1. TERMS AND CONDITIONS
These Standard Terms and Conditions of Business (“Terms and Conditions”) are a legal agreement between you individually, or if you are authorized to acquire DNK TuneWorks’s products, software or access and/or use our services and any and all enhancements, modifications, revisions and/or new versions thereof (collectively, “Products,” “our Products” or “Product”) on behalf of your company or another organization between the entity for whose benefit you act and/or if you are a reseller of DNK TuneWorks’s Products (in all instances, “you” or “yours”) and DNK TuneWorks (“we,” “us,” “our,” or “DNK”). DNK TuneWorks means DNK TuneWorks, LLC, Frederick, MD, USA. These Terms and Conditions govern your purchase or resale of our Products in any manner, including via our website (www.dnktuneworks.com and any subsequent second, third, etc. levels of dnktuneworks.com and WooCommerce, collectively, our “Web Shop”). BY ACCEPTING THESE TERMS AND CONDITIONS, YOU CONFIRM THAT YOU ARE OVER 18 AND ARE LAWFULLY ABLE TO ENTER INTO AND FORM CONTRACTS. BY USING OUR PRODUCTS, CLICKING THE “I AGREE”, “ACCEPT” OR “YES” BUTTON, LOADING THE PRODUCTS OR OTHERWISE INDICATING ASSENT, YOU ARE AGREEING TO THESE TERMS AND CONDITIONS, AND ANY RELATED TERMS (AS EXPLAINED BELOW), WHICH WILL BECOME A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND DNK TUNEWORKS. PLEASE READ THESE TERMS AND CONDITIONS AND ANY APPLICABLE TERMS CAREFULLY AND MAKE SURE YOU UNDERSTAND BOTH DOCUMENTS BEFORE YOU AGREE TO THEM. The “DNK TuneWorks Product End User License Agreement and Terms of Use” (“Terms”) is available on www.dnktuneworks.com/legal , which may apply to our Products and apply in addition to, and supplement the provisions of, these Terms and Conditions. If the Terms apply to our Products, in the case of a conflict between these Terms and Conditions and the Terms, the provisions of the Terms shall govern. Some of our Products may come with additional product information (“Product Information Sheet”) and/or written materials, in printed or electronic form, describing the features of a particular Product.
2. YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS
Any presentation of DNK TuneWorks’s Products on the internet, in prospectuses, catalogues and brochures is for informational purposes only and shall not provide an express or implied warranty nor any binding offer from DNK TuneWorks but, rather, shall constitute an opportunity for you to learn information and prepare to make a binding contractual offer in the form of an order. A legally binding agreement between you and DNK TuneWorks will be concluded only if you place an order and DNK TuneWorks accepts such order by way of a written order confirmation or by providing one or more Products to you (e.g. per download or by provision of a login). If you are entitled to withdraw from or terminate our agreement based on any applicable statutory withdrawal right and should you exercise this right within the relevant statutory period, the applicable Terms will terminate at the same time. In case of such withdrawal or termination, we will refund you any fee you paid for a respective license associated with a particular Product (“Fee”) pursuant to any applicable statutory provisions.
3. CHANGES TO THIS AGREEMENT
Avira reserves the right to change, update, amend or modify these Terms and Conditions at any time. Such modification, updates and/or amendments will be effective immediately and incorporated into this Agreement. Your continued use of our Web Shop will be deemed acceptance of the amended Terms and Conditions.
4. PRIVACY AND COLLECTION OF PERSONAL INFORMATION
When you accept these Terms, you also agree that our privacy policy then-existing at www.dnktuneworks.com/privacy applies to you and that you allow us and, as applicable, our Product providers to collect, transfer, backup and store your Personal Data and other data pursuant to the terms of the privacy policy. Please review our privacy policy on a regular basis as it will provide you with the most up to date information with respect to how we collect, store and use your data.
5. REQUIRED DISCLOSURES OF INFORMATION
You acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary in our opinion to: (i) comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures; (ii) enforce these Terms and Conditions; (iii) respond to claims of a violation of the rights of third parties, whether or not the third party is a registered user, individual, or government agency; (iv) respond to customer service inquiries; or (v) protect the rights, property or personal safety of DNK TuneWorks, our users or the public.
