PoochynKitty.com

PoochynKitty.com
Terms and Conditions of Use

Edition 2: Effective: 02 January 2012

Users are advised to familiarise themselves with the following Terms and Conditions of Use carefully before using PoochynKitty.com (“PnK”) and PoochyandKitty.com (“PandK”) websites, (collectively “the Site”). The Site is a digital media brand of and operated by Nichebury CC (“Nichebury”).

1. Acceptance of Terms and Conditions of Use
2. User License
3. The Site’s Content
4. Termination and Changes to the Site
5. Indemnity
6. Disclaimer of Warranties
7. Limitation of Liability
8. Cancellation, Termination, Transfer and Expiration of Account/Services
9. Minors
10. Account, Password and Security
11. Website links
12. Trademarks
13. Consideration
14. Third Party Software
15. Jurisdiction, Applicable Law and Limitations
16. General

1. Acceptance of the Terms of Use
By viewing, using, accessing, browsing, or submitting any content or material on or to the Site, the user agrees to these Terms of Use as a binding legal agreement between him/her and Nichebury, without limitation or qualification.
If a user does not agree to these Terms of Use, then he/she may not use the Site. Nichebury reserves the right to modify these Terms of Use at any time without prior notice. He user agrees that each visit he/she makes to the Site shall be subject to the then-current Terms of Use, and continued use of the Site now or following modifications of these Terms of Use confirms that a user has read, accepted, and agreed to be bound by such modifications.

2. User License
2.i. Scope:
Nichebury grants the user permission (which may be revoked at any time for any reason or no reason) to view the Site and to download, email, or print individual pages of the Site in accordance with these Terms of Use. Copyright is expressly reserved on all information other than that sourced from Wikipedia, which is open source under the GNU Free Documentation License (“GFDL”) conditions. Link for perusal of the GFDL if interested: GNU Free Documentation License and Wikipedia:Text of the GNU Free Documentation License. However, a user shall not remove any trademark, copyright or other notice contained on such pages.
2.ii. User Conduct:
A user agrees that his/her use of the Site and/or services on the Site is subject to all applicable local, state, national and international laws and regulations. The user also agrees:
a). to comply with all relevant state and international laws and/or rules and/or conventions regarding online conduct and acceptable Material, and regarding the transmission of technical data exported through the Site or any service provided by Nichebury from South Africa or the country in which the user resides;
b). not to host, submit content to or use the Site or its Services without the consent of a parent or guardian if he/she is under the age of 13 (Thirteen) (a "Minor");
c). not to use the Site for illegal purposes;
d). not to commit any acts of infringement on the Site or with respect to content on the Site;
e). not to use the Site to engage in commercial activities;
f). not to attempt to gain unauthorized access to other computer systems from or through the Site;
g). not to interfere with another person’s use and enjoyment of the Site or another entity’s use and enjoyment of the Site;
h). not to use the Site for chain letters, junk mail, spamming, or use of distribution lists;
i). not to upload or transmit viruses or other harmful, disruptive or destructive files;
j). not to disrupt, interfere with, or otherwise harm or violate the security of the Site, or any services, system resources, accounts, passwords, servers or networks connected to or accessible through the Site or affiliated or linked sites.
2.iii. Harm from Commercial Use:
A user agrees that the consequences of commercial use or re-publication of copyrighted material may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy.

3. Site’s Content
Nichebury offers a user the opportunity to perform some of the following activities on the Site: post, upload, transmit, display, publish, distribute, or otherwise submit material to the Site (collectively, "Submit"), including, but not limited to, images, information, articles, illustrations, lyrics, photos, audio files, poems, videos, or text (collectively, "Material").

