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Thunda

Terms of Service

Who we are

Thunda Com (Pty) Ltd (the “Company”) is a privately held company incorporated in the Republic of South Africa. The terms "we" and "us" refers to Thunda Com (Pty) Ltd, or any successor or assignee of the Company.

What we do

Thunda.com provides a platform for Users :
(1) to capture photos having fun with their friends
(2) to post them to the Thunda.com live stream of social photos taken all over the world
(3) to share their photos and those of other Users into Facebook and via other social networks
(4) to browse photos taken by other Users nearby them or elsewhere in the world and
(5) to make decisions about where to go based on who is where and what locations are trending.

Users connect to Thunda.com via their Facebook profiles and so there is no privacy or anonymity on the Thunda.com system.

All photos posted are public and the location of the photos are linked to the venue or location at which the User took the photo. Those who do not want their photos to be visible to the rest of the world and those who do not want others to be able to establish their location via their photos, should not use our service.

Users are not permitted to upload photos that are abusive, deceptive, pornographic, obscene, offensive, indecent, threatening, defamatory, hateful, slanderous, illegal, harmful to anyone or that violate the copyrights, privacy or publicity rights of others.

If you identify any such photos, please report the Content by clicking on the flag icon and the photos will immediately be removed from our Services.

The spirit of our platform is to showcase nightlife social photos of people having fun with their friends that are shared onto Thunda.com to provide other Users with a live photo stream of nightlife activity at a particular location. Please help us protect this ethos.

Definitions

"Services" means the services provided through the Company’s iOS Application, the websites on www.thunda.com and on any domain or subdomain operated by the Company and their social integration with Facebook, with the Foursquare® application programming interface and with the Google Maps / Earth API; and includes the ability for Users to originate, publish, view, report, download and share Content as defined below.

“You” and “Users” means those individuals and companies who use our Services, including Registrants, Subscribers and the Company.

“Registrants” means those Users who have connected to our Services via the Login with Facebook authentication.

“Subscribers” means those Users who pay the Company for Services.

“Content” means User Content and Ambassador Content.

“User Content” means those photographs taken by our Users, and information provided by our Users, and uploaded via our Services.

“Ambassador Content” means photographs taken by Company ambassadors, and uploaded via our Services.

“Content” means User Content and Ambassador Content.

Introduction

The Company provides the Services.

By accessing the Services and the Content, You signify that you have read, understand, accept and agree to abide by these Terms of Service.

The use of our Services and access to the Content is subject to these Terms of Service. Use of our Services is open to anybody over the age of 18 (eighteen) years old. Eligibility for specific services, promotions or competitions may vary. Use or access to our Services by anyone under 18 years old is unauthorised, unlicensed and in violation of these Terms of Services. By accessing our Services, You warrant that you are 18 years or older.

We reserve the right, at our sole discretion to make changes, modifications, additions or deletions to these Terms of Service at any time without notice. If changes are made, the date of last revision will be updated at the top of this page. The continued use of our Services after such changes constitute the Users' acceptance of the revised Terms of Service. If Users do not agree to abide by these Terms of Service, they should stop using our Services. It is the responsibility of Users to regularly check the Terms of Services to review any changes that may have been made.

Public Facility

The Services provided by the Company are of a public nature and any User can access the Content of any other User, including but not limited to their Name, User Content and location data. Given that Users authenticate via their Facebook credentials, they are accessing our Services under their personally identifiable names and their User Content is linked to their Facebook identity and geo-tagged based on their location. This could pose security risks insofar as the location of a User and his / her activities are shared with the world in real-time. By accessing our Services You specifically indemnify the Company and acknowledge that it is your sole responsibility to use our Services prudently, with good judgement and with acceptance of the risks of sharing your current, precise whereabouts and activities with the world.

Conduct Rules

You agree to use the Services and the Content in a lawful manner and agree not to act in a manner that could disable, overburden, damage or impair the Services or that could demean or harm any person or organization.

You agree not to use the Services or Content to engage in harmful, threatening, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, unlawful, privacy invasive, hateful, racist, bullying, stalking or otherwise objectionable behavior.

You agree not to create more than one account or to register accounts on behalf of other people. You agree that accounts may only be set up in your own name. You are responsible for the security of your login details.

You agree not to impersonate anyone else or to misrepresent your own identity through the Services. You will not provide us with any information that is not correct, including but not limited to an incorrect name or email address.

You will not use any of the information via the Services for sending emails or for any other purposes involving solicitation in any way.

