Terms and Conditions
Definitions and Interpretation
1. In these Terms and Conditions the following terms shall bear the following meanings :
1.1 “Coverage Area” means the geographic area within which a transmitter or group of transmitters transmit the DVB-H Bouquets;
1.2 “DStv Mobile” means Multichoice Namibia (Pty) Ltd, a private company incorporated in accordance with the laws of the Republic of Namibia, with registered offices at 161 Nelson Mandela Avenue, Windhoek;
1.3 “DVB-H Bouquet(s)” means the package of content channels provided and distributed by DStv Mobile to the Subscriber using the DVB-H standard;
1.4 “Related Products” means the various systems which DStv Mobile may use or deem necessary for or associated with the provision of the DVB-H Bouquet(s), and the facilities used by DStv Mobile for or ancillary to the DVB-H Bouquet(s), such as technical services, the content security management system, the software operating system, software applications and subscriber management services;
1.5 “Service Provider” means a person, including a juristic person, who is authorized by DStv Mobile to facilitate the Subscriber’s access to the DVB-H Bouquet(s);
1.6 “Subscriber” means a person who requests, and is authorized access to the DVB-H Bouquet(s) provided by DStv Mobile;
1.7 “Subscriber Equipment” means the subscriber equipment required for the receipt of the DVB-H Bouquet(s), including the handheld devices;
1.8 “Subscription Fee(s)” means the fee(s) charged for activation and/or access to the DVB-H Bouquet(s), as determined by DStv Mobile from time to time;
1.9 “Subscription Period” means a period, determined by DStv Mobile from time to time, during which the Subscriber’s subscription to the DVB-H Bouquets will be active, commencing on the date on which DStv Mobile authorizes a Subscriber’s access to the DVB-H Bouquet(s) and ending when the period for which the subscriber has paid, and DStv Mobile has received full and valid payment of, the subscription fee has expired;
1.10 “Terms and Conditions” means the terms and conditions set out in this document, as amended from time to time;
1.11 “VAT” means Value Added Tax.
2. Any reference in these Terms and Conditions :
2.1 to the singular includes the plural, and vice versa; and
2.2 to one gender includes the other gender.
3. Introduction
These Terms and Conditions are binding on and enforceable against all Subscribers to the DVB-H Bouquet(s) provided by DStv Mobile.
4. The Subscriber, by subscribing to the DVB-H Bouquet(s), agrees to be bound by these Terms and Conditions effective from the date on which DStv Mobile authorizes the Subscribers access to the DVB-H Bouquet(s).
5. These Terms and Conditions shall be binding on the Subscriber and DStv Mobile unless and until :
5.1 DStv Mobile notifies the Subscriber (in any manner, whether verbally, electronically, telephonically or in writing) that it is terminating this agreement with effect from a specified date; or
5.2 the Subscription Period for which the Subscriber has paid, and DStv Mobile has received full and valid payment of the fees in terms of these Terms and Conditions expires and the Subscriber has not yet renewed the subscription for a subsequent period and access to the DVB-H Bouquet(s) is discontinued by DStv Mobile.
6. DStv Mobile reserves the right, in its sole discretion, to vary or amend these Terms and Conditions from time to time. In this event, DStv Mobile will post the revised Terms and Conditions on its website and notify the Subscriber thereof prior to the amended Terms and Conditions becoming effective.
DVB-H Bouquets and Related Products
7. DStv Mobile will provide and transmit the DVB-H Bouquet(s) to the Subscriber subject to, and in accordance with, these Terms and Conditions.
8. DStv Mobile does not provide Subscribers with :
8.1 access to stand-alone programmes or channels; or
8.2 the option to subscribe for a portion of the Subscription Period,
although DStv Mobile reserves the right to do so in the future.
9. The channels provided on the DVB-H Bouquet(s) may from time to time change. Any such change will be at the sole discretion of DStv Mobile.
10. DStv Mobile may replace, remove or otherwise amend any aspect of the DVB-H Bouquet(s), including, but not limited to :
10.1 any facets, applications, facilities, features and/or functionality of the DVB-H Bouquet(s);
10.2 the range, nature and format of the DVB-H Bouquet(s); and
10.3 the content of the DVB-H Bouquet(s), including but not limited to the number, nature, composition and content of specific Bouquet(s) and the number, nature, composition and content of specific channels, including (without limitation) adding new programming, channels, services and/or Bouquet(s), and replacing, removing or otherwise amending others.
11. In order to ensure continued receipt of the DVB-H Bouquet(s); the Subscriber shall allow DStv Mobile to amend the software which is a part of the Subscriber Equipment and/or the Related Products by means of software downloads in order to address any bug fixes relating to software, to improve security, to provide additional functionality and to ensure that the Subscriber Equipment is not authorized to receive or decrypt broadcasting signals other than those authorized by DStv Mobile.
