Terms and Conditions

USER AGREEMENT: TERMS AND CONDITIONS OF USE OF www.castroledgegrafix.com

entered into in favour of

BP SOUTHERN AFRICA LIMITED

(Registration No. 04/02602/07)

BP Town Square, 61 ST Georges Mall, Cape Town, South Africa.

(“BP”)

General
1. This CASTROL EDGE GRAFIX website: www.castroledgegrafix.com (the “Website”), provides profile, signature and mobile wallpaper creation applications (“Creation Applications”) to enable users to create and download profiles, signatures and mobile telephone wallpaper and to upload, distribute and share their profile, signature and mobile telephone wallpaper on other websites and other media platforms, including on websites dedicated to discussion forums and/or blogs.
2. These terms and conditions of use (“Terms”) regulate access to and use of this Website, the Creation Applications contained on this Website, any profile, signature and mobile telephone wallpaper created, used, downloaded, uploaded distributed and shared by you (the “Personalised Items”) and the uploading of any content and material (including text, files, images and photographs) on the Website or any Creation Application).
3. Please note that these Terms are valid, binding and enforceable against all persons that access and/or use this Website and/or any Creation Application, and/or create, use, download, upload, distribute and/or share any Personalised Items, and/or any part of these, or upload any content or material (including text, files, images and photographs) on the Website or any Creation Application
4. Should you (“you” and/or “user”: which shall mean any person that accesses the Website and any Creation Application, and/or creates, uses, downloads, uploads, distributes and/or shares any Personalised Item, or any part of these, and/or uploads content and material (including text, files, images and photographs) on the Website or any Creation Application, disagree with any of the Terms, you must refrain from accessing and/or using the Website, any Creation Application, or creating, using, downloading, uploading, distributing or sharing any Personalised Item, or any part of these, or uploading content and material (including text, files, images and photographs) on the Website or any Creation Application), as use of the Website and/or any Creation Application or the creation, use, downloading, uploading, distribution and/or sharing of any Personalised Item, or any part of these, and/or uploading of content and material (including text, files, images and photographs) on the Website or any Creation Application) automatically binds you to these Terms.
5. BP reserves the right, in its sole discretion, to amend and/or replace any of, or the whole of, the Terms. Such amendments shall supersede and replace any previous Terms and shall be made available on the Website. Each time you access and/or use the Website and/or any Creation Application and/or create, use, download, upload, distribute, share and/or store any Personalised Item, or any part of these, and/or upload content and material (including text, files, images and photographs) on the Website or any Creation Applications), you are deemed to have consented, by such access, use, creation, downloading, uploading, distribution and/or sharing, to the Terms, as amended and/or replaced by BP from time to time.
6. In the event of a dispute as to the content of the Terms at any time, a certificate signed by the administrator responsible for maintaining the Website shall be prima facie proof of the date of publication and content of the current version and all previous versions of the Terms.
Permitted use and limited licence
1. You may, subject to these Terms and relevant laws, use the Website and/or the Creation Applications for the purposes of creating, using, downloading, uploading, distributing and/or sharing your profile, signature and mobile wallpaper. These Personalised Items may contain trade marks and/or branding proprietary to or licensed to BP and BP hereby grants to you, subject to these Terms, relevant laws and the rights of third parties, a personal, non-exclusive, non-transferable, limited and revocable licence to access, display, use, download, reproduce, upload, distribute, share, amend, update and store the Personalised Items, containing such trade marks and/or branding, created using the Creation Applications.
2. You may not yourself, or through a third party -
  1. use the Website, any Creation Applications and/or any Personalised Items for harmful, unlawful or illegal purposes, including, without limitation to -
    1. disclose, share or publish material that may be offensive, defamatory, regulated, infringe any rights of third parties (including any intellectual property, personality, privacy, identity or contractual rights) or that may be incorrect, untrue, prohibited or damaging to any person;
    2. impersonate any other person or use a false or unauthorised name so as to create a false identity and/or e-mail address or to misrepresent the origin or identity of any communications;
    3. collect, harvest or otherwise obtain Personal Information, as this term is defined in the Promotion of Access to Information Act 2 of 2000, relating to other users;
    4. create, store and/or send unsolicited commercial communications; or
    5. conduct any fraudulent activity including any “pyramid scheme”, “ponzi scheme” or “chain letter”.
