TERMS OF USE

 

 

 

1.      INTERPRETATION

The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof.  Unless a contrary intention clearly appears:

1.1.         words importing:

1.1.1.           any one gender include the other two genders;

1.1.2.           the singular include the plural and vice versa; and

1.1.3.           natural persons include created entities (corporate or unincorporate) and the state and vice versa;

1.2.         the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:

1.2.1.           Agreement” means these Terms of Use and all documents incorporated by reference;

1.2.2.           App” means the mobile and online dating application known as KOER owned and operated by Koer, as updated from time to time, including any web-based derivatives thereof;

1.2.3.           ECTA” means the South African Electronic Communications and Transactions Act No. 25 of 2002;

1.2.4.           KOER” means Die Bende (Pty) Ltd, a private company with registration number 2019/42247/07, duly incorporated in terms of the laws of South Africa,  andwe”, “us”, “our” and “ours” will have a corresponding meaning;

1.2.5.           Privacy Policy” means Koer’s privacy policy as contemplated in clause 5 below which will be deemed incorporated to these Terms of Use;

1.2.6.           POPI” means the Protection of Personal Information Act 4 of 2013;

1.2.7.           Service” means social and dating enabling service rendered by the App which, inter alia, entails collecting your personal information and making same available to third parties on the terms recorded herein;

1.2.8.           Terms of Use” means the provisions as contained in these terms of use;

1.2.9.           User” means a consumer that uses the App and the terms “you”, “your” and “yours” when used in these Terms of Use means any user of the App and use”, “using” and “usedmeans the accessing of the App and viewing of the App’s content.

2.      AGREEMENT AND GENERAL ACCEPTANCE OF THESE TERMS OF USE

2.1.         By accessing or using this App, you agree to these Terms of Use and all applicable annexures, which form a legally binding agreement (“Agreement”). If you do not agree, please exit this App.

2.2.         Access to and use of this App and the information, products and services available through this App are subject to these Terms of Use and to all applicable laws and regulations, including the provisions of ECTA and POPI, where applicable.

2.3.         All content on this App belongs to Koer, unless indicated otherwise. Content of advertisements belong to the advertisers, but Koer owns the compilation. Any personal information you may upload to the App belongs proprietary to you, but Koer has the right to make such information available to other users of the App (in accordance with your profile settings) and potential advertisers in terms of the license your grant below.

2.4.         This App may contain advertising and sponsorship. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion in this App complies with all applicable laws and regulations. Koer accordingly excludes, to the fullest possible extent permissible under law, any responsibility or liability for any error or inaccuracy appearing in advertising or sponsorship material.

2.5.         Koer may at any time, without notice, impose further and additional Terms of Use relating to the use of this App. The user's agreement to these Terms of Use automatically binds the user to the additional Terms of Use.

2.6.         The latest Terms of Use will be posted on the App, and you should always review these Terms of Use prior to using the App to ensure that you have a current understanding of the Terms of Use under which you are permitted to access this App. If you cannot access the Terms of Use via the Internet, a copy of the most recent Terms of Use can be provided by e-mail upon request.

3.      CONDITIONS OF USE

If you access and/or use the App in any way, you warrant that:

3.1        You are 18 years and older and of sound mind;

3.2        You have not been convicted of any crime related to assault, murder, battery, harassment, stalking or any offence contemplated by the South African Sexual Offences Act 23 of 1957, as amended from time to time;

3.3        You are ordinarily resident and domiciled within the Republic of South Africa;

3.4        Any information you may provide or content you may upload to the App is truthful, correct and accurate and not in any way aimed at misleading or deceiving any other User and does not infringe on any third party’s intellectual property rights.  

4.      YOUR ACCOUNT & OUR LICENSE

4.1.         By creating an account, you grant to Koer a worldwide, transferable, sub-licensable, royalty-free, right and license to host, store, use, copy, display, reproduce, adapt, edit, publish, modify and distribute information you post, upload, display or otherwise make available or transmit to other users on the App as well as authorize us to access from Facebook, as well as any information you authorise us to obtain from Facebook (the “Content”).

4.2.         Koer’s license to your Content shall be non-exclusive, except that Koer’s license shall be exclusive with respect to derivative works created through use of the Service.