3.i. A user agrees not to Submit any Material that:
contains vulgar, profane, abusive, hateful, or sexually explicit language, epithets or slurs, text or illustrations in poor taste, inflammatory attacks of a personal, sexual, racial or religious nature, or expressions of bigotry, racism, discrimination or hate; is defamatory, threatening, disparaging, inflammatory, false, misleading, deceptive, fraudulent, inaccurate, or unfair, contains gross exaggeration or unsubstantiated claims, violates the privacy rights or right of publicity of any third party, is unreasonably harmful or offensive to any individual or community, contains any actionable statement, or tends to mislead or reflect unfairly on any other person, business or entity; unfairly interferes with any third party's uninterrupted use and enjoyment of the Site; advertises, promotes or offers to trade any goods or services, except in areas specifically designated for such purpose; is intended primarily to promote a cause or movement, whether political, religious or other; contains copyrighted content (copyrighted articles, illustrations, images, lyrics, photos, audio, video, poems, text, or other content) without the express permission of the owner of the copyrights in the content; constitutes, promotes or encourages illegal acts, the violation of any right of any individual or entity, the violation of any local, state, national or international law, rule, guideline or regulation, or otherwise creates liability; discloses any personal identifying information relating to or images of a Minor without consent of a parent or guardian; infringes any copyright, trademark, patent, trade secret, or other intellectual property right; contains viruses or other harmful, disruptive or destructive files; harms or is inappropriate for minors to view; links to any commercial or other website; is not otherwise in compliance with these Terms of Use.

3.ii. User Representations and Warranties:
Each time a user Submits Material to the Site, he/she represents and warrants that he/she has the right to Submit the Material to the Site, which means:
the user is the author of the Material, or the user has express permission from the copyright owner to post the Material on the Site; and the user has the right to grant Nichebury the license set out in these Terms of Use; and the Material the user Submits does not violate these Terms of Use.

3.iii. User License Grant to Nichebury:
Unless categorically stated and reduced to writing, a user grants Nichebury, its business associates, affiliates and related entities a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, copy, modify, display, archive, store, publish, transmit, perform, distribute, reproduce and create derivative works from all Material a user provides to Nichebury in any form, media, software or technology of any kind now existing or developed in the future. Without limiting the generality of the previous sentence, a user authorises Nichebury to include the Material he/she provides in a searchable format that may be accessed by users of the Site and other websites. A user also grants Nichebury and related entities the right to use his/her name and any other information about him/her that he/she provides in connection with the use, reproduction or distribution of such Material. A user also grants Nichebury the right to use the Material and any facts, ideas, concepts, know-how or techniques ("Information") contained in any Material or communication he/she sends to Nichebury and/or the sites for any purpose whatsoever, including but not limited to, developing, manufacturing, promoting and/or marketing products and services. A user grants all rights described in this paragraph in consideration of his/her use of the Site and its services of making Material he/she provides Nichebury available to third parties, and without the need for additional compensation of any sort to him/her. Nichebury does not claim ownership of Material a user Submits to the Site.

3.iv. Disclaimer of Responsibility for Material:
A user acknowledges and agrees that Nichebury does not control the Material Submitted to the Site, or any other services permitting user-generated Material or content, and disclaims any responsibility for such Material. Nichebury specifically disclaims any duty, obligation, or responsibility, to review, screen, refuse to post, remove, or edit any Material. In addition, Nichebury does not represent or warrant that any other content or information accessible via the Site is accurate, complete, or current. Price and availability information is subject to change without notice. Nichebury assumes no responsibility or liability for any errors or omissions in the content of the Site.
3.v. Review, Removal and Change of Status of Material.
Nichebury reserves the right (but disclaims any duty, obligation, or responsibility) to review, screen, refuse to post, remove in their entirety, or edit (at any time and without prior notice) any images or any Material that Nichebury believes, in its absolute and sole discretion, may violate any of the aforementioned sections. Further, Nichebury also reserves the right (but disclaims any duty, obligation, or responsibility) to refuse to post, remove in their entirety, or edit (at any time and without prior notice) any photos or Material on the Site for any reason or no reason whatsoever, in its absolute and sole discretion. Nichebury also reserves the right (at any time and without prior notice) to change the status of a Material from public access to private access upon complaint by a third party for any reason, in Nichebury’s sole and absolute discretion.

