AFL Terms and conditions

Terms and conditions for access to and use of the African Film Library

Introduction

1. The African Film Library provides selected African films for viewing, by means of the Streaming or temporary Download to your computer, for a fee per Film.

2. The terms and conditions on which we authorise you to access and use the African Film Library are set out in this document.

3. In order to register on the Website to access and use the African Film Library, you must agree that you have read, understood and agree to be bound by the Terms and Conditions which are posted on the Website at the time of such access and use, and as amended from time to time. Please read these Terms and Conditions carefully before using the African Film Library.

4. You should print a copy of the Terms and Conditions for future reference and check the Website for any amendments to the Terms and Conditions each time that you access the African Film Library.

5. These Terms and Conditions are in addition to the Website Terms and Conditions and the User Licence applicable to each Film. If there is a conflict between these Terms and Conditions and –

5.1 the Website Terms and Conditions, then the provisions of these Terms and Conditions will prevail; and/or
5.2 the User Licence, then the provisions of the User Licence will prevail.

Interpretation

6. In these Terms and Conditions the following terms will bear the following meanings -

6.1 "Affiliate" in relation to M-Net means any person which is –
6.1.1 controlled by M-Net;
6.1.2 controls M-Net; or
6.1.3 is under common control with M-Net; -

6.2 "African Film Library" means the facility, including the associated content, Systems and features, on the Website which enables you to view, by means of the Streaming or temporary Download to your Equipment, the Films selected by you;
6.3 "CPA" means the Consumer Protection Act, 2008;
6.4 "Download" means to transfer, and store a Film onto your Equipment for subsequent access and use by you for the duration permitted by the User Licence applicable to each Film;
6.5 "ECT Act" means the Electronic Communications and Transactions Act, 2002;
6.6 "Equipment" means the computer or other compatible device which you use to access and use the African Film Library;
6.7 "Film" means one or more of the films which are selected and made available by M Net for viewing on the African Film Library in accordance with the User Licence applicable to that Film and these Terms and Conditions;
6.8 "Media Player" means software developed by us or by third parties, determined by us from time to time as one of the minimum specifications which you must meet in terms of paragraph 9, which you must install on your Equipment in order to Stream, Download and/or view the Films on the African Film Library;
6.9 "M-Net", "we" or "us" means Electronic Media Network Limited, a company registered in South Africa with registration number 1985/002853/06, and any other person (including any legal person) to which that company may transfer its rights, obligations and interests in terms of these Terms and Conditions;
6.10 "Stream" or "Streaming" means to transfer a Film via the Internet from the Website to your Equipment in a unicast mode so that the Film is received and processed in a steady Stream intended for real-time viewing (other than delays caused by “buffering” interruptions) and is not intended to be copied, stored, Downloaded, or redistributed by the user;
6.11 "Systems" means the Media Player and any other computer systems, software or applications which we may use or consider necessary for or associated with your use of the African Film Library;
6.12 "Terms and Conditions" means the terms and conditions set here, as amended from time to time;
6.13 "user" or "you" means a person who accesses or uses the African Film Library on the Website;
6.14 "User Licence" means the licence which we will grant you in order to stream and/or download a particular Film;
6.15 "Website" means the website located at http://www.africanfilmlibrary.com and/or any other URL used by us to provide the African Film Library from time to time; and
6.16 "Website Terms and Conditions" means the general terms and conditions for accessing and/or using the Website.

Eligibility to access and use African Film Library

7. The African Film Library is available only –
7.1 after you have registered to use the Website and the African Film Library in accordance with clauses 14 to 18; and
7.2 if you agree to be bound by these Terms and Conditions and the User Licence, and comply with them.
8. We may take any reasonable measures, including technological measures, to ensure that we provide the African Film Library only to persons who meet the requirements in clause 7 above.

Minimum technical specifications

9. In order to access and use the African Film Library you must, at your own cost meet our minimum technical specifications as set out on the Website from time to time.
Click here to view the latest specifications.

