Terms and Condition for GOtv in Kenya
TERMS AND CONDITIONS GOVERNING SUBSCRIPTION TO THE GOTV SERVICE BY
INDIVIDUALS FOR THEIR PRIVATE USE
Interpretation
1 In these Terms and Conditions the following terms will have the following meanings –
1.1 “Administration Fee” means the once-off, non-refundable fee as advertised
from time to time, to convert the Approved Decoder to a decoder that only
receives the Free Tier;
1.2 "Agreement" means the agreement concluded between you and GOtv
Kenya Limited when we accept your Request, which agreement is governed
exclusively by these Terms and Conditions, as amended from time to time;
1.3 "Approved Decoder" means a decoder or device approved by us for receipt
of the Service;
1.4 "Bouquet" means a package of audiovisual, audio and/or data channels
provided by us;
1.5 "Content Rights" means the copyright and other Intellectual Property rights
to the audiovisual, audio and/or data materials, provided by us;
1.6 "Coverage Area" means the geographic area in the Territory in which the
Service, or a component of the Service, is provided which is set out on the
Website;
1.7 "Due Date" means the date by when we must receive payment of your Fees
in terms of these Terms and Conditions, being –
1.7.1 in the case of a New Subscription, the day on which you wish us
to activate your subscription to the Service;
1.7.2 the last day of the Subscription Period; and
1.7.3 if applicable, the Service Fee;
1.8 "Equipment" means the subscriber equipment required in order to receive,
access and use the Service, including the Approved Decoder, embedded
Smartcard (if applicable), aerial and cabling (if applicable);
1.9 "your Fees" means the fees payable by you in respect of your access to the
Service (including subscription fees, the Administration Fee, Service Fees
and fees for optional extras as well as any VAT and other taxes, duties,
levies or charges thereon that may be levied by any government authority
directly or indirectly in relation to the Service), which fees are payable to us
directly or through one of our authorised representatives, in any manner
authorised by us from time to time;
1.10 "Free Tier" means the Free to Air Channels and Free to View Channels,
currently branded the GOtv Open Bouquet;
1.11 “Free to Air Channels” means unencrypted television broadcast channels
which are transmitted by third party broadcasting service providers and do 2
not require you to pay subscription fees in order for you to view them.
Notwithstanding the aforesaid, we reserve the right to require you to pay the
Administration Fee and/or Service Fee for the Free to Air Channels (other
than for channels made available by the national broadcaster);
1.12 “Free to View Channels” means encrypted television broadcasting channels
which are transmitted by us and which do not require you to pay
subscription fees in order for you to view them. Notwithstanding the
aforesaid, we reserve the right to require you to pay the Administration Fee
and/or Service Fee for Fee to View Channels;
1.13 "General Amendment" means an amendment of these Terms and
Conditions by us from time to time on notice to you;
1.14 "Intellectual Property" means any and all rights, title and interest in
intellectual property (whether registered or not), including past and future
copyright, related rights, patents, utility models, trademarks, trade names,
service marks, designs, databases, graphics, icons, semi-conductor
topography, know-how, trade secrets and inventions (whether patentable or
not), goodwill and all other identical or similar intellectual property as may
exist anywhere in the world and any applications for registration of such
intellectual property which are owned, licensed to, used and/or held
(whether or not currently) by us, our affiliated companies or our content and
channel suppliers;
1.15 "Manufacturer" means the manufacturer of the Equipment;
1.16 "New Subscription" means a request for access to the Service by a person
who does not have an active subscription to the Service at the time of
making the request, regardless of whether or not that person has previously
subscribed to the Service;
1.17 "Payment Instruction" means the instruction by you to pay your Fees by way
of a debit order or other similar electronic automated payment method;
1.18 "Reactivation Fee" means the fee that may be payable by you, following
suspension or termination of your access to the Service, for reactivation of
such access by us, the amount of such fee being ascertainable from the
Website or on request to us at any time;
1.19 "Related Products" means the various systems which we may use or deem
necessary for or associated with the provision of the Service, and the
facilities used by us for or ancillary to the Service, including but not limited to
technical services, the content security management system, the software
operating system, software applications and subscriber management
services and business systems;
1.20 "the Service" means –
