Terms and Conditions of Subscription to Kwesé Digital Satellite Subscription Broadcasting Service by Individuals for their Private Home Use (Excluding Zimbabwe)
Terms and Conditions of Subscription to Kwesé Digital Satellite Subscription Broadcasting Service by Individuals for their Private Home Use (Excluding Zimbabwe)
Definitions and Interpretation
1. In these terms and conditions, the following words and phrases will have the meanings ascribed to them below:
1.1 “Agreement” means this Subscription agreement;
1.2 “Amendment” means an amendment of this Agreement by Kwesé of which Kwesé informs you, together with other Subscribers, electronically or via Kwesé’s Website, or using an alternative method of informing Subscribers collectively;
1.3 “Approved Decoder” means a decoder officially approved by Kwesé and which complies with Kwesé’s specifications;
1.4 “Content” means audio-visual materials, including but not limited to television channels and programming;
1.5 “Coverage Area” means the country in which your Request was made, provided the Kwesé Service is available in such country, and further provided that if you allow other persons to use your Subscription (for non-commercial purposes), the Coverage Area will be the country in which they reside, provided the Kwesé Service is available in such country;
1.6 “Econet Media Limited” means a wholly owned subsidiary of Econet Group Limited, registered in Mauritius with registration number 126321 C1/GBL, and any other person (including any legal person) to which that company may transfer its rights, obligations and interest under this Agreement;
1.7 “Equipment” means the subscriber equipment required for the receipt of the Kwesé Service in the Coverage Area, including but not limited to the Approved Decoder and the related satellite reception equipment and cabling;
1.8 “Kwesé” is the trading name of and means Econet Vision Limited, a wholly owned subsidiary of Econet Media Limited, registered in Mauritius with registration number 123243 C1/GBL, and any other person (including any legal person) to which that company may transfer its rights, obligations and interest under this Agreement;
1.9 “Kwesé Service” means Content and related services, features, facilities and applications as may be provided by Kwesé from time to time;
1.10 “Manufacturers” means the manufacturers of the Equipment;
1.11 “Personal information” means any information that you may provide to Kwesé, which can be directly linked to you. As such, this information excludes anonymized data, but does include (without limitation):
1.11.1 your full name;
1.11.2 your residential address; and
1.11.3 your contact details, including but not limited to your mobile telephone number and your email address;
1.12 “Process” or “Processing” means the collection, usage, transfer, storage or other processing of your Personal Information;
1.13 “Subscriber” means a person who requests, or who has authorised another person to request on his/her behalf, the right to access the Kwesé Service on the terms and conditions of this Agreement, whose request is accepted by Kwesé, who has paid the Subscription Fees in respect of the Kwesé Service (subject to any promotional offers), and whose access to the Kwesé Service is consequently active;
1.14 “Subscription Fees” means the fees payable for a person to access the Kwesé Service;
1.15 “Subscription” means the period during which you are enabled to access to the Kwesé Service by Kwesé in terms of this Agreement;
1.16 “User Manual” means the standard operating instructions for the Approved Decoder;
1.17 “Website” means www.kwese.com;
1.18 “you” and “your” refer to the Subscriber who is the signatory to this Agreement; and
1.19 “your Request” means your request for access to the Kwesé Service.
2. Any reference in this Agreement to:
2.1 to the singular includes the plural, and vice versa; and
2.2 to one gender includes the other gender.
3. The headings of the clauses of this Agreement are included for reference purposes only, and shall not affect the interpretation of any of its provisions.
Terms and Conditions
4. Econet Media Limited has the rights to provide the Kwesé Service, and has elected to do so via Kwesé. Econet Media Limited, via Kwesé, provides the Kwesé Service to Subscribers in numerous countries in Sub-Sahara Africa.
5. Subscribers may request access to the Kwesé Service for such period of time as may be determined by Kwesé from time to time.
6. Kwesé may in its sole and absolute discretion determine that certain aspects of the Kwesé Service will only be available in conjunction with certain other aspects of the Kwesé Service.
7. The terms and conditions on which Kwesé authorises persons to have access to the Kwesé Service are set out in this Agreement.
Your Request for Access
8. Your Request must be made in such manner and method as Kwesé may determine from time to time in its sole and absolute discretion.