10. Without limiting the generality of clause , you must, at your own cost – 10.1 acquire access to, install and maintain, the specified hardware (including the Equipment), software (including the Media Player), applications and telecommunications facilities, and have put in place the correct settings;
10.2 obtain broadband Internet access ( suggested uncapped ADSL) from a service provider of your choice;
10.3 meet our recommended minimum bandwidth specifications in order for you to Stream and/or Download content;
10.4 ensure that you have sufficient Download capacity available on your Equipment;
10.5 maintain the required hardware (including the Equipment), Systems, software, telecommunications facilities and Internet access services.

11. You must ensure, prior to accessing and using the African Film Library at any time, that –

11.1 your Equipment is capable of receiving that content and/or has the requisite applications, software, settings and/or bandwidth to receive that Film, and that you meet the minimum specifications set out on the Website and in clause ; and
11.2 the items referred to above are compatible with the African Film Library, and sufficient for that purpose.

12. We will not be responsible for - 12.1 any failure or delay in the delivery of the content, or 12.2 any loss (including loss of data), damage (including damage to your hardware and Equipment), costs or expenses suffered or incurred by you, directly or indirectly as a result of your failure to meet the minimum technical specifications or Systems requirements, to properly install the hardware or software, or due to any incompatibility of your Equipment with the African Film Library.

13. We will not be responsible for any loss, damage, costs or expenses suffered or incurred by you due to factors beyond our reasonable control, including, without limitation, Internet congestion, slow Internet connectivity, the operation of "cookies", temporary Internet files, firewalls, proxy servers, popup blockers or other files/software on your equipment. It is your responsibility to manage your Hardware and Systems to remove any impediments to the proper functioning of the African Film Library. You are, however, cautioned against taking any steps which could render you and/or your Hardware (including your Equipment) and/or Systems vulnerable to any risks, including viruses or spam, and you do so at your own risk.

Website registration

14. In order to access and use the African Film Library, you must register to use the African Film Library by completing the electronic registration form provided on the Website.

15. When completing the electronic registration form, you will be required to - 15.1 provide us with the required information, including your name and contact details; 15.2 create a username and password; and 15.3 accept these Terms and Conditions.

16. It is your responsibility to ensure that you have provided us with accurate and complete information as stipulated in the electronic registration form or in any other request made by us. Your registration may be rejected if you do not complete all of the steps in the registration process.

17. Once you have registered for access to the African Film Library, we will send you an e-mail containing a link to verify your e-mail address. As soon as possible after you have accessed that link, your registration will be verified and, thereafter, we will authorise you to access and use the African Film Library.

18. You are responsible for keeping all your registration and access details (including your username and password) private and secure in order to prevent unauthorised access to and use of the African Film Library by third parties.

Access to and use of the African Film Library

19. You must enter your email address or username and password (log on to the Website) every time you wish to access and use the African Film Library.

20. Once you have logged on you will be able to browse a catalogue of the Films available at the time ("the Catalogue").

21. You may select from the Catalogue Films that you wish to view, by way of Streaming and/or Download to your Equipment. Some Films may be available for Streaming but not for Download, or vice versa.

22. It is your responsibility to satisfy yourself, prior to accessing any Films on the African Film Library, that the Film meets your individual requirements.

23. Certain Films which are available on the African Film Library may be subject to age restrictions, contain strong language or other material which may offend sensitive viewers, or be inappropriate for younger users. We will display the relevant age restriction in respect of such content. It is, however, your responsibility to heed those restrictions and to act responsibly.

Films on African Film Library

24. We may, in our sole discretion, select and determine the Films which will be available for viewing on the African Film Library from time to time.

25. You will have no right or expectation that any particular programming will be available for viewing using the African Film Library, regardless of whether or not a particular film has previously been available on the African Film Library.

26. A Film may be available for Streaming and/or Download.

Permitted use and User Licence

27. If we accept your order to view a Film on the Website, then we will enter into a transaction with you, and your access to and use of the Film will be subject to the User Licence applicable to that Film.