1.20.1 one or more of the Bouquets selected by you and the associated
services, features, facilities and applications; and
1.20.2 any additional functionalities selected by you,
provided by us; 3
1.21 “Service Fee” the annual amount, as advertised by us from time to time,
payable to us for management of the Free Tier;
1.22 "Service Provider" means any person, including a juristic person, whom we
may authorise to perform any of our obligations in these Terms and
Conditions on our behalf;
1.23 "Smartcard" means a smartcard required (if applicable) for use in an
Approved Decoder in order for you to access the Service;
1.24 "Subscription Period" means a period, determined by us from time to time,
during which your subscription to the Service will be active, commencing on
the date on which we authorise your access to the Service, ending when the
period for which you have paid, and we have received full and valid payment
of, your Fees has expired;
1.25 "System Rights" means the copyright and other Intellectual Property rights
in the Equipment and in the Service, including the software incorporated
therein;
1.26 "Terms and Conditions" means the terms and conditions set out in this
document, as amended from time to time, such terms and conditions being
freely available to you on the Website or on request to us at any time;
1.27 "Territory" means the Republic of Kenya;
1.28 "User Manual" is the standard operating instructions for your Approved
Decoder, a copy of which is provided with your Approved Decoder and is
also available on the Website;
1.29 "VAT" means Value Added Tax or any similar consumption based tax which
we or our agents may be obliged to levy and/or collect;
1.30 “viewing device” means a devise which is compatible with the Approved
Decoder, which when used in conjunction with an Approved Decoder,
displays the audiovisual material comprising the Service, including certain
laptops, personal computers, tablets and smartphones;
1.31 "we" or "us" means GOtv Kenya Limited, a company registered in the
Territory with registration number C.l30704, and any other person (including
any legal person) to which that company may transfer its rights, obligations
and interest in terms of this Agreement;
1.32 "Website" means http://www.gotvafrica.com, or such other website which we
use from time to time;
1.33 "you" or "your" refers to a person who has requested, or who has authorised
another person to request on his behalf, access to the Service on these
Terms and Conditions;
1.34 "your Request" means your request for access to the Service on these
Terms and Conditions, which request may have been made - 4
1.34.1 by way of text or Unstructured Supplementary Service Data
message from your mobile phone to the number determined by
us;
1.34.2 if applicable, via your Approved Decoder; or
1.34.3 in any other manner authorised by us from time to time.
2 Any reference in these Terms and Conditions to –
2.1 the singular includes the plural, and vice versa; and
2.2 one gender includes the other gender.
Request for the Service
3 You may request access to the Service for a minimum period of one or more
Subscription Periods as determined by us from time to time.
4 We do not provide subscribers with -
4.1 access to stand-alone programmes (other than the Free Tier and/or the Box
Office Service, if applicable), channels, features, facilities or applications; or
4.2 the option to subscribe for a portion of the Subscription Period,
although we reserve the right to do so.
Place of Agreement, commencement and duration
5 The Agreement is deemed to be concluded at our principal place of business in the
Territory and commences on the date on which we, after receiving full and valid
payment of your Fees in terms of the Agreement, accept your Request by activating
your access to the Service.
6 Subject to the breach provisions in these Terms and Conditions, the Agreement is
binding on you and us unless and until –
6.1 we notify you (in any manner, whether telephonically, electronically, in
writing or in person) that we are terminating this Agreement with effect from
a specified future date, which we may do at any time;
6.2 subject to clause 8, the Subscription Period for which you have paid, and we
have received, full and valid payment of your Fees in terms of the
Agreement expires and you have not renewed your subscription for a
subsequent period by paying your Fees on or before the Due Date, and your
subscription to the Service is disabled by us; or
6.3 in respect of the Free Tier (other than channels provided by the national
broadcaster), after payment of the Administration Fee, you have not paid
your Service Fee on or before the Due Date, and your access to the Free
Tier is disabled by us; or
6.4 you notify us (in any manner, whether telephonically, electronically, in
writing or in person) that you are terminating this Agreement with effect from 5
a specified future date, which you may do at any time subject to clauses 7, 9
and 10.
