WEBSITE TERMS AND CONDITIONS OF USE
- This document sets out the terms and conditions ("Terms") of Lightstone Consumer Proprietary Limited (Registration Number: 2001/013329/07), with registered address at 3rd Floor, Sasfin House, 56 Mangold Street, Newton Park, Port Elizabeth ("Lightstone") pertaining to the access and use of the information, products, services and functions ("the Services") provided on https://www.lightstoneconsumer.co.za ("the Website") by Lightstone and its affiliates. The term ‘MyEcho’ will be used in this document and will refer to Lightstone Consumer Proprietary Limited in terms its product offering on the website www.my-echo.co.za.
- Should any person that accesses the Website or makes use of the Services ("you" or "User") disagree with any of the Terms, you must refrain from accessing the Website and/or using the Services.
- If you are under the age of 18, you must obtain your parents' or legal guardians' advance authorisation, permission and consent to be bound by these Terms before purchasing any products or services.
- If you are acting on behalf of any juristic person, voluntary association, trust or any other collection of persons, corporate or incorporate, you warrant your authority to act on behalf of such person or persons and you agree to these Terms on behalf of such person or persons.
- MyEcho provides services aimed at compiling usable, meaningful information ("Content") from raw data gathered from different people with whom you or your organisation has dealings (albeit your customers, partners or employees) ("Data Subjects"). You will provide MyEcho with information regarding the Data Subjects which will allow MyEcho to facilitate contacting the Data Subject in order to collect raw data through surveys prepared by the User and in which the Data Subjects participate. Raw data will also be collected from other indirect sources in order to produce Content.
- MyEcho reserves the right, in its sole discretion, to amend and/or replace any of, or the whole of, the Terms. Such amendments shall supersede and replace any previous Terms and shall be made available on the Website. Each time a User accesses the Website and/or uses the services, the User shall be deemed to have consented, by such access and/or use, to the Terms, as amended and/or replaced by MyEcho from time to time. If you are not satisfied with the amended Terms, you should refrain from using the Website.
- We will however give you prior notice where we have collected personal information from you and the purpose for which we collected that information, is affected by the intended amendment. The determination as to whether the purpose for which the information was collected will be affected by the amendment will be determined in MyEcho’s sole discretion.
- If there is anything in these Terms that you do not understand then please contact us as soon as possible see clause 15 below for contact details. Please note that calls to us are charged at national rates and may be monitored for training, security and quality assurance purposes.
- Users accept these Terms by clicking or tapping on a button which indicates the User’s acceptance hereof, by executing a document which references the Terms, or by using the Services.
- You may only use this site to browse the content, make legitimate interactions and shall not use this site for any other purposes, including without limitation, to make any speculative, false or fraudulent purchase.
- This site and the content provided in this site may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed. 'Deep-linking', 'embedding' or using analogous technology is strictly prohibited. Unauthorized use of this site and/or the materials contained on this site may violate applicable copyright, trademark or other intellectual property laws or other laws.
CONTENT OF THE WEBSITE
- MyEcho reserves the right to make improvements, to change or to discontinue, without notice, any aspect or feature of the Website and any information or content on the Website.
- MyEcho reserves the right to change and amend the products, prices and rates quoted on this Website from time to time without notice, provided that where a User has entered into the month on month or annual term agreement with MyEcho, such amendments shall take effect only upon the completion of the current cycle.
- MyEcho may use the services of third parties to provide information on the Website. MyEcho has no control over this information and makes no representations or warranties of any nature as to its accuracy, appropriateness, or correctness. The User agrees that such information is provided "as is" and that Lightstone and its online partners shall not be liable for any losses or damages that may arise from the User's reliance on it, howsoever these may arise.