  2. upload through the Creation Applications or incorporate in any Personalised Item, or use any Personalised Item together with, the trade marks or branding of third parties;
  3. upload through the Creation Applications or incorporate in any Personalised Item, or use any Personalised Item together with, any material proprietary to, or which embodies or is subject to rights of whatever nature (including of an intellectual property, personality, privacy, identity or contractual nature) of third parties, without having first obtained the necessary permissions in relation to such rights, for example, a photograph, the copyright in which is held by another person;
  4. upload through the Creation Applications, incorporate in any Personalised Item, or use any Personalised Item in a manner so as to associate the Personalised Item or any trade marks contained therein with –
    1. any information or material that is unlawful, illegal, infringing, violates the rights of whatever nature (including of an intellectual property, personality, privacy, identity or contractual nature) of third parties, is false, misleading, obscene, indecent, pornographic, discriminatory, oppressive, racist, sexist, bigoted, hate speech, defamatory or offensive, or which may have the effect of causing any embarrassment or injury to BP, or promotes racism, sexism, bigotry, hatred or physical harm or any other conduct that is unlawful, illegal, infringing, obscene, indecent, abusive and/or threatening;
    2. any material that would cause or advocate annoyance, inconvenience, harassment or needless anxiety to others;
    3. any material that exploits people in a sexual or violent manner;
    4. any material that contains nudity, is sexually explicit, contains or depicts excessive violence, or offensive subject matter or contains a link to an adult website;
    5. any information that poses or creates a privacy or security risk to any person;
    6. foul, threatening or offensive language, including, without limitation racist, sexist, ageist, homophobic or sexually explicit language;
    7. with any illegal, infringing, indecent or offensive material that may incite disorder or encourage illegal activities or that causes or may cause harm to any person;
  5. use any Personalised Item in a manner so as to –
    1. promote racism, sexism, bigotry, hatred or physical harm or any other conduct that is unlawful, illegal, infringing, obscene, indecent, abusive and/or threatening;
    2. incite disorder or encourage illegal activities or that causes or may cause harm to any person;
    3. cause or advocate annoyance, inconvenience, harassment or needless anxiety to others;
    4. exploits people in a sexual or violent manner;
    5. pose or create a privacy or security risk to any person;
    6. associate the Personalised Item or any trade marks contained therein with the goods, services and/or trade marks of a third party or to take unfair advantage of or be detrimental to the reputation of, or to imply any endorsement by, a third party;
    7. advertise or promote your or any third party’s products or services; and/or
    8. impersonate another person;
  6. copy (other than for backup, archival or disaster recovery purposes), reproduce, translate, adapt, vary, modify, distribute, lease, license, sub-license, encumber or in any other way deal with any portion of the Website and/or any Creation Application for any reason and in any manner, unless it is consistent with the intent and purpose of these Terms;
  7. decompile, disassemble or reverse engineer any portion of the Website and/or any Creation Application;
  8. collect service listings, descriptions or other information displayed on the Website and/or any Creation Application;
  9. write and/or develop any derivative of the Website and/or any Creation Application or any other software program based on the Website and/or any Creation Applications;
  10. adapt, modify or enhance the Website and/or any Creation Application. In the event of a user effecting any adaptation(s), modification(s) or enhancement(s) to the Website and/or any Creation Application in breach of this clause, such adaptation(s), modification(s) and enhancement(s) hereby vest exclusively in BP and such user hereby assigns all rights in and to, and waives any and all moral rights in and to, such adaptation(s), modification(s) and enhancement(s), which assignment BP accepts;
  11. remove any identification, trade mark, copyright or other notices from the Website, any Creation Applications and/or any Personalised Items, it being specifically recorded, acknowledged and agreed that certain trade marks and/or branding proprietary to or licensed to BP may automatically be incorporated in all Personalised Items;
  12. establish a hyperlink, frame, metatag or similar reference, whether electronically or otherwise (collectively “linking”), to the Website or any subsidiary pages;
  13. use the Website, Creation Application and/or any Personalised Items to transfer files that contain viruses, Trojans, bombs, time-locks or other harmful programmes; and/or
  14. penetrate or attempt to penetrate the Website’s security measures.