4.3.         Our license to your Content is subject to your rights under applicable law (like ECTA and POPI) and is for the limited purpose of operating, developing, providing, and improving the Service and researching and developing new ones.

4.4.         You agree that any Content you place or that you authorize us to place on the App may be viewed by other users and may be viewed by any person visiting or participating in the Service as well as potential advertisers.  

4.5.         You understand and agree that we may monitor or review any Content you post as part of a Service. We may delete any Content, in whole or in part, that in our sole judgment violates this Agreement, is contrary to the spirit of KOER or may harm the reputation of the Service.

4.6.         By agreeing to these Terms of Use, you agree to the terms of our Privacy Policy also available on the App.

4.7.         Posting or transmitting of any unlawful, threatening, libellous, defamatory, obscene, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offence or violation of any law is strictly prohibited. You are bound by the community rules provided for below, which may be amended by Koer from time to time.

4.8.         Although Koer reserves the right to review and remove Content that violates this Agreement, such Content is the sole responsibility of the user who posts it, and we cannot guarantee that all Content will comply with this Agreement. If you see Content on the Service that violates this Agreement, please report to us at complaints@koer.co.za.  

4.9.         We reserve the right to monitor your communications with us whether by mail, voice, fax, e-mail or any other form of transmission for the purposes of quality control, security and other business needs.

4.10.      Notwithstanding the foregoing, all personal data provided to us as a result of this App will be handled in accordance with our Privacy Policy and in adherence with ECTA and POPI.

4.11.      The confidentiality of your username and password is solely your responsibility.

5.      OWNERSHIP

5.1.         Unless otherwise indicated, this App and its design, text, content, selection and arrangement of elements, organisation, graphics, design, compilation, magnetic translation, digital conversion and other matters related to this App are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights and are the property of Koer or the material is included with the permission of the rights owner and is protected pursuant to copyright and trademark laws.

5.2.         The posting of any such elements on this App does not constitute a waiver of any right in such elements. You do not acquire ownership rights to any such elements viewed through this App. Except as otherwise provided herein, none of these elements may be used, copied, reproduced, distributed, republished, downloaded, modified, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without our express prior written permission.

5.3.         Permission is hereby granted to the extent necessary to lawfully access and use this App and/or information, products and/or services available on it to display, download, archive and print in hard copy, portions of this App, provided you do not modify the materials and that you retain any and all copyright and other proprietary notices contained in the materials. This permission terminates automatically if you breach any of these Terms of Use.

 

 

6.      TRADEMARKS

The marks KOER and the KOER logo are pending trademarks and are the exclusive property of Koer. The unauthorized use of these marks in trade, or marks considered to be confusingly similar thereto in law, is strictly prohibited and may result in action based on trademark infringement, passing-off or unlawful competition being taken against you.   

 

7.      HYPERLINK DISCLAIMER

7.1.         This App may contain links and/or advertisements to other apps and websites maintained by unrelated companies and persons (“Third Party Sites”). An advertisement of, or link to, a Third Party Site does not mean that we approve, endorse or accept any responsibility for that Third Party Site, its content or use, or the use of products and services made available through such Third Party Site.

7.2.         Koer is not responsible for the actions, content, accuracy, opinions expressed, privacy policies, products or services provided through these links or made available through these resources or appearing in such Third Party Site, nor for any damages or losses, directly or indirectly, caused or alleged to have been caused as a result of your use or reliance on such Third Party Site.

7.3.         Such Third Party Sites are not investigated, monitored or checked for accuracy, completeness or conformance with applicable laws and regulations by us. We do not make any representations whatsoever, or give any warranties of any kind, expressed, implied, or otherwise about any apps or sites which you may access through this App, the content thereof, or the products and/or services made available through such sites/apps. If you decide to leave our App and access these other sites/apps, you do so at your own risk. All rules, policies (including privacy policies) and operating procedures of such sites/apps will apply..

8.      LINKS FROM OTHER APPS

8.1.         Any link to this App without our written permission is prohibited. Notwithstanding authorisation to link to this App, linking to any page other than the home page is prohibited. Persons providing access to this App via link from another site/app are solely responsible for the content, accuracy, opinions expressed, privacy policies, products or services of, or available through, the source site/app and for any representations made or impressions created concerning Koer.