6. UNAUTHORIZED USE
DNK TuneWorks reserves all rights to bring an action to prohibit or stop any unauthorized use of our Web Shop. If you do not comply with the applicable law and/or these Terms and Conditions, we may be forced to bring an action to collect damages and/or prohibit your behavior or stop you from any unauthorized use of our Web Shop. Some unlawful activity may even result in criminal prosecution under relevant law. Nobody wants this, so please comply with the law and these Terms and Conditions.
7. THIRD PARTY LINKS
Linked third party websites are not under our control and, as such, we cannot assume responsibility for the content of such links. We review the contents of such external links before linking to the best of our abilities; however, we cannot reasonably ensure permanent control of third-party websites. As soon as we become aware of an infringement on the part of a linked website, we will remove the link without undue delay.
8. AUTOMATIC RENEWAL
When you purchase or obtain access to any of our Products, you are granted a license to each respective Product for a particular term (“License Term”) (please see the Terms at www.dnktuneworks.com/legal for more information), which are perpetual, but non-transferable. Unless one of us terminates our relationship, at least 30 days prior to the end of a current License Term, the License Term will be renewed for an additional License Term, automatically, at the then-effective list price. The new License Term will have the same duration as the previous License Term. Don’t worry, if you see a charge for an automatic renewal and you did not wish to renew for an additional License Term, just contact us at https://www.dnktuneworks.com/contact and we will refund you the price charged for such additional License Term.
9. PROVISIONS FOR RESELLERS
The following terms will apply if DNK TuneWorks provides you its Products expressly for the purpose of resale and, as such, you become a reseller of our Products (“Reseller”). As a Reseller, you may resell Product licenses DNK TuneWorks grants you to a third party. In the event of a resale, you will report the serial numbers DNK TuneWorks issues (e.g. License numbers, One-Time Codes or Logins) on the invoice you submit to DNK TuneWorks. As a Reseller, you shall not grant third parties any rights that are different from, or greater than, those permitted pursuant to these Terms and Conditions and the respective Product Terms. You are responsible for obtaining and paying for any necessary official permits for the resale, transport, purchase and use of the Product(s) in your contractual territory.
As a Reseller, you can purchase our Products via our WooCommerce reseller portal (“WooCommerce”). In order to use WooCommerce, you must accept the terms of our Reseller Partner Agreement, register and establish an account with us by providing complete and accurate personal information, including, but not limited to, your name, address, phone number(s) and email address, we may reasonably require to grant you access to WooCommerce. You agree to keep all of such personal information updated and current and represent and warrant that the personal information you provide is truthful and accurate. After providing us with your personal information, you will have a username and password (collectively, your “Login Credentials”) that you will use to access and utilize WooCommerce. You will maintain, and are solely responsible for maintaining, the confidentiality of your Login Credentials and will restrict and limit unauthorized access to WooCommerce by using your Login Credentials. Moreover, you agree to accept responsibility for all activities involving use of your WooCommerce account. We reserve the right to restrict your access to WooCommerce at any time.
10. PRODUCT DELIVERY
DNK TuneWorks’s delivery obligations, with respect to our Products, will be governed by (i) DNK TuneWorks’s order confirmation, (ii) these Terms and Conditions and (iii) the respective Terms unless expressly agreed to otherwise between the parties in writing. DNK TuneWorks may render a partial delivery where such delivery is commercially reasonable and does not significantly impair your needs.
The actual delivered Product may differ from the documentation associated with such product if such differences are commercially reasonable and do not adversely affect the performance of the respective Product. If you order a particular Product and we replace the Product you ordered with a new or upgraded Product in our overall Product line, we reserve the right to deliver the new Product if such new Product performs as well as or better than the Product you ordered. If you request that a particular Product is shipped to you, the risk for damage and loss with respect to such Product will pass to you upon our release of such Product for shipment. For those Products for which delivery is completed via download, the risk for damage and loss will pass to you as soon as you receive access to the respective Product (for example, via a software key).
