Tracking the Wild Proprietary Limited, with registration number 2012/165224/07, a private company duly incorporated in accordance with the laws of the Republic of South Africa (“the Company”) developed the so-called Tracking the Wild mobile application (“the App”) and the website www.trackingthewild.com (“the Website”). Tracking the Wild is a South African designed network platform which allows users to document and share all of their wildlife sightings at various game parks and nature reserves, obtain information regarding accommodation at or surrounding the various game parks and nature reserves and gain access to the animal mapping data collected through other users’ wildlife sighting reports.
These terms and conditions (“Terms and Conditions”) govern your (“the User”) use of the App and the Website (collectively referred to as “Tracking the Wild”). By accessing and using the App and/or Website, the User agrees to be bound by the Terms and Conditions set out in this legal notice. If the User does not wish to be bound by these Terms and Conditions, the User may not access, display, use, download, and/or otherwise copy or distribute content obtained through the App.
For the purposes of these terms and conditions the terms “our”, “we” and/or “us” shall refer to the Company.
The App can be downloaded free of charge from our website or various mobile application stores.
3. Commencement and Duration
By accessing and using the App, the User agrees to be bound by the Terms and Conditions set out in this legal notice, subject to termination as set out in clause 5 below and the provisions of the Terms and Conditions.
The User may access Tracking the Wild through a secure login which requires the User to provide his/her email address and password which shall be for the sole use of such User. The confidentiality of the user’s email password shall be the sole responsibility of such User and the Company cannot be held liable should any third party gain access thereof through any conduct, negligent or otherwise, of the User. The User may gain access through his/her Gmail, Yahoo, Twitter and/or Facebook account.
The use of the App may carry inherent risks, and any location at which wildlife has been sited could be extremely dangerous and the User must at all times comply with the rules of the park/nature reserve. The User is solely responsible for any unlawful conduct.
The User is responsible for ensuring that his/her mobile device is capable of downloading the App and including access to the internet, a mobile phone signal and availability to GPS tracking. The User is also responsible for paying all charges and costs of the User’s network service provider that the User shall incur when using the App and/or the Website, including any Wi-Fi costs.
The User warrants that he/she is over of the age of 18 years or that parental consent has been provided, by his/her parent or legal guardian, to the processing of the User’s personal information.
The User may cancel the agreement in terms of these Terms and Conditions by deleting the App from their mobile device.
The Company shall be entitled to terminate the User’s use of the App by providing the User with 20 (twenty) business days written notice of a material failure by the User to comply with these Terms and Conditions, unless the User has rectified the failure within the notice period.
6. Mobile Device App Limitations
The Company shall not be responsible for the deletion, inability, or failure to store information on the User’s mobile device.
Communications from the App may be delivered late or not be delivered at all whether from the User to us or from us to the User, due to mobile device network traffic or the mobile device network not being operational.
7. Request for User’s Personal Information
By accessing Tracking the Wild and providing us with the User’s personal information, the User agrees that the use of Tracking the Wild, specifically including any election by the User to provide certain personal information to other users of Tracking the Wild, are entirely at the User’s own risk and the User consents to the processing of his/her requested personal information for the following purposes –
7.1 to share the location, images and/or information regarding any wildlife sightings by the User to other Users and on any of the following social media sites –
7.3 YouTube; and/or
7.5 to provide the Animal Demography Unit, a research unit of the University of Cape Town, the Endangered Wildlife Trust and other research or scientific organisations with statistical data relating to wildlife sightings and location data; and/or
7.6 disclosure of personal information in response to a specific request by a law enforcement agency, subpoena, court order, or as required by law.
The User may be required to verify all personal information provided through an email verification process. The User will be required to provide a valid email address, to which the verification link may be sent. The User’s Twitter, YouTube and/or Facebook details may also be provided by the User for purposes of sharing wildlife sightings via these applications.
The copyright in all images, texts, audio material, video material and audio-visual material submitted via the App and processed (“Uploaded Information”) shall remain with the User. The User hereby provides the Company with the license to distribute such material for the purposes as set out in clause 7 above.
9. Security Measures
Access to certain areas of Tracking the Wild is restricted and the Company reserves the right to restrict access to such areas at the Company’s sole discretion. The username and password provided by Users in the registration process are used to access the secure login section of Tracking the Wild. Users must ensure that the user ID and password are kept confidential. The Company reserves the rights to restrict access to Tracking the Wild at its sole discretion.
We have taken appropriate, reasonable, technical and organisational measures to prevent –
9.1 the loss of, damage to or unauthorised destruction of personal information; and
9.2 the unlawful access to or processing of personal information.
