed Content:It is understood and agreed that the Provider provides valuable technology to the User, at a considerable cost to the Provider. Usage of the App, Website or other solutions provided by the Provider is categorised into two purposes: 1) Non-commercial purposes, where the App and/or Contributed Content are used for and limited to a) personal use and b) conservation purposes; 2) Business Use purposes for any for-profit ventures, where the App and/or Contributed Content are used for but not limited to a) any services rendered to third parties for which such services have a financial value, and for which such services are directly or indirectly compensated for by third parties to the User, b) fundraising activities by the User which can be directly attributed to the App and/or Contributed Data, and c) activities other than those outlined above, which create cost savings or operational efficiencies for the User, or User’s organisation, or any organisation. For the avoidance of doubt, a cost saving or operational efficiency is defined as a saving in expenditure or human time that would otherwise have been incurred if the App and/or Contributed Data were not in existence. For example: Users capturing and sharing time-stamped, geo-located records using the App, instead of but not limited to using a spreadsheet (e.g. Microsoft® Excel®) to manually document and share the observational properties (including but not limited to, the date, the time, the co-ordinates, the count and the activity) of recorded species. The Costs Associated with the Usage as per 2) where a User or Third Party (as beneficiary of a User’s or Users’ Contributed Content) engages in Business Use or otherwise generates revenue, cost savings, or operational efficiencies (“Financial Benefits”), directly or indirectly from the use of the App and/or Contributed Content, for the benefit of either the User or a Third Party, or both, the User and Provider agree that a) where the User or any Third Party (benefitting a combination of Users) is receiving less than or equal to 1,000 (one thousand) records per month, or 250 (two hundred and fifty) records per week, on average, then that User or Third Party is requested to provide billing details to the Provider in order to be invoiced and pay $70 (seventy US dollars) per month to the Provider in arrears for facilitating the flow of such data, until such benefit has ceased, b) where the User or any Third Party (from a combination of Users) is receiving more than 1,000 (one thousand) records per month, or 250 records per week, on average, then that User or Third Party is i) obliged to provide the Provider with details relating to the Financial Benefits, where it relates to but is not limited to A) revenue generated: the party from whom the revenue was generated and any other information that the Provider may in its sole discretion deem necessary in the circumstances, B) cost savings achieved: the value of these direct and indirect costs saved and any other information that the Provider may in its sole discretion deem necessary in the circumstances, and C) operational efficiencies achieved: the financial value of these operational efficiencies and any other information that the Provider may in its sole discretion deem necessary in the circumstances; ii) the User will propose, draw up, and enter into a written Financial Benefits sharing agreement in order to regulate the manner in which the Financial Benefits generated by the Third Party are shared between the Parties, or such other commercial agreement that is appropriate in the circumstances; iii) the Provider can, as part of i) and ii), potentially assist the User or Third Party to procure its information via a data portal (with the objective of delivering further efficiencies); and iv) the User will make payments related to the above promptly and without delay. Where such payments are delayed, the Provider may charge interest at 20% p.a., c) where the User or Third Party has previously been benefitting from the Provider’s solution, and in terms of the above would have been liable to pay the Provider, a donation, for a value at the User or Third Party’s discretion, will be greatly appreciated and regarded as honourable, and d) the User or Third Party undertakes to display and exercise the utmost good faith to the Provider in giving effect to the a), b) and c), and hereby undertake to do and procure the doing of all such acts as are necessary to give effect to the above. If the User or Third Party does not adhere to the Costs Associated with the Usage, this will be regarded as a violation of the Terms and Conditions. The Provider reserves the right to permanently, and without prior notification, revoke access to the User account/s providing Contributed Content to the User or Third Party until that User or Third Party receiving Financial Benefits from the Provider, has reached agreement with the Provider regarding payment for the services rendered.
Limitations on contributed content: The App enables User to upload content and information (the “Contributed Content”). The User is solely responsible for User’s uploading of Contributed Content and the User use Contributed Content at User’s own risk. By using the App, User agrees not to upload to, transmit, distribute, store, create or otherwise publish through the Site or the Services any of the following: • Contributed Content that is false, fraudulent, misleading, unlawful, defamatory, obscene, pornographic, indecent, harassing, abusive, inflammatory, harmful to minors or otherwise objectionable; • Contributed Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, violate any applicable rules of professional conduct, or that would otherwise create liability or violate any national or international law; • Contributed Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any Contributed Content, User represents and warrants that User has the lawful right to distribute and reproduce such Contributed Content as provided under these Terms and Conditions; • Contributed Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; • Unsolicited promotions or advertising. • Private or confidential information of any third party, including, without limitation, addresses, phone numbers, email addresses, identity numbers and credit card numbers; • Spyware, malware or viruses or other harmful, disruptive or destructive files; • Any answers, responses, comments, opinions, analysis or recommendations that you are not properly licensed or otherwise qualified to provide; and User agrees not to: • Use the App to impersonate a third party or harass anyone; • use the App to collect personal data about others for unlawful purposes; LEJINT (Pty) Ltd • use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the website or the App; • upload irrelevant Contributed Content, repeatedly post the same or similar Contributed Content or otherwise impose an unreasonable or disproportionately large load on Provider’s infrastructure; • attempt to gain unauthorized access to Provider’s computer systems; • use any form of automated device or computer program that enables the submission of postings without each posting being manually entered by the author thereof (an “automated posting device”), including without limitation, the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regular intervals.