9. Kwesé reserves the right to refuse your Request in its sole and absolute discretion.
10. This Agreement commences on the date on which Kwesé accepts your Request by activating your Subscription to the Kwesé Service.
11. This Agreement is binding on you and Kwesé unless and until:
11.1 Kwesé notifies you (in any manner or method) that Kwesé is terminating this Agreement with effect from a specified date; or
11.2 the period for which you have paid, and Kwesé has received, full and valid payment in respect of your access to the Kwesé Service, has expired (and your Subscription to the Kwesé Service is disabled by Kwesé as a result).
Territory of Conclusion of Agreement
12. Regardless of the place of your Request or of the acceptance of your Request by Kwesé, or any other clause or paragraph of this Agreement, this Agreement is deemed to be concluded between you and Kwesé at Kwesé’s principal place of business in Mauritius.
Your Access to the Kwesé Service
13. Kwesé does not guarantee that you will be able to access the Kwesé Service and/or all of its features at all times, or that your access will be optimal, whether at all or at all times.
14. You may only access the Kwesé Service in the Coverage Area.
15. You may only access the Kwesé Service in the Coverage Area for your own private and personal use, and within your residential dwelling, being the address provided by you to Kwesé in your Request.
16. You agree not to use your Subscription or allow your Subscription for any commercial purposes whatsoever. You may allow other persons to use your Subscription (for non-commercial purposes), but you agree that you shall be responsible for such persons’ actions and/or omissions as concerning their access to and utilization of the Kwesé Service via your Subscription, and that it is your responsibility to ensure that such persons agree to this Agreement, as well as any other applicable terms and conditions which are accessible on our Website, in which event, “you” and “your” will also refer to such persons, as applicable.
17. The particular Content that you may be able to access will depend on the Coverage Area, so not all Content that Kwesé may offer or advertise as being on offer may be available to you.
18. You agree to comply with the contents of the User Manual.
19. If there is any conflict between any provisions of this Agreement and any part of the User Manual, the provisions of this Agreement will take precedence.
Copyright and Anti-Piracy
20. You agree that you will access the Kwesé Service without breaking any laws, rules or regulations applicable anywhere in the world, especially any laws, rules or regulations with regard to copyright and anti-piracy.
21. All Content is owned by or licensed to Kwesé and/or its affiliates and/or its associated entities, and the copyright in the Content is protected by copyright laws and treaties of the relevant owners.
22. You agree not to copy, distribute, share, change, display, publish or perform any Content, or to offer any Content for sale, or otherwise use any Content for any reason or for any other purpose whatsoever other than as specifically mentioned in this Agreement.
23. The copyright owners of the Content do not transfer any title, right or interest to or in the Content or any portion of it, to you or to any person or party, and reserve all rights not specifically granted in this Agreement. You specifically agree that you will never and will never attempt to:
23.1 make unauthorised or unlawful recordings of any Content provided via the Kwesé Service; or
23.2 reproduce any Content accessed via the Kwesé Service; or
23.3 re-distribute or broadcast any Content provided via the Kwesé Service (including but not limited to file-sharing, emailing or posting of Content or any part thereof); or
23.4 display any Content in retail, business or commercial premises or for any business or commercial purpose or levy any charge for viewing the Content;
23.5 attempt to breach any security or content protection functions or systems relating to either the Kwesé Service or the Content itself (including but not limited to any watermarks); or
23.6 sublicense, transfer or assign any Content to any third party; or
23.7 edit, modify, translate or create derivative works or adaptions of any Content; or otherwise
23.8 use any Content or any portion of it except as set out in this Agreement.
24. You agree that Kwesé may supply your name, address, and usage details as regarding the Kwesé Service to the licensors of any Content in the case of any suspected unauthorised use of the Content.
25. You give Kwesé permission to monitor your Subscription and your usage of the Kwesé Service, should Kwesé reasonably suspect that you are not adhering to this Agreement, and especially to monitor any usage which infringes (or which Kwesé reasonably suspect infringes) these restrictions or the intellectual property rights of any Content owners.
