Defend the King Ts & Cs

TERMS AND CONDITIONS FOR BURGER KING® SOUTH AFRICA’S APP GAME

The following provisions are drawn to the attention of the User if the Consumer Protection Act 68 of 2008 ("the CPA") applies to these Terms and Conditions: • clause 4 (including the fact, nature and effect of the limitation of liability contemplated therein); • clause 5 (including the fact, nature and effect of the indemnity contemplated therein); • clause 8 including the fact, nature and effect of the limitation of liability contemplated therein).


1. INTRODUCTION
 
1.1. Burger King® South Africa (Pty) Ltd (Registration Number: 2011/143896/07) ("BURGER KING® South Africa") is launching a mobile application game ("the Burger King® App Game") as part of a King JR™ Meal toy campaign ("the Campaign").

1.2. These terms and conditions ("Terms and Conditions") must be read with Burger King® South Africa’s website terms and conditions ("Website T&C’s"), which are available at www.burgerking.co.za ("Website") and any BURGER KING® South Africa promotional material utilised for the Campaign or the Burger King® App Game ("Promotional Material"). Please note that certain defined terms contained in the Website T&C’s will be utilised in these Terms and Conditions.

1.3. The terms "user", "you" and "your" are used interchangeably in these Terms and Conditions and refers to any individual who uses the Burger King® App Game from time to time (or intends using the Burger King® App Game) and any individual who downloads the Burger King® App Game.

1.4. These Terms and Conditions govern the Campaign and the downloading and use of the Burger King® App Game. Please read these Terms and Conditions carefully and make sure you understand them before you download or use the Burger King® App Game. Please do not download or use the Burger King® App Game if you do not agree to these Terms and Conditions.

2. ELIGIBILITY
 
2.1. There are limitations on who may download and use the Burger King® App Game. You may not download the Burger King® App Game if you are a minor (i.e. under the age of 18 (eighteen) years of age). A minor may not use the Burger King® App Game unless the minor’s parents or guardians have read these Terms and Conditions, agree to them on the minor’s behalf and download the Burger King® App Game on the minor’s behalf.

2.2. By downloading the Burger King® App Game, you hereby confirm and represent to Burger King® South Africa that:
 
2.2.1. you have unfettered legal capacity to contract; and

2.2.2. you agree to these Terms and Conditions and agree to be bound by them; and

2.2.3. if you are downloading the Burger King® App Game on behalf of a minor as contemplated in clause 2.1, you are the parents or legal guardians of the minor, you consent to the minor using the Burger King® App Game on the terms and conditions contained herein, you are agreeing to these Terms and conditions on behalf of yourself and the minor and you understand and agree that the limitation of liability and indemnity contained in these Terms and Conditions are duly binding on yourself and on the minor.

3. PARTICIPATION
 
3.1. The Burger King® App Game can be downloaded for free from the iStore or Google Play on a mobile phone with an iOS or android 4.4 operating system and higher.

3.2. Once the Burger King® App Game has been downloaded, open the application and press play. Your camera will be activated. Follow the tutorial to learn how to play the Burger King® App Game.

3.3. In order to play the Burger King® App Game you will need "lives". When you download the Burger King® App Game you will be given 15 (fifteen) free lives.

3.4. Once your 15 (fifteen) free lives have been utilised you can obtain more lives by purchasing a King JR™ Meal at any BURGER KING® South Africa restaurant. By purchasing the King JR™ Meal you will be given access to a marker. Scan the marker using your mobile device and you will receive a further 10 (ten) lives. You are only entitled to scan the marker once for every King JR™ Meal you purchase.

3.5. You can obtain lives by following the procedure set out in clause 3.4 above multiple times until Burger King® South Africa, in its sole and absolute discretion and without notice, terminates the Campaign.
 

