GENERAL TERMS & CONDITIONS WWW.DYNOSHARE.COM
DYNOSHARE is a community built upon respect for chiptuning professionals and their intellectual property rights as well as the intellectual property rights of third parties. DYNOSHARE has a zero-tolerance policy for intellectual property rights infringement. The Sellers are required to upload works which do not infringe upon the copyrights, moral rights, publicity rights, privacy rights or any other rights of any person or a third party, or violate any law or judicial or governmental order.
Article 1. Definitions For the purpose of these General Terms & Conditions, the terms below are defined as follows:
Password – a sequence of signs, including alphanumeric, necessary to perform an authentication process while accessing the Account, determined by the Seller/User during the Registration process.
Account – ICT resources within the Website which the Vendor/User may access following one-time Registration, and upon providing, in each case, the Name and Password (logging in). The Seller uses the Account to publish and provide the Users with access to the digital products.
Vendor – a User who uploads and provides access to files owned by the Vendor within his or her Account. Third-party seller who uses the DYNOSHARE.COM platform to sell digital products.
Name (login) – a sequence of signs, including alphanumeric, necessary to perform an authentication process while accessing the Account, determined by the File Seller/User during the Registration process.
Digital product – a digital copy of a work or another product of human activity. The modification of software for electronic control units of motor vehicles. The Software is a service that the Vendor sells to the Customer. The intended purpose of the Software is using the software for competition purposes on the race-circuit and/or closed track events. The software is not intended for the public road.
Registration – a one-time action which consists in creating an Account by the File Vendor/User with the use of an administration panel provided by the Service Provider on the Website. The Registration is completed upon the File Seller/User accepting a registration form available on one of the Website pages, filling in appropriate spaces of the form and clicking an appropriate button. The Registration is effective upon successful completion of a verification process by the Service Provider, which is followed by an e-mail with a confirmation of Registration sent to the File seller’s/User’s address
Customer: The Customer that enters into a purchase agreement or any other agreement with the Vendors(s) regarding tuning software in the course of the customers’ business or profession.
Purchase: The purchase of Software whereby the Customer buys files from the Vendor(s) online in order to purchase Software via the website DYNOSHARE.COM.
Parties: The Vendor and the Customer.
Article 2. Applicability
2.1 These General Terms & Conditions (hereinafter referred to as: ‘the Terms’) apply to all offers and contracts pursuant to which the Customer purchases Software or enters into any other agreement regarding services or goods, directly or indirectly related to the Software, with the Vendor.
2.2 Deviations from and additions to the Terms shall only be valid and binding if and insofar they are agreed between the Parties in writing.
2.3 The applicability of any general or standard conditions of the Customer will not be accepted by the Vendor and are explicitly rejected. In any case, the Terms prevail over any general or standard conditions established by the Customer. In the event of a conflict between the provisions of the Terms of the Vendor and a written agreement between the Vendor and the Customer, the provisions of that agreement will prevail.
2.4 If any provision of the Terms is null, void or voided, that will not influence any of the other provisions of the Terms so the other provisions will remain fully effective between the Parties.
Article 3. Offers and agreement
3.1 All offers made by the Vendor, online or in any other way, are subject to the written confirmation of the Vendor, unless the Vendor has explicitly indicated otherwise in writing.
3.2 All offers made by the Vendor are without obligation and non-binding, unless the offer contains a term for acceptance of the offer, in which case the offer will lapse if it is not accepted by the Customer before the term ends.
3.3 If an offer does not contain a term for acceptance, the Vendor is entitled to withdraw the offer before, as well as two working days after, receiving acceptance form the Customer.
3.4 The agreement enters into effect at the moment the Customer agrees with the Vendors offer. The agreement consists exclusively of the agreed offer or order confirmation and the Terms, unless Parties have explicitly agreed otherwise in writing (hereinafter referred to as: ‘the Agreement’).
3.5 The Agreement replaces and sets aside all previous (oral or written) offers, correspondence, agreements or any other communication.
Article 4. Purchase
4.1 Amongst other services and goods, the Vendor sells digital files to the Customers.
4.2 In order to purchase files, the Customer will have to register as a ‘member’ on DYNOSHARE. From the moment of registration, the Terms are agreed and applicable for both parties. After this online account is activated by DYNOSHARE, the Customer orders and receives after payment the Software and is able to request or upload Software.