28. A separate User Licence will be issued to you and stored on your Equipment for each Film for the duration of the User Licence. Each licence is specific to each user for each Film.

29. The User Licence will be valid for the duration, territory, purpose and other particulars specified in the User Licence.

30. The User Licence terms may differ for each Film. You must familiarise yourself with the User Licence applicable to each Film.

31. You may access and use the African Film Library and/or any of the Films only –
31.1 in accordance with and as permitted by the User Licence and these Terms and Conditions;
31.2 in a manner which is lawful in South Africa and the country in which you are situated; and
31.3 for your individual, private, non-commercial use.

32. The content, Systems and all other materials or software which we make available to you on the African Film Library are either owned by, or licensed to, us and/or our Affiliates, and are protected by intellectual property law.

33. You may not use the African Film Library, or any aspect thereof, in any manner that constitutes a violation of any law in South Africa or the country in which you are situated (including intellectual property law, and including statutory law and the common law), or an infringement of our rights (including the intellectual property rights) or those of our Affiliates, our licensors or any third party.

34. You may not reproduce, modify, copy, transfer (to any person or onto any device, whether corporeal or incorporeal, other than in respect of a Download permitted by the User Licence), perform, transmit, broadcast, upload, or redistribute the Films, whether for your personal use or commercial gain, or commercially exploit the Films in any manner whatsoever. For the avoidance of any doubt, you may view the Films only on the Equipment to which you elected to have it Streamed or onto which you elected to Download it using the African Film Library.

35. In relation to any Systems which we provide to you, you may not -
35.1 modify, disassemble, decompile or reverse engineer these Systems;
35.2 sublicense, distribute, rent, sell or otherwise transfer them to any third party;
35.3 copy or reproduce the Systems; or
35.4 circumvent or disable any technology features or measures in the Systems.

36. You may not hack, reverse engineer, decompile, modify, tamper with or otherwise compromise the security of any digital rights management system or any other security or content protection systems used for or in relation to the provision of the African Film Library.

37. You may not use the African Film Library in any manner that causes the African Film Library or any aspect thereof to be interrupted or damaged, or which harms us or the African Film Library in any manner whatsoever.

Expiry of User Licence

38. Immediately after the expiry of the User Licence, regardless of whether or not you have wholly or partially viewed the particular Film, or whether you are viewing the particular Film at the time -
38.1 your viewing of that Film will be terminated; and
38.2 if you had Downloaded that Film, we will, in an automated manner, and without notice to you, delete that Film from your Equipment. You may, at any time, view the expiry time within your account overview profile online.

39. If you Stream a Film, your Streaming session may be terminated prior to the expiry of the relevant Validity Period:
39.1 If you do not select the "Remember Me" function when you log on to the Website, then your Internet session will expire if you pause your viewing of the relevant Film or there is no other activity on the Website for 90 continuous minutes.
39.2 If you select "Remember Me" when logging on to the Website, you will remain logged on to the Website (even if you pause your viewing or there is no other activity on the Website) –
39.2.1 or 30 days;
39.2.2 until you log off the Website; or
39.2.3 Regardless of whether or not you have selected "Remember Me", your viewing will be interrupted if you refresh the Web page or if you navigate away from it. In order to view the Film that was interrupted, you will need to reselect that Film, reload and replay it from the beginning, and search for the point at which your viewing was interrupted.

Transaction per Film

40. Each time that you order one or more Films ("place an order") and we accept that order, we will enter into a transaction with you for which you will be required to pay the requisite fees.

41. After we receive your order a pop-up screen will reflect your order and give you the option to confirm it or to go back.

42. You may then go back and change/cancel your order or confirm your order and complete the transaction by clicking on the "confirm" icon and paying the requisite fees.

43. A transaction will be complete only once we have received from you full and valid payment of the fees for that order. The transaction will relate only to those aspects of the order which you have confirmed and paid for.

