1. Application and binding effect of these Terms
These terms and conditions (“Terms”) govern your use of the liedjie.com website at http://liedjie.com, mobile application (purchased on the Apple App Store, or Google Play Store) and the use of related value added services. The use of the mentioned app, website and services, will collectively be referred to herein as “Services”). Where we refer to “the App”, we refer both to the liedjie.com website and mobile application.
These Terms constitute an agreement between yourself and NicheStreem (Pty) Ltd (trading as “NicheStreem” and also referred to herein as “we” or “us”). For continued use of the Services, you may be requested from time to time to accept new or amended versions of these Terms, which will appear as a pop-up, requesting your acceptance thereof.
The Terms may be applicable together with further specific terms applicable to a particular service or product that NicheStreem may supply to you. If there is a conflict between these Terms and the specific terms, the specific terms will apply.
Any reference to “personal information” means any and all information that you provide when using the Services otherwise, that is categorised as “personal information” in terms of the Protection of Personal Information Act 4 of 2013 (“POPI”).
2. Login details, usernames and passwords
Should the Services from time to time make use of login functionality in terms of which you are required to create your own usernames and passwords, or utilise social media integration, you accept complete responsibility for the safekeeping of those details, usernames and passwords, insofar as the security thereof is concerned.
By entering your usernames and passwords, NicheStreem is entitled to assume that the person using the Services is you.
You must familiarise yourself with and follow the security procedures communicated by NicheStreem from time to time as well as such other procedures that may apply generally to the Services.
You agree that any failure on your part to follow the recommended security procedures may result in a breach of the confidentiality of your personal information and may lead to unauthorised access to your account and personal information.
In the event that you are a business, you must ensure that only authorised employees have access to and are allowed to use the Services with your secure login details. You and/or your business are however then responsible for any action of those individual(s) (whether authorised or not) when they interact with our Services.
You are responsible for keeping all of your personal information, usernames and passwords up-to-date, secure and confidential and must notify NicheStreem immediately if there has been, or if you suspect any breach of security or confidentiality.
3. Use of the Services
Not all devices may support use of the Services. It is your responsibility to keep your device updated and or in a condition for it to support use of the Services.
NicheStreem may offer Services and/or products to you from time to time and reserves the right to modify, replace or terminate any existing service without prior notice to you. If such modification, or termination of any service is, in NicheStreem’s discretion, material to the nature of any transaction you have entered into with us, we will give you prior notice of such changes, in order for you to decide whether you wish to renew/continue use of the Services after such material change.
In order to register as a User of the Services, you may have to provide certain personal information and/or payment information, which NicheStreem may have to validate.
NicheStreem may at any time request that you provide, in a form satisfactory to us, documentary evidence establishing and/or confirming your identity as the registered User of the Services.
You are solely responsible for all internet data usage charges incurred while downloading or using the the App and/or the Services.
You agree that you will not at any time, whether alone or in conjunction with any third party, attempt or actually:
- copy or distribute any of the content accessible via the App or the Services;
- use the Services for commercial purposes, unless NicheStreem has agreed thereto in advance;
- alter, reverse-engineer, modify, circumvent, disable, amend, tamper with or change any part of the App;
- alter, reverse-engineer, modify, circumvent, disable, amend, tamper with or change any security features of the App;
- infect the App with any software, malware or code that may infect, damage, delay or impede the operation of the App or which may intercept, alter or interfere with any data generated by or received through the App; and
- allow any third party to use your usernames and passwords in any manner other than as permitted by these terms.
As the App provides music streaming and other related or ancillary Services, based on information you supply to us, including geographical location information, the use of the Services will be restricted to certain geographical areas, which areas will be listed and updated on our Website from time to time.
4. Social Media integration
The App may connect to various social media sites or apps, including Facebook, Twitter, LinkedIn, Instagram and Google+, from time, for purposes of creating user profiles, or logging in, sharing information, etc.
The respective social media platform’s rules will apply to each such instance of integration, and we will obtain your consent before enabling any such integration.
5. Payment and duration for using the Services
Billing and credit card details will be required before you can use the Services. You warrant that you are authorised to use the relevant billing or card details, and NicheStreem reserves the right to terminate any Service to you, should it transpire or be suspected that you are or may not be authorised to use such details, or in the case of Services rendered to you free of charge, without any reason whatsoever.
All documentation pertaining to transactions between yourself and NicheStreem, will be emailed to you upon request or be made available via the App.
NicheStreem shall allow you to use the Services, once your payment details have been validated and/or your first payment has been successfully cleared.
The fee for use of the Services shall be for a period and amount as stated on the App, which may change from time to time, subject to NicheStreem giving you 30 days’ notice of such change.