8.2.         Authorisation by us to link to this App is given without assumption of any liability by us relating to such links, and we hereby disclaim any such liability. We reserve the right to withdraw any authorisation to link to this App at any time and for any reason.

8.3.         Anyone providing access to, or information relating to this App, whether by link or otherwise, is responsible for bringing these Terms of Use to the attention of the person receiving such access or information. Failure to do so will not result in liability for us.

9.      DATA PROTECTION CONSENT

9.1.         We respect your privacy and the protection of your personal information is of the utmost importance to us. In the interests of ensuring that users of this App are adequately protected when supplying personal information, Koer voluntarily subscribes to the principles outlined in POPI and Section 51 of ECTA under the privacy policy as contemplated by this clause 9 (“Privacy Policy”).

9.2.         Your personal information will not be collected, collated, processed or disclosed by Koer without your express written consent, unless Koer is legally required to do so.

9.3.         Your personal information will only be electronically requested, collected, collated, processed or stored by Koer if it is lawful for us to do so.

9.4.         Should your personal information be required, Koer will disclose to you the specific purpose for which it is needed. Furthermore, Koer will not disclose your personal information for any purpose other than the one disclosed to you, nor will it disclose any of your personal information to a third party unless done in accordance with these Terms.

9.5.         Koer will keep a record of your personal information and the purpose for which it was used.

9.6.         Koer will take all reasonable steps to ensure that your personal information is kept confidential and secure by storing it on our secure database.

9.7.         Koer keeps all financial information that it records strictly confidential and will not disclose it to any third party that has no right or title to the information.

9.8.         Koer will endeavour to take all reasonable and necessary precautions to secure access to your transactions - however, it cannot guarantee the confidentiality of your transactions.

9.9.         Koer will not be held liable for any personal information that you disclose to a third party whose link may be found on this App. Ensure that you refer to that third party’s privacy policy before you disclose any of your personal information.

9.10.      The Koer App may make use of cookie and tracking technology, whereby information that you send whilst on the site, is saved on your hard drive and the Koer App will know who you are when you next visit. This technology is useful for gathering information such as browser type and operating system, for tracking the number of visitors to a site and understanding how visitors use the App. Personal information cannot be collected via cookie technology.

9.11.      Koer may use your information for marketing purposes within Koer and may send you promotional material or details that it thinks may be of interest to you. You will however always be given the opportunity to instruct us to refrain from doing so and to have us remove your details from our mailing list.

9.12.      This Privacy Policy may be amended from time to time without any notice to you. Use of this App by you will at any time automatically bind you to the Privacy Policy that is current at that moment.

9.13.      Notwithstanding the aforegoing, all personal data provided to us as a result of this App will be handled in accordance with this Privacy Policy.

10.   COMMUNITY RULES

By using the Service, you agree that you will not:

10.1.      use the Service for any purpose that is illegal or prohibited by this Agreement.

10.2.      use the Service for any harmful or nefarious purpose

10.3.      use the Service in order to damage Tinder

10.4.      violate our Community Guidelines, as updated from time to time.

10.5.      spam, solicit money from or defraud any users.

10.6.      impersonate any person or entity or post any images of another person without his or her permission.

10.7.      bully, “stalk,” intimidate, assault, harass, mistreat or defame any person.

10.8.      post any Content that violates or infringes anyone’s rights, including rights of publicity, privacy, copyright, trademark or other intellectual property or contract right.

10.9.      post any Content that is hate speech, threatening, sexually explicit or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.

10.10.    post any Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual.

10.11.    solicit passwords for any purpose, or personal identifying information for commercial or unlawful purposes from other users or disseminate another person’s personal information without his or her permission.

10.12.    use another user’s account, share an account with another user, or maintain more than one account.

10.13.    create another account if we have already terminated your account, unless you have our permission.

11.   NO WARRANTIES

11.1.                 Any views or statements made or expressed on this App are not necessarily the views of Koer, its affiliates, subsidiaries, holding companies, partners, employees, officers, servants or agents. Any statements we may make or advise we may give on the App should not be considered as any professional advice of any sort and we accept no liability should you act on such advice to your detriment.

11.2.      This App is provided on an “as is,” “as available” basis, without warranties of any kind.  To the fullest extent possible pursuant to applicable law, Koer, its affiliates, service providers and licensors disclaim all warranties, express, implied, statutory or otherwise.