44. We will, within ten minutes after you have made, and we have received, payment in full in terms of clause , enable you to commence Streaming or uploading, as the case may be, the rented film, which you may do by clicking on the Streaming and/or Download button.

Fees

45. We charge a fee per Film ordered by you. The fees payable will be displayed on the Website, as amended from time to time.

46. You must make, and we must receive, these payments in advance and in full before you will be able to Stream or Download the Film.

47. Unless we have specifically indicated otherwise, we provide the Films on a prepaid basis.

48. If you wish to view a Film, then, once you have confirmed your order, you must pay us the fees for that order using the payment method and system set out on the Website.

49. You must pay us through one of our duly authorised representatives, using the payment mechanism provided by us on the Website or in any other manner authorised by us on the Website from time to time, the fees for those Films which you have ordered and any VAT and all other taxes, duties, levies or charges that may be levied by any government authority directly or indirectly in relation to the transaction.

50. We may from time to time change the fees payable to us for the Films, by updating the fees on the Website. Such a change will not affect a transaction which is already in force between us in respect of a Film at the time of the coming into effect of the change.

51. We will utilise a payment system that is sufficiently secure with reference to accepted technological standards at the time of the transaction and the type of transaction concerned. If we fail to do so, you may exercise your rights in terms of s43(6) of the ECT Act.

52. We may use payment systems owned and operated by third parties to facilitate the collection of fees and other amounts payable by you for the Films. None of these third parties is our employee, subcontractor, agent, intermediary or representative or otherwise controlled by us. We will not be liable to you or any third party for any loss or damage which you may sustain or incur as a result of any error, system downtime or delay experienced by such Payment System Provider unless such loss is directly or indirectly attributable to our gross negligence or wilful misconduct or that of any person acting for or controlled by us.

53. You must pay for any data or other charges levied by any third party service provider in order for you to use the African Film Library.

Import duty

54. If you order goods from the Website for delivery outside the Republic of South Africa, those goods or services may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. You will be responsible for payment of any such import duties and taxes. Please note that we have no control over these charges and cannot predict their amount. Please contact your local customs office for further information before placing your order.

55. Please also note that you must comply with all applicable laws and regulations of the country for which the products are destined.

Refunds policy

56. Given that Films are not capable of being returned, any refunds are limited to refunds to which you may be entitled in terms of any consumer rights which you may have in terms of any applicable laws. Please refer to paragraphs to regarding specific consumer rights which we bring to your attention.

57. If you are entitled to a refund, we will usually refund any money received from you using the same method which you used to pay us for the transaction concerned.

58. We do not allow exchanges. We therefore recommend that you check your order carefully before confirming it and completing the transaction.

MNet's obligations

59. Our authorising you to have access to the African Film Library will continue until terminated by either you or us in terms of these Terms and Conditions.

60. Subject to you complying with these Terms and Conditions, we will give you access to the particular Film selected by you in accordance with the User Licence.

Your obligations

61. In addition to your obligations set out elsewhere in these Terms and Conditions and the User Licence, you must –
61.1 ensure that your personal information which you provided to us during the registration process is always accurate, current and complete. You can change your personal details, including your username and password, at any time, by logging on to the Website and accessing your user profile, or in any other manner which we make available from time to time;
61.2 inform us within 24 hours if you suspect or become aware that a third party has obtained access to your username and password, or if you suspect unauthorised use of the African Film Library, your username and password; and
61.3 take all reasonable steps to prevent the viewing of Film by children below the prescribed age restriction or sensitive or younger users.

Amendment and variation of African Film Library

62. We reserve the right, at any time, to -
62.1 limit or deny access to the African Film Library, or any aspect thereof, for any reason which we consider reasonably necessary for any purpose related to our business, including, without limitation, in order to support the provision, operation, maintenance and security of the African Film Library, or any aspect thereof, and for purposes of performing any upgrade, repair or maintenance services;
62.2 change the African Film Library, or any aspect thereof; or
62.3 discontinue the African Film Library. 63. Our conduct in terms of paragraph will not affect our or your rights and obligations in respect of a transaction which is already complete at the time of such conduct.

