Showmax Application End User Licence Agreement
This Showmax application end user licence agreement ("Licence Agreement") applies to your use of the Showmax app. Please read these terms carefully.
1. YOUR USE OF THE SHOWMAX APP CREATES AN AGREEMENT
1.1 Showmax ("Showmax" or "we" or "us" or "our") provides an on demand online streaming service (the "Showmax Service") through which users can stream or temporarily download television shows, movies, video or audio clips and other such audio-visual media ("Content") by using an electronic device which is capable of connecting to the internet, including personal computers, mobile phones, tablets, media players, smart TVs, set top boxes, gaming consoles and other similar devices ("Access Device").
1.2 In order for users to access and receive the Showmax Service using Access Device, we have developed or made available the Showmax software application, which also includes related explanatory materials, instruction manuals and other materials which we may elect to make available together with, or as part of the software application (the "Showmax App").
1.3 Please note that the following are hereby incorporated into the Licence Agreement and form part of the Licence Agreement:
1.3.1 our privacy policy ("Privacy Policy"); and
1.3.2 our terms and conditions (“Terms and Conditions”).
Please visit the Showmax website for more information. Any term beginning with a capital letter that is not defined in this License Agreement shall have the meaning assigned to it in the Terms and Conditions or the Privacy Policy.
1.4 By agreeing to the Licence Agreement, you also agree to be bound by the provisions of the Privacy Policy, as if they have been included in this Licence Agreement in full.
1.5 This Licence Agreement sets out the terms and conditions which apply to your downloading, access and use of the Showmax App and commences on the date that you start downloading or using the Showmax App.
1.6 When a person ("user", "you", or "your") downloads, accesses or uses the Showmax App, you are also agreeing to this Licence Agreement. If you do not agree to this Licence Agreement, you must not, and you are not allowed, to download, access or use the Showmax App.
1.7 We do not sell the Showmax App to you under this Licence Agreement, and we remain the owner of the Showmax App at all times.
2. HOW TO ACCESS AND DOWNLOAD THE SHOWMAX APP
2.1 Devices
2.1.1 To download and access the Showmax App you must have an Access Device.
2.1.2 The Access Device must meet the minimum technical specifications as set out on the Showmax Website from time to time.
2.1.3 Certain Access Devices and operating software may not work with the Showmax App due to limitations or constraints specific to the Access Device or the software. We will not be responsible for your inability to download or access the Showmax App due to limitations specific to your Access Device.
2.1.4 You at your own cost, are responsible for obtaining and maintaining the Devices, adequate and reliable internet access from a suitable service provider and all telecommunication facilities, services, products and other equipment needed to access the internet or to download the Showmax App (“Technology”).
2.1.5 If the Access Device does not belong to you, you hereby confirm that you have obtained permission from the owner of the Access Device to download or install the Showmax App onto the relevant Access Device and to use the Showmax App on the terms of this Licence Agreement.
2.1.6 We are not responsible for any internet access charges, service provider charges and data usage charges. These charges must be paid by you or the owner of the Access Device.
2.1.7 If you experience problems with the Technology used by you to access and use the Showmax App, it is your responsibility to liaise with, and attempt to resolve the problems with, your own IT and telecommunications and service providers, prior to contacting us for assistance.
2.1.8 You acknowledge and accept the risks that information transmitted through the internet or any other communication system, including a wireless communication system, is susceptible to unlawful and unauthorised access, interception, distortion and monitoring.
2.2 You must download the Showmax App
2.2.1 You must download and install the Showmax App on to the Access Device from the app store relevant to the Access Device.
3. GRANT AND SCOPE OF LICENCE TO USE THE SHOWMAX APP
3.1 Licence
3.1.1 For so long as you comply with this Licence Agreement, we grant you a personal, non-transferable, non-exclusive, non-sub licensable and revocable license to download, install and use the Showmax App on the Access Devices for non-commercial purposes only.
3.1.2 We do not give you any rights or licences to access or use the source code of the Showmax App.
3.2 Licence and Use Restrictions
3.2.1 We may issue instructions, manuals, guidelines and directives from time to time relating to the use, implementation, operation and security of the Showmax App. You must comply with these instructions, manuals, guidelines and directives.