Article 5. Price & payment
5.1 All prices are stated in Euro’s (EUR) and are excluding value-added tax (VAT) and/or any other (inter)national taxes, levies, duties, (import)fees or (delivery)charges.
5.2 The Vendor is entitled to adjust the price lists at all times.
5.3 All price lists, statements of cost, brochures and other data relating to the Vendors products and services, including Software, that are provided by Vendor are indicative and subject to change without prior notice, no rights can be derived from them.
5.4 The Customer is obliged to pay after placing a custom order by using the provided online payment methods such as iDeal or PayPal or can buy directly the needed Software on Vendor’s marketplace section.
5.5 Invoices will be paid by transfer to the bank account appointed by the Vendor. The Customer is in default by operation of law – without being obliged to pay any compensation and without any (further) summons or notice of default required – in the event that the invoice is not paid within the before mentioned payment term of 14 days.
5.6 If the Customer does not pay in compliance with the Terms, including, but not limited to a paragraph 5.7, the entire and total owed amount is immediately due and payable. In that event, the Vendor shall be entitled to charge interest at the statutory rate over the outstanding amount including VAT and all other costs as mentioned in paragraph 5.1, which interest will be payable monthly. The interest will be calculated based on the period that elapses between the invoice date and the moment of payment in full.
Article 6. Delivery and complaints
6.1 The delivery of the Software shall take place after full payment. The delivery times mentioned by the Vendor are estimated and can under no circumstances be interpreted as a strict deadline for delivery unless Parties expressly agree otherwise in writing.
6.2 The Vendor strives to modify Software that is uploaded during regular working hours as soon as possible. Modifying the Software as soon as possible qualifies as a best-effort obligation because the achievement of the intended result cannot be guaranteed. However, after the Software is uploaded the Vendor will modify the Software within a maximum period of 1 (one) week.
6.3 If and insofar the Software is not modified within the before mentioned period of 1 (one) week, Parties will consult to agree whether the Customer still wants the Software or wants to cancel the order. The sole and exclusive right of the Customer, if the situation occurs that the modification is not performed within 1 (one) week after uploading, is to cancel the order of the Software.
6.4 After uploading the Software, the Customer is obliged to instantly check and establish whether the Software is complete and without damages, though in any case within 48 hours.
6.5 The Customer is no longer entitled to invoke any shortcomings or faults in the performance, if the Customer does not file a complaint with the Vendor in writing within fourteen (14) days after the moment the Customer discovered the shortcoming or fault or should reasonably have discovered the shortcoming or fault (loss of rights).
6.6 In case of a timely and just complaint, the sole and exclusive right of the Customer is to give the Vendor the opportunity to solve the problem in the way that the Vendor wants. Only if the problem is not solved within 1 (one) week, the Customer shall be entitled to cancel the order and the funds will be transferred back to the Customers balance. These are the sole and exclusive rights the Customer has in case of a complaint and any other or further liability of the Vendor is excluded.
6.7 Complaints do not suspend the Customers’ payment obligation. 6.9 If it is established that a complaint is (partly) unfounded, the costs of the Vendor, including research costs and legal fees, are entirely at the expense of the Customer.
Article 7. Termination
7.1 In any case, if one or more of the following situations occur: – Full and/or timely payment by the Customer of one or more invoices from Vendor does not take place within 14 days after the invoice date; – The Customer fails to comply with or is in breach with any obligation under the Agreement or resulting from the law; – The Customer uses the Software in contradiction with its intended purpose and/or allows the Software to be used incorrectly or for another purpose than the intended purpose; – The Software is lost, regardless of the cause, including theft and embezzlement; – Suspension of payment or bankruptcy of the Customer is requested or declared; – Possessions of the Customer and/or the products and services delivered to the Customer are attached in execution; – It is decided that the Customer ceases, dissolves or liquidates its company; the Vendor will be (not limited) entitled to extra-judicial dissolution and/or claiming damages and/or compliance, without being obliged to pay the Customer any compensation, and to repossess the Software at the expense of the Customer, and – besides any due payments – to demand immediate payment of the entire and total amount owed by the Customer to the Vendor.
