MTN Play Content Download Terms and Conditions (“Terms and Conditions”)
PLEASE NOTE THAT THESE TERMS AND CONDITIONS HAVE BEEN AMENDED AS OF 5 JUNE 2015.
CLAUSES 1, 2, 3, 4, AND CONSUMER PROTECTION ACT PROVSIONS HAVE BEEN INSERTED.NOTE:
- A. The following Terms and Conditions contain assumptions of risk and/or liability by you and limit and exclude liabilities, obligations and legal responsibilities which Mobile Telephone Networks (Proprietary) Limited (“MTN”) will have towards you and other persons. These Terms and Conditions also limit and exclude your rights and remedies against MTN and place various risks, liabilities, obligations and legal responsibilities on you. These Terms and Conditions may result in you being responsible for paying additional costs and amounts and MTN may also have claims and other rights against you.
- To the extent that the Terms and Conditions or any goods or services provided under the Terms and Conditions are governed by the Consumer Protection Act, 2008 (the "Consumer Protection Act"), no provision of the Terms and Conditions are intended to contravene the applicable provisions of the Consumer Protection Act, and therefore all provisions of the Terms and Conditions must be treated as being qualified, to the extent necessary, to ensure that the applicable provisions of the Consumer Protection Act are complied with.
SECTION 49 CONSUMER PROTECTION ACT NO 68 of 2008 NOTICE, THE FOLLOWING TERMS ARE
IMPORTANT TO NOTE: 4.9, 4.10, 4.11, 4.12, 4.13, 5, 6 and 7
- MTN introduces MTN Play Content Downloads, where MTN will be selling music fulltracks, music ringtones, wallpapers, animations, videos, subscriptions services, mobile streaming services, mobile applications and other mobile content, as detailed in these terms and conditions (“Terms and Conditions”).
- Commencement Date
- MTN Play Content Downloads is available from 01 January 2009.
- Who is eligible
Available to all MTN PayAsYouGo, MTN TopUp or MTN Contract Customers only.
- Terms and Conditions:
MTN Customers can purchase content from MTN Play via one of the following channels:
- By dialing *123# (“USSD”); or
- from their mobile phone: www.mtnplay.mobi; or
- from the WEB: www.mtnplay.co.za; or
- via IVR 083123686; or
- by SMS (Short code to be sent to 083123686 to purchase content items).
Customers can choose content from the following list of categories:
- Love & Life
- News & Info
- DStv Mobile
- The following bearers for MTN Play have been zero-rated for data browsing and usage:
MTN Customers can purchase content from MTN Play via one of the following channels:
- MTN Dating
- MTN AirG
- MTN Rate & Date
- USSD *123#
- All other links to third party sites promoted on MTN Play bearers or content will be charged at the user’s data plan rates.
- Fall-back pricing (is the billing of a lower denomination if the Customer’s account has inadequate/insufficient airtime balance for the monthly fee/weekly fee, she/he is currently on, the Customer will be billed the lesser amount on the fall-back/micro charging model) will take place when a customer has insufficient funds to complete the original transaction or renewal of the service as follows:
- For Choconilla.mobi: Customers will be charged a daily subscription of R5 (five Rand). If Customers do not have R5, they will be charged R2 (two Rand) a day.
- For Gameloft: Customers will be charged a daily subscription of R3.99 (three Rand and ninety nine cents). If Customers do not have R3.99, they will be charged R2.
R1 (one Rand) will be charged for a retry and 0.99c (ninety nine cents) for a final retry daily.
- For MTN Play SMS subscription: The monthly subscription is R15 (fifteen Rand). Customers will be charged R3.50 (three Rand and fifty cents) if they do not have R15.
50c (fifty cents) will be charged for a final retry daily.
- MTN Contract Customers will be billed for usage at the end of the month.
- Customers can dial the customer care number 173 or 808 or visit the My MTN Play section on www.mtnplay.co.za or mtnplay.mobi or dial *123*2# and select manage subscriptions to Opt Out of any subscription service. For MTN Dating, MTN Rate & Date and AirG, the user can opt out by dialing the customer care number 173 or 808. Gameloft users can unsubscribe on m.gameloft.com/mtn_za and select manage my Gameloft club.
- Customers will not be refunded should they decide to cancel the service after they purchased same. If an error occurred, refunds will take place on request and investigation by the MTN customer care team. These refunds will be based on the EBB (“Event Based Billing” means the amount that the Customer was billed, for that service) value that has occurred for the service on that customers MSISDN (that is, the cellphone number).
- All content (‘Content’) is licensed to you by Mobile Telephone Networks (Pty) Ltd (‘MTN’, also ‘we’ and ‘us’) subject to the following terms and conditions. ‘You’ means the user of the services provided by MTN and includes any person who we reasonably believe is acting with your authority or knowledge, including but not limited to use of your mobile phone.