3.2.2 You must notify us immediately if you suspect or discover any actual, threatened or suspected unauthorized use of the Showmax App.
3.2.3 Except as expressly set out in this Licence Agreement or as permitted by applicable law, you shall not:
3.2.3.1 sub-license, sell, host, lease, transfer (including via transfer of equipment or other assets), assign, use for time sharing or service bureau purposes, redistribute, or pledge as a security the Showmax App, or any part thereof;
3.2.3.2 copy, reproduce, modify, or create derivative works of the Showmax App, except where such copying is incidental to normal use of the Showmax App, or merge with other software or tools with the Showmax App;
3.2.3.3 make any use of the Showmax App, including any modification, copying, linking, translating, or reverse engineering of the Showmax App or any part thereof, including for clarity any HTML tags, JavaScript code, object code, plugins, or other code used to enable use of the Showmax App, in order to build, aid, enhance or enable usage, or otherwise develop another product or service, including any competitive product or service;
3.2.3.4 disassemble, decompile, bypass any code obfuscation, reverse engineer, or attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Showmax App or any part thereof;
3.2.3.5 engage in, promote, or encourage illegal activity using the Showmax App;
3.2.3.6 conduct any unlawful, invasive, infringing, defamatory or fraudulent activity using the Showmax App or any part thereof, or use the Showmax App in a manner that is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable or inconsistent with this Licence Agreement;
3.2.3.7 intentionally or negligently distribute, introduce, or permit the introduction of, any Destructive Code on or using the Showmax App or the Technology. Destructive Code includes viruses, worms, "trojan horses", corrupted files, malware, hoaxes, instructions, devices or other materials designed to destroy, disrupt, disable, deceive, harm or otherwise impede operation of an Access Device, Technology, services, data, storage media, programs, equipment or communications, or otherwise interfere with operations thereof.
3.2.3.8 generate, distribute, publish, or facilitate unsolicited mass email, promotion, advertising or other solicitation (spam) on or using the Showmax App or use the Showmax App in a manner that runs any form of auto-responder or spam;
3.2.3.9 use the Showmax App in a manner that interferes with the proper working of the Showmax App (including by placing an unreasonable load on the Infrastructure);
3.2.3.10 modify, obscure, or delete any proprietary rights notices included in or on any part of the Showmax App;
3.2.3.11 intentionally or negligently interfere with or disrupt the integrity or performance of the Showmax App, or any data contained therein;
3.2.3.12 attempt to gain unauthorized access to any part of the Showmax App or bypass or breach any security device or protection included in the Showmax App;
3.2.3.13 disclose to a third party or permit any third party to access any part of the Showmax App, except as expressly permitted under this License Agreement;
3.2.3.14 attempt to interact with the operating system underlying the Showmax App;
3.2.3.15 use the Showmax App to make a decision regarding an individual based solely on automated processing which produces legal effects concerning such individual or similarly significantly affects such individual including, for example, establishing an individual’s eligibility for credit, employment or insurance;
3.2.3.16 use the Showmax App, for any high-risk activities where the use or failure of the Showmax App could lead to death, personal injury, or environmental damage;
3.2.3.17 collect or harvest any information or data for attempt to decipher any transmissions from the servers or systems which run the Showmax App;
(the "Licence Restrictions").
3.3 If you modify or attempt to modify your Access Device in any way or use software that is designed to modify your Access Device, override, or disable any security features on your Access Device or its operating system, you acknowledge that you do so at your own risk. There are security features included in the Showmax App which are designed to operate with the Access Device according to the manufacturer's specifications. Modifying the Access Device or its operating system may also result in the Showmax App not working at all.
3.4 You must ensure that everybody that may make use of your Access Devices or any other Technology on which the Showmax App is installed, downloaded or used by you, complies with the Licence Restrictions.
3.5 You shall comply with all technology control or export laws or regulations that apply to the Technology used or supported by the Showmax App.
