WABONA SERVICE

TERMS OF USE

1 DEFINITIONS

• 1.1 “Account” means the account created by upon registration with Wabona through the Site, use of which is regulated by the Terms
• 1.2 “Account Credit” means the number of Wabona Credits in your Account from time to time
• 1.3 “Ad-hoc User” means any person that –
  • 1.3.1 has registered an Account; and
  • 1.3.2 chooses the Top-Up Date to be the date and time on which a Credit Top-Up is initiated by such person;
• 1.4 “Business Day” means any day other than a Saturday, Sunday or public holiday in South Africa;
• 1.5 “Compatible Device” means any device listed on the Site as being a device through which you will be able to access the Service;
• 1.6 “Confidential Information” means any and all information provided by you in the course of using the Site and/or your Account and/or the Service, including any payment related information or personal information supplied by you;
• 1.7 “Content” means either Licensed Content or Proprietary Content;
• 1.8 “Content Request” means a request for Content made by you through the Site;
• 1.9 “Credit Top-Up” means the purchase, through the Site, by a User of Credit Voucher(s), at any time after the initial purchase of at least one Credit Voucher as contemplated in clause 2.2.2;
• 1.10 “Credit Voucher” means a voucher for an amount of –
• • 1.10.1 4 Wabona Credits; or
  • 1.10.2 6 Wabona Credits; or
  • 1.10.3 8 Wabona Credits,
  • and a reference to Credit Vouchers shall mean any number of vouchers, as the case may be;
• 1.11 “ECTA” means the Electronic Communication and Transactions Act, No. No. 25 of 2002;
• 1.12 “Licensed Content” means digital video content which is licensed by Wabona and made available on the Site for streaming;
• 1.13 “Monthly User” means any person that –
• • 1.13.1 has registered an Account; and
  • 1.13.2 chooses the Top-Up Date to be the [last/first] Business Day of every month;
• 1.14 “Proprietary Content” means video content in which all right, title and interest is held by Wabona;
• 1.15 “Service” means an internet based pay-per-view video streaming service, in terms of which Content is streamed to a Compatible Device pursuant to a Content Request;
• 1.16 “Site” means the website operated by Wabona from time to time through which your Account, and in turn, the Service is accessed by you, presently with the following address: www.wabona.com;
• 1.17 “Social Media Accounts” means either your Twitter, Facebook or Google + accounts, as the case may be;
• 1.18 “Terms” means these terms;
• 1.19 “Top-Up Date” means the date on which a Credit-Top Up is processed;
• 1.20 “USD” or “$” means United States Dollars;
• 1.21 “User” or “You” means any Ad-Hoc User or Monthly User;
• 1.22 “Wabona” means Wabona, a division of Afrikan Dust Media Group (Proprietary) Limited (Registration No. 2011/009121/07), the details of which are set out in clause 18;
• 1.23 a “Wabona Credit” means a notional unit, with a value of $ 1.50, and a reference to “Wabona Credits” means any number of such units;
• 1.24 “Wabona Intellectual Property” means –
• • 1.24.1 any copyright, trademark, design or logo which forms part of, or is displayed or used on the Site or the Service including, without limitation, any graphics, logos, designs text, button icons, images, audio clips, digital downloads, data compilations, page headers and software; and
  • 1.24.2 any and all Content;
• 1.25 Any agreement, undertaking, warranty or indemnity given by you in these Terms is given on the basis that such agreement, undertaking, warranty and indemnity is unconditional and irrevocable.

2 REGISTRATION AND FORMATION OF AN ACCOUNT

• 2.1 You are required to register an Account before you will be entitled or able to use the Service.
• 2.2 In order to register an Account, you are required –
• • 2.2.1 to provide all of the information requested from you during the registration process on the Site; and
  • 2.2.2 purchase a Credit Voucher.
• 2.3 Upon successful registration of your Account, Wabona will send you an email notification confirming the details of your Account.
• 2.4 Upon the email referred to in clause 2.3 being sent by Wabona, a contract will have been formed between you and Wabona on the Terms.
• 2.5 You will be able to access the Terms at any time on the Site.