3.vi. Proprietary Rights:
A user acknowledges and agrees that the Site contains selected proprietary information and content that is protected by intellectual property and other laws, and may not be used except as provided in these Terms of Use without advance, written permission of Nichebury. All Site design, selected text, selected graphics, interfaces, and selected images (and the selection and arrangements thereof), and software, hypertext markup language ("HTML"), scripts, active server pages, and other specified content and software used in the Site are copyright of Nichebury CC; and all rights are reserved.

4. Termination and Changes to the Site
Nichebury reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Site and/or services offered on or through the Site (or any part thereof), including but not limited to the Site’s features, look and feel, and functional elements and services provided by Nichebury.

5. Indemnity
A user agrees to indemnify and hold Nichebury, its parents, subsidiaries and affiliates, agents, officers, directors, or other employees harmless from any claim, demand, or damage (whether direct, indirect, or consequential, including reasonable attorneys’ fees, made by anyone in connection with your use of the Site, with Material or Information a user Submits on or through the Site, with any alleged infringement of intellectual property or other right of any person or entity relating to the Sites, your violation of these Terms of Use, and any other acts or omissions relating to the Site.

6. Disclaimer of Warranties
The information, content, products, services, and materials contained on the Site (whether sourced from Nichebury, a user, other users, and other affiliates or third parties), including without limitation, material, text, photos, graphics, audio files, video, and links, are provided "as is" and "as available" without warranties of any kind, either express or implied. To the maximum extent permitted by law, Nichebury disclaims all representations and warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, title, non-infringement, freedom from computer virus, and implied warranties arising from course of dealing or course of performance.

7. Limitation of Liability
7.i. In no event shall Nichebury be liable to a user for any direct, indirect, special, punitive, incidental, exemplary or consequential damages, or any loss or damages whatsoever (even if Nichebury has been previously advised of the possibility of such damages), whether in an action under contract, negligence, or any other theory, in any manner arising out of or in connection with the use, inability to use, performance of, or services provided on, the Site. Nichebury assumes no responsibility and shall not be liable for any damages to, or viruses that may infect a user’s computer equipment or other property on account of a user’s access to, use of, browsing of, or downloading of any material from the Site. Nichebury assumes no responsibility or liability in any manner arising out of or in connection with any information, content, products, services, or material available on or through the Site, as well as any third party website pages or additional websites linked to the Site, for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained therein. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply to a user. In no event shall Nichebury ’s total liability to a user for all damages, losses and causes of action, whether in contract, tort (including but not limited to, negligence) or otherwise, exceed (a) the amount paid by a user to Nichebury , if any, or (b) ZAR250 (whichever is less).
7.ii. A user and Nichebury agree that the warranty disclaimers and limitations of liability in these terms of use are material, bargained-for bases of this agreement, and that they have been taken into account in determining the consideration to be given by each party under this Agreement and in the decision by each party to enter into this agreement. A user and Nichebury agree that the warranty disclaimers and limitations of liability in these terms of use are fair and reasonable.
7.iii. If a user is dissatisfied with the Site or does not agree to any provisions of these Terms of Use, a user’s sole and exclusive remedy is to discontinue using the Site, except as may be provided for in section 7(i) above.