3.6 All acts and omissions of any person that uses your Access Device or any other device on which the Showmax App is installed or used, shall be treated as, and also be deemed to be, your acts and omissions. We can hold you liable and responsible for these acts and omissions.
4. CHANGES TO THE LICENCE AGREEMENT AND THE SHOWMAX APP
4.1 Changes to the Licence Agreement
4.1.1 We may, at any time, change this Licence Agreement and will inform you of changes hereto. We will do this by sending you an email, or through a pop-up notice when you access the Showmax Service or the Showmax Website, or through a pop-up notice when you log into the account which we create for you after your register in order to use the Showmax Service ("Showmax Account"), or through the Showmax App.
4.1.2 If you do not agree to the changes to this Licence Agreement, you may end your use of the Showmax App in the way set out in clause 6 below.
4.2 Changes to the Showmax App
4.2.1 We may continuously update the Showmax App and we reserve the right to make changes from time to time in how we offer, provide and operate the Showmax App.
4.2.2 We may, in our sole discretion, from time to time, change, vary or amend the form, appearance, functionality and content of the Showmax App, including through Updates and Upgrades.
4.2.3 We may make Updates and Upgrades to the Showmax App available from time to time, free of charge. You will be required to download and install the Updates and Upgrades from the Access Devices relevant app store in order to continue to use the Showmax App.
4.2.4 Depending on the nature of the Update or Upgrade, you may not be able to use the Showmax App until you have downloaded the latest version of the Showmax App.
4.2.5 We do not need to notify you of such changes, Updates and Upgrades unless they will materially adversely affect your ability to use the Showmax App, in which case we will notify you of the changes at least 10 days before the changes come into effect.
4.2.6 If you do not agree to the changes to the Showmax App, you may end your use of the Showmax App in the way set out in clause 6 below.
4.2.7 This Licence Agreement, as may be amended by us, will apply to all Updates and Upgrades, unless we specify otherwise.
5. WE MAY SUSPEND THE SHOWMAX APP AND YOUR USE OF THE SHOWMAX APP
5.1 In addition to any other rights and remedies we may have this Licence Agreement, the Showmax Terms or in law, we are entitled (but not obliged) to temporarily suspend all or part of the Showmax App or to suspend or terminate your right to access and use the Showmax App where:
5.1.1 we need to perform maintenance on, Upgrades or Updates to, the Showmax App or any of the systems, software, Technology or other Infrastructure that we use to provide the Showmax App or the Showmax Services;
5.1.2 Showmax has reasonable grounds to believe that you are using the Showmax App recklessly, with gross negligence or with the intention to defraud or for fraudulent purposes;
5.1.3 Showmax has reasonable grounds to believe that you are engaging in any actual or suspected or threatened breach of the Licence Restrictions;
5.1.4 Showmax becomes aware of any actual, threatened or suspected unauthorised use of the Showmax App;
5.1.5 Showmax reasonably believes that the security of your Access Devices or the Infrastructure used to provide the Showmax App may be compromised;
5.1.6 Showmax becomes aware of any information provided by you is false, inaccurate, invalid, incomplete or misleading;
5.1.7 we must do so to comply with the law; or
5.1.8 a court or regulator tells us to do this.
5.2 The suspension will continue for so long as we reasonably believe is appropriate.
5.3 We will notify you if we suspend part or all of the Showmax App or your use of the Showmax App where it is reasonably practical to do so.
5.4 Without limiting our other rights and remedies in terms of this Licence Agreement, the Showmax Terms or in law, if we exercise our suspension rights in this paragraph 5, we will restore access to and use of the Showmax App as soon as reasonably practical after we become satisfied that the cause of suspension has been removed, avoided or completely mitigated.
6. ENDING THE LICENCE AGREEMENT
6.1 How you may end this Licence Agreement
6.1.1 You may end this Licence Agreement at any time without reason by permanently deleting, removing and destroying all copies of the Showmax App in your possession custody or control and which you have installed on Access Devices.
6.2 How we may end this Licence Agreement by giving notice
6.2.1 We reserve the right at any time and for any reason to terminate:
6.2.1.1 this Licence Agreement;
6.2.1.2 the operation or availability of the Showmax App; or
6.2.1.3 your right to use the Showmax App.