7 Once your subscription has been activated, it will continue to run for the duration of the
Subscription Period for which you have paid, regardless of whether you access or use
the Service or are in the Coverage Area.
8 Unless a party terminates the Agreement in terms of these Terms and Conditions, we
may automatically renew your subscription to the Service at the end of the
Subscription Period and such renewal will be governed by these Terms and Conditions
at the date of renewal and as amended from time to time. You will however be notified
that your subscription is about to expire and will be renewed unless you notify us
and/or the Service Provider otherwise.
9 Each time your subscription is renewed for a subsequent Subscription Period, such
renewal is in terms of these Terms and Conditions as at the date of renewal, and as
amended from time to time.
10 If you terminate this Agreement in terms of clause 6.3, such termination will take effect
from the last day of the Subscription Period in which the termination notice is received.
11 The termination of this Agreement will not affect –
11.1 our rights or remedies, or yours, for the period prior to termination, as the
case may be; or
11.2 those rights and obligations which this Agreement intends, either expressly
or by implication, will survive beyond termination.
Fees
12 The Service is provided on a pre-paid basis.
13 In order for you to have continued access to the Service, you must make, and we must
receive payment of your Fees in advance, for the forthcoming Subscription Period, on
or before the Due Date.
14 We will activate your access to the Service only once, and as soon as practicable
after, you have made, and we have received, payment in full in terms of clause 13.
We will not be liable to you or any other person if access to the Service is delayed or
cancelled for any reason beyond our control.
15 If we do not receive payment of your Fees as contemplated in clause 13, the
Agreement will automatically terminate and your access to the Service will be disabled
without further notice to you. You may register to view the Free Tier, in which case the
provisions in clauses 27 to 30 will apply.
16 If your access to the Service is suspended or terminated for whatever reason, and
whether by you or by us, and you wish to reactivate your access to the Service, we
may charge a Reactivation Fee, and, in that event, we will not reactivate your access
to the Service until we have received your payment of the requisite Reactivation Fee
and your Fees.
17 You may not deduct from, or set off against, your Fees any amount whatsoever which
you claim from us or which we owe you. 6
18 The fees payable in terms of these Terms and Conditions are ascertainable on the
Website.
19 We may from time to time review and amend the fees payable to us in respect of the
Service, or any aspect thereof, by way of a General Amendment. We will notify you of
such amendment as soon as practicable prior to implementing it.
20 We may alter the Payment Instruction under which you pay your Fees to us, if any, if
the amounts payable by you to us should change for any reason. .
21 We may advise you of –
21.1 any additional components of the Service which become available, the
conditions applicable thereto and the charges therefore, if any, and which, if
you request to receive this additional component, you will be obliged to pay
the additional charge, if any; and
21.2 any component of the Service for which you must pay an additional charge if
you wish to continue receiving it, and for which, if you request to continue to
receive this component, you will be obliged to pay the additional charge.
22 We may use payment systems owned and operated by third parties ("Payment System
Providers") to facilitate the collection of fees and other amounts payable by you for the
Service. We will not be liable to you or any third party for any loss or damage which
you may incur as a result of any error, system downtime or delay experienced by such
Payment System Provider, or for any other reason beyond our reasonable control.
23 We may waive our right to demand and/or receive payment of the whole or part of your
Fees for any component of the Service, Subscription Periods, and/or persons (or
categories of persons), taking into account any factors determined by us. If we waive
any of our rights in terms of this clause, such waiver will be without prejudice to any
other rights, interests or expectations that we may have, and you will have no right or
expectation that we will waive our rights again in the future.
24 If we waive our right to demand and/or receive payment in terms of clause 23, we may,
at any time, withdraw, in whole or in part, that waiver and exercise our right to demand
and receive payment of your Fees in terms of these Terms and Conditions, provided
that –
24.1 we will give you reasonable notice that we intend to demand payment in the
future; and
24.2 we will require payment only from the date specified in the abovementioned
notice, which date will be a reasonable time after the date of the notice.
25 If we withdraw a waiver in terms of clauses 23 and 24, you must pay, and we must
receive, your Fees on or before the next Due Date.
