End User Agreement for Kwesé Play Device and Kwesé Play Channel Store
End User Agreement for Kwesé Play Device and Kwesé Play Channel Store
END USER AGREEMENT
(FOR KWESÉ PLAY DEVICE AND KWESÉ PLAY CHANNEL STORE)
IMPORTANT: READ THIS AGREEMENT CAREFULLY BEFORE YOU USE THE KWESÉ PLAY DEVICE. ALSO REVIEW THE IMPORTANT PRODUCT INFORMATION THAT HAS BEEN PROVIDED WITH YOUR KWESÉ PLAY DEVICE.
This End User Agreement (“EUA”) governs your use of: (a) the Kwesé Play device (“Device”); (b) any firmware and software that may have been pre-installed on the Device, and the firmware and software updates that may be provided to you for the Device (collectively, the “Software”); and (c) the storefront of applications provided by Kwesé Play via the Device’s on-screen menu (“Channel Store”).
Certain components of the Software are provided under separate third party licence terms (“Separately Licensed Code”) and your right to use such components is governed by such licence terms. Please visit www.roku.com/separatelylicensedcode for more information.
In this EUA, “Channel” means an application in the Channel Store; “Content” means movies, television shows, music and other audio and visual materials and entertainment; and “Content Provider” means any provider of Content, including but not limited to Kwesé Play.
By utilizing the Device, you agree to be bound by this EUA. If you do not agree to this EUA, you do not have the right to use the Device, the Software or the Channel Store.
Kwesé Play may change this EUA from time to time. Such changes shall apply from the time Kwesé Play makes such changes. Any updated EUA will be posted on the website of Kwesé Play (www.kwese.com/play) (“Website) or via the Device or your Kwesé Play account. Kwesé Play may also notify you of the amended EUA by sending a notice to you via your email address as you have provided to Kwesé Play. By continuing to use the Device after this EUA is updated, you are agreeing to any changes as posted by Kwesé Play. If you do not accept any updated EUA, you shall no longer have the right to use the Device, the Software or the Channel Store.
This EUA are in addition to any terms, conditions or limitations set out in your contract with your internet service provider (“ISP”), or any other applicable terms and conditions, usage rules and/or restrictions as may be set out on the Website from time to time, with which this EUA must be read.
Please note that this EUA creates a legally binding agreement between you and Kwesé Play. Headings in this EUA are for convenience only and shall not be used in its interpretation.
Permitted Use and Restrictions
Kwesé Play provides the Device, the Software and the Channel Store for domestic, personal and private use only. You may not use any of them for any commercial or illegal purpose. Copying or redistribution of any Content delivered via the Device and/or Channel Store is strictly prohibited, and Kwesé Play may prevent or restrict you from copying or re-distributing any elements of the Software or the Content using digital rights management or other technologies. The Device and the Software are for use only in those countries specified on the Website, and where Kwesé Play may make the Device and Software available via its authorized distributors. You may not be able to use the Device or the Software to access any Content outside of the country or location authorized by Kwesé Play or the Content Provider.
You do not acquire any intellectual property or other proprietary rights in or to the Device, the Software, the Content or the Channel Store, including, without limitation, any rights in patents, inventions, improvements, designs, trademarks, database rights or copyrights, nor do you acquire any rights in any confidential information or trade-secrets. All rights not expressly granted to you in this EUA regarding all of the foregoing are reserved by Kwesé Play or its applicable licensors. You may not remove, obscure, alter or conceal any trademark, logo, copyright or other proprietary notice in or on any Device, Software, Content or Channel Store.
The Software is proprietary to Kwesé Play or its third party licensors and may be used only with the Device. Subject to this EUA and, where appropriate, the applicable third party licences, you have a non-exclusive, non-transferable licence to run the Software and any updated versions provided to you by Kwesé Play, only in and as incorporated in the Device. This is a licence and not a sale. You may not: (a) copy, assign, sublicense, lease, sell or rent the Software; (b) modify, adapt, translate, or create derivative works of the Software; (c) decompile, disassemble, reverse engineer or otherwise derive source code from the Software; (d) defeat, bypass, circumvent or interfere with any security mechanism or access control measures with regard to the Software, or attempt to do so; or (e) have any of the foregoing done for you by a third party. This licence does not include the right to receive Software upgrades or updates. Your right to use the Device and the Software will immediately terminate upon your breach of this EUA.