By accessing or downloading the Content, an agreement between you and MTN incorporating these terms and conditions will come into force at such time (‘the Agreement’). We reserve the right to introduce amendments to the terms and conditions and/or the Content as we shall from time to time deem necessary. By accessing or downloading Content following any such modification you will be deemed to accept such modification. It is your responsibility to keep up to date with any changes in the terms and conditions.
- The general terms and conditions of your subscriber agreement (including MTN Contract, MTN TopUp and MTN PayAsYouGo) shall also apply when accessing the Content. In the event of any conflict, this Agreement will prevail in respect of the Content only.
- This Agreement is governed by South African Law, and you agree to submit to the exclusive jurisdiction of the South African courts.
- Nothing in this Agreement affects your statutory rights as a consumer.
- License Grant:
- Participants who fulfil the requirements of clauses 3 and 4 above shall qualify to enter the draw for one of thePrizes listed below:
- The Content and any copyright and other intellectual property rights in any material (including text, photographs, videos, graphics, logos, music, sound and other material images) included in the Content is either owned by MTN or has been licensed to MTN by the rights owner(s).
- All copies of Content remain the property either of MTN or the rights owner(s) from which the Content has been licensed.
- MTN will not replace or refund any Content if such Content is deleted, damaged or otherwise removed from your mobile phone through no fault of ours.
- You may only use the Content for private and personal purposes. You may not infringe the intellectual property rights of others. You must comply with all other reasonable instructions regarding use of the Content.
- You may not, or attempt to, copy, distribute, modify, reformat, display, license, transmit, sell, perform, publish, transfer, reverse engineer or decompile (except to the extent expressly permitted by applicable law or as set out in this Agreement), or otherwise make available, any or all of the Content. You are expressly prohibited from forwarding any other Content that MTN may advise from time to time to others.
- You must be over 16 years of age, or else you must be able to demonstrate to MTN that you have obtained your parent's consent to access or download the Content. Additionally, you must obtain the permission of the person who pays for the mobile phone (including usage charges) before accessing and downloading the Content. This includes where your employer or parent pays for the mobile phone bill.
- The user of any SMS based or delivered Content must have a mobile phone that is capable of sending and receiving text messages, and your Service Provider must allow access to the Content and receipt of messages from us.
- If you are using Java based Content, you must ensure that your device is listed as a supported device (either on our website or on any material provided to you), you can receive SMS messages and the WAP gateway you use is correctly configured.
- You must not use the Content other than in accordance with the acceptable use policies of any connected networks.
- Any attempt to use the Content in an unauthorised way or in a way likely to cause offence will be in breach of this Agreement, and we may suspend your use of the Content. In addition, you may be liable to MTN for damages, costs and expenses incurred by MTN as a result of your breach of this Agreement.
- You are responsible for ensuring that no unauthorised access is obtained to the Content through your mobile phone. You will be entirely liable for all activities conducted through your mobile phone whether authorised by you or not, until such time as you notify MTN of such unauthorised use and we have stopped access to the Content from your mobile phone.
- You must tell MTN immediately if anyone makes or threatens to make any claim or issue legal proceedings against you relating to your use of the Content, and you will, at our request, immediately stop the act or acts complained of. If we ask you to, you must confirm the details of the claim(s) in writing. If you fail to stop the act or acts complained of, we may suspend your use of the Content.
- If we suspend your use of the Content for contravention of any part of this Agreement, we will not restore it until we receive an acceptable assurance from you that there will be no further contravention.
- Indemnity by you: You agree to indemnify us, our licensors and your Service Provider against all losses, costs, proceedings, damages, expenses (including reasonable legal costs and expenses) or liabilities howsoever incurred by MTN or our licensors, as a result of any claim by a third party resulting from your use of the Content (or use of the Content by anyone who accesses the Content using your phone) caused by your breach or non-observance of this Agreement. We shall notify you of any claim received, and you hereby provide MTN with full authority to defend, compromise or settle such claims and shall provide MTN and/or our licensors with all reasonable assistance necessary to defend such claims, at your sole expense.
- Delivery of Content:
You acknowledge that access to and delivery of the Content and performance and message transmission response times are subject to the enabling technology on which the Content is based and may be adversely affected by network performance and other operational factors beyond our control, including, without limitation, congestion, network coverage, dropped connections and the performance of wireless enabled devices.
MTN is not responsible for any failure to deliver Content to you if your mobile phone is not switched on or is not configured correctly, your answer is not in the correct format, your mobile phone is not within coverage or for any other reason cannot be reached, you have a bar on text/WAP/Java services, you are a prepaid subscriber and you have run out of calling credit, your message mail box or phone memory is full or for any other reason which is out of our control or out of the control of any third party delivering the Content.
We may vary the Content or the technical specification of the Content from time to time.