User warranty and indemnity
1. You represent and warrant that you own or have sufficient rights in and to all content and material (including text, files, images, photos) uploaded on the Website or any Creation Applications, that the uploading and use of such content and material on the Website or any Creation Applications, and/or the incorporation thereof in any Personalised Items, and/or the creation, use, downloading, uploading, distribution and sharing of any Personalised Items, does not infringe any rights including intellectual property rights, personality rights, privacy rights, identity rights, rights in confidential information, contractual rights, or any other rights of any other person, and that the uploading of such content and material on the Website or any Creation Application, the incorporation thereof in any Personalised Items and the creation, use, downloading, uploading, distribution and sharing of any Personalised Items does not result in a breach of contract between you and any third party. You agree to pay for all royalties, fees, and any other monies owing to any person by reason of (i) content and material you upload on the Website or any Creation Applications and/or incorporate in any Personalised Items; and (ii) the creation, use, downloading, uploading, distribution and sharing of any Personalised Items incorporating such content and material.
2. You hereby unconditionally and irrevocably indemnify BP, its affiliated companies, its officers, agents, directors and employees and agree to hold BP free from all loss, damages, claims and/or costs, of whatsoever nature suffered or incurred by BP or instituted against BP for infringement of any right, whether the claim or action arises from delict or contract, or any infringement of whatsoever nature, arising out of or pursuant to the exercise by you of your rights or the fulfilment or breach by you of any of your obligations under these Terms or any other requirements that BP may impose from time to time, including, without limitation, all loss, damages, claims and/or costs suffered or incurred by BP or instituted against BP as a direct or indirect result of your use of the Website (including the Creation Applications), your uploading of any content and material on the Website or any Creation Application. Your incorporation of such content and material in any Personalised Items; and your creation, use, downloading, uploading, distribution and/or sharing of any Personalised Items, and such indemnity shall extend to the reasonable costs that may be incurred by BP in defending any action instituted against it.
Content of the Website
1. BP reserves the right to make improvements to, change or to discontinue, without notice, any aspect or feature of the Website and/or any Creation Application and any information or content on the Website and/or any Creation Application.
2. BP does not make any representations or give any warranties, whether express or implied, in respect of the applications (including the Creation Applications) and/or any information, data and/or content provided on this Website, including without limitation, any representations or warranties -
  1. that the Website and/or the Creation Applications will be available continuously, uninterrupted and in a fully operating condition;
  2. as to the accuracy, completeness reliability, performance, satisfactory quality, fitness for a particular purpose of any information, data and/or content on the Website and/or any Creation Application, including without limitation -
    1. BP does not warrant that the Website and/or any Creation Application and/or any Personalised Items and/or information or downloads will be free from errors or omissions or that they shall meet any particular criteria of performance or quality. BP expressly disclaims all implied warranties, including without limitation, warranties of merchantability, fitness for a particular purpose, non-infringement, compatibility, security and accuracy; and
    2. whilst BP has taken reasonable measures to ensure the integrity of this Website and the Creation Applications and their contents, no warranty, whether express or implied, is given that any files, downloads (including any Personalised Items) or applications available via this Website and/or any Creation Application are free of viruses, Trojans, time bombs, time-locks or other harmful programs.
Intellectual Property Rights
1. For the purposes of this clause, the term “Intellectual Property Rights” means all intellectual property rights of whatever nature, including without limitation (i) all patents and other patent rights, including divisional and continuation patents, utility models; (ii) rights in and to inventions, whether patentable or not; (iii) rights in trade marks, service marks, logos, slogans, corporate, business and trade names, trade dress, brand names and other indicia of origin; (iv) rights in designs, topography rights, rights in circuit layouts and mask-works; (v) copyright, including all copyright in and to computer programs; (vi) rights in internet domain names, reservations for internet domain names, uniform resource locators and corresponding internet sites; (vii) rights in databases and data collections; (viii) know-how, show‑how, trade secrets and confidential information, in each case whether or not registered and including applications for the registration of any of these and the right to apply for the registration of any of these, all claims for past infringements, and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world
2. All Intellectual Property Rights in and to the Website and all Creation Applications, are proprietary to, or are licensed to, BP, and as such are protected from infringement by local and international legislation and treaties.