In its sole discretion, Kwesé Play may provide updates to your Device via the internet, including bug fixes and updates, changes in the user interface or how you access content, and other changes that may add, alter or remove functionalities and features. You acknowledge that these updates: (a) may happen automatically in the background at any time (and that they cannot be disabled by you); and (b) will require an internet connection, and that you may incur additional data charges from your ISP. You understand that these updates are necessary to maintain compatibility with other updates to Kwesé Play’s products or services and may be required for security reasons. By using the Device, you hereby agree to receive such updates.
Kwesé Play Channel Store
By accessing the Channel Store, you are agreeing to be bound by the terms and conditions of this EUA. If you do not agree to these terms and conditions, you are not granted any right to access the Channel Store.
Your Device is enabled to permit users to access Content provided by Content Providers. In order to access Content available in the Channel Store, you must first set up a Kwesé Play account. You agree to provide accurate and complete information when you set up your Kwesé Play account, and you agree to promptly update your account information (including contact information) to keep it accurate and complete. You can do this at any time by signing in to your Kwesé Play account.
You must adhere to Kwesé Play’s terms of service and to the terms of service of any Content Provider whose Content you choose to access. Kwesé Play may add or remove Content Providers from time to time, in its sole discretion. Kwesé Play and its licensors reserve the right to remove from your Device your access to certain Content if Kwesé Play or its licensors has reason to believe that it is not properly authorized or licensed, violates any law, or has been offered by a Content Provider in violation of any applicable agreement. You are responsible for ensuring that any age-restricted Content is not viewed by any person not meeting the applicable age limits, as specified by law, regulation or the Content Provider.
Disclaimer and Limitation of Liability
To the maximum extent permitted by applicable law, and except for the limited warranty accompanying your Device, the Device, the Software and Channel Store are provided “as is” and “as available”, and Kwesé Play and its licensors hereby disclaim all warranties and conditions, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of reliability or availability, of accuracy, of workmanlike effort, of lack of viruses, or reasonable care and skill, or non-infringement of third party rights. Kwesé Play and its licensors do not warrant that the functions contained in or provided by any of the foregoing will meet your requirements or that the operation of any of the foregoing will be uninterrupted or error-free.
Kwesé Play will not be liable for:
- any fault in the Device caused by you tampering with it;
- your negligence or failure to follow Kwesé Plays instructions or the information provided with the Device;
- any fault in the Device or any other equipment you use with the Device if it was not supplied by Kwesé Play;
- any failure caused by events outside Kwesé Play’s reasonable control;
- any Content provided by or originating from third parties and/or Kwesé Play via the Device and/or the Channel Store; or
- any loss or damage caused by Kwesé Play or any of its respective employees or agents to the extent that such loss or damage results from any breach by you of any of the conditions of your purchase of the Device or any provision of this EUA.
In no event will Kwesé Play, its licensors, or suppliers be liable for any consequential, special, punitive, incidental and indirect damages, or for loss of revenue or profits or data or use or for the cost of substitute goods, whether in contract or delict (including negligence), arising out of, or in connection with the Device, the Software or the Channel Store.
In no event will Kwesé Play’s or its licensors’ or suppliers’ total cumulative liability relating to the Device, the Software and/or the Channel Store, exceed the purchase price of the Device.
You agree to indemnify Kwesé Play, its affiliates and its associated entities, as well as their directors, employees, agents, subcontractors and, and to hold them harmless, against any losses or damages that any of them may suffer, with regard to any third party whatsoever, as arising directly or indirectly from any of your actions and/or omissions with regard to this EUA.
Kwesé Play does not exclude or limit in any way its liability for: death or personal injury caused by Kwesé Play’s gross negligence or the gross negligence of Kwesé Play’s employees, agents or subcontractors; fraud or fraudulent misrepresentation; and/or any other liability that cannot be excluded or limited by applicable law.
As a consumer, you have legal rights under applicable law in relation to the Device, the Software and the Channel Store, that are faulty or not as described.