We may withdraw or change the Content at any time for technical, commercial, public interest or operational reasons. In the event that we permanently withdraw the Content, this will be advertised with as much notice as possible prior to the withdrawal of the Content. Depending on the reason for the suspension, withdrawal or change, it may not always be possible to give advance notice
- MTN warrants that the Content will be substantially free from defects and fit for use on your phone provided that such phone is listed on MTN's website as supporting such Content.
- Except as specifically provided herein and to the fullest extent allowed by applicable law, MTN expressly disclaims all other warranties, conditions and other terms, whether express or implied, written or oral, with respect to the Content including any warranty, condition or term of merchantability, fitness for a particular purpose, or non-infringement. If the Content you have bought is defective, your remedy is to seek a refund for the cost of that defective Content from the retailer where you purchased the Content. Content will not be considered defective due to problems arising solely from your mobile phone or your WAP connection.
- To the fullest extent allowed by applicable law, MTN and any of the other parties involved in the provision of the Content will not be liable for direct, indirect, special or consequential damages arising out of your use of or inability to use the Content including but not limited to damages for loss of use, profits, data or the cost of procurement of substitute goods or services, whether such damages arise in contract, negligence, delict or otherwise.
- Nothing in this Agreement shall affect your statutory rights as a consumer or act to exclude or limit our liability for (i) death or personal injury caused by our negligence, (ii) fraud or (iii) any other liability which may not be excluded or limited by applicable law.
- Modification of Terms and Conditions
In so far as it is necessary, required by law or beyond the reasonable control of MTN, MTN reserves the right to vary the nature of these Terms and Conditions, upon notice in this regard being published on www.mtn.co.za or in another appropriate medium.
- MTN reserves the right at any time to modify these Terms and Conditions with notice, without liability to you or any third party. MTN will under no circumstance be liable to you for any error, delay, failure or non-availability of the service, and you indemnify MTN against any damage or loss you may sustain as a result of possession and/or use of the SIM card, MTN network services, or any error, delay, failure or non-availability of the service.
- MTN reserves the right from time to time to vary the charges of the service as may be deemed necessary in its discretion.
- See www.mtn.co.za for product and services rules and updated Terms and Conditions from time to time. Any changes to rules and/or Terms and Conditions are effective from the date that they are published on the website or elsewhere in any media.
- The Customer indemnifies MTN and their directors, officers, employees and agents, against any and all claims for any loss or damages, whether direct, indirect, consequential or otherwise, arising from any cause whatsoever in connection with this service.
- Limitation of Liability
Subject to the provisions of the Consumer Protection Act, to the extent allowed by any other applicable law and also subject to clauses 6.2 and 6.3 below, MTN will not be liable to you or to any other person for any loss or damage suffered (whether it is direct or indirect):-
If the MTN network services are interrupted, suspended, or cancelled, for whatever reason; or
- If MTN does not suspend the provision of the MTN network services to you after you have specifically requested MTN to do so; or
- If the loss or damage was caused by any negligent act or failure to act by MTN, its employees or agents; or
- As a result of the use of any device supplied to you by MTN relating to this service
- Clause 6.1 does not limit or exclude any warranties or obligations which are implied into this service by the Consumer Protection Act (to the extent applicable) or which MTN gives under the Consumer Protection Act (to the extent applicable), to the extent that the law does not allow them to be limited or excluded.
- Clause 6.1 does not limit or exempt MTN from liability for any loss directly or indirectly attributable to the gross negligence of MTN or any person acting for or controlled by MTN to the extent that the law does not allow this. Clause 6.1 also does not limit or exclude the liability of MTN for death or personal injury caused to you through an act or omission of MTN subject to section 61(1) of the Consumer Protection Act, to the extent that the law does not allow this. Clause 6.1 also does not require you to assume risk or liability for these kinds of losses to the extent that the law does not allow this.
- MTN is not responsible for a service being interrupted and/or failing for any reason or for any interruption in the network services.
- You will be able to access services only when you are in the Republic of South Africa in an area covered by the MTN network in the Republic of South Africa.
- You will be solely responsible for all products and services accessed through the service. Accordingly, MTN takes no responsibility for any loss or damage caused by your access through the service. In the event of theft or loss of your device and/or SIM card, such items must be replaced at your own cost, you are obliged to report such loss or theft to the South African Police Services immediately, and to request MTN to suspend such SIM Card.
- The decision of MTN in respect of disputes arising out of this service will be dealt with by MTN in terms of these Terms and Conditions. The decision of MTN in this regard will be final.
- MTN shall be entitled to prohibit or terminate any Customer’s participation in the service if such Customer does not meet the criteria detailed herein and/or if the Customer is involved in any fraudulent activity or suspected fraudulent activity.
- Customers may contact the MTN Customer Care Centre for further information.