3 PRICING AND PAYMENT TERMS FOR ACCOUNT CREDIT

• 3.1 From the date on which your Account is registered, you will be able, at any time, to increase your Account Credits by purchasing Credit Vouchers through the Site.
• 3.2 For purposes of this clause 3 –
• • 3.2.1 Wabona accepts only the following payment methods for the purchase of Credit Vouchers -
  • • 3.2.1.1 credit card/debit card (MasterCard & Visa);
    • 3.2.1.2 PayPal; or
    • 3.2.1.3 any manner permitted by the payment gateway service provider contracted to Wabona;
  • 3.2.2 any increase in your Account Credit will be effected by the relevant amount, calculated in USD as at the relevant Top-Up Date, being debited from the payment details chosen by you in accordance with clause 3.2.1.

4 USE OF THE SERVICE

• 4.1 Content shall be priced on the Site with reference to a number of Wabona Credits.
• 4.2 From the date and time on which you receive the email referred to in clause 2.4, you will be entitled at any time to make a Content Request through the Site.
• 4.3 In order for a Content Request to be processed, you will be required to have sufficient Account Credit. Each Content Request that is processed will result in a debit of your Account Credit by such number of Wabona Credits as is equal to the cost of the Content that is the subject matter of a Content Request.
• 4.4 All Content Requests will automatically be processed, and, subject to clauses 4.3 and 14, will be confirmed on the Site.
• 4.5 Upon receipt of the confirmation referred to in clause 4.3, you will be entitled and able to stream the relevant Content through the Site for a period of 72 (seventy two) hours, calculated from the date and time of receipt of the confirmation by you.
• 4.6 Wabona reserves the right, in its sole and absolute discretion, to make changes from time to time and without notice to the operation of the Site.
• 4.7 Due to the unique nature of the Service, Account Credits, once debited to your Account, are final and no refunds of any Account Credits will be given under any circumstances.
• 4.8 You are responsible for all internet data usage charges required to use the Service. Please check with your internet service provider for information on internet data usage charges.
• 4.9 All pricing reflected in these Terms and on the Site and Service is in USD.

5 ACCOUNT MANAGEMENT BY YOU

• 5.1 You agree that, at all times –
• • 5.1.1 it is your sole and absolute responsibility to keep all of your Account information up-to-date, secure and confidential;
  • 5.1.2 you will immediately notify Wabona in writing of any security breach in respect of your Account that comes to your attention;
  • 5.1.3 you are solely and absolutely responsible for any use of and activity on your Account.
• 5.2 You are, at any time, able to integrate your Account with your Social Media Accounts. In this regard –
• • 5.2.1 you agree that Wabona may personalise and enhance your Wabona user experience based on any information that you have provided in registering or using your Social Media Accounts;
  • 5.2.2 please pay careful attention to the settings (including the privacy settings) on your Social Media Accounts, as this will have an impact on the integration feature referred to in clause 5.2;
  • 5.2.3 you may at any time disconnect your Social Media Accounts at any time by following the appropriate steps on your Account settings.
• 5.3 By integrating your Account with your Social Media Accounts, you are consenting to the continuous release of information about you to other users of Facebook, Twitter or Google +, as the case may be. IF YOU DO NOT WANT SUCH INFORMATION ABOUT YOU TO BE SHARED IN THIS MANNER, DO NOT USE THE INTERGRATION FEATURE REFERRED TO IN CLAUSE 5.2.
• 5.4 You are, at any time, able to add Member Reviews to a piece of content that you have watched on Wabona. In this regard -
• • 5.4.1 You agree not to post reviews or any information that contains severe, disrespectful or discriminatory language. Or illegal, lewd, intimidating, defamatory or otherwise disagreeable content. Or URLs, phone numbers, personal and otherwise mailing or e-mail addresses, personal attacks on the TV show's or movie's creative personnel. Or misleading information regarding the origin of the content. Or a discussion of Wabona’s policies or services.
  • 5.4.2 You agree that by submitting a review you consent and agree to Wabona releasing all the information in the review, which includes your TV Show or movie ratings to a public forum, which includes other Wabona members and visitors to the Wabona site.
  • 5.4.3 If you do not want your information or reviews made public, do not use the Member Review section.
  • 5.4.4 Wabona reserves the right to reject, edit and remove a review at any moment without notice.
• 5.5 You are entitled at any time to cancel your Account by sending an email to -
• • 5.5.1 [email protected];
  • 5.5.2 with subject line: “Account Cancellation”.
  • In this event, Wabona will cancel your Account within 24 hours of receiving the email referred to in this this clause 5.5.