Warranties, limitations of liability and indemnities

64. Subject to the provisions of s43(5) and s43(6) of the ECT Act, if applicable, and to any applicable provisions of the CPA, and to the full extent permitted by law:
64.1 We make no representations and give no warranties, whether expressly or implicitly, as to the African Film Library and specifically, but without limitation, make no representations and give no warranty -
64.1.1 that the African Film Library will be tailored to meet your personal requirements or expectations; or
64.1.2 that the African Film Library will be uninterrupted or error-free.

64.2 We 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, whether arising from negligence, and which is suffered by any person who accesses, uses or relies on the African Film Library. Without limiting the generality of this clause, we will not be responsible for any loss, liability or damage of any nature incurred by whomever and resulting directly or indirectly from:
64.2.1 inability to access or difficulty in accessing, the African Film Library to the extent that such delay or failure results from causes beyond our reasonable control;
64.2.2 our delay or failure to fulfill our obligations under these Terms and Conditions to the extent that such delay or failure results from causes beyond our reasonable control; or
64.2.3 any negligent act or omission of ours or our consultants, agents or employees.

65. By ordering a Film on the African Film Library you warrant that –

65.1 you have legal capacity to enter into binding contracts;
65.2 you are at least 18 years old;
65.3 you comply with the applicable laws in South Africa and the country in which you are situated;
65.4 you are authorised to make payment in the manner authorised on the Website and that there are sufficient funds available to pay for the order.

Force majeure

66. Neither party will be responsible for any delay or failure to perform its obligations in terms of these Terms and Conditions due to circumstances beyond that party's reasonable control, including storms, floods, fire, earthquakes, other natural disasters, power failures, strikes or other industrial action or disputes, unpredictable delays caused by traffic congestion, diversions or road works, the unavailability of raw materials, acts of terrorism, and actions of civil, governmental, regulatory, quasi-governmental and military authorities (a "Force Majeure Event").

67. A party who is unable to perform its obligations due to a Force Majeure Event must –
67.1 as soon as possible notify the other party of the circumstances resulting in force majeure and provide an estimate of when those circumstances are expected to cease to apply; and
67.2 take reasonable steps to resume performance of its obligations as soon as possible.

Support

68. If you experience any difficulties with any aspect of the African Film Library, you may contact us by sending an email to support@africanfilmlibrary.com or in any other manner indicated by us on the Website from time to time.

Written communications

69. Applicable laws may require that some of the information or communications we send to you should be in writing. When using the Website, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on the Website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.

Communications

70. If you do not wish to receive direct marketing communications from us, please send an e-mail to webmaster@multichoice.co.za or use the "unsubscribe" options set out in any direct marketing communications which we send you.

Consumer rights

71. We draw to your attention that you may be entitled to certain consumer rights in terms of the ECT Act and/or the CPA and other applicable laws which are not necessarily set out in these Terms and Conditions, but with which we will comply if and to the extent applicable. Copies of the ECT Act and the CPA are available at http://www.info.gov.za/view/DownloadFileAction?id=68060 and http://www.info.gov.za/view/DownloadFileAction?id=99961 respectively.

72. The disclosures which are required in terms of section 43 of the ECT Act can be found in the relevant provisions of these Terms and Conditions and on the Website at http://www.dstv.com/Pages/TermsConditions/

73. You may, if and to the extent applicable, cancel an electronic transaction without reason and without penalty and receive a full refund in terms of s44 of the ECT Act within seven days after the date of the receipt of goods or, in respect of services, within seven days after the date of the conclusion of the agreement ("the cooling off provisions"). If you wish to exercise those rights, you must –
73.1 inform us in writing;
73.1 return the products to us as soon as reasonably practicable, and at your own cost;
73.1 take care of the products whilst they are in your possession.