Reception of Free Tier
26 You may register to view the Free Tier, in which case the provisions in clauses 27 to
30 will apply.
27 If you wish to view the Free Tier, you must – 7
27.1 contact us and request us to enable you to receive the Free Tier;
27.2 follow the simple registration process determined by us for this purpose;
27.3 pay us a once off Administration Fee determined by us from time to time;
and
27.4 if applicable, a Service Fee determined by us from time to time.
28 You acknowledge that the Free to Air channels are provided by third party service
providers. The number, nature, composition and the content of Free to Air channels
are beyond our control. We are therefore not responsible or liable for –
28.1 any delay, interruption, defect or failure in the distribution or reception of
Free to Air channels or any aspect thereof, within or outside the Coverage
Area, regardless of the nature, duration or cause thereof, and without
prejudice to any other provision of these Terms and Conditions; or
28.2 subject to the terms of the Manufacturers' warranties, any defect in or failure
or malfunction of any features, facilities or applications in the Equipment,
regardless of the nature or cause thereof.
29 The number, nature, composition and the content of the Free to View channels are
determined by us and may vary from time to time. We may replace, remove or
otherwise amend, or restrict the availability of, any Free to View channel or any aspect
thereof. You will have no rights, interests or expectations of continued access to Free
to View channels.
30 These Terms and Conditions, read with any changes required by the context, apply
equally in respect of access to the Free to View channels and the use of the
Equipment to receive Free Tier channels.
Your personal information
31 Subject to these Terms and Conditions and any applicable laws, and in addition to any
other information which you must give us in terms of these Terms and Conditions, you
must –
31.1 provide us with your personal information which we require in order to
activate and administer your access to the Service; and
31.2 inform us in writing within seven business days of any change to any of the
information provided by you in relation to the Agreement.
32 You authorise us to –
32.1 obtain (where applicable by retrieval from your Approved Decoder), capture,
store, analyse and use for our marketing purposes your viewing habits and
profile;
32.2 use information that we may hold in relation to you for the purposes of –
32.2.1 processing your Requests;
32.2.2 administering the Agreement; 8
32.2.3 informing you of any new aspects of the Service or services
provided by our affiliates;
32.2.4 informing you of promotional competitions;
32.2.5 notifying you of a General Amendment;
32.3 disclose your personal information –
32.3.1 to companies affiliated with us for purposes of marketing their
services (subject to your right to refuse such disclosure of your
personal information);
32.3.2 to any third party who acquires (or proposes to acquire)
ownership or control of our assets, shares or management, or
that of our affiliates, whether by sale, merger, acquisition or
otherwise, and/or to any third party from who we acquire (or
propose to acquire) ownership or control of assets, shares or
management, whether by purchase, merger, acquisition or
otherwise;
32.3.3 to agents, representatives or Service Providers which we appoint
to process your Request, administer the Agreement or provide
subscriber management services;
32.3.4 to our Payment System Providers in order to facilitate the
collection of your Fees using payment systems owned and
operated by third parties; or
32.3.5 if and to the extent that we are required to do so to comply with
any applicable law, including the requirements of statutory
authorities; and
32.4 retain your personal information referred to in this clause for as long as we
are required to do so in terms of any applicable laws, for evidentiary
purposes or in order to exercise or protect any of our rights under the
Agreement.
33 It is your responsibility to proactively ensure that the information which you provide to
us is complete, accurate and up to date.
Our obligations
34 In consideration for the fees paid by you, and subject to you complying with these
Terms and Conditions, we, will provide you with access to the Service, in accordance
with the Agreement.
35 Subject to your compliance with the Agreement, your access to the Service will
continue until suspended by us or terminated by either you or us in terms of the
provisions of these Terms and Conditions.
36 Subject to any applicable laws, the terms of the Manufacturer’s warranties and/or the
decoder care plan (if applicable), we have no obligation –
36.1 to ensure that the Equipment is installed correctly;
36.2 to ensure that the Equipment is or remains functional or error-free and
enables you to access the Service; or
36.3 to maintain any component or aspect of the Equipment.