You may terminate use of the Services at any time. No pro-rata refunds will however be given for periods already paid for, unless otherwise agreed to by NicheStreem. If you choose to subscribe to the Services, instead of making a once-off payment, your subscription will automatically renew on a monthly basis, after your initial subscription period has expired. Termination of any subscription period needs to happen at least one (1) business day before the current subscription period expires, by following the instructions on the App.
All indicated prices will include Value Added Tax (as applicable, in accordance with the Value Added Tax Act 89 of 1991), but exclude any applicable data charges, for which you (“the User”) will be responsible for.
6. Risk, loss or damages
You hereby agree that subject to applicable law, NicheStreem will not be liable for:
- Any interruption, malfunction, downtime, off-line situation or other failure of the App or online Services, NicheStreem’s system, databases or any of its components;
- Any loss or damage with regard to your data or other data directly or indirectly caused by malfunction of NicheStreem’s system, third party systems, power failures, unlawful access to or theft of data, computer viruses or destructive code on NicheStreem’s system or third party systems or programming defects; and/or
- Any interruption, malfunction, downtime or other failure of goods or Services provided by third parties, including, without limitation, third party systems such as the public switched telecommunication service providers; internet service providers, electricity suppliers, local authorities and certification authorities; or any other event over which NicheStreem has no direct control.
Neither you nor NicheStreem, nor NicheStreem’s IT personnel, will be held liable for any failure to perform any obligation to the other due to causes beyond your, NicheStreem or NicheStreem’s IT personnel’s respective reasonable control. This includes lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes, acts or omissions of persons for whom NicheStreem is not responsible, acts of government or other competent authorities (including telecommunications and internet service providers).
You indemnify and hold NicheStreem (including its directors, agents, contractors and service providers) harmless against all and any loss, liability, actions, suites, proceedings, costs, demands and damages of all and every kind, (including direct, indirect, special or consequential damages), and whether in an action based on contract, negligence or any other action, arising out of or in connection with the failure or delay in the performance of the App, or the use of information and/or images available on the App, whether due to NicheStreem’s (including its directors’, agents’, contractors’ and service providers’) negligence or not.
7. Transmission and accuracy of information
NicheStreem is not responsible for the proper and/or complete transmission of the information contained in any electronic communication or of the electronic communication itself nor for any delay in its delivery or receipt.
Security measures have been implemented to ensure the safety and integrity of the Services. However, despite this, information that is transmitted over the Internet may be susceptible to unlawful access and monitoring.
NicheStreem gives no guarantee of any kind concerning the content on our Services. NicheStreem does not give any warranty (express or implied) or make any representation that NicheStreem’s Services will operate error free or without interruption or that any errors will be corrected or that the content is complete, accurate, up to date, or fit for a particular purpose.
8. Deemed rules for sending and receiving electronic messages
You hereby acknowledge that NicheStreem will primarily use e-mail and electronic notices on the App, as NicheStreem’s main communication tool for all communications relating to the Services, or these terms and conditions. Such communications may include the use of SMS (short message services), registered mail or telephonic advice.
You hereby agree that the provisions of Part 2 of Chapter III of the Electronic Communications & Transactions Act 25 of 2002 are hereby excluded and that the following terms will apply when you (or any one acting on your behalf) and NicheStreem send each other electronic messages via any electronic means, including via the App or email :
Where you make any offer to NicheStreem, such as subscribing to the Services, or to pay for use of the Services, an agreement is formed at the time NicheStreem sends you its written acceptance of your offer, or notifies you of such acceptance via the App. An automated or manual acknowledgement of receipt of your electronic message shall not be deemed to constitute acceptance.
All electronic messages will be deemed to have been sent from, and received at your specified e-mail address or mobile phone and NicheStreem’s address as specified in the App.
An electronic message is deemed to have been sent:
- by you, at the time at which NicheStreem is capable of accessing such message;
- by NicheStreem, at the time shown on the electronic message as having been sent or,
- if not so shown, at the time shown on our system as having been sent.
An electronic message is deemed to be received:
- by you, once it becomes capable of being retrieved by you;
- by NicheStreem, once NicheStreem has confirmed receipt thereof or responded thereto, whichever is the earlier.
An electronic message shall be attributed:
- to you, if it purports to have originated from you, irrespective of the fact that someone else may have impersonated you or whether the electronic message sent to NicheStreem resulted from an error or malfunction in the communication system, except if you can timeously satisfy NicheStreem otherwise before NicheStreem has acted upon the message.
- to NicheStreem, if it has been sent by a duly authorised representative and such representative acted within the scope of such authority or by an automated system programmed by NicheStreem and such system operated without error or malfunction.