4. LIABILITY

You hereby agree that your use of the Burger King® App Game is at your own risk. Please note that the Burger King® App Game works on an augmented reality and virtual reality basis. Accordingly, when you play the Burger King® App Game please be aware of your surroundings and exercise due care by playing the Burger King® App Game safely and not in contravention of any applicable law, rule or regulation so as to maintain your own personal safety and avoid any damage or injury to person or property (including that of third parties). To the maximum extent permitted in law, neither BURGER KING® South Africa, nor its Related Parties, nor any persons related or inter-related (as contemplated in section 2 of the Companies Act 71 of 2008 (as amended)) to BURGER KING® South Africa or its Related Parties, nor any of their respective directors, prescribed officers, managers, employees, agents, franchisees, or other persons in respect of whose actions BURGER KING® South Africa may be held to be vicariously liable or anyone associated with any of them (collectively, "BURGER KING® South Africa Parties"), shall incur any liability to any person for any injury, claim, loss or damage of any nature whatsoever, whether direct, indirect, consequential or otherwise, whatsoever or howsoever arising from your use or misuse of the Burger King® App Game, or as a result of, or arising from any defects in the Burger King® App Game or your access to or inability to access the Burger King® App Game or otherwise. To the extent necessary in law the provisions of this clause 4 shall constitute a stipulatio alteri (i.e. a contract in favour of a third party) in favour of the BURGER KING® South Africa Parties, the benefit whereof may be accepted by any or all of them at any time, from time to time.
 
5. INDEMNITY

You indemnify the BURGER KING® South Africa Parties from any liability for any injury, claim, loss or damage of any nature whatsoever, whether direct, indirect, consequential or otherwise arising from your use of the Burger King® App Game.
 
6. PRIVACY AND INFORMATION

These Terms and Conditions must be read in conjunction with any applicable provisions of BURGER KING® South Africa’s Website T&C’s relating to privacy, data protection, use and disclosure information and any applicable law.
 
7. INTELLECTUAL PROPERTY
 
7.1. Save for the limited license granted in terms of clause 7.2 hereunder, BURGER KING® South Africa retains all right, title and interest in and to the Burger King® App Game, which includes all content, services and functionality associated with the Burger King® App Game.

7.2. Subject to your compliance with these Terms and Conditions, BURGER KING® South Africa hereby grants you a non-exclusive, non-transferable, non-sublicensable, revocable limited license to download, install and use the Burger King® App Game on a mobile device solely for your own personal, non-commercial purposes.

7.3. You hereby acknowledge that your right to download and use the Burger King® App Game is derived solely from BURGER KING® South Africa and is conditional upon your proper conduct, safe use of the Burger King® App Game and compliance with these Terms and Conditions at all times. BURGER KING® South Africa reserves the right to suspend or deny, in its sole discretion, your access to all or any portion of the Burger King® App Game.

7.4. You are not entitled to:
 
7.4.1. copy, reproduce, modify, alter, create derivative works of, sell, reverse engineer, decompile, or disassemble the Burger King® App Game or any part thereof; or

7.4.2. sub-license, assign, transfer, or in any manner give or grant or transfer, directly or indirectly, any rights granted in terms of these Terms and Conditions to any third party.
 
7.5. The limited license granted to you in terms of this clause 7 will be revoked (with or without notice) and ineffective if you:
 
7.5.1. are a minor and your parents or guardians have not read these Terms and Conditions, agreed to them on your behalf and downloaded the Burger King® App Game on your behalf in accordance with the provisions of clause 2;

7.5.2. engage in any act that BURGER KING® South Africa deems to be in conflict with the spirit or intent of these Terms and Conditions, the Website T&C’s or the Promotional Material including, but not limited to, circumventing or manipulating these Terms and Conditions, the Website T&C’s or the Promotional Material; or

7.5.3. fail to comply with any of the provisions of these Terms and Conditions.
 
8. NO WARRANTIES

The Burger King® App Game is provided to you "as is" without warranty of any kind. BURGER KING® South Africa hereby disclaims all warranties, either express or implied, to the maximum extent permitted by law.
 
9. GENERAL
 
9.1. These Terms and Conditions may be amended, varied and/or modified by BURGER KING® South Africa at any time and such amendment, variation and/or modification shall be effective immediately upon posting of the amended, varied and/or modified Terms and Conditions on the Website. Accordingly, the continued use by a user of the Burger King® App Game shall be deemed to be the user’s acceptance of any such modified Terms and Conditions.

9.2. These Terms and Conditions shall comply with, and will be subject to, any peremptory provisions of the CPA and the regulations promulgated thereunder, which are deemed to be incorporated herein ("Peremptory Provisions"). In the event of any conflict between these Terms and Conditions and the Peremptory Provisions, the latter shall prevail. Furthermore, no term or condition of these Terms and Conditions is intended to breach any Peremptory Provisions. Any breach of any such Peremptory Provision shall be governed by the provisions of clause 9.4 mutatis mutandis (i.e. subject to changing those things which need to be changed).