8. Cancellation, Termination, Transfer, and Expiration of Account/ Services
A user may cancel or terminate his/her password, account and/or use of any service provided on or through the Site, with or without cause at any time, upon providing written notice to Nichebury. If a user cancels or terminates his/her account or any services or upon expiration of his/her account or service, his/her cancellation/termination/expiration will take effect immediately. Upon termination, a user’s right to use his/her account or service ceases with immediate effect. A user’s notice to Nichebury of cancellation or termination must be sent via email to: fikile@poochynkitty.com, or by post to: The Editor, PoochynKitty.com, 5860 Moshoeshoe St, Kagiso 2, 1754, South Africa.
Nichebury, at its sole and absolute discretion, and at any time and with or without prior notice to a user, may suspend, cancel, transfer, or terminate a user’s password, account, any site within an account and/or use of any services provided on or through the Site for any reason whatsoever (including and without limitation, due to lack of use, commercial use, cybersquatting, Nichebury’s resolution of any dispute among multiple persons claiming the right to use the same or similar accounts or services, or Nichebury’s belief, in its absolute and sole discretion, that you have violated or acted inconsistently with the letter or spirit of these Terms of Use). In the event of a dispute or conflict among, or complaint from users of the Sites about another’s right to establish, use, or maintain an account or service on the Site, Nichebury reserves for itself the sole right to determine whether or how to resolve such dispute, conflict or complaint, with or without factual or other investigation.
Upon expiration, or cancellation or termination by either party, of a user’s account, a user’s password, and/or use of any service provided on or through the Site, a user will have no right to any Material or Information he/she Submitted, and Nichebury may temporarily or permanently block access to, remove, deactivate, delete, and discard all such Material or Information contained therein. Nichebury accepts no liability for removed or deleted Material or Information. In addition, any contracts (verbal, written, or assumed) with respect to a user’s account, Material or Information a user Submits, and/or use of any service on the Site, will be terminated at Nichebury’s discretion. A user agrees that Nichebury shall not be liable to him/her or any third-party for any termination of a user’s access to any service.
Upon suspension, cancellation, or termination of a user’s account or his/her use of any service provided on or through the Site (for whatever reason), there shall be no refund of money a user paid to Nichebury.

9. Minors
The consent of a parent or guardian shall be required before a Minor can use the Site. Use of any part of the Site is confirmation that the person is an adult or a Minor who has received permission from a parent, guardian or educational supervisor to use the Site. A parent or guardian will be responsible for any activities of a Minor on the Site regardless of whether the Minor has received permission from the parent, guardian or educational supervisor to use the Sites.
Nichebury hereby notifies parents, legal guardians and educational supervisors that adult control protection (such as computer hardware, software or filtering services) are commercially available that may assist an adult user in limiting material that is harmful to Minors.

10. A user’s account
Some services offered on the Site may require a user to register and/or create an account with Nichebury. During this process, a user must select an account designation and password and provide certain personal information to Nichebury, including a valid email address. In consideration of the use of Nichebury’s services, a user agrees to: (i) provide true, accurate, current and complete information about himself/herself as prompted by the registration form, and (ii) maintain and promptly update the personal information he/she provided to keep it true, accurate, current and complete. If a user provides any information that is untrue, inaccurate, not current or incomplete, or Nichebury has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Nichebury has the right to suspend or terminate a user’s account and refuse any and all current or future use of the Service or any portion thereof.
A user is responsible for maintaining the confidentiality and security of his/her account and password, and is fully responsible for all activities that occur under his/her password or account, and for any other actions taken in connection with the account or password. A user agrees to (i) immediately notify Nichebury of any known or suspected unauthorized use(s) of his/her password or account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of his/her password or credit card information; and (ii) ensure that he/she exits from his/her account at the end of each session. Nichebury will not be liable for any injury, loss or damage of any kind arising from or relating to a user’s failure to comply with (i) and (ii) or for any acts or omissions by a user or someone else using a user’s account and/or password.

11. Website links
As a courtesy to a user, the Site may offer links to other websites. Nichebury is not responsible for the contents of any website pages created and maintained by organizations independent of itself. Visiting any such third-party website pages is at a user’s own risk. Nichebury has no control of these third-party website pages, nor can it guarantee the accuracy, completeness, or timeliness of information in third-party website pages. A user’s use of such information is voluntary, and his/her reliance on such information should be made only after independent review. References to commercial products or services within any such third-party website pages do not constitute or imply an endorsement by Nichebury. By using the Site, a user acknowledges that Nichebury is not responsible either for the availability of, nor the content located on or through any third-party website pages

12. Consideration
A user acknowledges that these Terms of Use are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the foregoing, a user further acknowledges that such consideration includes, without limitation, his/her use of the Site and receipt or use of data, content, products, services, Material and Information available at or through the Site, the possibility of Nichebury’s review, use or display of you’re his/her generated content, and the possibility of publicity and promotion from Nichebury ‘s review, use or display of his/her user-generated content.