MyEcho makes no representations or warranties, whether express or implied, as to the accuracy, completeness or reliability of any information, data and/or content on the Website, including without limitation:
- MyEcho does not warrant that the Website or information or downloads shall be error free or that they shall meet any particular criteria of performance or quality. MyEcho expressly disclaims all implied warranties, including without limitation, warranties of merchantability, fitness for a particular purpose, non-infringement, compatibility, security and accuracy;
- whilst MyEcho has taken reasonable measures to ensure the integrity of the Website and its contents, no warranty, whether express or implied, is given that any files, downloads or applications available via this Website are free of viruses, or any other data or code which has the ability to corrupt, damage or affect the operation of the User's system; and
- MyEcho disclaims any responsibility for the verification of any claims. Information published on this Website may be done so in the format in which Lightstone receives it and statements from external parties are accepted as fact.
PROTECTION OF PERSONAL INFORMATION ACT 4 OF 2013
The Protection of Personal Information Act 4 of 2013 ("POPI Act") applies to these Terms and to the Services, by virtue of the fact that:
- MyEcho and the User are ‘responsible parties’;
- Data Subjects (as they are herein defined) are ‘data subjects’;
- information which is given by the User to MyEcho may be ‘personal information’;
- certain aspects of the Services will qualify as ‘processing’; for the purposes of the POPI Act.
The User shall at all times:
- provide MyEcho with only such information of the Data Subject as is adequate, relevant to the purpose of the Services and which is not excessive, taking into account the purpose of the Services; and
- ensure that the Data Subject expressly consents in writing to the processing of his personal information, and that such Data Subject is fully informed as to the nature of the Services before any personal information of the Data Subject is entered into the MyEcho webiste.
In obtaining consent from the Data Subject, the User shall take all practicable steps to ensure that the Data Subject is aware of:
- the information which the User will provide to MyEcho;
- MyEcho’s information, as set out in clause 15;
- the purpose for which the information is provided to MyEcho;
- the consequences of failure to provide the information;
- the right of the Data Subject to withdraw consent.
Objection or withdrawal of consent
- If any Data Subject communicates to a User the desire to withdraw consent given in terms of clause 3.2.2, the User shall forthwith remove all traces of personal information of such Data Subject from the MyEcho Website.
- The Protection of Personal Information Act 4 of 2013 ("POPI Act") applies to these Terms and to the Services, by virtue of the fact that:
LINKED THIRD PARTY WEBSITES AND THIRD PARTY CONTENT
- MyEcho may provide links to third party websites on the Website. These links are provided to the User for convenience purposes only and MyEcho does not endorse, nor does the inclusion of any link imply MyEcho 's endorsement of, such websites, their owners, licensees or administrators or such websites' content or security practices and operations.
- While MyEcho tries to provide links only to reputable websites or online partners, MyEcho cannot accept responsibility or liability for the information provided on other websites. Linked websites or pages are not under, nor subject to, the control of MyEcho. MyEcho is not responsible for and gives no warranties or makes any representations in respect of the privacy policies or practices of linked or any third party or advertised websites on the Website.
- You agree that MyEcho shall not be held liable, directly or indirectly, in any way for the content, the use or inability to use or access any linked website or any link(s) contained in a linked website, nor for any loss or damage of any sort incurred as a result of any dealings with, or as the result of the presence of such third party linked websites on the Website. Any dealings that you may have with any linked websites, including advertisers, found on the Website, are solely between you and the third party website.