- Unless otherwise provided for in these Terms, confirmation of receipt of your electronic message is required to give legal effect to such electronic message.
NicheStreem will take reasonable steps to exclude viruses from the Services, but cannot guarantee or warrant that any material available for downloading from NicheStreem’s App will be free from infection, viruses and/or other code that has contaminating or destructive properties and no liability is accordingly accepted for viruses.
You are responsible for, and we recommend that you take your own precautions and implement sufficient procedures to satisfy your particular safety requirements.
10. Third party sites
NicheStreem provides certain hyperlinks to third party websites or apps only as a convenience, and the inclusion of any hyperlinks or any advertisement of any third party on NicheStreem’s App does not imply endorsement by NicheStreem of their websites or apps, their products, business or security practices or any association with its operators. You access those websites and use their apps, products and services solely at your own risk.
11. Intellectual Property Rights
You acknowledge and agree that all right, title and interest in, and to, any NicheStreem or other Intellectual Property (including but not limited to any copyright, trademark, design, logo, process, practice, methodology which forms part of, or is displayed or used on the App or the Services including, without limitation, any graphics, logos, designs text, button icons, images, audio clips, digital downloads, data compilations, page headers and software) is proprietary to NicheStreem or its respective owner(s) and will remain so vested in all circumstances.
You therefore agree that you will not at any time or under any circumstances acquire any rights of any nature by using the Services.
12. Warranties and representations
NicheStreem makes no representations or warranties, whether express or implied, and assumes no liability or responsibility for the proper performance of the App and/or the information, images or audio contained in the App. The Services are thus used at your own risk.
You warrant to and in favour of NicheStreem that:
- you are 18 years or older; and/or
- you have the legal capacity to agree to and be bound by these Terms; and
- the Terms constitute a contract valid and binding on you and enforceable against you.
Each of the warranties given by you will:
- be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in the Terms;
- continue and remain in force irrespective of whether your account is active, suspended or cancelled;
- be deemed to be material.
13. NicheStreem information in terms of Section 43 of the Electronic Communication and Transactions Act No. 25 of 2002
- Site owner: NicheStreem (Pty) Ltd (NicheStreem)
- Legal status: NicheStreem is a private company, duly incorporated in South Africa in accordance with the applicable legislation;
- NicheStreem Registration No: 2013/126152/07;
- NicheStreem Director(s): Catherine Lückhoff;
- Description of main business of NicheStreem: Providing music streaming and related or ancillary value-adding Services to users within pre-defined geographical areas.
- E-mail address: email@example.com;
- Website addresses: http://nichestreem.com; http://www.liedjie.com;
- Physical Address: 80 Hout Street, Cape Town, 8001;
- Postal Address: PO Box 566, Cape Town, 8000;
- Registered Address: No. 6 The Lodges, De Wijnlanden, 82 Simons Way, Stellenbosch.
Any provision of these Terms which is or may become illegal, invalid or unenforceable in any jurisdiction affected by these Terms will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of these Terms, without invalidating the remaining provisions of these Terms or affecting the validity or enforceability of such provision in any other jurisdiction.
15. Governing law
These Terms and any matter arising from these Terms, shall be governed by and interpreted in accordance with the substantive laws of South Africa.
For the purpose of all or any proceedings arising from your use of the Services, you consent to the jurisdiction of the Magistrates’ Court having territorial jurisdiction, notwithstanding that such proceedings are otherwise beyond its jurisdiction. This clause shall be deemed to constitute the required written consent conferring jurisdiction upon the said court pursuant to section 45 of the Magistrates’ Court Act, 1944, provided, nevertheless, that NicheStreem shall have the right at its sole option and discretion to institute proceedings in any other competent court.
Notwithstanding the above consent, you agree to first explore all avenues of alternative dispute resolution procedures to which NicheStreem may agree, such as mediation.
NicheStreem shall however not be obliged to follow any alternative dispute resolution process, should it not wish to do so.
Failure or neglect by NicheStreem to enforce any of these Terms, will not be construed as a waiver of its rights, nor will such failure or neglect in any way affect the validity of the whole or any part of these Terms, nor prejudice the rights of NicheStreem to take subsequent action.
Any questions or concerns arising from these Terms or use of the Services should be addressed to firstname.lastname@example.org.
For all purposes of these Terms, any notice required to be in writing shall include email.
19. Whole agreement
These Terms, as may be amended from time to time, constitute the whole agreement between yourself and NicheStreem relating to your use of the Services.
20. No third party stipulation
The Terms create a legally binding agreement only between yourself and NicheStreem only. Accordingly, unless expressly stated to be the case, the Terms do not create rights in favour of any third party.