6.2.2 Where we do these things, we will give you 10 days prior written notice unless:
6.2.2.1 the termination is required by law; or
6.2.2.2 it is reasonable to give less than 10 days, having regard to the reasons why we are taking these actions.
6.3 Consequences of termination
6.3.1 Where this Licence Agreement is terminated for any reason:
6.3.1.1 all rights and licences granted to you under this Licence Agreement will immediately end;
6.3.1.2 you must immediately stop all activities authorised by this Licence Agreement;
6.3.1.3 you must immediately remove and delete the Showmax App from all Access Devices and immediately destroy all copies of the Showmax App in your possession, custody or control and (if requested by us) certify to us that you have done so; and
6.3.1.4 you agree that we may remotely access the Access Devices and remove and delete the Showmax App and all copies of it.
6.4 Terms which do not end
6.4.1 Many provisions of this Licence Agreement will continue after this Licence Agreement ends, including terms and conditions which by their nature must continue to apply. This is because certain rights and duties must survive even though the agreement between us has come to an end or you have stopped using the Showmax App.
6.4.2 Some of the provisions in this Licence Agreement which continue include (but are not limited to):
6.4.2.1 terms and conditions where our liabilities or responsibilities are excluded or limited, including amounts which you can claim from us;
6.4.2.2 terms and conditions where the rights you have against us are limited or excluded;
6.4.2.3 terms and conditions where you take on responsibility for certain losses or damages that may happen;
6.4.2.4 clause 8 relating to the Privacy Policy; and
6.4.2.5 the definitions clause of this Licence Agreement.
7. INTELLECTUAL PROPERTY
7.1 In this Licence Agreement, "Intellectual Property Rights" include all intellectual property rights of whatsoever nature anywhere in the world, including (without limitation) copyright and related rights, patents, patent rights, designs, design rights, invention rights, database rights, know-how, confidential information, trade secrets, trademarks, trade names, domain names and service marks, goodwill and all other intellectual property rights, in each case whether registered or unregistered which subsist or will subsist now or in the future in any part of the world, and including all rights to recover damages for the breach, infringement, or misappropriation of any such intellectual property rights.
7.2 You acknowledge that:
7.2.1 all rights, title, ownership and interest, including Intellectual Property Rights, in and to the Showmax App, the Technology and Content used and/or displayed in connection with the Showmax App and/or the Showmax Services is owned by or licensed to us and is protected by law and remains our absolute property and that of our licensors; and
7.2.2 use of the Showmax App is licensed (not sold) to you, and that you have no rights, title, ownership or interest, including any Intellectual Property Rights in, or to, the Showmax App, the Technology, or the Content other than the right to use the Showmax App in accordance with the terms of this Licence Agreement.
7.3 You have no right to have access to the Showmax App in source-code form.
7.4 You must not use the Showmax App in any way that constitutes a violation of any law (including intellectual property law), or an infringement of our rights (including Intellectual Property Rights), or the rights of our licensors or any third party.
7.5 Any copies of the Showmax App which you are permitted to make pursuant to this Licence Agreement must contain the same copyright and other proprietary notices that appear on the Showmax App.
8. COLLECTION OF DATA
8.1 Privacy Policy
8.1.1 We collect and process personal information about you when you download and install the Showmax App and register and use the Showmax Service. We will handle the collection, processing and storage of your personal information in accordance with our Privacy Policy.
8.1.2 The provisions of our Privacy Policy are incorporated in this Licence Agreement by reference, and by agreeing to the terms of this Licence Agreement you also agree to be bound by the provisions of the Privacy Policy, as if its provisions have been included in this Licence Agreement in full.
8.2 Technical and location data
8.2.1 By using the Showmax App or any of the Showmax Services, you consent to us collecting and using technical information about the Access Devices and related Technology, software, hardware and peripherals. We will use this to improve our products and to provide any Showmax Services to you.