12. The Subscription Period will continue to run regardless of whether the Subscriber utilizes the DVB-H Bouquet(s) and regardless of whether the Subscriber is in the Coverage Area.
13. Unless otherwise indicated by DStv Mobile and/or the Subscriber, the Subscriber’s subscription will be automatically renewed at the end of the Subscription Period and such renewal shall be governed by these Terms and Conditions at the date of renewal. The Subscriber will however be notified that his subscription is about to expire and will be renewed unless the Subscriber notifies DStv Mobile and/or the Service Provider otherwise.
14. Where the Subscriber requests DStv Mobile to change his selected DVB-H Bouquet(s) or to cease providing one or more of the DVB-H Bouquets during a Subscription Period, such change will only take effect at the end of that Subscription Period.
15. The Subscriber may only use Subscriber Equipment approved and specified by DStv Mobile to receive and/or decrypt the DVB-H Bouquet(s).
16. The Subscriber may only use the Subscriber Equipment in a manner authorized by DStv Mobile.
17. The Subscriber may only receive and/or use the DVB-H Bouquet(s), the Related Products and the Subscriber Equipment for private, personal or domestic use.
18. The Subscriber may not, nor may s/he whether intentionally or negligently permit any other person to :
18.1 receive and/or use the DVB-H Bouquet(s) and Related Products other than as set out in clause 17 above;
18.2 charge any person a fee or receive any financial or other benefit from permitting any person or persons to view or use the DVB-H Bouquet(s);
18.3 use the DVB-H Bouquet(s) and Related Products for any other commercial or public purpose;
18.4 access any aspect of the DVB-H Bouquet(s) other than those aspects to which DStv Mobile has authorized the Subscriber to have acces
18.5 copy any of the content of the DVB-H Bouquet(s);
18.6 hack, reverse engineer or otherwise compromise the content security management system and/or other software used on the Subscriber Equipment;
18.7 connect the Subscriber Equipment to viewing devices not approved for use with your Subscriber Equipment, including, but not limited to, television sets and projectors; or
18.8 permit, facilitate or condone any other person doing any of the prohibited activities in clauses 17 & 18.
19. The Subscriber understands that the use of the DVB-H Bouquet(s) may include and/or rely on a technological security framework designed to protect the DVB-H Bouquet(s) against unauthorized use, which framework shall be automatically implemented at the commencement of the Subscription Period. The Subscriber hereby agrees to such implementation in respect of the DVB-H Bouquet(s), which may include the disconnection or discontinuation of any features of the Subscriber Equipment which facilitate unauthorized use of the DVB-H Bouquet(s). Failure by DStv Mobile to implement the whole or part of the security framework will not constitute a grant or waiver of any of its rights, resulting from unauthorized use of the DVB-H Bouquet(s), in terms of this agreement.
20. The Subscriber indemnifies DStv Mobile and its affiliated companies, and their directors officers, employees, agents and representatives against any claim by a third party in respect of a breach by the Subscriber of clause 17 and 18.
Fees
21. DStv Mobile reserves the right to charge a Subscription Fee for activation of and access to the DVB-H Bouquet(s), in which case the following conditions will apply.
21.1 In order to access the DVB-H Bouquet(s), the Subscriber shall be required to pay the applicable Subscription Fee(s), plus VAT, as amended from time to time;
21.2 The DVB-H Bouquet(s) will be provided to the Subscriber on a “pre-paid” basis. The DVB-H Bouquet(s) will only be activated once the full Subscription Fee has been paid.
21.3 In addition to the Subscription Fee(s) the Subscriber will be liable to pay :
21.3.1 any data or other charges that may be levied by the mobile operators for delivery of encryption keys to the Subscriber Equipment; and
21.3.2 all other taxes, duties, levies or charges that may be levied by any government authority directly or indirectly in relation to the DVB-H Bouquet(s).
21.4 DStv Mobile may from time to time vary the Subscription Fees payable to it for the DVB-H Bouquet(s) by notifying the Subscriber in advance either telephonically, electronically, by post, or on its website prior to such change.
Access to and disclosure of information relating to Subscribers
22. The Subscriber authorizes DStv Mobile and the Service Provider to :
22.1 capture, store, analyse and use, for DStv Mobile’s marketing purposes, the Subscriber’s viewing habits and profile and to retrieve such information from the Subscriber Equipment; and
22.2 disclose the Subscriber’s personal information :
22.2.1 to companies affiliated to DStv Mobile for purposes of marketing the services of those affiliated companies;
23.2.2 to any company which acquires the business of DStv Mobile or the Service Provider; or
22.2.2 if and to the extent that DStv Mobile and/or the Service Provider is required to do so to comply with any applicable law, including the requirements of statutory authorities.