6 ACCOUNT MANAGEMENT BY WABONA

• 6.1 Wabona is entitled, at any time, to request that you provide, in a form satisfactory to Wabona, documentary evidence establishing and/or confirming your identity as the registered user of an Account.
• 6.2 You agree that Wabona is entitled, in its sole and absolute discretion, at any time, to –
• • 6.2.1 suspend your Account (on any terms determined by Wabona);
  • 6.2.2 cancel your Account.
• 6.3 If your Account is –
• • 6.3.1 suspended in accordance with clause 6.2.1, you will not be entitled or able to make any Content Requests.
  • 6.3.2 cancelled in accordance with clause 6.2.2 –
  • • 6.3.2.1 such cancellation will be effective on the date and time on which Wabona transmits the written notification of cancellation to you;
    • 6.3.2.2 you will no longer be entitled or able to use the Service from the date and time of such cancellation;
    • 6.3.2.3 all information relating to your Account will be erased from the Service;
    • 6.3.2.4 you agree that all Account Credits at the date and time of cancellation will be forfeited to Wabona and you will have no claim of any nature arising from such forfeiture (and to the extent necessary, you waive your rights to any such claims, to these amounts;
    • 6.3.2.5 and you subsequently wish to use the Service, you must again register an Account as described in clause 1.25.

7 TECHNICAL REQUIREMENTS

• 7.1 The Site, your Account and the Service can only be accessed from any internet-enabled device with a minimum internet connection of 1MB for fixed line(ADSL, Cable & Fibre) and 7MB for Mobile internet. For Mac and Pc Wabona requires Flash enabled desktop browsers.
• 7.2 If you experience any technical problems with any Content, you are required to immediately notify Wabona. In this event, Wabona will use commercially reasonable endeavours to resolve such technical problems for you.

8 RESTRICTIONS ON USE OF THE SERVICE

• 8.1 You agree that you will not at any time attempt or actually (whether alone or in conjunction with any third party) -
• • 8.1.1 alter, reverse-engineer, modify, circumvent, disable, amend, tamper with or change any part of the Site and/or the Service and/or your Account;
  • 8.1.2 alter, reverse engineer, modify, circumvent, disable, amend, tamper with or change any security features of the Site and/or the Service and/or your Account;
  • 8.1.3 infect the Site or the Service with any software, malware or code that may infect, damage, delay or impede the operation of the Site or the Service or which may intercept, alter or interfere with any data generated by or received through the Site or the Service;
  • 8.1.4 use the Service for any commercial use;
  • 8.1.5 use the Site or the Services to solicit services or work;
  • 8.1.6 allow any third party to use your Account in any way or deal with any Content in any manner other than as permitted by these Terms;
  • 8.1.7 use any Content as part of any service or scheme (whether such service is free or not) for sharing, lending, or multi- person use;
  • 8.1.8 access any Account that is not your own;
  • 8.1.9 register more than one Account in your name.