8.2.2 The Showmax App will enable us to make use of location data sent to us from the Access Devices. You can turn off this functionality at any time by turning off the location services settings for the Showmax App on the Access Device. If you use the Showmax App, you consent to us and our affiliates' and licensees' transmission, collection, maintenance, processing and use of your location data and queries to provide and improve location-based products and services. You may withdraw this consent at any time by turning off the location services settings on your Access Device.
8.3 Third party sites
The Showmax App may contain links to other independent third-party websites ("Third Party Sites"). Third Party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies. You will need to make your own independent judgment regarding your interaction with any Third Party Sites, including the purchase and use of any products or services accessible through them.
9. DISCLAIMERS, EXCLUSION OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNITY
9.1 Disclaimer and exclusion of warranties
9.1.1 As far as the law allows, the Showmax App is provided to you on an "as is" and "as available" basis and without any representation or warranty whatsoever, whether express, implied or statutory (including any implied warranties of reliability, fitness for any particular purpose, or exclusion of errors or inaccuracies).
9.1.2 As far as the law allows, we make no representations and give no warranties regarding (i) the operation, integrity, compatibility, availability or functionality of the Showmax App, or (ii) that the Showmax App will:
9.1.2.1 be available or accessible at all times;
9.1.2.2 be uninterrupted, timely, error-free, secure or free from Destructive Code; or
9.1.2.3 meet your individual requirements.
9.1.3 As far as the law allows, you assume all responsibility and risk for the installation, use and results obtained from the Showmax App.
9.2 Limits to our liability
9.2.1 As far as the law allows, we will not be responsible to you (and we disclaim all liability) for any loss, liability, injury or damage (whether direct, indirect, incidental, special, punitive or consequential) whatsoever resulting from:
9.2.1.1 any interruption or cessation of transmission to or from the Showmax App, or Technology used by you or us to download, provide or receive the Showmax App, the Showmax Services or the Content;
9.2.1.2 any Destructive Code which may be transmitted to or through the Showmax App, the Showmax Website, the Showmax Services or the Content;
9.2.1.3 any defect, fault, malfunction and/or delay in your Device, or your Infrastructure, hardware and/or software;
9.2.1.4 any defect, failure, fault and/or delay in connectivity to the internet;
9.2.1.5 any lost data arising out of the installation or use of the Showmax App;
9.2.1.6 any unauthorised access to or use of our Infrastructure and/or any and all personal information stored therein whether based on warranty, contract, delict or any other legal theory, and whether or not we have been advised of the possibility of such loss, liability, injury or damage.
9.2.2 The provisions of clause 9.2 apply irrespective of whether any claim you or others make, or any loss, liability, injury or damage suffered, is based on warranty, contract, delict or any other legal theory, and whether or not we have been advised of the possibility of such damages.
9.3 Indemnity
9.3.1 As far as the law allows, you indemnify us and agree to hold us, our affiliates and our suppliers harmless against any loss, liability, costs, and damages which we or they may suffer from a claim, where the claim results from:
9.3.1.1 you infringing or misusing any person's rights, including Intellectual Property Rights;
9.3.1.2 you performing any of the Licence and Use Restrictions; and
9.3.1.3 any deliberate or unlawful act that you commit or a failure to act.
10. NOTICES
10.1 Addresses where we agree to accept notices, including legal notices
Any notices sent to us under this Licence Agreement, including legal notices, must be delivered to us by hand or post at the Showmax offices at (i) 144 Bram Fischer Drive, Randburg, Johannesburg, Gauteng, 2194, South Africa; or (ii) Plot 1381 Tiamiyu Savage Street, Victoria Island, Lagos, Nigeria; or (iii) 1 Silk Street, London, England, EC2Y8HQ, United Kingdom; or (iii) by email at help@showmax.com
Any notices we send to you under this Licence Agreement, including legal notices, will be delivered to the address you provided when downloading the Showmax App or any other address which you have given us proper notice about, or to your email address if you indicated that as your preference when downloading the Showmax App. However, any notices that we may send you in terms of any other agreement we have with you or in other ways which are received by you, will qualify as adequate notice. If you change addresses but do not tell us by updating your details on the Showmax Website you agree that you will accept notices, including legal notices, at the address which you provided when downloading the Showmax App.