The User hereby agrees that it shall not itself, nor through a third party:
- copy (other than for backup, archival or disaster recovery purposes), reproduce, translate, adapt, vary, modify, lease, licence, sub-licence, encumber or in any other way deal with any part of the Website for any reason and in any manner, unless it is consistent with the intent and purpose of these Terms;
- decompile, disassemble or reverse engineer any portion of the Website;
- purchase, use or access the Services for the purpose of building a competitive product or service or for any other competitive purpose;
- write and/or develop any derivative of the Website or any other software program based on the Website;
- modify or enhance the Website. In the event of a User effecting any modifications or enhancements to the Website in breach of this clause, such modifications and enhancements shall be the property of MyEcho;
- without MyEcho's prior written consent, provide, disclose, divulge or make available to or permit the use of or give access to the Website by persons other than the User;
- remove any identification, trademark, copyright or other notices from the Website;
- without the prior written consent of MyEcho, probe, scan or test the vulnerability of any MyEcho system or network, including the Website;
- use the Services or Website contrary to any industry-specific regulations applicable to such use or use the Services in such a way as to subject Lightstone to such industry-specific regulations without MyEcho’s written consent;
- post or transmit, by means of reviews, comments, suggestions, ideas, questions or other information through the Website, any content which is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane or hateful, or racially, ethnically or otherwise objectionable content of any kind; and/or
- notwithstanding anything contained to the contrary in these Terms, use the Website for any purpose other than personal, non-commercial and information purposes.
- In order to ensure the security and reliable operation of the services to all MyEcho's users, MyEcho hereby reserves the right to take whatever action it may deem necessary to preserve the security, integrity and reliability of its network and back office applications.
- You may not utilise the Website in any manner which may compromise the security of MyEcho's networks or tamper with the Website in any manner whatsoever, which shall include without limitation, gaining or attempting to gain unauthorised access to the Website, or delivering or attempting to deliver any unauthorised, damaging or malicious code to the Website, all of which is expressly prohibited. Any person or entity which does so, or attempts to do so, shall be held criminally liable. Further, should MyEcho suffer any damage or loss, civil damages shall be claimed by MyEcho against the User.
- Any User who commits any of the offences detailed in Chapter 13 of the Electronic Communications and Transactions Act 25 of 2002 ("ECTA") (specifically sections 85 to 88 (inclusive)) shall, notwithstanding criminal prosecution, be liable for all resulting liability, loss or damages suffered and/or incurred by MyEcho and its affiliates, agents and/or partners.
The User shall at all times:
- keep any passwords with which it has been issued in respect of the Services secure;
- ensure that it is the only person using the Services for which it has paid and accordingly not allow any other person to access the Services through the User’s account;
- keep all contact details and payment details associated with such User’s account up to date and accurate;
- maintain and make backups of Content provided to the User by MyEcho.
- We have the right, but not the obligation, to monitor any activity and content associated with the Website. We may investigate any reported violation of these Conditions or complaints and take any action that we deem appropriate (which may include, but is not limited to, issuing warnings, suspending, terminating or attaching conditions to your access and/or removing any materials from the Website).
INTELLECTUAL PROPERTY RIGHTS
For the purpose of this clause 7, the following words shall have the following meanings ascribed to them:
- "Intellectual property rights" means all and any of the rights in and to intellectual property of any nature whatsoever owned and/or controlled directly or under licence by MyEcho, now or in the future, including without limitation, MyEcho rights, title and interest in and to all technology, source code/s, trade secrets, logos, systems, methods, trademarks, trade names, styles, insignia, designs, patents and copyright, and all similar proprietary rights which may subsist in any part of the world, whether registered or not.
- All copyright and other intellectual property rights in all content, trademarks, software, data, material, including logos, databases, text, graphics, icons, hyperlinks, confidential information, designs, agreements, and multimedia works, published on or via the Website ("proprietary material"), are the property of, or are licensed to, MyEcho and as such are protected from infringement by local and international legislation and treaties.
- By submitting reviews, comments and/or any other content (other than your personal information) to MyEcho for posting on the Website, you automatically grant MyEcho and its affiliates a nonexclusive, Royalty-free, perpetual, irrevocable right and licence to use, reproduce, publish, translate, sublicense, copy and distribute such content in whole or in part worldwide, and to incorporate it in other works in any form, media, or technology now known or hereinafter developed, for the full term of any copyright that may exist in such content. Subject to this licence, you retain any and all rights that may exist in such content.
- All rights not expressly granted are reserved and no right, title or interest in any proprietary material or information contained in this Website is granted to you.