In the event that we, on reasonable grounds, believe that the personal information of a User has been accessed or acquired by any unauthorised person, we, or any third party processing personal information under our authority, will notify the User in writing provided that the identity of the User whose personal information has been compromised can be established.
We will store any Uploaded Information for a period of 30 (thirty) days following receipt of such information, after which the Uploaded Information will be destroyed from our systems and servers unless –
9.3 the retention of the records is required or authorised by law;
9.4 the Company reasonably requires the record for lawful purposes related to its activities in accordance with these Terms and Conditions; and/or
9.5 the User consents to the retention of his/her Uploaded Information for an indefinite period.
The User may at any time access, correct or delete their Uploaded Information in the account screen of Tracking the Wild. Should the User delete their account, any Identikits that have been created by the User shall not be deleted.
10. Acceptable Use
Tracking the Wild may not be used in any way that causes, or may cause, damage to Tracking the Wild or impairment of the availability or accessibility of Tracking the Wild; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
Tracking the Wild may not be used to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.
The User must not conduct any systematic or automated data collection activities (including and without limitation, scraping, data mining, data extraction and data harvesting) on or in relation to Tracking the Wild without the Company’s express written consent.
Tracking the Wild may not be used to transmit or send unsolicited commercial communications and/or for any purposes related to marketing without the Company’s express written consent.
10.1 Transmission of content to Tracking the Wild
Tracking the Wild may offer interactive services allowing the User to transmit various types of content (which may include comments, images, videos, links to other web sites or third-party content) for viewing and access by other users of Tracking the Wild.
By using such interactive services, the User agrees and acknowledges as follows:
(a) the User is responsible to ensure that all content transmitted by such User shall not violate any laws, infringe any rights of any other party or otherwise be obscene or objectionable in any way whatsoever;
(b) should the User transmit any content which is obscene or objectionable as a fact or in the sole opinion of the Company, the Company reserves the right not to post or publish such content, and/or to remove or edit such content at any time in its sole and absolute discretion without any notice to such User; and
(c) in the event that the User has violated any law, infringed any rights of any party and/or transmitted obscene and/or objectionable content as a fact or in the sole opinion of the Company, the Company reserves the right to take any action against such User which it, in its sole and absolute discretion, deems appropriate.
and the User hereby indemnifies the Company in respect of any claim by a third party against the Company arising from the User’s conduct set out in clause 10.1(a) above.
11. Tracking the Wild YouTube Platform
The User shall be able to upload video content to YouTube via the Company’s YouTube account. Should the User wish to make use of the Company’s YouTube platform and upload video content of the User’s wildlife sightings via the Company’s account, the User or its nominated conservation organisation (as the case may be) will be afforded the right to share in the advertising revenue received from YouTube users’ viewings of the User’s video content (“the Advertising Revenue”) subject to the following –
11.1 the stipulated percentage of Advertising Revenue will only be distributed to the User, or the User’s nominated conservation organisation (based on a list of accredited organisations provided by the Company), who has elected to share in the Advertising Revenue of the video content;
11.2 the Advertising Revenue shall be paid to the Company, the User and the nominated conservation organisation (as the case may be) in the following proportions –
11.2.1 the Company - 40% (forty percent);
11.2.2 the nominated Conservation organisation(s) - 10% (ten percent);
11.2.3 the User - 50% (fifty percent); and
11.3 the Advertising Revenue will only become due and payable once the sum of the Advertising Revenue generated from such User’s video content has reached a minimum of R1000 (one thousand Rand) in respect of the video content, and such amount shall be paid to the User or its nominated conservation organisation (as the case may be) at the end of every second month into the account nominated by the User in writing.
The User agrees that it shall not have any claim against the Company, and the Company shall not be liable for any payment to the User, arising from a breach of any obligation, or violation of any of the User’s rights, by YouTube, or its affiliated entities, in respect of the video content submitted by the User via the Company’s YouTube account.
By making use of the Company’s YouTube account, the User hereby agrees and undertakes as follows –
(a) it shall not violate any laws, infringe any rights of any other party or transmit any content which may be obscene or objectionable in any way whatsoever;
(b) should the User transmit any content which is obscene or objectionable, the Company reserves the right to remove or edit such content at any time in its sole and absolute discretion without any notice to such User; and
(c) in the event that the User has violated any law, infringed any rights of any party and/or transmitted obscene and/or objectionable content as a fact or in the sole opinion of the Company, the Company reserves the right to take any action against such User which it, in its sole discretion, deems appropriate;
and the User hereby indemnifies the Company in respect of any claim by a third party against the Company arising from the User’s conduct set out in clause 11.(a) above.