Subscribers Obligations
23. In addition to any other obligations imposed on the Subscriber herein, the Subscriber must:
23.1 Inform the Service Provider and/or DStv Mobile in writing immediately if he becomes aware of any damage to, or loss, theft or unauthorized use of the Subscriber Equipment, Related Products or the DVB-H Bouquet(s);
23.2 Prevent the viewing by children below any age restriction, or ‘sensitive’ or ‘younger’ users of content referred to in clause 27; and
24.1 Use the parental control mechanism on the Subscriber Equipment, if available, to block access to content on the DVB-H Bouquet(s) which the Subscriber considers inappropriate or undesirable.
DStv Mobile’s Obligations
25. Subject to the Subscriber complying with these Terms and Conditions, DStv Mobile, in accordance with these Terms and Conditions, will for the duration of the Subscription Period provide the Subscriber with access to the DVB-H Bouquet(s) subscribed to.
26. Subject to the Subscriber complying with these Terms and Conditions, DStv Mobile authorizes the Subscriber to have access to the DVB-H Bouquet and will continue for the duration of the Subscription Period, provided that DStv Mobile will have no obligation :
26.1 to ensure that the Subscriber Equipment is configured correctly;
26.2 subject to the terms of the manufacturers’ warranties :
26.2.1 to ensure that the Subscriber Equipment is and remains functional;
26.2.2 to maintain any component of the Subscriber Equipment.
27. We will attempt to inform you of any content made available by us which may be subject to age restrictions, or contain strong language or other material which may offend sensitive users or which may be inappropriate for younger users.
Communications with the Subscriber
28. DStv Mobile may communicate with the Subscriber either telephonically, electronically, by post, or on its website.
29. The nature of such messages will vary, and may be used, amongst other things :
29.1 to inform the Subscriber that their subscription is about to expire and will be renewed unless the Subscriber advises otherwise;
29.2 to inform the Subscriber of any changes to these Terms and Conditions;
29.3 to market or promote DStv Mobile’s products and/or those of DStv Mobile’s channel suppliers and agents;
29.4 to inform the Subscriber about DStv Mobile’s products and operational systems, and changes to these; and
29.5 to inform the Subscriber about information of particular interest or relevance to that Subscriber.
30. DStv Mobile, the Service Provider, and their affiliated companies including their directors, officers, employees, agents, representatives and associates will not be responsible, and disclaim all liability, for any loss, liability, injury, expense or damage (whether direct, indirect, incidental, punitive or consequential) of any nature which is suffered by any person arising out of communication by DStv Mobile and/or the Service Provider in terms of these Terms and Conditions, or text messaging by a third party, using DStv Mobile products and equipment.
31. The Subscriber indemnifies and holds DStv Mobile, the Service Provider, and their affiliated companies, including their directors, officers, employees, agents, representatives and associates harmless from any claim or demand, including attorney and own client costs, made by any third party arising from or in relation to communication by DStv Mobile and the Service Provider in terms of these Terms and Conditions, or text messaging by a third party, using DStv Mobile’s products and equipment.
Intellectual Property
32. The software required to receive and display the DVB-H Bouquet(s) incorporated in the Subscriber Equipment and all the intellectual property rights in and to the software are owned by or licensed to DStv Mobile.
33. The Subscriber shall take all reasonable steps to maintain and protect DStv Mobile’s interest in these rights.
34. The Subscriber acknowledges that all materials, including the content constituting the DVB-H Bouquet(s) and the Related Products, are protected by copyright and intellectual property rights.
35. The Subscriber may not use, hire-out, sell, copy, retransmit, or rebroadcast the materials, or use the DVB-H Bouquet(s) in any manner other than set out in clause 18 of these Terms and Conditions, or permit, whether intentionally or negligently, any other persons to do so.
36. The Subscriber indemnifies and holds DStv Mobile the Service Provider and their affiliated companies, and their directors, officers, employees, agents, representatives and associates harmless against any claim by any third party in respect of a breach by the Subscriber of clauses 32 to 34 of these Terms and Conditions.
Limitation of Liability and Indemnities
37. DStv Mobile and the Service Provider shall not liable to any person for the content on, and/or the use of materials constituting the DVB-H Bouquet(s) and the Subscriber is under an obligation to prevent any unauthorized access to the DVB-H Bouquet(s).