The use of automated scripts to gather content or collect information is strictly prohibited.

By accessing the Services, You agree not to post, transmit, share, store or otherwise make available any Content that, in the sole judgment of the Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose the Company or its Users to any harm or liability, including Content that :

  1. is abusive, deceptive, pornographic, obscene, indecent, threatening, defamatory, hateful, slanderous, offensive or otherwise inappropriate

  2. comprises copyrighted material used without the express permission of the copyright owner for use via our Services;

  3. violates or otherwise encroaches on the rights of others including but not limited to copyrights, privacy or publicity rights;

  4. contains viruses, worms, corrupt files, trojan horses or other forms of corruptive code, or any other content (collectively “Corruptive Code”) that may compromise the Services;

  5. harms anyone, including minors;

  6. advocates illegal activity;

  7. provides instruction for criminal offense;

  8. violates international law;

  9. breaches these Terms of Service or our Privacy Policy; or

  10. provides a link to any of the above.

Rules

You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded via our Services.

Content & Advertising

We do not claim ownership of any Content that you post via our Services but You hereby grant to us a non-exclusive, royalty-free, transferable worldwide license to use the Content You post and to permit our Users to share this Content as they see fit into Facebook and other services.

Our Services are bundled with advertising messages, including the branding of photos, and You hereby agree that Thunda.com may apply such advertising and branding on or in conjunction with your Content. How we do this is at our own discretion, and any changes thereto may be without our providing You with such notice.

Distribution of Content

The Services enable You to Share Content to Facebook and other sites. Please do so subject to these Terms of Service and to the Terms of Use of Facebook https://www.facebook.com/legal/terms.

We expect You to share content responsibly, to respect the privacy of others and to act in good faith. The Company cannot control how Users present our Content on Facebook or with whom they share it. We cannot therefore be responsible for any photo uploads, posts, comments, tags or links associated with the Content published by Users on Facebook or any other site that we do not control.

By making these photographs available to our Users, we are in no way whatsoever assigning our rights, title and interest including any copyright we may hold in the photographs throughout the world and in perpetuity.

In sharing our Content the User may not in any way tamper or alter the photograph (with the exception of applying the photo filters we make available), including the deletion of the Thunda.com logo or the logo of any of its advertisers or partners.

Furthermore, Users agree not to share photographs that could in any way harm or demean a person, organization or advertiser, that could contravene these Terms of Service or that could contravene the rights of any entity upheld in terms of our Privacy Policy.

Termination and Removal

We reserve the right to terminate the Services and remove any Content at any time at our sole discretion. These Terms of Service include Copyright Notification and Removal Policies and you agree to notify us in accordance with those policies if you are aware of any infringement of your proprietary or other rights.

Privacy

We respect the privacy of our Users and take specific steps to protect it. Please review our Privacy Policy (insert privacy policy link here).

Please report any inappropriate content by clicking the flag that appears beneath each photo. This will result in the photo being automatically taken down. For any queries in this regard, please email abuse@thunda.com.

Reporting Content

The Content available via our Services is unmoderated. We provide you with a simple, readily accessible mechanism to report inappropriate content. By clicking the flag that appears beneath each photo, the photo will automatically be taken down. We act expeditiously in response to any complaints about offensive Content. For any queries in this regard, please email abuse@thunda.com.

Our Services provide hyperlinks to other websites. We do not screen or filter content on these websites or information available from other websites for accuracy, appropriateness, completeness, privacy policies and other policies and therefore we do not endorse them nor do we accept any liability for defamatory, illegal or criminal content contained on these websites. We encourage you to report any infringement, illegal or criminal content found on any of the websites available through links off our Services in order for us to investigate whether such links should be removed.

Limitation of Liability & Disclaimer

We do not moderate the photos submitted and are not responsible for any photos that are posted via our Services. All Content is viewed and used by you at your own risk and we do not warrant the accuracy or reliability of any of the information. The views expressed are those of the individual contributors and not necessarily those of the Company.

Although we endeavor to provide accurate, up to date and truthful Content via our Services, neither the Company nor any of its subsidiaries, affiliates, directors, shareholders, officers, agents, contractors, partners, employees, suppliers, information providers, licensors and service providers make any representations or give any warranties, whether expressly, tacitly or implied, as to the operation of the Services or the Content, software, applications, advertising and products included in and / or available via our Services.