26. You agree to utilize the Equipment solely for the purposes of accessing the Kwesé Service. You specifically agree that you will never and will never attempt to:
26.1 hack the software of the Approved Decoder; or
26.2 reverse engineer the Approved Decoder; or otherwise
26.3 compromise the security of the conditional access systems of the Approved Decoder.
Indemnities, Suspension and Termination
27. You agree to indemnify Kwesé, 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 Content licensors, Manufacturers or any third party whatsoever, as arising directly or indirectly from any of your actions and/or omissions with regard to this Agreement.
28. If you do anything that you have agreed not to do by agreeing to this Agreement, Kwesé may suspend or terminate your Subscription immediately, discontinue your use of Kwesé Service immediately, and may claim any losses or damages that Kwesé may have suffered as a result.
29. The termination of this Agreement will not affect:
29.1 Kwesé’s or your rights or remedies with regard to the period prior to termination; or
29.2 those rights and obligations which this Agreement intends, either expressly or by implicitly, will survive beyond such termination.
30. Subject to any promotional offers:
30.1 Kwesé provides the Kwesé Service on a pre-paid basis; and
30.2 only once you have made a pre-payment to Kwesé or its duly authorised representative for the Kwesé Service of the Subscription Fees, will your Subscription will be activated, for such period for which you have made such pre-payment.
31. Should any promotional offer be applicable, you may have access to the Kwesé Service without the payment of Subscription Fees for the period as set out in such promotional offer, but such access will end once such period expires, unless and until the payment of Subscription Fees is made.
Your Privacy and Permissions
32. You consent for Kwesé to Process Your Personal Information in the various jurisdictions in which it may operate:
32.1 for marketing, advertising and promotional purposes;
32.2 for survey purposes;
32.3 for purposes related to the provision of the Kwesé Service, including but not limited to recommendation of Content;
32.4 to comply with legal and/or regulatory requirements;
32.5 for accounting and billing purposes;
32.6 in order to conduct investigations in order to protect any of your rights or any of ours or those of a third party (especially Kwesé’s Content providers); and/or for
32.7 the provision of miscellaneous administrative support services
(collectively “Process Purposes”).
33. Kwesé’s affiliates and associated entities, as well as their respective agents and employees (collectively “Kwesé Parties”), as well as third parties appointed to provide products or services to Kwesé (including Kwese’s overseas 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.
34. You consent to the transfer of your Personal Information to the Kwesé 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 Parties and Third Party Service Providers, for the Process Purposes.
35. Kwesé will so transfer and Process your Personal Information in accordance with applicable laws and regulations, and will ensure that the Kwesé Parties also adhere to such requirements.
36. The security of your Personal Information is extremely important to Kwesé. While Kwesé will exercise all reasonable efforts to safeguard your Personal Information, unless such is compulsory under applicable law and/or regulations, Kwesé does not guarantee the absolute security of your Personal Information, and, unless Kwesé is required to be under applicable law and/or regulations, Kwesé shall not be liable for any breaches of confidentiality and/or security as regarding your Personal Information.
37. You agree to receive software upgrades, software amendments and/or software replacements from Kwesé from time to time, via your Approved Decoder, should Kwesé deem it necessary.
38. You agree to receive communications from Kwesé with regard to the Process Purposes, including but not limited to the following methods:
38.2 telephone calls;
38.3 via your Approved Decoder as displayed onscreen;
38.4 SMS/mobile phone texts; and/or via
38.5 notices posted by Kwesé on the Website.
39. You consent to receive notices from Kwesé via one or all of the above methods for all contractual purposes.
Installation of Equipment
40. While Kwesé recommends that accredited installers be used for the installation and set-up of the Equipment, you acknowledge and agree that such installers act as independent contractors, and that they are not in any way agents, subcontractors or employees of Kwesé. You contract with the accredited installer directly.
41. As the accredited installers are independent contractors, you agree that neither Kwesé nor the Manufacturers will be liable to you or any party whatsoever for any loss, injury or damage that may howsoever be suffered by you or any party as a result of any action and/or omission of any accredited installer.
42. You accordingly agree that it is not the responsibility of Kwesé to ensure that the Equipment is installed and/or set up correctly.
Warranty on Equipment
43. For a period of 12 (twelve) months as from the date of purchase, Kwesé warrants that the Equipment will be free from defects resulting from faulty material, defective workmanship or component failure.