- Except with MyEcho 's express written permission, no proprietary material from this Website may be copied or retransmitted.
- Irrespective of the existence of copyright, the User acknowledges that MyEcho is the proprietor of all material on the Website (except where a third party is indicated as the proprietor), whether it constitutes confidential information or not, and that the User has no right, title or interest in any such material.
- Light MyEcho stone authorises you only to view, copy, temporarily download to a local drive and to print the content of this Website, or any part thereof, provided that such content is used for personal purposes and for information purposes only, and such content is used for non-commercial purposes.
- Neither these Terms nor your use of the Services grants you ownership in the Services or the contract you access through the Services (other than your Content). These Terms further do not grant you any right to use Lightstone’s trademarks and other brand elements.
- For the purpose of this clause 7, the following words shall have the following meanings ascribed to them:
RISK, LIMITATION OF LIABILITY AND INDEMNITY
- The User's use of this website and the information contained on the website is entirely at the User's own risk and the User assumes full responsibility and risk of loss resulting from the use thereof.
- The transmission of information via the internet, including without limitation email, is susceptible to monitoring and interception. The User bears all risk of transmitting information in this manner including any risk of harm which may be suffered by the Data Subject. Under no circumstances shall MyEcho be liable for any loss, harm, or damage suffered by the User or Data Subject as a result thereof. MyEcho reserves the right to request independent verification of any information transmitted via email and the User consents to such verification should MyEcho deem it necessary.
To the extent permissible by law:
- Neither MyEcho, its affiliates, shareholders, agents, consultants or employees shall be liable for any damages whatsoever, including without limitation any direct, indirect, special, incidental, consequential or punitive damages, howsoever arising (whether in an action arising out of contract, statute, delict or otherwise) related to the use of, or the inability to access or use the content of the website or any functionality thereof, or the information contained on the website, or of any linked website, even if MyEcho knows or should reasonably have known or is expressly advised thereof.
- The liability of MyEcho for faulty execution of the website as well as all damages suffered by the User, whether direct or indirect, as a result of the malfunctioning of the website shall be limited to MyEcho rectifying the malfunction, within a reasonable time and free of charge, provided that MyEcho is notified immediately of the damage or faulty execution of the website. This liability shall fall away and be expressly excluded if the User attempts to correct or allows third parties to correct or attempt to correct the website without the prior written approval of MyEcho. However in no event shall MyEcho be liable to the User for loss of profits or for special, incidental, consequential or punitive losses or damages arising out of or in connection with the website or its use or the delivery, installation, servicing, performance or use of it in combination with other computer software.
You hereby unconditionally and irrevocably indemnify MyEcho and agree to hold MyEcho free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by MyEcho or instituted against Lightstone as a direct or indirect result of:
- your use of the website;
- software, programs and support services supplied by, obtained by or modified by you or any third party without the consent or knowledge of MyEcho ;
- your failure to comply with any of the terms or any other requirements which MyEcho may impose from time to time;
- the actions or requirements of any telecommunications authority or a supplier of telecommunications services or software; or
- any unavailability of, or interruption in, the service which is beyond the control of MyEcho.
- MyEcho makes no warranty or representation as to the availability, accuracy or completeness of the content of the website. You expressly waive and renounce all your rights of whatever nature that you may have against Lightstone for any LOSS suffered by you, as a result of information supplied by MyEcho being incorrect, incomplete or inaccurate.
- Personal information when used in this Policy means information that can identify you as an individual or is capable of identifying you. By personal information we don't mean general, statistical, aggregated or anonymised information.
- Your use of the Services signifies your consent to us collecting and using your personal information as specified below.
- By subscribing as a User, you agree that you shall hold in the strictest confidence and not disclose to any third party information acquired in connection with any aspect of the products and/or services offered by MyEcho. You shall notify MyEcho should you discover any loss or unauthorised disclosure of the information.