11.3.      Without limiting the foregoing, Koer, its affiliates, service providers and licensors do not represent or warrant to you or your company and Koer, its affiliates, service providers and licensors hereby disclaim:

11.3.1.         all warranties of merchantability, fitness for a particular purpose, title and non-infringement;

11.3.2.         warranties relating to delays, interruptions, errors, or omissions in the operation of this App or any part of it;

11.3.3.         warranties relating to the transmission or delivery of this App or its availability at any particular time or location;

11.3.4.         warranties relating to the Use, validity, accuracy, currency or reliability of, or the results of the Use of this site or any information published on this site; and

11.3.5.          warranties relating to Apps to which this App is linked. 

11.4.      Any representation or warranty, which is not recorded in these Terms of Use, is specifically excluded and the User may not rely thereon in any manner and Koer, its affiliates, service providers and licensors accepts no responsibility for any losses the User may incur as a consequence of using the App.

11.5.      It is your responsibility to evaluate (or take professional advice on) the accuracy and completeness of all information, statements, opinions and other material on this App or any App with which it is linked.

12.   EXCLUSION OF LIABILITY

12.1.      To the fullest extent permitted by applicable laws, Koer excludes liability for any losses and expenses of whatever nature and howsoever arising including, without limitation, any direct, indirect, special, punitive, or consequential damages, loss of use, loss of data, loss caused by a virus, loss of income or profit, loss of or damage to property, claims of third parties, or other losses of any kind or character, even if we have been advised of the possibility of such damages or losses, arising out of or in connection with the use of this App or any App with which it is linked.

12.2.      You assume total responsibility for establishing such procedures for data back up and virus checking as may be necessary.

12.3.      This is a comprehensive limitation of liability that applies to all losses and damages of any kind whatsoever, whether the alleged liability is based on contract, negligence, tort, strict liability or any other basis.

12.4.      We do not seek to exclude or limit liability for fraudulent misrepresentation.

13.   INDEMNITY AND RELEASE

You agree to indemnify, release and hold Koer, as well as our officers, directors, agents, representatives and employees, harmless from any claim, liability, loss, expense or demand, including legal fees, related to your violation of these Terms of Use or your access or use of this App or any of the information, materials, products or services available through this App.

14.   MODIFICATION AND DISCONTINUATION

We reserve the right at any time and from time to time to modify, edit, delete, suspend or discontinue, temporarily or permanently this App (or any portion thereof) and/or the information, materials, products and/or services available through this App (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any such modification, editing, deletion, suspension or discontinuance of this App.

15.   ENTIRE UNDERSTANDING

15.1.      These Terms of Use and any documents incorporated by reference contain the entire understanding between you and Koer with respect to this App and no representation, statement, inducement oral or written, not contained herein shall bind any party to this agreement.

15.2.      If any provision of these Terms of Use is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of these Terms of Use shall remain in full force and effect.

16.   WAIVER

16.1.      Koer's failure at any time to require performance of any provision of these Terms of Use or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right and any and/or all waivers must be in writing. 

16.2.      Unless the written waiver contains an express statement to the contrary, no waiver by Koer of any breach of any provision of these Terms of Use or of any right provided for herein shall be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these Terms of Use.

17.   LAW  & JURISDICTION

17.1.      The App is controlled and operated by Koer from its offices within the Republic of South Africa and make no representation that the information contained herein is appropriate or available for use in other locations outside South Africa

17.2.      The law in certain countries other than South Africa may prohibit the Use of this App or information products and/or services on this App or jurisdictions and you are responsible for compliance with any applicable laws of the country from which you are accessing this App.

17.3.      You agree that the laws of the Republic of South Africa shall govern any controversy or claim of whatever nature arising out of or relating to the Use of this App, without regard to any conflict of law provisions, and you hereby irrevocably consent and submit yourself to the personal jurisdiction of the courts of the Republic of South Africa for all such purposes. 

17.4.      The foregoing notwithstanding, we retain the right to bring legal proceedings in any jurisdiction where we believe that breach of this agreement is taking place or originating.

18.   CONTACTING US

18.1.      If you have any questions regarding these Terms of Use or any other matter you may contact us, by writing to us at info@koer.co.za.