Mobile connectivity: The App requires the use of mobile devices and wireless connectivity. The User’s mobile service provider may charge for the use of wireless connectivity and it is the User’s responsibility to be aware of these charges and be liable for payment of same.
Limitation of liability: Subject to s 43(5) and 43 (6) of ECTA, if applicable, and to the extent permitted by law, the App and the Website and all Content on the Website and the App, including any current or future offer of products or services, are provided on an “as is” basis, and may include inaccuracies or typographical errors and Provider, Owners, suppliers, employees, directors partners, affiliates and agents shall not be liable for any damage, or loss or liability of any nature incurred by whoever as a result of any action or omission. The Provider makes no warranty or representation as to the availability, accuracy or completeness of the Content or Contributed Content, or any third-party content accessible via an Internet link. Neither Provider nor any holding company, affiliate or subsidiary of Provider or Owners, shall be held responsible for any direct or indirect special, consequential or other damage of any kind whatsoever suffered or incurred, related to the use of, or the inability to access or use the Content or the App or the Website or any functionality thereof, or of any linked website, even if Provider is expressly advised thereof.
Privacy: Provider’s use of information and reports: Due to the nature of the Provider’s services it may be subject to the provisions of the Protection of Personal Information Act (“POPI”). Provider and User agree, insofar as Provider is subject to POPI, that: • Provider will not use the data and reports received from User in contravention of POPI • User consents to non-compliance with Section 18(1) of POPI where applicable • User consents to the collection and processing of its personal information • User may withdraw its consent, in which event the Provider will remove the User’s personal information and terminate the App account
Privacy, access to and Provider’s use of information: Provider may receive various types of information (“the Information”) from Users who access the Website, including personal information as detailed in the Promotion of Access to Information Act (“PAIA”), Act 2 of 2000, and as detailed in s 1 of the Electronic Communications and Transactions Act (“ECTA”), Act 25 of 2002 and as detailed in Section 1 of the Protection of Personal Information Act (“POPI”) Act 4 of 2013 (hereinafter referred to “Personal Information”). Provider may electronically collect, store, process and use Personal Information, including name, contact details, surfing patterns, email and IP address. Provider voluntarily subscribes to s 51 of ECTA and endeavours to treat Personal Information received by Provider accordingly. Whenever User is of the opinion that Provider fails to comply with s 51 of ECTA, User shall contact Provider by sending an email to email@example.com . Provider will review User’s representations made by email and, if within Provider’s sole and absolute discretion advisable, take corrective action and in any event within 7 days respond to User informing about corrective actions taken, if any. Despite such undertaking, it is possible for Internet-based communications to be intercepted. Without the use of encryption, the Internet is not a secure medium and privacy cannot be ensured. Internet e-mail is vulnerable to interception and forging. The Owners will not be responsible for any damages you or any third party may suffer as a result of the transmission of confidential or disclosed information that you make to the Owners and/or Provider through the Internet, or that you expressly or implicitly authorise the Owners to make, or for any errors or any changes made to any transmitted information. To ensure acquaintance with and awareness of the privacy measures and polices of Provider, the User is urged to take care to read and understand the underlying privacy clauses incorporated in these Terms and Conditions:
Privacy: casual surfing: The User may not visit the App and the Website without providing any personal information. The User accordingly hereby grants express written permission for the Website servers in such instances collecting the IP address of the User computer, and the email address or any other distinguishing information. This information is aggregated to measure the number of visits, average time spent at the Website, pages viewed, etc. Provider uses this information to determine use of the Website, and to improve Content thereon. Provider assumes no obligation to protect this information, and may copy, distribute or otherwise use such information without limitation
Privacy: posted information: If the User posts content or other information (“the Information”) to the App or the Website, and unless otherwise indicated, then the User grants to the Owners a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Information throughout the world in any media. The User grants to the Owners the right to use the name that the User submits in connection with such Information, if they choose. The User warrants that the User owns or otherwise controls all of the rights to the Information that the User posts; that the Information is accurate; that by the supply of the Information to Provider, the User does not violate this Policy and does not infringe the rights of any person or entity; and that the User indemnifies the Owners for all claims resulting from the receipt by Provider of the Information the User supplies to it. Provider reserves the right but not the obligation to monitor and edit or remove any Information, where posted to public pages. Provider takes no responsibility, and assumes no liability for any Information posted by the User or any third party.