MyEcho will treat your information as confidential and will only use and disclose it in accordance with these terms. Information will not be regarded as confidential if such information:
- is or becomes public (other than through breach of these Terms by MyEcho);
- was lawfully known to MyEcho before receiving it from you;
- is received from a third party without knowledge of breach of any obligation owed to you; or
- was independently developed by MyEcho without reference to information with which you provided MyEcho.
- MyEcho will disclose your information only when required by law or legal process, but only after MyEcho, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.
- MyEcho reserves the right to aggregate anonymised results and survey questions to benefit the wider MyEcho User base for benchmarking analysis.
BREACH OR CANCELLATION BY LIGHTSTONE
MyEcho is entitled without notice, in addition to any other remedy available to it at law or under these Terms, including obtaining an interdict, to cancel these Terms, limit or deny such User use of the Website and services, or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to MyEcho 's right to claim damages, should any User:
- breach any of these Terms;
- in the sole discretion of MyEcho, use the Website in an unauthorised manner; or
- infringe any statute, regulation, ordinance or law.
- Late payment for the Services shall incur interest at the prime lending rate prevailing in South Africa, plus an additional 2%.
- Breach of these Terms entitles MyEcho to take legal action without prior notice to the User and the User agrees to reimburse the costs associated with such legal action to Lightstone on an attorney and own client scale.
- MyEcho is entitled without notice, in addition to any other remedy available to it at law or under these Terms, including obtaining an interdict, to cancel these Terms, limit or deny such User use of the Website and services, or to claim specific performance of any obligation whether or not the due date for performance has arrived, in either event without prejudice to MyEcho 's right to claim damages, should any User:
COMPLIANCE WITH SECTION 43(1) OF ECT ACT
In compliance with section 43(1) of the ECT Act, the following is noted:
[Hereinbelow, I set out section 43(1) of the Electronic Communications and Transactions Act 25 of 2002. Section 43 sets out information to be provided. Most of the information prescribed already appears in this document or on the Website. The information, as listed, can appear in this document, or anywhere on the Website. The document below must be used as a check-list.
43. Information to be provided.-
(1) A supplier offering goods or services for sale, for hire or for exchange by way of an electronic transaction must make the following information available to consumers on the web site where such goods or services are offered:
(a) Its full name and legal status;
(b) its physical address and telephone number;
(c) its web site address and e-mail address;
(d) membership of any self-regulatory or accreditation bodies to which that supplier belongs or subscribes and the contact details of that body;
(e) any code of conduct to which that supplier subscribes and how that code of conduct may be accessed electronically by the consumer;
(f) in the case of a legal person, its registration number, the names of its office bearers and its place of registration;
(g) the physical address where that supplier will receive legal service of documents;
(h) a sufficient description of the main characteristics of the goods or services offered by that supplier to enable a consumer to make an informed decision on the proposed electronic transaction;
(i) the full price of the goods or services, including transport costs, taxes and any other fees or costs;
(j) the manner of payment;
(k) any terms of agreement, including any guarantees, that will apply to the transaction and how those terms may be accessed, stored and reproduced electronically by consumers;
(l) the time within which the goods will be dispatched or delivered or with in which the services will be rendered;
(m) the manner and period within which consumers can access and maintain a full record of the transaction;
(n) the return, exchange and refund policy of that supplier;
(o) any alternative dispute resolution code to which that supplier subscribes and how the wording of that code may be accessed electronically by the consumer;
(q) where appropriate, the minimum duration of the agreement in the case of agreements for the supply of products or services to be performed on an ongoing basis or recurrently; and
(r) the rights of consumers in terms of section 44, where applicable.]
COMPLIANCE WITH LAWS
You shall comply with all applicable laws, statues, ordinances and regulations pertaining to your use of and access to this Website.