7.2 All costs made by the Vendor, including legal fees, to exercise its rights pursuant to this agreement, shall be at the expense of the Customer. The extra-judicial collection costs amount to 15% of the remaining purchase price, unless the actual costs exceed that percentage, in which case the actual costs shall be at the expense of the Customer.
Article 8. Transfer of risk and retention of title
8.1 The Customer bears the risk of all direct and indirect damages and costs sustained by or to the Software after delivery of the Software as mentioned in the last sentence of paragraph 6.2 of the Terms.
8.2 Any products or services delivered by the Vendor remain the exclusive property of the Vendor until the Customer has fulfilled all of the following obligations:
8.2.1 Full payment of all outstanding invoices and other payments regarding all products and services, including but not limited to Software, delivered, to be delivered or ordered by the Customer;
8.2.2 Full payment of all of Vendors’ claims as a result of Customers’ non-performance of or non-compliance with the Agreement.
8.3 Products and/or services delivered by the Vendor subject to the retention of title pursuant to paragraph
8.2, may not be resold. In the event of insolvency or suspension of payment regarding the Customer, reselling is strictly forbidden. Customer is moreover not authorized to pledge or to vest any other right on the products or services subject to the retention of title.
8.4 If the Customer fails to meet its obligations or if the Vendor has a reasonable fear that the Customer will not do so, the Vendor is entitled to withdraw anything delivered products or services that are subject to the retention of title referred to in paragraph 2, or cause the products or services to be withdrawn, from the Customer, or from third parties that possess the products or services on behalf of the Customer. The Customer is obliged to fully co-operate with this withdrawal.
8.5 If third parties wish to vest, or cause to be vested, any right on the products or services that are subject to retention of title, the Customer is obliged to inform the Vendor accordingly and as soon as may reasonably be expected.
8.6 If the Vendor is unable to exercise its retention of title because the products or services delivered have been mixed, deformed, or incorporated in a new product, the Customer is obliged to the make the newly formed items available, or alternatively to pledge them, to the Vendor.
Article 9. Liability
9.1 The contractual and non-contractual liability of the Vendor, which liability only exists in the event of direct damages and costs caused by default regarding the Agreement, will always be limited to a maximum of 100% of the net sales price the Customer used to purchase the Software, except in case of intent or wilful recklessness on behalf of the Vendor. Dynoshare is at any time not responsible for any damage that is caused by the Vendor to the Customer.
9.2 The Customer is fully and solely liable for the usage of the Software in compliance with the Software’s intended purpose and in compliance with the applicable (inter)national laws and regulations in the country of usage. The Customer indemnifies the Dynoshare against all claims from third parties arising as a direct or indirect result from the Vendor’s noncompliance with the intended purpose and/or applicable laws and regulations regarding the Software.
9.3 The Vendor is, except in case of intent or wilful recklessness, under no circumstances liable for (not limitative):
9.3.1 Any indirect damages caused by default (non-performance) regarding the Agreement;
9.3.2 Damages suffered by the Customer as a result of acts or omissions by implementers, constructors, Vendors or other third parties that the Customer uses to carry out this or any other agreement related to the Software;
9.3.3 Damages to the Software the Vendor delivered as a result of wrongly executed processing by or on behalf of the Customer. At the Vendor’s request the Customer will repeat processing, with new material delivered by the Vendor at the expense of the Customer;
9.3.4 Loss of (manufacturers’) warranty by the Customer or any third party;
9.3.5 Any errors or shortcomings on behalf of third parties (possibly engaged by the Customer);
9.3.6 The nature, qualifications, features, properties, quality, use, safety and/or the application of the products and/or services supplied by the Customer to third parties; and/or
9.3.7 Using the Software incorrectly or allowing the Software to be used incorrectly and/or for any other purpose than their intended purpose.
9.4 The Customer indemnifies the Vendor against all claims from third parties for damages or costs (including any loss of warranty) arising from the Customers’ acts or omissions. The Customer indemnifies the Vendor against all claims from third parties for product liability caused by a defect in a product and/or service that the Customer has delivered to a third party. In other words: the Vendor is under no circumstances liable and indemnified by the Customer (except in case of intent or wilful recklessness) for any claims from third Parties.