We also have the right to send you notices by SMS or email or email, or when you log in to the Showmax Account, or on the Showmax Website, or through the Showmax App, where we intend to suspend or terminate this License Agreement or your use of the Showmax App, or where we have changed any part of the License Agreement, or where we make any changes, Updates or Upgrades to the Showmax App. You may not unsubscribe to receive notices from us regarding this above information.
10.2 Addresses where you agree to accept notices, including legal notices
10.2.1 If you chose email as your preferred method of communication at registration, you agree that we may deliver notices, including legal notices, to your email address.
10.3 Notices by SMS or email or through the Showmax App
10.3.1 We have the right to send you notices about the following issues by SMS or email or through the Showmax App:
10.3.1.1 notices that we intend to suspend or terminate this License Agreement or your use of the Showmax App; and
10.3.1.2 notices that we have amended or updated any part of the License Agreement.
10.3.2 You may not unsubscribe to receive notices from us regarding the above information.
10.4 Direct marketing
10.4.1 We may send you notices from time to time about marketing offers, newsletters or other recommendations or information which we may think will be relevant or interesting to you.
10.4.2 You may unsubscribe from these communications at any time, by following the unsubscribe link in the communication.
10.4.3 You can also contact us on the details provided in paragraph 11 for assistance in unsubscribing from direct marketing communications.
11. SUPPORT AND COMPLAINTS
11.1 Should you experience any technical difficulties with any aspect of the Showmax App, or if you want to lodge a complaint you may contact our technical support team by email at help@showmax.com.
12. MISCELLANEOUS
12.1 This Licence Agreement and any rights, obligations and licences granted hereunder, may not be transferred or assigned by you.
12.2 We may, at any time, transfer, delegate or assign any or all of our rights and obligations under this Licence Agreement. We will notify you if we transfer, delegate or assign any rights or obligations to a third party. We do not have to inform you where we assign any rights or obligations to any of our affiliates or sub-contractors which we may appoint.
12.3 This Licence Agreement shall apply for the benefit of and be binding upon each party's successors and assigns.
12.4 This Licence Agreement and the relationship between the South African Subscriber and us shall be governed by the laws of the Republic of South Africa.
12.5 This Licence Agreement and the relationship between the Subscriber outside of the Republic South Africa and us shall be governed by the laws of England and Wales.
12.6 Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid (including, without limitation, because such provision is inconsistent with the laws of another jurisdiction) or inapplicable, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision.
12.7 This Licence Agreement makes up the whole agreement between you and us relating to the license of the Showmax App. As far as the law allows, neither you nor we are legally obliged to comply with any term, condition, undertaking, representation, or promise relating to the Showmax App that is not written in this Agreement.
12.8 This License Agreement may be provided in several languages. In case of any discrepancies, the English version shall prevail.
12.9 Each provision of this Licence Agreement, and each part of any provision, is removable and detachable from the others. As far as the law allows, if any provision of this Agreement, or part of a provision, becomes unenforceable, illegal or invalid, it must be treated as if it was not included in this Agreement. The rest of this Agreement will still be valid and enforceable.
12.10 In this Licence Agreement, headings are for convenience and not to be used in interpreting these terms, and unless expressly stated otherwise or otherwise required by the context:
12.10.1 references to the singular includes the plural and vice versa;
12.10.2 words in any particular gender include the other genders (male, female and neutral). Reference to a neutral gender (for example 'they' or 'it') include all genders;
12.10.3 words or expressions that are defined or capitalised in these Terms shall have the same meaning wherever used in these Terms;
12.10.4 the word ‘including’ or 'include' or 'includes' must not be interpreted as limited to the list following the word or excluding other items from a list following the word. The word:
12.10.4.1 'including' means 'including but not limited to';
12.10.4.2 'include' means 'include but is not limited to'; and
12.10.4.3 'includes' means 'includes but is not limited to'; and
12.10.5 where any number of days is given, those days are counted to exclude the first day but include the last day.
12.11 We reserve the right to update this Licence Agreement (1) should new requirements be updated by our partners; or (2) should we make changes to our service and product offering.