TERMS AND CONDITION

General terms and conditions for Tokcorp PTY LTD T/As Performance Brands (Tuneplus).

Definitions

1.     Tokcorp PTY LTD T/As Performance Brands registered in Level 1, 14a/8 Gladstone Road Castle Hill NSW, 2154, ABN: 96 606 514 416.

2.     CUSTOMER: every Consumer or Business customer who orders Service(s) and/or Product(s) from, will purchase from and/or concludes an Agreement with Tokcorp PTY LTD T/As Performance Brands.

3.     CONSUMER: any natural person or company who acts as a buyer or customer.

4.     BUSINESS CUSTOMER: every legal person and all customers who are not Consumers.

5.     DELIVERY: the moment at which Tokcorp PTY LTD T/As Performance Brands provides the Customer with possession of the Product, Service or the File.

6.     SERVICES: all possible work that Tokcorp PTY LTD T/As Performance Brands performs on and/or with regard to a vehicle and/or adjusting, creating and/or delivering Files.

7.     FILES: a computer or software file created and/or modified on request and based on information provided by the Customer.

8.     PRODUCT: all items that Tokcorp PTY LTD T/As Performance Brands offers, sells and/or delivers to a Customer.

9.     SLAVE TOOLS: Product which is provided by Tokcorp PTY LTD T/As Performance Brands in order to read and write encrypted Files.

10.  AGREEMENT: the provision of Services and/or the sale and delivery of Products to a Customer by Tokcorp PTY LTD T/As Performance Brands.

11.   DISTANCE PURCHASE: the Agreement whereby the Customer is offered Products and/or Services for sale via an online portal and/or system (such as a webshop) created for that purpose by Tokcorp PTY LTD T/As Performance Brands, which Products or Services the Customer buys via that portal.

12.   CREDIT: An electronic value point or unit issued by Tokcorp PTY LTD T/As Performance Brands that can be used to make payments for specifically designated Services and/or Products.

Applicability of the general terms and conditions

1. These general terms and conditions apply to all offers and Deliveries by Tokcorp PTY LTD T/As Performance Brands and/or all Agreements concluded with Tokcorp PTY LTD T/As Performance Brands and subsequent Agreements.

2. Deviating provisions of these general terms and conditions are only valid if they have been explicitly agreed in writing with Tokcorp PTY LTD T/As Performance Brands in advance.

3. Tokcorp PTY LTD T/As Performance Brands does not always demand strict compliance with these general terms and conditions, this does not mean that the provisions thereof are not applicable or that Tokcorp PTY LTD T/As Performance Brands would lose the right to any extent in other cases and/or at a later time to demand strict compliance with these general terms and conditions.

4.  Tokcorp PTY LTD T/As Performance Brands has the right to change these general terms and conditions. Changes will be announced via the website(s) of Tokcorp PTY LTD T/As Performance Brands and, if necessary and possible, directly to the Customer. The changes come into effect from the moment of announcement or on such a date as mentioned in the announcement.

Offers, information and conclusion of the agreement

1. All offers, quotes and price statements from Tokcorp PTY LTD T/As Performance Brands are without obligation and remain valid for 30 days, unless agreed otherwise in writing. However, Tokcorp PTY LTD T/As Performance Brands is entitled to revoke the offer at any time.

2. The Agreement with Tokcorp PTY LTD T/As Performance Brands is established after Tokcorp PTY LTD T/As Performance Brands has agreed to this in writing or electronically. For a Distance purchase, an Agreement only comes into effect after Tokcorp PTY LTD T/As Performance Brands has confirmed the Customer's order and/or has proceeded to Delivery.

3. Any agreements, promises and/or changes to the Agreement made after confirmation of the order are only binding if agreed in writing between the parties.

4. All prices, website and other information provided with the offer have been compiled as carefully as possible. Should it later appear that errors have been made in this information provided, Tokcorp PTY LTD T/As Performance Brands is entitled to correct these errors and/or to adjust or terminate the Agreement without being liable for damages in that regard.

5. Tokcorp PTY LTD T/As Performance Brands is entitled to refuse Delivery and not to fulfil Agreements regarding Products and/or Services, without being obliged to pay any (damage) compensation.  

6. Tokcorp PTY LTD T/As Performance Brands assumes - and the Customer is responsible for - the accuracy of all information and statements provided by the Customer, such as - but not limited to - supplying information with regard to Files, and Tokcorp PTY LTD T/As Performance Brands is not obliged to conduct any further investigation into this. The Customer is also required to report any defects in the vehicle and/or engine management system prior to concluding the Agreement.

The price

1. The price of Products and/or Services are stated in AUD or Credits and are based on prices, wages and taxes at the time of the offer/quotation. Tokcorp PTY LTD T/As Performance Brands has the right to adjust the prices or Credits.

