Kwesé Play - End user agreement | Kwesé

Kwesé Play - End user agreement

Kwesé Play - End user agreement

14:45 SAST | 04 Oct 2018

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.

LAST MODIFIED: 28 SEPTEMBER 2018

General
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 (http://kweseplay.tv) (“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.

Software Updates
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:
•    email;
•    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.

Miscellaneous

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.

Terms and Conditions of Access to Kwesé Website ("Website Terms and Conditions")

Welcome to Kwesé! From here, "we", “our" or "us" refers to Kwesé. 

These Website Terms and Conditions are valid, binding and enforceable against all persons that access the website, being kweseplay.tv ("Website"). 

Should you not agree to be bound by these Website Terms and Conditions, you may not access this Website, as accessing this Website shall automatically bind you to these Website Terms and Conditions.

We may change these Website Terms and Conditions from time to time. Such changes shall apply from the time we make such changes. Any updated Website Terms and Conditions will be posted on our Website. If you do not agree with our updated Website Terms and Conditions, you should no longer access the Website.

Please note that these Website Terms and Conditions create a legally binding agreement between you and us.

If any part of these Website Terms and Conditions are found be to invalid, illegal or unenforceable, the remaining parts will continue to apply and be of full force and effect.

1.    Access to our Website

We give your permission to access our Website, provided that you do so in terms of any other of our terms and conditions as may be applicable, and further provided that you do so for personal and/or non-commercial use only.

You agree that you will not access the Website for purposes of commercial gain, in order to conduct any illicit or illegal activity or in order to send any unsolicited commercial communications.

While we have made every attempt to ensure that the information as contained on the Website is accurate and correct, we do not guarantee the accuracy and/or correctness of any information that is contained on the Website, nor do we guarantee the availability of any services offered on/via the Website. All information contained on the Website is made available without any warranty of any kind, either express or implied. All services offered on/via this Website are also offered without any warranty of any kind, either express or implied.

In no event shall we or any of our subsidiary companies, affiliated companies, agents, employees or any of our holding companies (“Kwesé Parties”) be in any way liable to you or anyone else for any adverse results whatsoever (including but not limited to any losses, damages, expenses and/or injuries of any kind whatsoever suffered or incurred by you or anyone else), no matter how such occurs, that may occur as a result of you accessing the Website, your inability to access the Website, you using or placing any reliance on any information contained on the Website, or you availing yourself of any services offered on/via the Website. You therefore access the Website, use and/or place any reliance on any information contained on the Website, and/or avail yourself of any services offered on/via the Website, at your sole and own risk.

We reserve the right, at our sole and absolute discretion, to alter, modify, update, suspend or withdraw the Website or any part of it at any time, without prior notice or justification to you. 

From time to time, hyperlinks may exist on the Website to the websites of third parties. The websites of such third parties are not proprietary to us, nor do we or any of the Kwesé Parties exercise any measure of control over such third party websites. Accordingly, neither we nor any of the Kwesé Parties makes any representations whatsoever as to the accuracy or any other aspect of the information contained on such third party websites, nor as to the availability or any other aspect of the services that may be offered on such third party websites. You therefore access such third party websites, use and/or place any reliance on any information contained on such third party websites, and/or avail yourself of any services offered on such third party websites, at your sole and own risk.

2.     Ownership of the Website 

The Website, as well as its entire contents as may change from time to time, are proprietary to us or to third parties who have given us permission to use their intellectual property on our Website. As such, any unauthorised copying of any material contained on the Website or unauthorised usage of any intellectual property contained on the Website, especially with regard to any logos, is expressly prohibited.

3. Details of Website

Full name, legal status and address of Website owner

Kwesé Play Limited (trading as “Kwesé Play”), a company registered in Mauritius under company registration number C138297 C2/GBL, with its registered address at 10th Floor, Standard Chartered Tower, 19 Cybercity, Ebene, Mauritius.

4. General

We may use your personal information to send you marketing information, including special offers, customer surveys and other communications in accordance with the Kwesé Privacy Policy, which is accessible on the Website.  

You agree that we can assign, transfer or cede any of our rights or obligations under these Website Terms and Conditions to any other person or entity, without notifying you or the need for your permission.

These Website terms and conditions are governed by and subject to the laws of the country from which you are accessing the Website, and you submit to the exclusive jurisdiction of the courts of such country in respect of all proceedings arising out of or in connection with these Website Terms and Conditions.

“Kwesé” and “Kwesé Play” are trading names of Kwesé Play Limited, registered in Mauritius under company registration number C138297 C2/GBL. Our principal address is the 10th Floor, Standard Chartered Tower, 19 Cybercity, Ebene, Mauritius.

Kwesé is a trade mark of Econet Media Limited and/or its affiliates.

Kwesé Privacy Policy   

Welcome to Kwesé! From here, "we", "our" or "us" refers to Kwesé. 

The Kwesé Privacy Policy is valid, binding and enforceable against all persons that access our website, which is kweseplay.tv ("Website"). 

Should you not agree to be bound by the Kwesé Privacy Policy, you may not access the Website, as accessing the Website shall automatically bind you to this Kwesé Privacy Policy.

We may change the Kwesé Privacy Policy from time to time in our sole discretion, and without notifying you. Such changes shall apply from the time that we make such changes. Any updated Kwesé Privacy Policy will be posted on our Website. If you do not agree with our updated Kwesé Privacy Policy, you should no longer access the Website or use the Kwesé Service or order any Goods.