38. Without limiting the scope of clause 37, DStv Mobile acquires content and rebroadcasts it to the Subscribers accordingly, DStv Mobile and the Service Provider are not liable for any content on the DVB-H Bouquet(s), including as regards the subject, nature, quality, reliability, truthfulness or accuracy of the content.
39. DStv Mobile and the Service Provider do not make any representations or give any warranties, whether expressly or implicitly, as to the Coverage Area or the quality of the broadcasting signals in the Coverage Area, to the extent that this results from causes beyond DStv Mobile and the Service Provider’s control, and specifically, but without limitation, make no representations and give no warranty:
39.1 that the service will be continuous or without interruption; or
39.2 that the DVB-H Bouquet(s) will be available in all parts of the Coverage Area.
40. DStv Mobile and the Service Provider shall not liable for any defect or failure in the distribution or reception of the DVB-H Bouquet(s) or the Related Products, regardless of the nature or duration of such defect or failure, to the extent that this results from causes beyond DStv Mobile and the Service Provider’s control.
41. We make no warranty or representation, whether expressly or implicitly, as to the technical quality of –
41.1 the DVB H Bouquets;
41.2 the Subscriber Equipment;
41.3 any authorised viewing devices; and/or
41.4 your viewing experience,
or that they will meet your particular tastes or expectations.
42. DStv Mobile and the Service Provider are not liable for any delay or failure to provide the DVB-H Bouquet(s) or the Related Products to the Subscriber, which is beyond DStv Mobile’s control.
43. The Subscriber will not be entitled to any refund, discount or other reduction of the fees payable in terms of these Terms and Conditions in respect of any defect, delay or failure of the nature contemplated in clauses 39, 40 and 41 of these Terms and Conditions.
Breach of Terms and Conditions by Subscriber
44. The Subscriber’s failure to comply with any of the Terms and Conditions set out herein constitutes a material breach of these Terms and Conditions.
45. If the Subscriber breaches the Terms and Conditions as aforesaid, DStv Mobile and the Service Provider, without prejudice to any other remedy that they may have, may immediately and without notice to the Subscriber, terminate the provision of one or more of the DVB-H Bouquet(s).
46. If the Subscriber breaches the Terms and Conditions as aforesaid, the Subscriber shall pay the DStv Mobile and/or Service Provider all:
46.1 legal costs, including attorney and own client costs, tracing agent’s fees which DStv Mobile and/or the Service Provider may incur in taking any steps pursuant to such breach; and
46.2 damages incurred by DStv Mobile and/or the Service Provider directly as a result of the Subscriber’s breach.
47. If the Subscriber remedies such breach, complies with these Terms and Conditions and pays DStv Mobile and/or the Service Provider all payments due in terms of these Terms and Conditions, DStv Mobile may provide the Subscriber with access to the Subscriber’s selected DVB-H Bouquet(s), but subject to the prior payment by the Subscriber to DStv Mobile or the Service Provider of the applicable subscription fee stipulated in respect of each such DVB-H Bouquet.
General
48. These Terms and Conditions govern the provision of the DVB-H Bouquet(s) to the Subscriber. These Terms and Conditions supersede any previous agreement between the parties.
49. Neither party is bound by any express or implied representation, warranty, undertaking, promise or the like not recorded in these Terms and Conditions.
50. Any relaxation or indulgence which DStv Mobile and the Service Provider may show the Subscriber at any time in regard to these Terms and Conditions is without prejudice to, and does not constitute a waiver of, any rights DStv Mobile and/or the Service Provider may have, either in terms of these Terms and Conditions or any law.
51. If any provision of these Terms and Conditions is found to be wholly or partly invalid, unenforceable or unlawful, then these Terms and Conditions will be severable in respect of the provision in question to the extent of its invalidity, unenforceability or unlawfulness, and the remaining provisions of these Terms and Conditions will remain in full force and effect.
52. DStv Mobile reserves the right in its discretion to vary or amend any of these Terms and Conditions from time to time by notifying the Subscriber telephonically, electronically, by post, or on their website prior to such change. Such variation or amendment will be binding upon the Subscriber from the date specified by DStv Mobile, which date will not be earlier than the date of notifying the Subscriber.
53. DStv Mobile and the Service Provider may cede any of their rights and/or assign any of their obligations under these Terms and Conditions to any party.
54. The Subscriber may not cede any of its rights and/or assign any of its obligations under these Terms and Conditions to any party.
55. These Terms and Conditions are subject to, and will be interpreted, implemented and enforced in terms of, the laws of the Republic of Namibia.
56. The Subscriber consents to the jurisdiction of the courts of Windhoek in respect of all proceedings arising out of or pursuant to these Terms and Conditions.
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