DELIVERY, REFUNDS AND FEES
- When you click to make a purchase with us legal obligations arise and your right to refund of monies charged to your credit card or paid in any other way agreed by us, are limited by our terms & conditions. You must not make any purchase through this site unless you understand and agree all our terms and conditions. Once payment is made for the purchase, it is deemed that you have read and understood the terms and conditions for such purchase. If you have any queries, please contact us before making any purchase for any service through this website.
- You represent and warrant that the credit card information you provide is correct and you will promptly notify MyEcho of any changes to such information.
- Our Services are billed on a subscription basis (we call these "Subscriptions"). This means that you will be billed in advance on a recurring, periodic basis (each period is called a "billing cycle"). Billing cycles are typically monthly. Your Subscription will automatically renew at the end of each billing cycle unless you downgrade through your online account management page, or by contacting our customer support team. You may downgrade your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may downgrade your Subscription immediately after the Subscription starts if you do not want it to renew.
- All transactions will be processed in South African Rands (ZAR). Payment will be based on the current fees (from R 395) published on the MyEcho website and will be charged pro rata in advance.
- Delivery of the Services within MyEcho are through the channel of online interactions or via outsourced resources (included but not limited to people, documents, processes etc.).
- We don't automatically refund you for any remaining time when you cancel a Subscription or delete an account. In most cases, downgrading before the end of your Subscription means you'll have access to paid features until the end of your Subscription term. You must advise us via your User account of your cancellation and any such cancellation.
- MyEcho may change the fees charged for the Services at any time, provided that, for Services billed on a Subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription.
Any notices to MyEcho shall be given at the addresses given below:
- E-mail: [email protected], or
3rd Floor, Sasfin House
56 Mangold Street
- Any notices to the User shall be given at the physical and e-mail address which the User has provided to MyEcho.
Any notice or communication required or permitted to be given in terms of these Terms shall be valid and effective only if in writing but may be given by e-mail shall be deemed to have been delivered:
- In the case of notice by e-mail, 48 (forty eight) hours after an e-mail is sent, unless the sending party is notified that the e-mail address is invalid; and
- In the case of notice by registered mail, with postage prepaid and return receipt requested, to a physical address, 5 (five) business days after the date of mailing.
- All agreements, notices or other communication required to be given in terms of the law or these Terms may be given via electronic means and that such communications shall be "in writing".
- Notwithstanding anything to the contrary, a written notice or communication actually received by a party shall be an adequate written notice or communication to it, notwithstanding that it was not sent to or delivered at its chosen address(es) for that purpose.
- Any notices to MyEcho shall be given at the addresses given below:
- These Terms shall be governed in all respects by the laws of the Republic of South Africa as such laws are applied to agreements entered into and to be performed within South Africa.
- This Website is controlled, operated and administered by MyEcho from its offices within the Republic of South Africa. MyEcho makes no representation that the content of the Website is appropriate or available for use outside of South Africa. Access to the Website from territories or countries where the content of the Website is illegal is prohibited. Users 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.
- MyEcho does not guarantee continuous, uninterrupted or secure access to our services, as operation of our Website may be interfered with as a result of a number of factors which are outside of our control.
- If any provision of these Terms is held to be illegal, invalid or unenforceable for any reason, such provision shall be struck out from these Terms and the remaining provisions shall be enforced to the full extent of the law.
- MyEcho 's failure to act with respect to a breach by you or others does not constitute a waiver of our right to act with respect to subsequent or similar breaches.
- You shall not be entitled to cede your rights or assign your rights or delegate your obligations in terms of these Terms to any third party without the prior written consent of MyEcho.
- The relationship between the User and MyEcho is that of independent contractors, and partnership, employment or agency shall be implied from these Terms or the Services;
- No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
- The head notes to the paragraphs to these Terms are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
- Words importing the singular shall include the plural and vice versa, and words importing the masculine gender shall include females and words importing persons shall include partnerships and corporate and unincorporated entities.
- These Terms set forth the entire understanding and agreement between Lightstone and you with respect to the subject matter hereof.