3. All rights not expressly granted are reserved and except with BP’s express written permission, neither the Website nor any Creation Application, nor part thereof, nor any material incorporated in the Website and/or any Creation Application (such as, without limitation, any logo, graphic, sound or image) may be copied, adapted, transmitted or distributed.
4. Irrespective of the existence of any Intellectual Property Rights in and to the Website and the Creation Applications, you acknowledge that BP is the proprietor of all material on the Website and all the Creation Applications, and that save as specifically provided for in clause 2.1, you have no right, title or interest in any such material.
5. The marks BP, CASTROL, CASTROL EDGE and CASTROL EDGE GRAFIX appearing on the Website and/or the Creation Applications, are trade marks belonging to BP or BP affiliated companies or trading partners. Save as specifically provided for in clause 2.1, no licence, express or implied, is hereby granted regarding any of such trade marks.
Privacy
1. Other than in respect of personal information, if you provide information to BP, you agree that such information is not confidential information and that BP has unlimited rights to such information and that BP may use such information at its discretion.
2. While using the Website and/or the Creation Applications, information about you may be –
3. automatically collected by us, such as, without limitation, non-personal browsing habits and click patterns, your email address, domain and IP address, solely for the purpose of maintaining the functionality of the Website and the Creation Applications. This collected data does not relate to information provided by you, identifying you as an individual, but is automatically collected for coverage, site usage, and click stream analysis, so as to improve and manage this Website; or
4. provided by you at your discretion, and collected by BP, when you temporarily upload such information on the Website or any Creation Application when creating any Personalised Item. As soon as the Personalised Items you create are downloaded by you, the information you provided to the Website to create the Personalised Items is automatically deleted. The Creation Applications on the Website cannot be used to make changes to any of your Personalised Items once you have downloaded them, so if you would like to change any of your Personalised Items once you have downloaded them, you will have to create new Personalised Items, afresh.
5. You consent to the collection of information described in clause 6.2.
6. If BP sells its business or part of it, it will share the information about you which it has collected from your use of the Website, with the purchaser you consent to such information sharing.
7. BP has taken reasonable steps to safeguard the privacy of information provided by you, but does not make any representations or warranties that the information provided by you, whether personal information, or otherwise, is absolutely safe and secure.
8. You acknowledge and agree that by creating Personalised Items and uploading, downloading, distributing and sharing such Personalised Items, for example on websites dedicated to discussion forums, such information is not confidential.
9. BP may collect, maintain, save, compile, share, disclose any information collected from you, subject to the following provisions:
  1. BP shall not disclose any personal information to anyone except as provided for in these Terms;
  2. BP may compile, use and share any information that does not relate to any specific individual;
  3. BP may disclose personal information to its employees and agents who require such information to carry out their duties; and
  4. BP shall disclose personal information where the law requires it to disclose such Personal Information.
    
    In all other situations, BP shall not disclose personal information without giving you prior notice thereof and an opportunity for you to consent thereto.
10. Where disclosure has been made to any third party, BP undertakes to keep records of such third party disclosure, in accordance with section 51 of the Electronic communications and Transactions Act 25 of 2002.
11. You agree and recognize that information provided may be susceptible to the provisions of the Regulation of Interception of Communications Act 70 of 2002. As such, BP may possess the right to intercept, read, monitor, block, delete, and/or close the information provided to the Website.
Limitation of Liability and Disclaimer
1. Your use of the Website and/or any Creation Application and/or your uploading of any content and material and/or your creation, downloading, reproduction, display, use, distribution, uploading and/or sharing of any Personalised Item and the exercise of the limited licence granted to you under clause 2.1, is entirely at your own risk and you assume full responsibility and risk of loss resulting therefrom. BP does not accept liability that may arise in connection with the uploading, reproduction, display, use, distribution or sharing by a user of his/her Personalised Items.
2. BP does not undertake to actively monitor the uploading, reproduction, display, use, distribution or sharing by a user of his/her Personalised Items, for example on websites dedicated to discussion forums and/or blogs, nor does BP have control over material uploaded, distributed or shared on such discussion forums and/or blogs.
