The Performance Tech Tune File Service (‘PTT Services’) is for automotive industry professionals requiring Original Engine Management (OEM) Software modification services.
This disclaimer sets out the terms of service as offered by The Trustee for Gould – Anderson Family Trust (ABN 48 909 135 449) t/as Performance Tech (‘P Tech’) and authorised P Tech agents.
- P Tech provides the PTT Services that offers users (the ‘User’) the opportunity to use PTT Services on the terms and conditions contained in this User Agreement (the ‘Agreement’ or ‘User Agreement’).
- The PTT Service offers Users access to services including uploading, analysis and modification of OEM software files. Users can then create modified OEM software files for use in on-road and off-road capable vehicle engine management computers (‘outputs’).
- All services currently available to a User of the PTT Services, as well as their development, improvement and the addition of new services shall be subject to this Agreement.
- This Agreement shall take effect from the date P Tech accepts the User’s registration request to use the PTT Services (the ‘Effective Date’) and notifies the User by email. From the Effective Date, the User will be deemed to have accepted the terms of this Agreement in full and without any limitations or exceptions.
- This Agreement may be amended by P Tech without notice from time to time, and a new version of this Agreement shall take effect from the date it is posted online at the web address given in this paragraph (https://performancetech.com.au/disclaimer/), unless otherwise stated in the new revision of this Agreement.
- All matters pertaining to, or associated with, the PTT Services shall be regulated by this Agreement, any applicable P Tech policies and relevant legislation.
User Registration and Information Privacy
- To use the PTT Services, or any other services connected with PTT Services, the User shall:
- Complete the online registration form with valid and complete information; and
- Provide a valid email address, username and password for access to the web portal.
- If the registration is accepted, P Tech will email an approved access notification to the User to enable access to the web portal at (https://performancetech.com.au/my-account/). The User may then complete a tune file order form within the web portal and upload any required content for the purpose of using the PTT Services.
User’s Web Portal Access
- Subject to the terms of this Agreement, the User will be granted access to use the PTT Services via a web portal access login comprising their chosen username or email and password.
- P Tech may, at P Tech’s discretion:
- prohibit the use of certain logins and passwords, and
- impose other requirements on the login and password (number of characters, permissible symbols, etc.) from time to time.
- The User shall be solely responsible for securing their login and password information.
- The User shall be responsible for their use, or any third-party use, of their web portal login information, including voluntary provision of login and password information by the User to third parties on any conditions (including by contract or agreement).
- Any activity that occurs using the User’s web portal login information shall be deemed to be the activity of the User, except where the User notifies P Tech in accordance with Clause 15.
- The User shall promptly inform P Tech in writing of any instances of unauthorized access to the PTT Services via the web portal and any actual or alleged breach of confidentiality of the chosen means of access to the web portal.
- For security reasons, the User is required to securely log out of the web portal after completing each session when using the PTT Services.
Termination of Agreement and Access by P Tech
- At its discretion, P Tech may terminate this Agreement and block or delete a User’s web portal access login, as well as prohibit access to the web portal and PTT Services, if:
- the User is discovered to have provided false, incomplete or invalid information at any time; or
- the User fails to verify provided information as requested by P Tech, at any time; or
- the User violates the terms of this Agreement; or
- the User’s actions or omissions in using the PTT Services or accessing the web portal are considered by P Tech to create a risk of harm, damage or loss to the use of PTT Services by P Tech or other Users; or
- the User’s web portal login activity ceases after a reasonable period as determined by P Tech.
User Termination of Web Portal Access
- The User may at any time request the termination of their web portal login access and cease using the PTT Services.
- To terminate web portal access, the User must send a request via the Support Ticket located within the web portal (https://performancetech.com.au/my-account/support/) to request the User’s web portal access be terminated.
General Usage and Storing Provisions
- At P Tech’s discretion, restrictions may be imposed upon the web portal access of a User (or certain categories of Users depending on the User’s location, the language of the service, etc.), and their access to and use of all or part of the PTT Services.
- P Tech gives no guarantee regarding:
- the time period for storing tasks or files and any other content;
- the maximum number of tasks or files which may exist at a time for a registered user,
- the maximum size of a file or disc space required or available,
- the maximum number of service available for use over a certain period,
- the maximum period of content storage, or
- any special constraints in relation to downloadable content.
- Unless authorised by P Tech, automatic requests to P Tech’s servers or web portal, or the provision of any automatically generated information is expressly prohibited.
- P Tech may send messages to its users regarding updates, upgrades, or special offers for the PTT Services.
Use of PTT Service and Outputs
- The User accepts that they are responsible for testing the effectiveness and reliability of any outputs created as a result of using the PTT Services, and ensuring the output can be legally used in the relevant jurisdiction.