Privacy: solicited information the User gives to Provider: Provider requires certain Personal Information necessary to process transactions if the User requires any of Provider’s products or services. Provider receives and stores all Information, including Personal Information which the User enters on the Website or gives to Provider, in any other way. The User may choose not to provide certain Personal Information, but that may limit the services or products that the User may wish to obtain from this Provider. Provider provides its products and services in conjunction with its affiliates and subsidiaries. In this regard and unless specifically restricted by the User from the license below, the User hereby and when entering into the specific transactions in question expressly grants in writing to the Owners and the Provider a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Information throughout the world in any media for any purpose whatsoever, The User’s Information that is required by affiliates and subsidiaries to give effect to transactions that the User choose to enter into, is shared with those entities.
Privacy: promotional information: Provider aspires to provide the best service to its customers, which necessitates Provider providing information to the User regarding new services or special offers. In each instance, the User is provided an opportunity to opt-out of such information circulars. For more information, please send an email to firstname.lastname@example.org.
Privacy: business transfers: Provider may enter into business arrangements whereby its user base is one of the more valued assets. In such an event, User Information will be one of the transferable assets.
Privacy: lawful purposes: When the Provider is served with due legal process requiring the delivery of Personal Information, it has the legal duty to abide by that demand, and will do so. Provider may also impart Personal Information if permitted or required to do so by law.
Privacy: surveys and statistical profiles: Provider understands that efficiency and customer care translates to good service. Provider may periodically conduct online customer care surveys to facilitate the updating of service standards. When it conducts a survey, Provider will inform the User how the information gathered will be used, and will provide the User with the opportunity to opt-out from such surveys. Notwithstanding the foregoing, Provider may chose to use Personal Information to compile profiles for statistical purposes and may chose to trade with such profiles and statistical data, as long as the profiles or statistical data cannot be linked to any specific data subject, including the User, by a third party.
Privacy: storage: Personal Information will be stored for as long as it is used together with a record of the Personal Information and the specific purposes it was collected for. Personal Information will be destroyed once it has become obsolete.
Privacy: interception: Subject to the Regulation of Interception of Communications Act (“RIC”), Act no 70 of 2002, User agrees that Provider may intercept, block, read, delete, disclose and use all communications sent or otherwise communicated to Provider, its employees, directors and agents. User agrees that his or her consent satisfies the requirements of ECTA and RIC for consent in “writing” as defined.
Consent to Receive Emails By using the App, you consent to receive emails from Provider, which may include commercial emails. Provider will not use your personal information to send you news and product updates, unless you “opt in” to receiving such communications. You may “opt out” of receiving marketing or promotional email from Provider by following unsubscribe instructions or using unsubscribe links within communications we send. As long as you use the App, you may not “opt out” of receiving service related emails from Provider.
Age Restriction: If you are not 18 years old, you agree to review these terms and conditions with your parent or guardian prior to use of the App. If you are a parent or guardian entering into this agreement for the benefit of a minor child then you agree to and accept full responsibility for that child’s use of the App and the Services, including all financial charges and legal liability that he or she may incur.
Termination: Notwithstanding any of these Terms and Conditions, Provider reserves the right, without notice or providing reasons and in its sole discretion, to terminate User’s license to use the App, and to block or prevent User’s access to and use of the App.
Severability: If at any time any provision of this agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that shall not affect or impair: the legality, validity or enforceability in that jurisdiction of any other provision of this agreement; or the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this agreement.
Choice of Law: This Website is controlled, operated and administered by Provider from its offices as set out below within the Republic of South Africa. The Providers make no representation that the Content is appropriate or available for use in the locations or countries. Access to the Website from territories or countries where the Content is illegal is prohibited. The User may not use this Website in violation of South African export laws and regulations. If the User accesses this Website from locations outside of South Africa, that User is responsible for compliance with all local laws. These Terms and Conditions shall be governed by the laws of the Republic of South Africa, and the User consents to the jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg in the event of any dispute. If any of the provisions of these Terms and Conditions are found by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be enforced to the maximum extent permissible so as to give effect to the intent of these Terms and Conditions, and the remainder of these Terms and Conditions shall continue in full force and effect. These Terms and Conditions constitute the entire agreement between the Provider and the User with regard to the use of the Content and this Website.
Contact Details: In the event that you need to contact Provider for purposes related to these Terms and Conditions, please use the following:
© LEJINT (Pty) Ltd 2018
These terms and conditions were most recently updated on 2018-06-13