3. You acknowledge that because information is transmitted via the internet, such information, irrespective of whether it constitutes personal information, may be susceptible to monitoring and interception. Accordingly, you are discouraged from transmitting to the Website any information that may be viewed as confidential and/or of a sensitive nature and you bear all the risk of transmitting information in this manner. Under no circumstances shall BP be liable for any loss, harm, or damage suffered by you as a result thereof.
4. Neither BP, its affiliates, shareholders, directors, agents, consultants or employees shall be liable for any damages whatsoever, including without limitation any direct, indirect, special, incidental, consequential or punitive damages, howsoever arising (whether in an action arising out of contract, statute, delict or otherwise) related to (i) the access to and/or use of, or the inability to access or use, the Website, any Creation Application and/or any linked website, the content thereof, any functionality thereof or information contained therein; (ii) the uploading or sharing of any content or material on the Website; or (iii) the creation, downloading, reproduction, display, use, distribution, uploading and/or sharing of any Personalised Item; or (iv) the exercise of the limited licence granted to you under clause 2.1, even if BP knows or should reasonably have known or is expressly advised thereof.
Security measures
1. BP hereby reserves the right to take whatever action it finds necessary to preserve the security, integrity and reliability of its network and back-office applications.
2. You may not utilise Website and/or any Creation Application in any manner which may compromise the security of the Website and/or any Creation Application in any manner whatsoever, which shall include without limitation, delivering or attempting to deliver any unauthorised, damaging or malicious code to the Website and/or any Creation Application, which is expressly prohibited.
3. Any user who commits any of the offences detailed in Chapter 13 of the Electronic Communications and Transaction 25 of 2005 Act (specifically sections 85 to 89 (inclusive)) shall, notwithstanding criminal prosecution, be liable for all resulting liability, loss or damages suffered and/or incurred by the BP and its affiliates, agents and/or partners.
Complaints and Feedback
1. Should you have any complaints about another user or any aspect of the Website and/or a Creation Application or if you have any questions or would otherwise like to provide any other feedback, you can contact customer services using the appropriate link or writing to BP at the following:
2. Physical Address: BP Town Square, 61 St Georges Mall, Cape Town, South Africa; and/or
3. Postal Address: P O Box 1554. Johannesburg, 2000
4. Attention: Marketing Department.
General Compliance with Laws
1. You shall comply with all applicable laws, statutes, ordinances and regulations pertaining to your access to and/or use of this Website and/or any Creation Application, your creation, use, downloading, uploading, distribution and/or sharing of any Personalised Item, or any part of these, and/or your uploading of content and material (including text, files, images and photographs.).
2. This Website is controlled, operated and administered by BP from its offices within the Republic of South Africa. BP makes no representations that the content of the Website is appropriate or available for use in the locations or countries. Access to the Website from territories or countries where the content of the Website is illegal is prohibited. You may not use this Website in violation of South African export laws and regulations. If you accesses this Website from locations outside of South Africa, you are responsible for compliance with all local laws.
3. You consent to be bound by the non-exclusive jurisdiction of the High Court of South Africa.
Notices
1. Any notices to BP shall be given at the address specified in clause 9 above.
2. Notice shall be deemed given 48 (forty eight) hours after email is sent, unless the sending party is notified that the email address is invalid.
3. You acknowledge that all agreements, notices or other communication required to be given in terms of the law or these Terms may be given via electronic means and that such communications shall be “in writing”.
General
1. These Terms set forth the entire understanding and agreement between the you and BP with respect to the subject matter hereof.
2. You shall not be entitled to cede, assign, and/or delegate your rights and/or obligations in terms of these Terms to any third party without the prior written consent of BP.
3. If any provision of these Terms is held to be illegal, invalid or unenforceable for any reason, such provision shall be struck out from these Terms and the remaining provisions shall be enforced.
4. BP’s failure to act with respect to a breach by you or others does not constitute a waiver of BP’s right to act with respect to subsequent or similar breaches
5. The expiration or termination of these Terms shall not affect such of the provisions of these Terms as expressly provide that they shall operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.