The Company, its subsidiaries, affiliates, directors, shareholders, officers, agents, contractors, partners, employees, suppliers, information providers, licensors and service providers will not be responsible or liable for any damage or loss of whatsoever nature, including but not limited to personal injury or death, direct, indirect, incidental, exemplary, special, punitive and consequential damages, including that for lost profits or lost data, arising or resulting from the use of or inability to use the Services, the Ambassador Content, User Content, software, applications, advertising and products, prizes or any interactions between Users of the Services, whether online or offline.

The Company is not responsible for any technical malfunctions or other problems of any telephone network or service, computer systems, servers or service providers, computer or mobile telephone equipment, software, failure of email due to technical problems or traffic congestion on the Internet or at any website or any combination thereof, including injury or damage to the User's or to any other person's computer, mobile phone or other hardware or software, related to or resulting from using or downloading materials in connection with the internet and / or related to the use of the Services.

The Services, Ambassador Content, User Content, software, applications, advertising and products are provided “as is” and the Company hereby disclaims any and all representations and warranties, whether express or implied, including without any limitation whatsoever any implied warranties of ownership, title, suitability for a particular purpose or non-infringement.

The Company cannot guarantee nor does it warrant or promise any specific results of benefits from the use of the Services. Furthermore, the Company does not represent or warrant that the Services, Ambassador Content, User Content, software, applications, advertising and products or any applications associated with it, are accurate, complete, reliable, current or free of error or that the Services, its Content, its software, its applications or its servers are free of viruses or other harmful components.

Users should therefore exercise caution in the use and downloading of any applications, software or Content and should utilize industry recognized software to detect and disinfect any viruses.

Users understand and agree that any Ambassador Content, User Content, application, software or advertising that they download or otherwise obtain through the Services is at their own discretion and risk and that they are solely responsible for the use thereof and any damage whatsoever that may result, including but not limited to the use of this Content on Facebook or any other website.

You assume full responsibility and risk of loss resulting from your use of the Services including any downloads from the Services. Under no circumstances shall the Company or any of its employees or representatives be liable for any indirect, punitive, special or consequential damages even if the Company or any of its employees or representatives have been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, the Company’s liability to the User for any cause whatsoever, regardless of the form or nature of the claim or action, will at all times be limited to the amount paid by the User, if any, to the Company for the Services, but in no case will the Company’s liability exceed R1,000 (one thousand South African Rand). You hereby release the Company and its employees and representatives from any and all obligations, liabilities and claims in excess of this limitation.

By utilizing the Services the User acknowledges that if no fees have been paid by the User to the Company for the use of the Services or Content, the User shall be limited to injunctive relief only, unless otherwise permitted by law, and the User shall not be entitled to damages of any kind from the Company, regardless of the cause of the action.

Users agree to indemnify and hold the Company, its subsidiaries, affiliates, directors, shareholders, officers, agents, contractors, partners, employees, suppliers, information providers, licensors and service providers, harmless from and against any direct, incidental, indirect, special or consequential damages, liabilities (including any loss of data, revenue or profit), claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with the Services, any Ambassador Content, User Content, applications, software or advertising Users post or share on or through the Services, the Users’ use of the Services, the Users’ conduct in connection with the Services, the Content or with other Users of the Services or Content, any violation of this Agreement or of any law, or the rights of any third party.

This limitation applies to damages arising from (a) the use or inability to use the Content or Services (b) the cost of the procurement of substitute services (c) unauthorized access to or the alteration of a User’s transmission by third parties (d) Content made available to the User through the Services (e) any other matter relating to the Content or Services.

Users agree to indemnify, defend and hold harmless the Company, its subsidiaries, affiliates, directors, shareholders, officers, agents, contractors, partners, employees, suppliers, information providers, licensors and service providers against any and all losses, claims, liabilities, expenses, damages and costs, including reasonable Attorney’s fees, resulting from any violation of these Terms of Service or any activity relating to the Services or Content including but not limited to negligent and wrongful conduct by the User or any other User accessing the Services or Content, including but not limited to using another User’s account.

The Services and Content may be unavailable from time to time for maintenance or other reasons. The Company assumes no responsibility for any error, omission, interruption, deletion, defect or delay in the operation or transmission of the Services or the delivery of its Content.