Your Privacy and Permissions
“Personal information” means any information that you may provide to Kwesé Play, which can be directly linked to you. As such, this information excludes anonymized data, but does include (without limitation): your full name; your residential address; and your contact details, including but not limited to your mobile telephone number and your email address; and “Process” or “Processing” means the collection, usage, transfer, storage or other processing of your Personal Information.
You consent for Kwesé Play to Process Your Personal Information:
- for marketing, advertising and promotional purposes;
- for survey purposes;
- for purposes related to the provision of the Channel Store, including but not limited to recommendation of Content;
- to comply with legal and/or regulatory requirements;
- for accounting and billing purposes;
- in order to conduct investigations in order to protect any of your rights or any of ours or those of a third party (especially Content Providers); and/or for
- the provision of miscellaneous administrative support services
(collectively “Process Purposes”).
Kwesé Play’s affiliates and associated entities, as well as their respective agents and employees (collectively “Kwesé Play Parties”), as well as third parties appointed to provide products or services to Kwesé Play (including Content Providers) or on its behalf (collectively “Third Party Service Providers”), may be required to Process your Personal Information in the various countries in which any of them may operate, for the Process Purposes.
You consent to the transfer of your Personal Information to the Kwesé Play Parties and Third Party Service Providers, in the countries in which any of them may operate, as well as the Processing of your Personal Information in such countries by the Kwesé Play Parties and Third Party Service Providers, for the Process Purposes.
Kwesé Play will so transfer and Process your Personal Information in accordance with applicable laws and regulations, and will ensure that the Kwesé Play Parties also adhere to such requirements.
The security of your Personal Information is extremely important to Kwesé Play. While Kwesé Play will exercise all reasonable efforts to safeguard your Personal Information, unless such is compulsory under applicable law and/or regulations, Kwesé Play does not guarantee the absolute security of your Personal Information, and, unless Kwesé Play is required to be under applicable law and/or regulations, Kwesé Play shall not be liable for any breaches of confidentiality and/or security as regarding your Personal Information.
Kwesé Play, its licensors, and the Content Providers reserve the rights to deliver and display advertising and promotional messages to you via the Device and to include such advertising and promotional messages in or with any user interface, notices or Content that are displayed via the Device.
Some of the Content Providers use technologies to verify your geographic location, and you agree for them to so locate you.
You agree to receive communications from Kwesé Play with regard to the Process Purposes, including but not limited to the following methods:
- telephone calls;
- via the Device;
- SMS/mobile phone texts; and/or via
- notices posted by Kwesé Play on its Website.
You consent to receive notices from Kwesé Play via one or all of the above methods for all legal notices.
This EUA constitutes the sole and complete record of the agreement between you and Kwesé Play in regard to its subject matter, and supersedes any previous agreement between you and Kwesé Play. Kwesé Play is not bound by any express or implied representation, warranty, undertaking, promise or the like not recorded in this EUA. The rule of construction that an agreement will be interpreted against the party responsible for the drafting or preparation of an agreement will not apply. Kwesé Play may transfer its rights and obligations under this EUA to another organization, but this will not affect your rights or Kwesé Play's obligations under this EUA. You may only transfer your rights or your obligations under this EUA to another person if Kwesé Play agrees in writing. This EUA is between you and Kwesé Play. No other person shall have any rights to enforce these terms. Each of the paragraphs of this EUA operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect. Your right to use the Device, Software and the Channel Store will immediately terminate upon your breach of any applicable provision of this EUA. If Kwesé Play fails to insist that you perform any of your obligations under this EUA, or if Kwesé Play does not enforce its rights against you, or if Kwesé Play delays in doing so, that will not mean that Kwesé Play has waived its rights against you, or that you do not have to comply with those obligations. If Kwesé Play does waive a default by you, Kwesé Play will only do so in writing, but that will not mean that Kwesé Play will automatically waive any later default by you. This EUA shall be governed by and construed in accordance with South African law and any dispute regarding these terms shall be subject to the exclusive jurisdiction of the South African courts.
“Kwesé” and “Kwesé Play” are trading names of Econet Media Limited, registered in Mauritius under company registration number 126321 C1/GBL. Its principal address is 10th Floor, Standard Chartered Tower, 19 Cybercity, Ebene, Republic of Mauritius.
“Kwesé” and “Kwesé Play” are trademarks of Econet Media Limited and/or its affiliates.