44. Should you believe that the any component of the Equipment which you have purchased suffers from any such defect, please return it to the point of purchase, for inspection by Kwesé or its duly authorized representative. Should such defect be confirmed upon testing, it shall be replaced, free of charge, by Kwesé or its duly authorized representative.
45. Kwesé makes no warranty with regard to any defective component of the Equipment:
45.1 should the defect have arisen due to any misuse, neglect, accident, abuse or tampering; or
45.2 should the defect have arisen due to any act of God, including but not limited to lightning strikes; or
45.3 if any warranty seals have been broken.
46. As regarding the Kwesé Service, you may experience degradation of quality, interruption in service or total loss of service, from time to time, due to factors and/or causes beyond Kwese’s control.
47. Certain Content may be subject to age restrictions or contain strong language or other material which may be inappropriate for younger viewers. Kwesé will attempt to inform you as regarding any such Content, but it remains your sole responsibility to control access to any such Content.
48. Kwesé makes no warranties or representations as to the Content, whether with regard to quantity, quality, genre, repeat patterns or the accuracy and/or truthfulness of any information.
49. Kwesé may add to, change or withdraw any Content at any time, for reasons including but not limited to expiration of the licence for such Content. As such, any Content, once available, might not always be available.
50. Kwesé may add to, change or withdraw any aspect of the Kwesé Service at any time, for reasons including but not limited to technical changes. As such, any aspect of the Kwesé Service, once available, might not always be available.
51. Kwesé may amend the fees payable with regard to the Kwesé Service from time to time, and such amendments shall be notified via an Amendment.
52. Neither Kwesé nor its affiliates, its associated entities, or any of their directors, employees, agents, subcontractors or distributors, shall be liable to you or to any third party with regard to any aspect of the Kwesé Service whatsoever, including but not limited to any aspect of the Content.
53. Kwesé, its affiliates and its associated entities, as well as their directors, employees, agents, subcontractors and distributors, exclude any and all responsibility with regard to you and all third parties, for any losses, expenses or liability or any nature whatsoever which you and/or any third party may suffer, whether such are directly or indirectly related to any aspect of the Kwesé Service whatsoever, including but not limited to any aspect of the Content.
54. You agree that Kwesé can assign, transfer or cede any of its rights or obligations under this Agreement to any other person or entity, without notifying you or the need for your permission.
55. You agree to be bound by this Agreement or the User Manual as amended from time to time.
56. Kwesé may amend this Agreement from time to time by way of an Amendment.
57. You agree to be bound by such Amendment from the date specified by Kwesé when making the Amendment.
58. This Agreement constitutes the sole and complete record of the agreement between you and Kwesé in regard to its subject matter, and supersedes any previous agreement between you and Kwesé in terms of which you may have been authorised to have access to the Kwesé Service.
59. Neither you nor Kwesé is bound by any express or implied representation, warranty, undertaking, promise or the like not recorded in this Agreement.
60. Any relaxation or indulgence which Kwesé may show you at any time in regard to this Agreement is without prejudice to, and does not constitute a waiver of, any rights Kwesé may have, either in terms of this Agreement or any law.
61. If any provision of this Agreement is found to be wholly or partly invalid, unenforceable or unlawful, then this Agreement will be severable in respect of the provision in question to the extent of its invalidity, unenforceability or unlawfulness, and the remaining provisions of this Agreement will remain in full force and effect.
62. The rule of construction that this Agreement will be interpreted against the party responsible for the drafting or preparation of this Agreement will not apply.
63. You may not cede any of your rights and/or assign any of your obligations under this Agreement to any other person.
64. This Agreement is subject to, and will be interpreted, implemented and enforced, in terms of the laws of the Republic of Mauritius.
65. You irrevocably submit to the jurisdiction of the relevant courts of the Republic of Mauritius, in respect of all proceedings arising out of or pursuant to this Agreement.
66. You choose the address for the service on you of all legal notices and processes arising out of this Agreement to be the physical address as supplied by you to Kwesé when making your Request.
67. Kwesé chooses the address for the service on it of all legal notices and processes arising out of this Agreement to be as follows:
10th Floor, Standard Chartered Tower, 19 Cybercity, Ebene, Mauritius.