74. If we fail to execute the order within the period specified in paragraph you may exercise your right in terms of s46(2) of the ECT Act to cancel the transaction with seven days' written notice. If we are unable to perform because the ordered Film is not available, we will notify you of this fact and refund any payments within 30 days after the date of such notification.

75. No provision of these Terms and Conditions is to be interpreted or construed as-
75.1 excluding, limiting or waiving any rights which you may have, or avoiding any obligation which we may have, in terms of the ECT Act, the CPA or any other applicable laws, whether in South Africa or any other country having jurisdiction (unless such laws permit the parties to agree otherwise); or 75.2 limiting or exempting us from liability as a supplier for any loss directly or indirectly attributable to our gross negligence or that of any person acting for or controlled by us.

Termination of these Terms and Conditions

76. If you become ineligible to access the African Film Library, or breach these Terms and Conditions or the User Licence, we may, without prejudice to any other remedy we may have, terminate your authority to access the African Film Library and remove all Films Downloaded onto your Equipment using the African Film Library. If and to the extent that we are required by any law (or if we otherwise consider it appropriate) we will notify you prior to exercising our rights in terms of this clause. If not, we may exercise our rights immediately.

77. You may cancel your Website registration in the manner provided on the Website at any time.

General

78. These Terms and Conditions and the User Licences applicable to each Film constitute the entire agreement between you and us in relation to its subject matter and supersede any previous agreements between you and us.

79. 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. No waiver will be effective unless it is expressly stated to be a waiver and is communicated to the other party in writing.

80. If any provision in these Terms and Conditions is found to be wholly or partly unenforceable or invalid for any reason, then these Terms and Conditions will be severable in respect of the provisions in question to the extent of their invalidity or unenforceability, and the remaining terms and conditions will remain in full force and effect.

81. Where these Terms and Conditions prohibit you from any conduct, you are also prohibited from attempting that conduct, or permitting, promoting, facilitating or condoning any other person doing so.

82. We may cede our rights in terms of these Terms and Conditions to any person without your prior written consent. We may transfer/assign our obligations under these Terms and Conditions to any person without your consent, provided that if such transfer/assignment is to your detriment, we will obtain your prior consent. You may not cede any of your rights and/or transfer/assign any of your obligations under these Terms and Conditions to any person without our prior written consent.

83. These Terms and Conditions are subject to and will be interpreted, implemented and enforced in terms of the laws of South Africa. Any transaction between you and us in respect of a Film using the African Film Library will be deemed to have taken place in South Africa, and South African law will apply thereto.

84. The parties consent to the jurisdiction of the Magistrate's Court in respect of all proceedings arising out of or with these Terms and Conditions. The parties may, in their discretion, institute any proceedings arising out of or pursuant to these Terms and Conditions or the User Licence in any division of the High Court of South Africa having jurisdiction.

85.
85.1 We choose the following address for the service of all notices and processes arising out of these terms and conditions: 137 Bram Fischer Drive, Ferndale, Randburg, 2194, Gauteng, South Africa.
85.2 You choose, as your address for the service of all notices and processes arising out of these Terms and Conditions the physical address supplied by you when registering on the Website, as amended by you from time to time.

Amendment of terms and Conditions

86. We may amend the Terms and Conditions from time to time.

87. If we amend the Terms and Conditions, we will post the amended terms and conditions on the Website.

88. Subject to paragraph , the amended Terms and Conditions will become effective immediately once they are posted on the Website, and any subsequent use of the Website and of the African Film Library will be governed by the Terms and Conditions effective at the time of such access and use.

89. Each time you access the African Film Library, you agree to be bound by the version of the Terms and Conditions posted on the Website at the time. You are advised to regularly check these Terms and Conditions for any amendments.

90. If we amend the Terms and Conditions, the amendment will not affect any transaction already in force between you and us at the time of the coming into operation of the amendment, or any rights or obligations which you or we may have in terms of an existing transaction.