37
37.1 We will, subject to any applicable laws, 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.
37.2 However, we are not responsible for preventing the viewing of such content
by children below any age restriction, or sensitive or younger users.
Your obligations
38 In addition to any other obligations imposed on you in terms of these Terms and
Conditions, you must –
38.1 take reasonable steps to prevent the viewing by children below the age
restrictions which may be prescribed by us, our content providers or any
applicable regulatory authority from time to time, or ‘sensitive’ or ‘younger’
users of content referred to in clause 37; and
38.2 use the parental control mechanism on the Subscriber Equipment, if
available, to block access to content on the Service which you consider
inappropriate or undesirable.
Restrictions on access to and use of the Service
39 You may access and use the Service and the Equipment only –
39.1 in a single residential unit (other than a handheld device);
39.2 at your ordinary place of residence (other than a handheld device); and
39.3 for private personal domestic use.
40 You may not access the Service in any manner or for any purpose other than as set
out in these Terms and Conditions. Nor may you negligently or intentionally permit any
other person to do so. Without limiting the restrictions in clause 39, you may not
attempt to or –
40.1 access any component of the Service other than those component to which
you are authorised to access;
40.2 use the Service, or any component thereof, for any commercial purpose;
40.3 exhibit or provide the Service to the public, whether or not admission fees
are charged;
40.4 charge any person a fee to access any component of the Service;
40.5 copy any of the audiovisual, audio and/or data material in the Service; 10
40.6 hire-out, sell, redistribute, relay, retransmit or rebroadcast any of the
audiovisual, audio and/or data material of the Service;
40.7 hack, reverse engineer or otherwise compromise the security of the
conditional access system, operating software or encryption software used
in the Smartcard and any Approved Decoder used to receive the Service;
40.8 permit, facilitate or condone any other person doing any of the prohibited
activities in this clause, whether using your Equipment or otherwise.
41 If you sell or otherwise transfer the Equipment, you must advise us in writing, within
seven days thereafter, of the identity and contact details of the transferee.
42 You indemnify us against any claim by the transferee in relation to your sale or transfer
of the Equipment, including any claim against you by reason of the non-functionality of
the Equipment.
43 You indemnify us and our affiliated companies, and their directors, officers,
employees, agents and representatives ("Indemnified Parties") against any claim by a
third party in respect of a breach by you of clause 39 and/or 40.
44 You acknowledge that a breach by you of clauses 39 and/or 40 may constitute criminal
activity and could result in considerable prejudice and damage to us and/or our
licensors and/or channel suppliers.
45 You agree that we may, from time to time, and on reasonable notice, delay or interrupt
the distribution or reception of the Service, or any aspect thereof, if this is reasonably
necessary for any purpose related to our business, including in order to support the
provision, operation, maintenance and security of the Service, or any aspect thereof.
Equipment
46 You acknowledge that certain components of the Service may only be available –
46.1 in conjunction with certain Equipment or certain other components of the
Service;
46.2 for use by persons or types of persons, in places or types of places, and/or
specific circumstances; and/or
46.3 subject to specific additional terms and conditions.
47 You may only access the Service by using an Approved Decoder and in accordance
with the applicable User Manual.
48 You acknowledge that the functioning of the Equipment flows from the combination
and interaction of software embedded in the Equipment and the software based at
GOtv Kenya Limited. Before you can use the Equipment, you must either request
access to the Service or register to view the Free Tier. We make no warranties or
representations, expressed or implied, that the Equipment is capable, or in the future
will be capable, of receiving any services other than in accordance with this clause.
49 You must comply with all lawful directives given by us relating to your access to the
Service and/or use of the Equipment. 11
50 You may not tamper with, use or attempt to use the Equipment to access the Service
in any manner or for any purpose not authorised by us.
51 You undertake –
51.1 to comply with the User Manual and any warnings and instructions included
with the Equipment when you install and use the Equipment;
51.2 not to alter the Equipment in any way;
51.3 to keep the Smartcard (if any) in the Approved Decoder; and
51.4 to keep your decoder connected, at least in standby mode when not in use,
to the main power supply and to the reception equipment, to enable the
functionality of the software, updating of the software in the decoder and in
order to ensure that your continued access to the Service is not negatively
affected. You acknowledge that in standby mode certain Approved
Decoders generate heat and that you will position your decoder with this
factor in mind.