12. Liability of the Company
The Company shall not be liable for any harm, injury or fatality in the event of the User visiting a location at which wildlife were sited and sent by another user through Tracking the Wild, except as a result of the gross negligence of the Company.
The Company does not make any representations or warranties about the quality, accuracy, reliability, completeness, or timeliness of Tracking the Wild. The Company does not assume any responsibility for any errors, omissions or inaccuracies in Tracking the Wild, except as a result of the gross negligence of the Company.
Neither the Company nor its directors shall be responsible for and disclaims all liability, except as a result of the gross negligence of the Company, for any loss, liability, damage (whether direct, indirect or consequential) and/or expense of any nature whatsoever which may be suffered by the User or any third party, as a result of or which may be attributable, directly or indirectly, to the User’s access and use of Tracking the Wild.
The Company shall not be liable to the User on any account whatsoever in the event that the Company is prevented from fulfilling its obligations hereunder due in whole or in part to an event or force majeure which expression shall mean act of God, war, fire, flood, storm, power failure, reduction of power supplies, mechanical failure or lack or shortage of materials or stock or any other circumstances beyond its reasonable control; and whether or not within its control, strikes, lock-outs or industrial disputes in relation to the Company or any other party or any action taken by it in connection therewith or in consequence or the occurrence thereof. In such event that the Company may at its option either suspend performance or cancel the contract in question or so much of it as remains unperformed without liability for any loss and without prejudice to the Company’s rights.
13. Links to other Websites and Services
This Website may contain links to other websites that are not under the control of the Company. The Company has no responsibility for the linked websites nor does it necessarily endorse the linked websites.
14. Governing Law and Country of Domicile
Should the User utilise Tracking the Wild for any purpose, the User hereby consents and submits to the jurisdiction of the South African courts in regard to all proceedings, actions, applications or the like instituted by either party against the other, and in any way arising from the Terms and Conditions or the use of the App.
Tracking the Wild is hosted, controlled and operated from the Republic of South Africa and therefore at all times governed by. South African Law and the Company chooses c/o Themis Commercial Legal Advisors (Pty) Ltd at Unit 32 Roeland Square, Roeland Street, Cape Town as its domicilium citandi et executandi for all purposes under these Terms and Conditions, whether in respect of court process, notice, or other documents or communication of whatsoever nature.
In the event of any dispute of any nature whatsoever arising between the parties on any matter provided for in, or arising out of these Terms and Conditions, and not resolved through the Customer Relations Department of the Company, then such a dispute shall be submitted to confidential arbitration in terms of the Expedited Commercial Rules of the Arbitration Foundation of Southern Africa. Arbitration proceedings shall be conducted in Cape Town in English.
Each of the parties hereby irrevocably agrees that the decision of the Arbitrator in arbitration proceedings shall be final and binding on them and may be made an Order of Court to whose jurisdiction the parties to the dispute are subject.
If any provision of these Terms and Conditions is deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed to be severed from these Terms and Conditions and shall not affect the enforceability and validity of the remaining items of the Agreement.
These Terms and Conditions constitutes the whole agreement between the parties and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein. Any indulgence of whatsoever nature granted by the Company shall not be construed as a waiver or variation of any of our rights or remedies.
The Company reserves the right to alter or withdraw any of its services, to refuse its services to any customer and to amend these conditions on written notice from the Company at any time.
If the Company is informed of any inaccuracies in the content on Tracking the Wild, it will attempt to correct the inaccuracies a soon as possible.
The User agrees to defend, indemnify and hold the Company harmless from and against any and all claims, damages, costs and expenses, including attorneys' fees, arising from or related to your use of Tracking the Wild, provided that any claim brought against the Company is not as a result of the Company’s grossly negligent conduct.
The Company reserves the rights to change, modify, add to or remove from portions or the whole of these Terms and Conditions from time to time in its sole discretion and at any time. Changes to these Terms and Conditions will become effective upon such changes being posted to this Website and upon notice to the User of such change. Should the User continue to use the Website following the receipt of the notice provided and the posting of changes or updates the User’s use will be considered notice of your acceptance to abide by and be bound to these Terms including the changes/updates.
18. Company Information
In the event that you need to contact the Company for purposes related to these Terms and Conditions, please use the following details:
Telephone: +27 21 439 5412
Postal Address: PO Box 725, Sea Point, Cape Town, 8060