11. REMUNERATION AND PAYMENT TERMS
Unless expressly agreed otherwise, you will be responsible for all shipping costs, in particular, packaging, transport costs and transport insurance, as well as applicable statutory value added tax, if any. Payment for our Products, at the agreed-upon or advertised price, is due immediately. We will accept bills of exchange or checks as a method of payment only pursuant to a special agreement between you and DNK TuneWorks and only if these methods of payment do not subject us to any additional costs and fees. Otherwise the payment methods either explicitly referenced in our Web Shop or on the relevant invoice for your purchase shall apply. If you default on paying DNK TuneWorks for our Products, we may demand the agreed-upon or statutory default interest for all outstanding sums without further notice. In addition, in the event of default, DNK TuneWorks may withhold delivery of our Product along with any respective updates and/or upgrades (as defined in the Terms).
12. INDEMNITY
To the extent permitted by law, you agree to defend, indemnify and hold DNK TuneWorks, its affiliates, subsidiaries, directors, officers, employees, agents, business partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) your use of our Web Shop in violation of these Terms and Conditions; or (b) your violation of any rights of a third party or (c) your knowing violation of any applicable laws.
13. WARRANTIES AND DISCLAIMERS
EXCEPT FOR THE LIMITED WARRANTY THAT MAY APPLY TO SOME OF OUR PRODUCTS, AND/OR PARTICULAR PARTS THEREOF, OUR PRODUCTS AND WEB SHOP ARE PROVIDED “AS IS” AND WE MAKE NO WARRANTY OF ANY KIND AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. WE ALSO EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES RELATING TO NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY OR ABILITY TO INTEGRATE A PARTICULAR PRODUCT WITH OTHER WEB SERVICES. YOU ASSUME RESPONSIBILITY FOR SELECTING A PARTICULAR PRODUCT TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM SUCH PRODUCT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT OUR PRODUCTS WILL PROTECT AGAINST ALL POSSIBLE THREATS, BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, THAT OUR PRODUCTS OR WEB SHOP WILL MEET YOUR SPECIFIC REQUIREMENTS OR THAT OUR PRODUCTS ARE FIT FOR USE IN SPECIAL RISK AREAS.
14. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR DAMAGES FROM LOST PROFITS, LOSS OF GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR NEGLIGENCE OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS. TO THE EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE FOR ANY DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND OUR OR A RESELLER’S AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES UNDER THESE TERMS EXCEED THE PRICE YOU PAID FOR THE PARTICULAR PRODUCT.
15. NOTIFICATION OF INFRINGEMENT
You must notify DNK TuneWorks immediately if a third party asserts claims against you based on a claim that our Web Shop infringes the intellectual property rights of such third party. Should there be any such notification, whether in written documents or correspondence or in other form, you must provide these to DNK TuneWorks without undue delay.
16. REFUNDS AND RETURNS POLICY
We have a no refund policy, which means once your calibration file has been sent you no longer have the option to request a cancellation or refund.
To be eligible for a refund, you must contact us before your order has been created. You’ll also need the receipt or proof of purchase. Due to the nature of emailed calibration files, once the order has been sent out, it is impossible to reclaim all copies of said calibration file(s). Nor is it possible to regain the labor hours spent to create the calibration, hence the no refund policy.
We will notify you once we’ve received your request for a cancellation or refund and let you know if the refund was approved or not. If approved, you’ll be automatically refunded on your original payment method. Please remember it can take some time for your bank or credit card company to process and post the refund too.
17. MISCELLANEOUS
The Terms and Conditions do not create any third-party beneficiary rights. If you do not comply with the Terms and Conditions and we do not take action right away, this does not mean we are giving up any rights that we may have (for example, our right to take action in the future). If it turns out that a particular term within these Terms and Conditions is unenforceable, this will not have any impact on any of the other terms. The laws of the State of Maryland, without regard to its choice of law rules and under exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG), will apply to any disputes arising out of or relating to these Terms and Conditions. All claims between you and us will be litigated exclusively in the state or federal courts in Frederick County, Maryland and you consent, and we consent, to personal jurisdiction in those courts. A breach, whether threatened or actual, of these Terms and Conditions will cause us irreparable injury and such injury may not be quantifiable in monetary damages and we would not have adequate remedy at law. As such, we are entitled, in addition to all other available remedies, to seek and be awarded an injunction or other appropriate equitable relief for any breach of these Terms and Conditions, whether threatened or actual.
These Terms and Conditions or your use of our Web Shop do not create a joint venture, partnership, employment or agency relationship with us.
The following sections shall survive the termination of these Terms and Conditions: 4, 5, and 11 through 16.