52 If your Smartcard is damaged, lost or stolen –
52.1 you must inform us thereof within 48 hours of your becoming aware thereof;
and
52.2 we or one of our duly authorised representatives will replace the Smartcard,
subject to the payment by you of a standard replacement fee.
53 We may disable the Approved Decoder and/or Smartcard used by you, whether
temporarily or permanently, if –
53.1 it is damaged, lost or stolen;
53.2 any unauthorised person uses the Equipment to access the Service;
53.3 you breach any of the provisions of the Agreement;
53.4 the Subscription Period has expired and we have not received payment of
your Fees for the following Subscription Period;
53.5 it is necessary to protect the integrity of the conditional access system used
for the Service; or
53.6 it is otherwise reasonable to do so.
54 You will only be able to use the Equipment to access the Service in the Coverage
Area. The strength of the broadcasting signal may vary in different parts of the
Coverage Area, as a result of which you might be required to acquire, at your own
cost, additional Equipment (such as a different aerial), in order to access the service,
either optimally or at all.
55 We cannot guarantee that you will be able to access and use the Service, or any
aspect thereof, either optimally or at all, if you do not act in accordance with clauses
47, 50, 51 and/or 54. 12
Limitation of liability, and indemnities
56 We and the Service Provider are not liable to any person for the content on and/or the
use of materials constituting the Service, whether provided by us or a third party, and
you agree that –
56.1 the Service may contain images and/or content that may be regarded as
unsuitable or offensive by some viewers;
56.2 we mainly acquire complete channels from channel suppliers and package
them into Bouquets and as such we have no influence over, and are unable
to alter, the content of the channels;
56.3 the content of the Service, including the number, nature, composition and
content of channels and Bouquets may, from time to time, vary;
56.4 the channels on each Bouquet may vary from time to time, and that the
content of each individual channel may, from time to time, vary; and
56.5 the programming on the Service may differ from that set out in our hard
copy and/or electronic programme guides;
57 Subject to any applicable laws and the terms of the warranty, we are, in the absence of
our gross negligence or willful misconduct, not liable –
57.1 for any loss or damage suffered by you or any other third party, which arises
out of –
57.1.1 any act or omission of ours or our employees or agents, subject
to the provisions of clause 57.3;
57.1.2 any act or omission of our consultants, subcontractors or affiliated
companies;
57.1.3 the exercise by us of any of our rights in terms of these Terms
and Conditions; or
57.1.4 any breach by you of your obligations under these Terms and
Conditions, and you specifically indemnify us and the Indemnified
Parties against any claim by you or any third party arising out of
such breach;
57.2 for any delay or failure by us to provide the Service, or any aspect thereof,
to you to the extent that such delay or failure results from causes beyond
our direct or indirect control;
57.3 for any delay, interruption, defect or failure in the distribution or reception of
the Service, or any aspect thereof, regardless of the nature, duration or
cause thereof, which we deem necessary for any purpose related to our
business, including in order to support the provision, operation, maintenance
and security of the Service, or any aspect thereof;
57.4 subject to the terms of the Manufacturers' warranties, for any defect in or
failure or malfunction of the Equipment, regardless of the nature or cause
thereof; or 13
57.5 for any other delay, interruption, defect or failure in the distribution or
reception of the Service in the Coverage Area, or any aspect thereof,
regardless of the nature, duration or cause thereof, in the absence of gross
negligence or willful default on our part, and without prejudice to any other
provision of these Terms and Conditions. If such delay, interruption, defect
or failure is due to our gross negligence or willful default, then you will be
entitled, as your sole and exclusive remedy, to a credit against future
payments of subscription fees equal to the pro-rata portion of the fees
representing the period of the delay, interruption, defect or failure to the
extent caused by our gross negligence or willful default.
58 We make no warranty or representation, whether expressly or implicitly, as to the
technical quality of –
58.1 the Service;
58.2 the Equipment;
58.3 any viewing devices; and/or
58.4 your viewing experience,
or that they will meet your particular tastes and expectations.