9 THIRD PARTY ADVERTISING

• 9.1 From time to time, Wabona will display advertising and promotional items generated by, and for, its commercial partners on the Site, whether through the use of hyperlinks, banners or otherwise.
• 9.2 Any advertising and promotional items referred to in clause 9.1 are provided on the Site for commercial purposes only and Wabona does not necessarily endorse or approve of such advertising and promotional items and/or any services or products referred to in such advertising and promotional items.
• 9.1 You agree that any reliance on, or use of, such advertising and promotional items by you is entirely at your own risk. You are strongly urged to consult the respective terms of use (including privacy policies) of these third party advertisers for more information on their practices and for instructions on how to opt-out of certain practices. Wabona’s privacy policy does not apply to, and Wabona cannot and does not control the activities of such other third party advertisers or websites.

10 INTELLECTUAL PROPERTY

• 10.1 You may use the Site and the Service for private and non-commercial use only.
• 10.2 You acknowledge and agree that all right, title and interest in, and to, any Wabona Intellectual Property is proprietary to Wabona and its licensors, and will remain, vested in Wabona or is used and/or displayed by Wabona pursuant to agreement with the proprietor of such Wabona Intellectual Property.
• 10.3 You agree that you will not at any time or under any circumstances acquire any rights of any nature in and to the Wabona Intellectual Property.

11 CONTENT

• 11.1 Wabona is not able to control or monitor all of the Content that may appear on the Site or the Wabona Site at any time.
• 11.2 Wabona will consider any complaint that you may have regarding any offensive, defamatory or otherwise inappropriate Content that is made available through the Service. Wabona reserves the right to respond to any complaint in the manner that it sees fit. Wabona does not accept any liability of any nature for any offensive, defamatory or inappropriate Content on the Site or the Service.

12 PRIVACY AND SECURITY

• 12.1 Any Confidential information provided by you to Wabona (including in the manner described in clause 5.2) –
• • 12.1.1 may be used by Wabona -
  • • 12.1.1.1 to operate, maintain, and improve the features and functionality of the Site and/or your Account and/or the Service;
    • 12.1.1.2 for internal administrative purposes; and
    • 12.1.1.3 to send you information regarding Wabona and/or Afrikan Dust Media Group (Proprietary) Limited (including in relation to products or services offered by either of them);
  • 12.1.2 will not –
  • • 12.1.2.1 be used by Wabona to send commercial or marketing messages to you without your prior consent, other than in the circumstances described in clause 12.1.1.3;
    • 12.1.2.2 be sold, shared, made available or transmitted to any third parties;
  • 12.1.3 through your Account is stored by Wabona on a secure database.
• 12.2 To make your user experience more convenient, the Site uses cookies that require acceptance by your web browser software. If you do not wish to accept a cookie, you are able to configure your web browser software to enable you to decline a cookie that is to be sent to you. Please note that if you configure your web browser software to decline cookies, the Site (and the Service) will not function as intended.
• 12.3 Despite what is said above, you agree that Wabona is entitled to disclose any Confidential Information to any competent legal or regulatory authority that makes such a request and is lawfully entitled to obtain such information from Wabona. In this instance, Wabona undertakes to disclose only such information as is sufficient to satisfy such request.

13 WARRANTIES

• 13.1 You warrant to and in favour of Wabona that –
• • 13.1.1 by tendering payment with a credit card/debit card–
  • • 13.1.1.1 you have provided accurate and complete credit card/debit card details; and
    • 13.1.1.2 you are authorised to make the relevant payment with the credit card/debit card, as the case may be; and
    • 13.1.1.3 there are sufficient funds available in the account to which the credit card/debit card is linked to make the relevant payment.
  • 13.1.2 you are 18 years or older;
  • 13.1.3 you have the legal capacity to agree to and be bound by the Terms;
  • 13.1.4 the Terms constitute contract valid and binding on you and enforceable against you.
• 13.2 Each of the warranties given by you, will –
• • 13.2.1 be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in the Terms;
  • 13.2.2 continue and remain in force irrespective of whether your Account is suspended or cancelled;
  • 13.2.3 be deemed to be material.