9.3. This document, together with any terms and conditions appearing in the Website T&C’s or in any Promotional Material, contains the entire agreement between the parties in relation to the subject matter hereof. Save as contemplated in these Terms and Conditions (including clause 9.1 above) no alteration, cancellation, variation of, or addition hereto will be of any force or effect.

9.4. Each sentence, paragraph, term, clause and provision of these Terms and Conditions and any portion thereof shall be considered severable and if, for any reason, any such sentence, paragraph, term, clause or provision is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation (including, without limitation, the CPA and any Regulations thereto) or in terms of a final, binding judgment issued by any court, it shall to that extent be deemed not to form part hereof and shall not impair the operation of, or have any effect upon such other sentence, paragraph, term, clause or provision hereof as may otherwise remain valid or intelligible, which shall continue to be given full force and effect and bind the parties hereto. If any provision of these Terms and Conditions is found by any Court to be unfair as contemplated in Regulation 44 to the CPA, then that provision will apply to the maximum extent permitted under the CPA and will further be governed by the provisions of this clause 9.4 mutatis mutandis.
 
SUPPLIER’S INFORMATION TO BE PROVIDED IN TERMS OF SECTION 43 OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT 25 OF 2002:
 
a) full name and legal status:
 
Burger King South Africa (RF) Proprietary Limited, a private company duly incorporated under the laws of the Republic of South Africa 
 
b) physical address and telephone number:
 
10th Floor, 33 on Heerengracht, Foreshore, Cape Town, 8001
+ 27 (0)21 443 9223
 
c) web site address and e-mail address:
 
http://www.burgerking.co.za
info@whopper.co.za
 
d) membership of any self-regulatory or accreditation bodies to which that supplier belongs or subscribes and the contact details of that body:
 
N/A
 
e) any code of conduct to which that supplier subscribes and how that code of conduct may be accessed electronically by the consumer:
 
N/A
 
f) registration number, its place of registration and the names of its office bearers:
 
Registration number: 2011/143896/07
Registered in South Africa
Registered Office: 10th Floor, 33 on Heerengracht, Foreshore, Cape Town, 8001
Office bearers:
  • Hassen Adams (Director)
  • Davin Brian Berrill (Director)
  • Bruno Carvalho Lino De Souza (Director)
  • Alan Edward Keet (Director)
  • Lazelle Christian Parton (Company Secretary)
 
g) the physical address where that supplier will receive legal service of documents:
 
10th Floor, 33 on Heerengracht, Foreshore, Cape Town, 8001
 
h) a sufficient description of the main characteristics of the goods or services offered by that supplier to enable a consumer to make an informed decision on the proposed electronic transaction:
 
Augmented Reality Game
 
i) the full price of the goods or services, including transport costs, taxes and any other fees or costs:
 
The full price of the goods will be the price displayed on the Burger King® App Game;
 
j) the manner of payment:
 
In-App purchases by means of credit card and electronic vouchers
 
k) any terms of agreement, including any guarantees, that will apply to the transaction and how those terms may be accessed, stored and reproduced electronically by consumers:
 
Refer to the Apple Media Services Terms and Conditions which can be found at https://www.apple.com/legal/internet-services/itunes/za/terms.html and Google Play Terms of Service which can be found at https://play.google.com/intl/en-GB_za/about/play-terms.html ("Apple and Google Play’s Terms and Conditions")
 
l) the time within which the goods will be dispatched or delivered or within which the services will be rendered:
 
Refer to Apple and Google Play’s Terms and Conditions
 
m) the manner and period within which consumers can access and maintain a full record of the transaction:
 
Refer to Apple and Google Play’s Terms and Conditions
 
n) the return, exchange and refund policy of that supplier:
 
Refer to Apple and Google Play’s Terms and Conditions
 
o) any alternative dispute resolution code to which that supplier subscribes and how the wording of that code may be accessed electronically by the consumer:
 
N/A
 
p) the security procedures and privacy policy of that supplier in respect of payment, payment information and personal information:
 
Refer to Apple and Google Play’s Terms and Conditions
 
q) where appropriate, the minimum duration of the agreement in the case of agreements for the supply of products or services to be performed on an ongoing basis or recurrently: and
 
Refer to Apple and Google Play’s Terms and Conditions
 
r) the rights of consumers in terms of section 44, where applicable:
 
Refer to Apple and Google Play’s Terms and Conditions
 
Any reference to Apple and Google Play’s Terms and Conditions are deemed, to the extent necessary in law, to be incorporated herein.