Distance purchase of a product or service

1.  The Consumer's right to dissolve expires upon the Delivery of Services. The right of dissolution also does not apply to the creation and Delivery of Files, as this relates to the production of goods on the specifications of the Consumer and/or to the Delivery of goods of digital content. Insofar as necessary, the Consumer explicitly waives the aforementioned rights to dissolution, on which it has been determined in this paragraph that these have lapsed or will lapse.

Method and delivery of products

1. Delivery of a Product to a BUSINESS CUSTOMER takes place by delivery to the carrier, unless otherwise agreed. Tokcorp PTY LTD T/As Performance Brands arranges for the transport at the expense and risk of the Business customer. Payment of a Product is paid in advance by the Business customer via a method to be determined by Tokcorp PTY LTD T/As Performance Brands.

2. Delivery of a Product to a CONSUMER takes place at the moment that a Product is delivered by the carrier to the address specified by the Consumer, after which the risk passes to the Consumer.

3. The Customer is obliged to accept the Product offered. If the Customer does not accept the Product, Tokcorp PTY LTD T/As Performance Brands is entitled to store the Product at the expense and risk of the Customer and/or to charge the return costs to the Customer.

Method and delivery of files

Only computer files read by professional Slave tools or Slave tools supplied by Tokcorp PTY LTD T/As Performance Brands or uncoded/open files can be processed by Tokcorp PTY LTD T/As Performance Brands. The Customer sends the original read-out computer files via the Tokcorp PTY LTD T/As Performance Brands website to Tokcorp PTY LTD T/As Performance Brands. Tokcorp PTY LTD T/As Performance Brands then delivers the Files via an online portal developed for this purpose by Tokcorp PTY LTD T/As Performance Brands. The delivery periods are never strict deadlines. The mere exceeding of a stated (delivery) period does not put Tokcorp PTY LTD T/As Performance Brands at fault or in default. Tokcorp PTY LTD T/As Performance Brands will consult with the Customer in case of deviation from the stated (delivery) period. The Customer will always provide Tokcorp PTY LTD T/As Performance Brands in a timely manner with all the data and information that is useful and necessary for the proper execution of the Agreement and will provide the necessary cooperation in a timely manner. Extra costs that arise for Tokcorp PTY LTD T/As Performance Brands as a result of the lack of sufficient cooperation and/or provision of information by the Customer will be borne by the Customer.

The provision of a service

1.      Tokcorp PTY LTD T/As Performance Brands is not liable for any damage caused to a vehicle or parts with provided services and products.

Payments

1.      The prices quoted for Consumers in AUD , including GST and excluding any shipping costs.
2.      Unless otherwise agreed, payment takes place in advance.

Credit system

When Tokcorp PTY LTD T/As Performance Brands makes this possible, payments may be made via the Tokcorp PTY LTD T/As Performance Brands credit system. Via the Tokcorp PTY LTD T/As Performance Brands website, the Customer must purchase Credits in advance, which Credits are linked to the personal and non-transferable account of the Customer. Once purchased and/or received otherwise or free of charge by the Customer, Credits can no longer be exchanged for money or transferred to a third party. Any refunds will also be settled with the Customer through Credits on the Customer's account. In principle, Credits have an unlimited shelf life, but if a Customer does not log in to his account (anymore), then these Credits will expire unconditionally after one year.

Login details and online portal

1.      The Customer receives login details provided by Tokcorp PTY LTD T/As Performance Brands, with which details the Customer gains access to the parts of the website of Tokcorp PTY LTD T/As Performance Brands and/or his Credits.

2.      The Customer is responsible for the use and management of his account(s), access code(s) and/or password(s) by or on behalf of him. The Customer will keep the password(s) and/or username completely confidential and ensure that they are not used by unauthorized third parties or for other purposes. The Customer will also be careful in the use of these details.

3.      Tokcorp PTY LTD T/As Performance Brands reserves the right to trace every action taken by the Customer, such as logging in, reading, downloading, uploading and sending information via the Tokcorp PTY LTD T/As Performance Brands website, to the access code with which the Customer logs in.

4.      As soon as the Customer knows or suspects that an access code or password is known or may be known to someone else who is not so authorized, he immediately reports this to Tokcorp PTY LTD T/As Performance Brands. Tokcorp PTY LTD T/As Performance Brands is not liable and accepts no liability in the event of loss or misuse of these login details and/or the expiration or loss of Credits. 