14 EXCLUSION OF WARRANTIES BY WABONA

• 14.1 You agree that Wabona makes the Site and the Service available to you on an “as is” basis.
• 14.2 Accordingly, Wabona does not make any warranties of any nature to you regarding your use of the Site or the Service. To avoid doubt, but without limitation, Wabona expressly does not warrant or guarantee –
• • 14.2.1 that the Site or the Service will be fully functional or available at all times. The quality of the display of the Content may vary from Compatible Device to Compatible Device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection;
  • 14.2.2 that any particular functionality relating to your Account, the Site and/or the Service will be available at all times. In response to requests from Wabona’s licensor partners, or due to technical limitations, or for any reason in the sole and absolute discretion of Wabona, and without prior notice to you, some or all Content may be made unavailable for Streaming;
  • 14.2.3 that the Content will be of any particular artistic or technical standard or quality;
  • 14.2.4 that any Content will be free from errors or defects.

15 LIMITATION OF LIABILITY

• 15.1 To the extent permitted under applicable law, under no circumstances whatsoever, including as a result of Wabona’s negligent acts or omissions or those of Wabona’s, shareholders, directors, employees and representatives or other persons for who Wabona may be liable in law, will Wabona or its shareholders, directors, employees and representatives (in whose favour this constitutes a third party stipulation capable of acceptance in writing at any time) be liable in any manner for any costs, claims, damages, awards, penalties, or other amounts (including, without limitation, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused) which may be suffered or incurred by you (or with which you have been threatened) arising out of, whether directly or indirectly, your use of the Site, and/or your Account and/or the Service.
• 15.2 You agree that your sole and exclusive remedy for any dispute of any nature with Wabona (whether in relation to your use of the Site, your Account, the Service or otherwise) is to stop using the Site, your Account and the Service and to immediately cancel your Account.

16 INDMENITY

• You indemnify and hold Wabona harmless against any losses, claims, damages, penalties, claims, sums which may be suffered or incurred by Wabona (or which Wabona may be threatened with) arising, whether directly or indirectly -
• • 16.1 out of the use of your Account, the Site or the Service; or
  • 16.2 the breach of any warranty given by you in clause 13.1.

17 COPYRIGHT INFRINGEMENT

• If you believe your work has been reproduced or distributed through the Site in a manner that constitutes copyright infringement, please immediately email Wabona with full particulars of such infringement.

18 WABONA INFORMATION

• Wabona is required in terms of section 43 of the ECTA to provide you with the following information –
• • 18.1 Site owner: Wabona;
  • 18.2 Legal status: Wabona is a division of Afrikan Dust Media Group(Proprietary Limited, a private company with limited liability, duly incorporated in accordance with the Act;
  • 18.3 Wabona Registration No: 2011/009121/07;
  • 18.4 Wabona Directors: Simbarashe Mabasha, Simukayi Mukuna;
  • 18.5 Description of main business of WABONA: internet based pay-per-view digital content streaming service;
  • 18.6 Telephone number: +2783-325-0699 or +2772-230-3638;
  • 18.7 E-mail address: [email protected] or [email protected];
  • 18.8 Website address: www.afrikandustmedia.com;
  • 18.9 Physical Address: 41 St Claire, 1st Avenue, Kenilworth, 7708, Cape Town, South Africa;
  • 18.10 Postal Address: 16 Woodbines, Roslyn Road, Rondebosch, 7700, Cape Town, South Africa;
  • 18.11 Registered Address: 41 St Claire, 1st Avenue, Kenilworth, 7708, Cape Town, South Africa.

19 NOTICES

• For all purposes of these Terms, any notice required to be in writing shall include email.