13. Trademarks
PoochynKitty.com™, PoochyandKitty.com™, Pets are social beings too™ and the PoochnKitty logo (collectively “the Trademarks”) are common law trademarks of Nichebury CC. The Trademarks and other marks, logos and names of Nichebury, used on or in connection with the Site may not be used in connection with any product or service that is not under Nichebury’s ownership or control. Furthermore, the Trademarks and such other logos, marks and names may not be used in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits Nichebury. All other trademarks not owned by Nichebury or its business affiliates that appear on the Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Nichebury or its business affiliates.

14. Third Party Software
If a user elects to download or access any third party software that Nichebury may make available in connection with the Site, a user understands that he/she may have to agree to that third party provider’s terms of use or license before he/she uses such software. A user further agrees that the use of any third party software or content obtained in connection with the services provided on the Site does not transfer to him/her any rights, title or interest in or to such software or content, and a user agrees that he/she will not use any such software except as expressly authorized under that third party provider's terms of use or license agreement. By downloading software made available through the Site, a user is deemed to agree to the third party provider’s terms of use or license agreement, the terms of which may be browsed on the concerned third party’s website. If for some reason a link does not exist to the third party’s website, it is the responsibility of a user to request the website address of the third party concerned for perusal of the terms of use or license agreement. If a user does not agree to the third party’s terms of use or license agreement, he/she should not download its software.

15. Jurisdiction, Applicable Law and Limitations
The Site is designed using both the free website templates and webhosting services of Yola Inc. located in South Africa ("Yola"), webhosting services of Host4Africa Internet Services CC t/a Host4Africa.com, also located in South Africa ("H4A"). The Site is owned, operated and controlled by Nichebury, located in South Africa. Therefore, a user agrees that these Terms of Use will be governed by and construed in accordance with the laws of the said countries and any other country where the servers of Yola and H4A are located and, where Nichebury is located, without regard to their conflicts of law provisions. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms of Use. Nichebury makes no claims or assurances that the Site is appropriate or may be downloaded outside of South Africa. A user agrees that all legal proceedings arising out of or in connection with these Terms of Use, or services available on or through the Site must be filed in a relevant court of law located in the Gauteng Province, South Africa jurisdiction within one year of the time in which the events giving rise to such claim began, or a user’s claim will be forever waived and barred. A user expressly submits to the exclusive jurisdiction of the said courts.

16. General
16.i. Enforceability:
If any portion of these Terms of Use is found to be void, invalid or otherwise unenforceable, then that portion shall be deemed to be superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The remainder of these Terms of Use shall continue to be enforceable and valid according to terms contained herein.

16.ii. Entire Agreement:
Except as expressly provided in a particular "Legal Notice" or other notice on particular pages of the Site, these Terms of Use, which hereby incorporate by reference the terms of Nichebury’s Privacy Policy, constitute the entire agreement between a user and Nichebury, superseding all prior agreements regarding the Site.

16.iii. No Waiver:
Any failure by Nichebury to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of said right or provision. Neither party hereto shall be deemed to be in default of any provision of the Terms of Use or for failure in performance resulting from acts or events beyond the reasonable control of such party and arising without its fault or negligence, including, but not be limited to, acts of God, civil or military authority, interruption of electric or telecommunication services, civil disturbances, acts of war or terrorists, strikes, fires, floods or other catastrophes.

16.iv. Headings & Construction:
The section titles in the Terms of Use are for a user’s convenience only and carry no contractual or legal effect whatsoever. The language in these Terms of Use shall be interpreted in accordance with its fair meaning and shall not be strictly interpreted for or against either party.

16.v. Correspondence with Nichebury:
For purposes of providing notice of cancellation or termination, contact: The Editor, PoochynKitty.com at:fikile @poochynkitty.com, or by post to: The Editor, PoochynKitty.com, 5860 Moshoeshoe St, Kagiso 2, 1754, SOUTH AFRICA.
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