Intellectual property right

All intellectual property rights, including the rights to the software, the Files and Products supplied by Tokcorp PTY LTD T/As Performance Brands, including preparatory material and related materials, in the broadest sense of the word, rest with Tokcorp PTY LTD T/As Performance Brands. For the use of the Files in the relevant vehicle, Tokcorp PTY LTD T/As Performance Brands grants the Customer a limited, non-exclusive licence to use the Files in one vehicle. With this Agreement, no intellectual property rights are delivered and/or transferred to the Customer in any way. The Customer is not permitted, without the express written permission of Tokcorp PTY LTD T/As Performance Brands, to change, edit, make public, reproduce the aforementioned works of Tokcorp PTY LTD T/As Performance Brands, to make them suitable for consultation or reproduction via the internet, to copy other than exclusively for own use in/on the vehicle for which Tokcorp PTY LTD T/As Performance Brands has produced the relevant File. Business customers who purchase Files on behalf of one of their customers are entitled to use the Files on behalf of that customer or vehicle once. If a Customer infringes the foregoing or the intellectual property right of Tokcorp PTY LTD T/As Performance Brands, this will be considered as non-compliance with the Agreement, and this gives Tokcorp PTY LTD T/As Performance Brands the right to terminate or suspend the Agreement and to claim compensation from the Customer for the damages resulting therefrom for Tokcorp PTY LTD T/As Performance Brands. In the event of a violation by the Customer of the provisions of this information, the Customer will also and immediately owe Tokcorp PTY LTD T/As Performance Brands a fine of AUD 3,000.00 per event and AUD 800.00 per day that the violation continues thereafter, without prejudice to the right of Tokcorp PTY LTD T/As Performance Brands to also claim full damage compensation from the Customer.

Complaints

The Customer is obliged to examine or have investigated every Product/Service at the time of Delivery, but in any case within the shortest possible time. In addition, the Customer should examine whether the quality is in accordance with what has been agreed, or at least meets the requirements that apply in normal (commercial) trade. Any complaints regarding the Services and Products provided must be made in writing to Tokcorp PTY LTD T/As Performance Brands within 5 (five) working days after Delivery. If the defect could not reasonably be discovered within these periods, the Customer must report this to Tokcorp PTY LTD T/As Performance Brands in writing within a reasonable time, but at least 14 days after discovery. In the latter case, the Customer must demonstrate that he could not reasonably have discovered the subject of the complaint earlier. Complaints from a Customer that refer to the failure to meet statements, composition or performance as stated by Tokcorp PTY LTD T/As Performance Brands will only be treated as a complaint and give the right to complain when the aforementioned (power test) results show a deviation of 15% or more. Complaints do not suspend the payment obligation of the Customer. The Customer is not entitled under any circumstances to postpone, refuse or suspend payment for other Tokcorp PTY LTD T/As Performance Brands services. If a complaint is justified regarding a Service or Product delivered, Tokcorp PTY LTD T/As Performance Brands has the choice between repairing or re-delivering what was rejected, proportionally adjusting the calculated invoice amount, or not fully or partially executing the Agreement, provided that this is in proportion to the complaint. Refunds of orders that have been paid through Credits always take place in Credits. Tokcorp PTY LTD T/As Performance Brands can leave the handling and resolution of complaints regarding the proper performance of the Agreement to its supplier. The Customer explicitly agrees that Tokcorp PTY LTD T/As Performance Brands will forward any complaint(s) to this supplier, and the Customer will resolve the complaint(s) directly with this supplier. The Customer must give Tokcorp PTY LTD T/As Performance Brands and/or the supplier the opportunity to investigate a complaint or to have it investigated. If the Customer has not complained within the period specified brfore or (the Business Customer) has fulfilled the (evidence) obligation, all his rights and claims for whatever reason will lapse with regard to what he has complained or could have complained within that period and/or should have demonstrated, and the Delivery is considered valid. If the Customer has installed the File using Products other than those supplied through Tokcorp PTY LTD T/As Performance Brands, the Customer must demonstrate that the complaint did not arise due to the use of third-party equipment.

Guarantee and the installation of files

Tokcorp PTY LTD T/As Performance Brands guarantees the proper functioning of the delivered Files (without being installed) from the date of Delivery for a period of one year, provided that the Customer has paid the invoice in a timely manner. If defects occur during this period in the functioning of the Files, Tokcorp PTY LTD T/As Performance Brands will repair them free of charge.

If installation is not carried out by Tokcorp PTY LTD T/As Performance Brands, the Customer is responsible for the proper installation of the Files in the vehicle and the requested modification. Tokcorp PTY LTD T/As Performance Brands advises the Business customer to limit any guarantee that may be granted to its customer with the present provisions as a starting point. On the Product delivered by Tokcorp PTY LTD T/As Performance Brands to the Customer, not being Files, Tokcorp PTY LTD T/As Performance Brands provides a 1-year guarantee from the moment of Delivery to the Customer.