We are not responsible for any Content or any links to other websites or mobile internet sites posted by Users. Inclusion of any link from our Services to another website or mobile internet site does not imply approval or endorsement of the linked website or mobile internet site by us. When you access Content or any third-party sites, you do so at your own risk. We take no responsibility for third party advertisements that are posted on the Websites, nor do we take any responsibility for the goods or services provided by advertisers. We are not responsible for the conduct, whether online or offline, of any User of the Services. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Services. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers' computer equipment or software. We are not responsible for any failure of any upload or download due to technical problems or traffic congestion on the internet or any wireless network. We are not responsible for any injury or damage to any person's computer or mobile phone related to or resulting from use of the Services including downloading materials in connection with the Services. Under no circumstances shall we be responsible for any loss or damage, including personal injury or death, resulting from use of the Services, attendance at an event, from any Content posted on or through the Services, or from the conduct of any users of the Services, whether online or offline. The Services are provided "AS-IS" and as available and we expressly disclaim any warranty of fitness for a particular purpose or non-infringement. We cannot guarantee and do not promise any specific results from use of the Services.

No Warranties

Except as expressly set forth herein, the material on this website (including all Content, software, functions, Services, materials and information made available herein or accessed by means hereof) are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.

User Disputes

Users are solely responsible for their interactions with other Users, either via our Services or in any other way.

Submissions

The User acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information about the Services ("Submissions"), provided to the Company are non-confidential and shall become the sole property of Company. The Company shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to the User.

User Information

In order to avail of certain services provided by the Services, Users are required to register by authenticating using their Facebook credentials. Registrants on the website hereby agree (1) to provide current, accurate and complete information (2) to maintain the currency of this information (3) to secure their passwords (4) to take full responsibility for any actions taking place using their accounts.

Termination of Use

Either party may terminate use at any time.

The Company may, at any time and at its sole discretion, with or without notice, terminate your membership (or any part thereof), delete your profile and any Content or information that you have posted via our Services and / or prohibit you from using or accessing the Services or any portion, aspect or feature of the Services for any reason (including conduct that violates the Terms of Service or other policies of the Company, conduct that is harmful to other Users or harmful to the Company), or for no reason, including without limitation if it believes that you are under 18 or abusing the Services.

Additionally, either party may terminate the term immediately for any material breach by the other party of any of these Terms of Service.

The Company offers opt-in notification services. To opt-out of any of these services access the Settings in your User profile. The Company complies strictly with permission-based marketing principles and notifications will only be sent to Users who have agreed to such.

Governing Law

This Services were created, are hosted, maintained and controlled in the Republic of South Africa and as such the laws of the Republic of South Africa and the jurisdiction of the South African Court govern these Terms of Service and the use or inability to use the Services.

Arbitration

Disputes arising from the use of our Services shall be referred to arbitration in terms of the Rules of Expedited Arbitration of the Arbitration of the Arbitration Foundation of Southern Africa (AFSA), where such Arbitration will take place in Cape Town, South Africa.

The User and the Company agree that, except as may otherwise be provided for in any specific terms applicable to the Services, the sole and exclusive remedy for any and all disputes relating to or arising out of use of the Services, its Content or from these Terms of Service, shall be final and binding arbitration, except to the extent that the Company or User has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark or trade secret rights, or the User has violated any of the Terms and Conditions of then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.

To the fullest extent permitted by governing law, no arbitration or claim under these Terms and Conditions of Use shall be joined to another arbitration or claim and no class arbitration shall be permitted. In no instance shall any claim, action or proceeding by the User related in any way to the Websites, or the Content or the Services (including your visit to or use of the Websites, or Content or Services) be instituted more than three (3) years after the cause of action arose.

With respect to any disputes or claims not subject to arbitration, you agree not to commence or prosecute any action in connection therewith other than in courts of Cape Town, South Africa.

Proprietary Rights Owned by Us

You acknowledge that we, or our suppliers, own all proprietary rights in the Services and the Ambassador Content including, but not limited to, any patents, trademarks, service marks and copyrights.

The Company's trademarks, domains and / or logo may not be used in any manner, either in whole or in part, including as part of trademarks and domains that may cause confusion.

Copyright © 2013 Thunda Com (Pty) Ltd, 72 Canterbury Street, Zonnebloem, 7295. All rights reserved.

Proprietary Rights Owned by You and Other Users

You represent and warrant to us that you will not upload any Content to the Website unless you are the owner of all proprietary rights in that Content and have obtained releases for all related privacy and publicity rights.

You further warrant that you have the rights to grant to us the licences set out herein and that you have the legal right and capacity to agree to our Terms of Service.

Intellectual Property Rights

All the Company Content on the Website, including photographs, text, graphics, logos, icons, designs, colours, layout and trademarks are the intellectual property of the Company or licensed to the Company and its associates and as such are protected by South African and International Intellectual Property Law.