- The User may not reproduce, duplicate or copy, sell, resell or use for any commercial purposes any of the PTT Services or outputs (including files or content available to the User through the web portal) or access to the PTT Services, except as authorized by P Tech or where it is directly stated in the user agreement for any service.
- By using the PTT Services, the User shall not:
- violate third party rights (including intellectual property rights) or cause harm in any way;
- impersonate any other person or representative of an organization or group (including community groups) without being authorized to do so;
- assist any actions to violate any restrictions and prohibitions imposed by this Agreement;
- otherwise violate applicable legal standards including international law.
User Content and Intellectual Property
- The User shall be responsible for all legal requirements and compliance obligations for any content they upload via the web portal, including responsibility and liability to third parties where posted User content or its subject matter infringes on the legal rights and legitimate interests of third parties including personal non-property rights of authors, any other intellectual property rights of third parties and encroachments on other intangible assets. The User indemnifies P Tech against any claims of misappropriation of intellectual property for any content the User uploads.
- The User acknowledges and agrees that P Tech can access, use, reproduce or modify the User’s content at its discretion, including for the purpose of compliance with technical requirements of a particular service.
- The intellectual property rights to any content (including design elements, ECU files, text, graphics, illustrations, video, software, databases and other objects or content) made available to Users of the PTT Services through the web portal, or posted on the web portal remains the property of the party that created, purchased or otherwise owns the intellectual property.
Limitation of Liability
- To the maximum extent permitted by law, P Tech will not be liable to the User or any third party for any consequential, indirect, incidental or special damages, including, without limitation, lost profits, lost data, lost savings, business interruption, damage to a vehicle or vehicle’s engine management computer, or any other damage or loss, arising directly or indirectly from any use of the PTT Services or outputs, or use of any other content (including information, materials, ECU files, downloadable software, messages, any instructions and guidelines, etc.) made available on the web portal to the User.
- The User will indemnify P Tech against any actions by third parties related to the use of any PTT Services or outputs, including any actions resulting in violation of rights and legitimate interests of third parties, damages or loss by third parties, as well as compliance with any applicable laws.
- Where applicable, P Tech’s liability shall be limited to the amount actually paid by the User for access to, and use of, the PTT Services.
- The User uses the PTT Services and any outputs at their own risk. Any outputs are provided “as is” without any warranty of any kind including, without limitation, any warranty of merchantability, fitness for a particular purpose, and non-infringement except as provided under Australian Consumer Law.
- P Tech does not guarantee:
- that the PTT Services or web portal access will be provided without interruptions, promptly, sustainably and without errors; or
- that the services and outputs offered by PTT Services, including the modification of OEM software files and receipt of these files by the User, will comply with User’s requirements; or
- that outputs created from the User’s use of the PTT Services will be error-free or that it will operate without error; or
- that results and outputs received with the use of the PTT Services are accurate and reliable and may be used for any purposes or in any capacity (for instance, for identification or verification of any facts); or
- that the quality of any outputs, service, information, etc. received through the PTT Servicewill meet the User’s expectations.
- The maximum period during which a User can make a claim on the quality of PTT Services or outputs is thirty (30) days. The start of this period is the time of payment of the order. This period shall be counted for each use of the PTT Services independently and may not be transferred to a separate use of the PTT Services.
- To make a claim, the User must:
- send P Tech written notice of the claim via the Support Ticket located within the web portal (https://performancetech.com.au/my-account/support/);
- provide detailed information in the claim about problems with PTT Services or outputs giving rise to the claim, including a description of the problem, photos, screenshots; and
- provide any other information that confirms the existence of the problem.
- The User acknowledges and agrees that where a claim is made in respect of the quality of PTT Services or outputsand the existence of a problem is demonstrated, P Tech has first right to attempt to resolve the problem specified by the User.
- Refunds will only be made available if all the conditions set out in clause 36 are satisfied, P Tech acknowledges there is a problem and notifies the User by email, and the problems were unable to be resolved by P Tech.
- This Agreement is an agreement between the User and P Tech regarding the procedure of using the PTT Services and shall replace all previous agreements between the User and P Tech.
- Nothing in this Agreement shall be interpreted as agency, partnership, mutual activities, employment or any other relations not directly stated in this Agreement.
- If for any reason one or several provisions of this Agreement are declared invalid or unenforceable, it shall not affect the validity or enforceability of the remaining provisions in this Agreement.
- Failure by P Tech to act on violations by the User, or any other users, of the provisions of this Agreement shall not deprive P Tech of the right to take action to protect its interests in the future and shall not be interpreted as waiver by P Tech of its rights in case of any future similar or identical violations.
- The term of this Agreement will commence on the Effective Date and will continue indefinitely until terminated in accordance with the provisions of clauses 17 or 18 in either its current or amended form.