20 DISPUTE RESOLUTION

• 20.1 In the event of any dispute or difference arising between you and Wabona relating to or arising out of your use of the Site or your Account or the Service or these Terms, including the implementation, execution, interpretation, rectification, termination or cancellation of the agreement constituted by these Terms, the said dispute or difference shall be submitted to arbitration in Cape Town in accordance with the Rules of the Arbitration Foundation of Southern Africa (or any succeeding body) by an arbitrator or arbitrators appointed by the Foundation.
• 20.2 Notwithstanding anything to the contrary contained in these Terms, any party to the arbitration may seek interlocutory relief in any competent court having jurisdiction pending the institution of appropriate proceedings for the enforcement of any rights under these Terms.
• 20.3 Both you and Wabona undertake to keep the arbitration, including the subject matter of the arbitration and the evidence heard during the arbitration, confidential and not to disclose it to anyone except for the purposes of an order to be made in the arbitration.
• 20.4 The decision of the arbitrator shall, in the absence of manifest error, be final and binding on you and Wabona and may be made an order of any competent court in South Africa at the instance of any party.
• 20.5 These provisions are separate and severable from the rest of the Terms and, accordingly, will remain in effect despite the termination or invalidity for any reason of these Terms.

21 GOVERNING LAW AND SUBMISSION TO JURISDICTION

• 21.1 The Terms will be governed at all times by the substantive laws of South Africa.
• 21.2 Subject to clause 19, you agree that any legal action or proceedings arising out of or in connection with the Terms and/or use of the Service will be brought in the Western Cape High Court and irrevocably submit to the exclusive jurisdiction of such court.

22 WHOLE AGREEMENT

• The Terms constitute the whole agreement between you and Wabona relating to your use of your Account, the Site and the Service and supersedes any other discussions, agreements and/or understandings regarding your use of your Account, the Site and the Service.

23 AMENDMENT OF THE TERMS

• 23.1 Wabona is entitled in its sole and absolute discretion, at any time, to amend the Terms.
• 23.2 If Wabona amends the Terms as described above, it will immediately take reasonable steps to draw your attention to the amendments. IT IS YOUR RESPONSIBILITY TO REVIEW AND BE FAMILIAR WITH THE AMENDMENTS TO THE TERMS.
• 23.3 All amendments to the Terms contemplated in this clause 23 will become effective 14 days of the date on which you receive the email referred to in clause 23.2.
• 23.4 If you do not agree to any amendments to the Terms, you must –
• • 23.4.1 stop using the Service; and
  • 23.4.2 cancel your Account,
  • before the date on which the amendment becomes effective as contemplated in cause 23.3.
• 23.5 If you continue to use the Service on or after the date on which any amendment to the Terms become effective as contemplated in cause 23.3, you will be deemed to have accepted and agreed to the amended Terms in their entirety.

24 NO ASSIGNMENT

• You will not be entitled at any or under any circumstances time to cede any of your rights set out in the Terms or delegate, any of your obligations set out in the Terms.

25 SEVERABILITY

• Any provision of these Terms which is or may become illegal, invalid or unenforceable in any jurisdiction affected by these Terms will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of these Terms, without invalidating the remaining provisions of these Terms or affecting the validity or enforceability of such provision in any other jurisdiction.

26 NO INDULGENCE

• No extension of time or waiver or relaxation of any of the provisions of these Terms by Wabona or any agreement or other document issued or executed by Wabona pursuant to or in terms of these Terms, will operate as a defence against Wabona in respect of the enforcement of its rights set out in these Terms, nor will it operate so as to preclude Wabona (other than in relation to any extension, waiver or relaxation actually given) thereafter from exercising its rights strictly in accordance with these Terms.

27 NO THIRD PARTY STIPULATION

• The Terms create a legally binding agreement between Wabona and you Accordingly, unless expressly stated to be the case, the Terms do not create rights in favour of any third party.