Unauthorized use of the Services’ Content may violate applicable laws including copyright and trademark laws. Nothing in these Terms of Services should be construed as conferring any licence to the Company's intellectual property rights, by estoppel, implication or otherwise.

Usage

These Terms of Service constitute the entire agreement between the User and the Company with respect to the use of the Services and Content and supersede any prior agreements between the User and the Company relating to the User’s use of the Services and Content. The failure of the Company to exercise or enforce any right or provision of these Terms of Sercice shall not constitute a waiver of such right or provision in that or in any other instance. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. If any provision of these Terms of Service is deemed to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.

Compliance With Law

In using the Services, you agree that you will comply with all applicable laws.

Reporting Violations, Copyright Notifications & Content Removal Policies

If you become aware of any User violating any of our Terms of Services or abusing our Services or Content, please notify us immediately via abuse@thunda.com. You should also flag the content immediately and this will remove the Content from our Services automatically.

If you believe that any User has posted material in violation of any copyrights that you may have, please email us at copyright@thunda.com with the subject line : Copyright Infringement. Based on the validity of the information provided, we will remove the infringing Content forthwith.

If you believe that any user of our Services has posted materials in violation of any other rights that you may have, you may flag the Content via our Reporting Content process or email us on abuse@thunda.com.

To have Content removed for any other reason, either flag it via our Services or email remove@thunda.com with a link to the Content you would like removed.

Assignments

Users may not assign any of their rights herein. The Company may assign all rights to any other individual or entity at its discretion.

Standard of Conduct

Users agree not to undertake any action or activity via the Services which may in any way demean, damage, harm or defame a person or organisation.

User Waiver & Indemnity

Your use of our Services is at your own risk.

By accessing the Services, You may be exposed to Content that you consider to be offensive. You take sole responsibility for such exposure.

You agree to indemnify and hold the Company, its directors, officers, employees and representatives, harmless from any and all losses (including, but not limited to, attorney fees) resulting from any claims that you assert, or may assert, based on or relating to your use of this Website, or the use of this Website by any individual using your password.

You further agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses resulting from claims of third parties, including, but not limited to, attorney fees, that result in whole or in part from violations by you, or any individual using your password, of any of the terms of these Terms of Service.

Attribution

Our software uses certain third party code including :

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

Foursquare

Our Services use the Foursquare® application programming interface but our Services are not endorsed or certified by Foursquare Labs, Inc.

By using our Services, your location data is collected and used by the Company and Foursquare Labs, Inc.

Your use of our Services is at your own risk and we have indemnified Foursquare Labs, Inc. against any liability that may arise from our use of the Foursquare® application programming interface.

All of the Foursquare® logos (including all badges) and trademarks displayed via our Services are the property of Foursquare Labs, Inc.

Facebook

We use various Facebook software including Facebook Login. By using our Services you agree to be bound by Facebook’s Terms of Use.

To see how Facebook uses your information you should view their Privacy Policy and Data Use Policy

Google

Our Services utilize the Google Maps / Google Earth API. By using our Services you are agreeing to be bound by Google’s Terms of Use.

To see how the Google Maps / Earth API users your information you should view their Privacy Policy

Apple

Download on the App Store and Available on the App Store are trademarks of Apple Inc., registered in the U.S. and other countries.

Effective Measure

The Company is a member of the Online Publishers Association of South Africa. As a member we subscribe to the Effective Measure system to verify our Services User demographics and site traffic. Effective Measure, an independent measurement and research company, gathers data on your use of our Services using cookies, log file data and code that is embedded in our Services. To this end, Effective Measure may post a cookie on a User's computer to uniquely identify a User's computer and to track the frequency with which the User returns to the site, how long they spend on the site and other User data.

Miscellaneous

Force Majeure. We shall be not held liable for any delay or failure in performance of any part of this agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or acts, omissions, overloading or slow downs over the internet or any third party internet service providers.

Survivability. The ownership and proprietary rights provisions set forth in these Terms of Service and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement and any obligations hereunder for any reason.

Severability. The unenforceability or invalidity of any term, provision, section or subsection of these Terms of Service shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of these Terms of Service, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.

Interpretation. The fact of authorship by the Company shall not affect the construction or interpretation of these Terms of Service.

Amendments. No amendment or other change of these Terms of Service shall be effective except as either expressly permitted under these Terms of Service.

Entire Agreement. These Terms of Service embody the entire agreement and understanding between the Company and You and supersedes all prior agreements, representations and understandings between us relating to this subject matter.