Please note that the Kwesé Privacy Policy creates a legally binding agreement between you and us.

If any part of the Kwesé Privacy Policy is found be to invalid, illegal or unenforceable, the remaining parts will continue to apply and be of full force and effect.

3.    General permissions given by you

"Personal information" means any information that you may provide to us, which can be linked to you. As such, “personal information” excludes anonymized data, but does include (as examples):

•    your name;

•    your address; and

•    your contact details.

You consent for us to collect, use, transfer, store or otherwise process (“Process” or “Processing”) your personal information in the various jurisdictions in which we may operate:

•    for marketing, advertising and promotional purposes;
•    for survey purposes;
•    for purposes related to the provision of the Kwesé Service, including but not limited to recommendation of programming content;
•    for purposes related to the ordering, sale and delivery of Goods, including but not limited to validating your payment;
•    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 our content providers); and/or for
•    the provision of miscellaneous administrative support services

(collectively “Process Purposes”).

We, along with our subsidiary companies, affiliated companies, agents, employees and our holding companies (“Kwesé Parties”), as well as third parties appointed to provide products or services to us (including our overseas content providers) or on our behalf (“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 for such transfer of your personal information to such jurisdictions, as well as the Processing of your personal information in such jurisdictions, by us, the Kwesé Parties and/or Third Party Service Providers.

We will so transfer and Process your personal information in accordance with applicable law and regulations, and will ensure that the Kwesé Parties also adhere to such requirements. 

The security of your personal information is extremely important to us. However, unless such is compulsory under applicable law and/or regulations, we do not guarantee the absolute security of your personal information, and, unless we are required to be under applicable law and/or regulations, we are not liable for any breaches of confidentiality and/or security as regarding your personal information.

2. Specific permissions given by you

a.    How we may communicate with you

You agree to receive communications from us with regard to the Process Purposes (except that we will not send you communications for marketing, advertising or promotional purposes, unless you have given us permission to do so), whether via:

•    email;
•    telephone calls;
•    SMS or texts; and/or via 
•    notices posted by us on our Website.

You consent to receive notices via one or all of the above methods for all contractual and legal purposes.

b.    Use of cookies

A cookie is a small piece of text sent to your browser by our Website when you visit it. It helps our Website to remember information about your visit, like your preferred language and other settings. That can make your next visit easier and the site more useful to you. Cookies play an important role. Without them, using our Website would be a frustrating experience.

We use cookies to help identify your Device (as defined in the OBS Terms and Conditions, accessible on our Website), so we can tailor your experience of our Website. We cannot personally identify you via cookies.

Session cookies allow us to track your actions during a single browser session; for example, to remember the items returned from a search. They do not remain on your Device beyond your session.

Persistent cookies remain on your Device between sessions. They allow us to authenticate you, and to remember your preferences, and so enhance your experience of our Website.

Session and persistent cookies can be either first or third-party cookies. A first-party cookie is sent by our Website when you visit it. A third-party cookie may be sent by a website which is not our Website. 

Our Website uses a mixture of first-party, session and persistent cookies to enhance your experience of it. The only third-party cookies used by us are those provided by Google Analytics to gather anonymised information to compile statistics. 

By using our Website, you consent to accept such cookies and their use. You can disable any cookies already stored on your Device, or restrict cookie use through your browser settings, but if you do these things, the could prevent our Website from functioning and/or displaying as intended on your Device, and you may also as a result not be to access certain features of our Website.

We shall own and retain all rights in and to any non-personal statistical information that may be collected and compiled by us.

c.    If you are a Subscriber

If you access Subscription Content (as defined in the OBS Terms and Conditions, accessible on our Website), then you consent for us to use your IP address and Device location details, to verify that you are authorised to access Subscription Content. 

Our programming content licences (“Content Licences”) are country and account specific. It is therefore important that we collect your contact details including name, email address phone details, username and passwords during registration to manage your access to the Kwesé Service, and to ensure that the Kwesé Service is being accessed by you in accordance with our Content Licences. 

3. Ownership of the Website 

The Website, as well as its entire contents as may change from time to time, are proprietary to us or to third parties who have given us permission to use their intellectual property on our Website. As such, any unauthorised copying of any material contained on the Website or unauthorised usage of any intellectual property contained on the Website, especially with regard to any logos, is expressly prohibited.

4. Details of Website

a. Full name, legal status and address of Website owner

Kwesé Play Limited (trading, amongst under other names, as “Kwesé Play”), a company registered in Mauritius under company registration number C138297 C2/GBL, with its registered address at 10th Floor, Standard Chartered Tower, 19 Cybercity, Ebene, Mauritius.

4. General

You agree that we can assign, transfer or cede any of our rights or obligations under the Kwesé Privacy Policy to any other person or entity, without notifying you or the need for your permission.

The Kwesé Privacy Policy is governed by and subject to the laws of the country from which you are accessing the Website, and you submit to the exclusive jurisdiction of the courts of such country in respect of all proceedings arising out of or in connection with the Kwesé Privacy Policy.

"Kwesé" and "Kwesé Play" are trading names of Kwesé Play Media Limited, registered in Mauritius under company registration number C138297 C2/GBL. Our principal address is the 10th Floor, Standard Chartered Tower, 19 Cybercity, Ebene, Mauritius.

Kwesé is a trade mark of Econet Media Limited and/or its affiliates.
 

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