Intellectual property
59 You agree that –
59.1 the Content Rights and the System Rights are either owned by, or licensed
to, us or our affiliates and that by entering into the Agreement you acquire
no right or interest in such rights; and
59.2 you will not infringe our rights or interests, or those of our suppliers or
licensors, in the course of your access to and use of the Service or
otherwise. Nor may you negligently or intentionally permit any other person
to do so.
60 You indemnify us and the other Indemnified Parties against any claim by a third party
in respect of a breach by you of clause 59.2.
Security
61 You acknowledge that the provision of the Service includes and relies on a
technological security framework ("security framework") designed to protect the
Service against unauthorised use, which security framework will be automatically
implemented, maintained and amended from time to time.
62 You agree to such implementation, maintenance and modification of the security
framework, which may include the disconnection or discontinuation of any features of
the Equipment which facilitate unauthorised use of the Service.
63 Our failure to implement the whole or part of the security framework will not constitute
a grant or waiver of any of our rights resulting from the unauthorised use of the
Service. 14
Communications with us
64 You may authorise any other person to communicate with us on your behalf in relation
to the Agreement, provided that such person complies with our standard security
check. You agree to be bound by all requests and undertakings made by third parties
on your behalf in terms of this clause.
65 It is your responsibility to ensure that your personal information relevant to our
standard security checks is not disclosed to third parties whom you have not
authorised to represent you.
Communications with you
66 Subject to any applicable laws, we may communicate with you, amongst other
methods, by means of post, e-mail, on-air communications, or by way of text or other
messages to your phone, PC, laptop, viewing device or to your decoder for display on
your television screen.
67 We may use such messages, amongst other things, to –
67.1 market or promote our services and/or those of our channel suppliers,
affiliates and/or clients, subject to your right to restrict unwanted direct
marketing;
67.2 inform you about the Service and operational systems, and changes to
these;
67.3 provide you with information which we believe may be of particular interest
or relevance to you;
67.4 advise you of the status of your account and any amounts owing by you to
us;
67.5 remind you of forthcoming Due Dates;
67.6 inform you that your access to the Service is about to expire and will be
renewed unless you advise us otherwise;
67.7 inform you that your access to the Service will be suspended unless we
have received payment of the requisite fees; or
67.8 notify you of a General Amendment.
Amendments to and variations in the Service
68 The nature, composition and content of the Service are determined by us in our sole
discretion, and may be changed by us from time to time.
69 The various Related Products and other systems necessary for or associated with the
provision of the Service are determined by us and are subject to ongoing innovation
and change and may be amended by us from time to time. Without limiting the above
you agree that we may –
69.1 amend the software which is part of the Subscriber Equipment and/or
Related Products by means of "over the air" software downloads, to
address any system errors or other problems relating to the software, to
improve security, to provide additional features or functionality;
69.2 recommend that you upgrade, reconfigure, swap-out, change or replace
("upgrade") at your cost if applicable one or more of the hardware
components of any of the Equipment used by you to access the Service, if
your continued access to the Service will be negatively affected if the
upgrade, reconfiguration or swap-out does not happen. You acknowledge
that the inherent nature of technology is such that as a result of
technological development and innovation obsolescent over time, your
Equipment may become outdated over time;
69.3 disable the Service, if we have reason to believe or if we suspect that your
age is below the prescribed age restriction or that the Service is being made
accessible to persons who are below the prescribed age restrictions; and/or
69.4 disable or remotely alter your access to the Service to prevent you from
copying certain content, programmes or channels, or otherwise infringing
our, our affiliates' or a third party's rights or interests, if we become obliged
to do so or if we deem it necessary to do so.
70 You will have no rights, interests or expectations to any increases or decreases in the
fees payable by you if we make any amendment to the Service in terms of clauses 68
to 69, or any other provision of this Agreement.
71 Subject to clause 72, you may not replace, remove or vary your subscription to the
Service, or any aspect thereof, during the course of a Subscription Period in respect of
which you have already requested access and paid the requisite fees. If you request
us, during a Subscription Period, to replace, remove or vary any aspect of your
subscription, and we accept your request, such change will take effect only at the end
of that Subscription Period.