ARTICLE 16 - Customer liability and own responsibility

The Customer is aware that the use or use of the Files and/or Products may be in conflict with (local) laws and regulations, may be prohibited or may infringe the (warranty) rights of third parties, such as the producers of vehicles. The Customer declares to use the Files, Products and/or the vehicle to which they are applied at his own risk and to be independently responsible for investigating or inquiring whether use or application of the Files and/or use of the Products is permitted. For this reason, Tokcorp PTY LTD T/As Performance Brands urgently advises the Customer, taking into account the above, to use the Files and Products only on private property and/or a test or racetrack. Customer realizes that the use of the Files and/or Products may constitute a (heavier) load on the vehicle, the possible consequences of which will be borne by the Customer. Tokcorp PTY LTD T/As Performance Brands is never liable for indirect damage, including consequential damage, lost profit, (temporarily) becoming unusable for a vehicle, hoist or transport costs, fines, missed savings and/or damage due to business interruption or loss of factory guarantees. Tokcorp PTY LTD T/As Performance Brands is not liable for damage caused by the Customer's failure to comply with his information obligation, obligation to investigate, instructions or by the information provided by the Customer being incorrect, complete or reliable, or arising from incorrect or unlawful use of the Files or the Product. Tokcorp PTY LTD T/As Performance Brands is always authorized to limit or undo the damage of the Customer as much as possible, for which the Customer is obliged to cooperate fully. The Customer himself is also obliged to limit the damage as much as possible. The Customer indemnifies Tokcorp PTY LTD T/As Performance Brands against any claims from third parties with regard to damage, which are related to or ensues from the Services provided by Tokcorp PTY LTD T/As Performance Brands or supplied Files and/or Products, if and insofar as Tokcorp PTY LTD T/As Performance Brands is not liable to the Customer under the provisions of this article. If the Customer has insured any risks associated with this Agreement or can invoke another (guarantee) right, the Customer now indemnifies for then Tokcorp PTY LTD T/As Performance Brands against these risks. Tokcorp PTY LTD T/As Performance Brands excludes liability at least in the following situations (not exhaustive):

  •          Damage to the hardware or the vehicle as a result of the Files or Products supplied by Tokcorp PTY LTD T/As Performance Brands;

  •          Damage related to defects and/or parts of goods or (software) files supplied by the Customer;

  •          Damage to the vehicle itself and/or items in the vehicle (load), when installing the Files;

  •          Damage as a result of incomplete and/or incorrect information provided by the Customer;

  •          Damage as a result of an incorrect cost estimate/budget from Tokcorp PTY LTD T/As Performance Brands;

  •          Damage as a result of advice, services or products provided by third parties on behalf of the Customer;

  •          Damage as a result of transport, temporary storage;

  •          Damage as a result of adjustments, transfer, or uninstallation of the delivered Files;

  •          If the defect is wholly or partly due to improper use, incorrect action by the Customer, manipulation of the Files and/or the engine management system after the Delivery by Tokcorp PTY LTD T/As Performance Brands, or is otherwise due to the fault of the Customer;

  •          Personal injury directly or indirectly related to Files and/or Products supplied by Tokcorp PTY LTD T/As Performance Brands.

Retention of title

Tokcorp PTY LTD T/As Performance Brands reserves the ownership of all Products and/or Files delivered to the Customer by it and/or on its behalf until payment thereof, plus any shipping and/or transport costs, has been paid in full. Until the invoice from Tokcorp PTY LTD T/As Performance Brands is fully paid, the Customer cannot derive any rights with regard to the Services and/or Products supplied by Tokcorp PTY LTD T/As Performance Brands.

General expiration period

Defects and attributable shortcomings on the part of Tokcorp PTY LTD T/As Performance Brands must be reported in writing within a reasonable time after discovery, but in any case within 1 month after delivery of the Files or Products, or delivery of the Services, failing which the right to compensation to be claimed expires.

Indemnification

The Customer indemnifies Tokcorp PTY LTD T/As Performance Brands against all claims from third parties with regard to Services, Files and/or Products supplied by Tokcorp PTY LTD T/As Performance Brands to the Customer, as a result of which those third parties may have suffered or still suffer damage, irrespective of the cause or time of occurrence thereof.

Nullity/destruction of provisions

If any provision of these general terms and conditions proves to be wholly or partially invalid, is voided or is otherwise found to be invalid, then that will maintain the validity of the other provisions of these general terms and conditions. The provisions that are not legally valid or cannot be legally applied will be replaced by provisions that are as close as possible to the scope of the provisions to be replaced, for which the parties will then consult with each other. If there is ambiguity regarding the explanation of one or more provisions of these general terms and conditions, the explanation must be 'in the spirit' of these provisions.

Applicable law and choice of court

All Agreements concluded under these terms and conditions are exclusively governed by Australian law.