72 If you request and we agree to activate any additional aspects of the Service on a date
before the next Due Date, then you must pay, on a pro rata basis, the requisite fees for
the period from the date on which your subscription to the additional aspects of the
Service is activated until the Due Date. We will activate your subscription to the
additional aspects of the Service only once, and as soon as practicable after, you have
made, and we have received, the payment, as calculated by us, in full.
Amendment of Agreement
73 You agree to be bound by a General Amendment from the date specified in the
General Amendment notice, which date will be a reasonable time after the date of the
General Amendment notice.
74 No amendment requested by you will be valid or effective unless either captured in a
General Amendment or recorded in writing and signed by you and by us.
Breach of Agreement
75 Your failure to comply with these Terms and Conditions constitutes a material breach
of the Agreement. 16
76 If you breach this Agreement –
76.1 we may, without prejudice to any other remedy that we may have,
immediately and without notice to you disable your subscription and/or
terminate this Agreement depending on the severity of such breach;
76.2 we may, without prejudice to any other remedy that we may have, elect to
keep this Agreement in force, but at the same time and for as long as such
breach continues, to suspend your access to the Service or any component
thereof. If and when we reinstate access to the Service, you must pay the
Reactivation Fee;
76.3 you must pay us all legal costs, including attorney and own client costs,
tracing agent's fees and collection charges which we may incur in taking any
steps pursuant to your breach; and
76.4 you must pay us any loss or damages incurred by us directly or indirectly as
a result of your breach.
77 If we have suspended your subscription to the Service and you –
77.1 remedy your breach;
77.2 comply with these Terms and Conditions; and
77.3 pay us all amounts due to us in terms of these Terms and Conditions and
the Reactivation Fee,
then we may reactivate your subscription to the Service.
78 If we terminate this Agreement, you may submit a Request with a view to us
concluding a new Agreement with you.
General
79 These Terms and Conditions, as amended from time to time –
79.1 constitute the sole and complete record of the Agreement between you and
us in respect of your access to the Service; and
79.2 supersede any previous agreement between you and us or between you
and any other company, in terms of which you were authorised to have
access to the Service.
80 Neither you nor we are bound by any express or implied representation, warranty,
undertaking, promise or the like not recorded in these Terms and Conditions.
81 Any relaxation or indulgence which we may show you at any time in regard to these
Terms and Conditions is without prejudice to, and does not constitute a waiver of, any
rights we may have, either in terms of these Terms and Conditions or any law.
82 If any provision of these Terms and Conditions is found to be wholly or partly invalid,
unenforceable or unlawful, then –
82.1 these Terms and Conditions will be severable in respect of the provision in
question to the extent of its invalidity, unenforceability or unlawfulness; and 17
82.2 the remaining provisions of these Terms and Conditions will remain in full
force and effect.
83 The rule of construction that these Terms and Conditions will be interpreted against
the party responsible for the drafting or preparation of this Agreement will not apply.
84 We may cede any of our rights and/or assign any of our obligations under these Terms
and Conditions to any person.
85 You may not cede any of your rights and/or assign any of your obligations under these
Terms and Conditions to any person without our prior written consent.
86 These Terms and Conditions are subject to, and will be interpreted, implemented and
enforced, in terms of the laws of the Territory.
87 The parties consent to the jurisdiction of the Courts in the Territory in respect of all
proceedings arising out of or pursuant to this Agreement.
88 The parties choose the following addresses for the service of all notices and processes
arising out of this Agreement –
88.1 Us: GOtv Kenya Limited, Upper Hill Road, Rahimtulla Tower, 18th Floor,
Nairobi, Kenya.
88.2 You: The physical address supplied by you when making your Request and
as recorded in our billing system, as amended by you from time to time.
89 Either party may at any time by written notice to the other party vary its domicile
address in terms of clause 88 to any address within the Territory.
90 A notice actually received by a party will be adequate notice to that party
notwithstanding that it was not delivered to that party’s domicile address in terms of
clause 88.