9.5 The Customer is solely and fully responsible and liable for processing the Software by (for example) reading out and/or implementing the Software in the engine management of motor vehicles, as well as for providing third parties with the relevant information regarding the Software. Liability is limited because (amongst other reasons) the Vendor does not have any role in or influence on the before mentioned process. The functioning of the Software depends on several external factors such as: technical quality of the vehicle, quality of the fuel, environmental circumstances, wrong modification requests due to incorrect diagnosis of the vehicle, etc. Because the Vendor has no role in or influence on the before mentioned factors. The Vendor is fully and solely liable for the functioning and performance of the Software.
9.6 DYNOSHARE IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY USER GENERATED CONTENT. ALTHOUGH WE INCLUDE STRICT PROVISIONS REGARDING USER GENERATED CONTENT IN THESE TERMS AND CONDITIONS, WE DO NOT CONTROL AND ARE NOT RESPONSIBLE FOR WHAT USERS POST ON OR THROUGH OUR SITES AND ARE NOT RESPONSIBLE FOR ANY DAMAGE, OFFENSIVE, INAPPROPRIATE, OBSCENE, UNLAWFUL, INFRINGING OR OTHERWISE OBJECTIONABLE OR ILLEGAL USER GENERATED CONTENT YOU MAY ENCOUNTER ON OUR SITES OR IN CONNECTION WITH YOUR USE OF OUR SITES. IF YOU DO ENCOUNTER CONTENT THAT’S INNOPROPIATE YOU CAN CONTACT DYNOSHARE OR REPORT THE SPECIFIC PRODUCT THE VENDOR PRODUCT PAGE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS DYNOSHARE, ON BEHALF OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS AND SERVICE PROVIDERS, EXCLUDE AND DISCLAIM LIABILITY FOR ANY LOSSES AND EXPENSES OF WHATEVER NATURE AND HOWSOEVER ARISING INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, GENERAL, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES; LOSS OF USE; LOSS OF DATA; LOSS CAUSED BY A VIRUS; LOSS OF INCOME OR PROFIT; LOSS OF OR DAMAGE TO PROPERTY; CLAIMS OF THIRD PARTIES; OR OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITES OR ANY WEB SITE WITH WHICH THEY ARE LINKED, OR ANY MERCHANDISE AVAILABLE ON OUR SITES. YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER BASIS.
IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF THE RELEASED PARTIES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED TEN EURO’S (10.00EURO).
OUR LIABILITY IN CONNECTION WITH A CUSTOMER’S PURCHASE IS EXPRESSLY LIMITED TO OUR RETURN POLICY, AND ALL CLAIMS FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES ARE HEREBY EXCLUDED.
Article 10. Intellectual property
10.1 The Vendor, including its associated companies, retains and reserves all industrial and intellectual property rights associated with the Software, including, but not limited to, copyright, trademark rights, patent rights, database rights, model rights, software, trade name rights and the rights to know-how.
10.2 The Vendor also retains and reserves all intellectual property rights pursuant to the Copyright Act and/or all other legislation regarding intellectual property.
10.3 Removal of tuning projects; termination of the Vendor Contract and deletion of user accounts
1. Dynoshare reserves the right to remove or delete tuning projects or parts thereof from the Platform or otherwise prevent or end the offering of tuning projects or parts thereof via the Platform
2. The Vendor may terminate the User Contract at any time in text form (“Textform”), stating his/her user name, first name and last name and email address.
3. Dynoshare may terminate the Vendor Contract by one month’s notice in text form (“Textform”) (without stating the reasons for the termination) (ordinary termination). The Vendor shall no longer be entitled to use the Platform after actual termination of the User Contract; Dynoshare also reserves the right in the case of termination to delete the vendor account.
4. If the Vendor is responsible for any breach of these Terms & Conditions or any other breach of the law relating to the use of the Platform, Dynoshare may terminate the Vendor Contract for cause in text form (“Textform”) with immediate effect without observing a notice period; moreover, Dynoshare may exclude the Vendor from using the Platform with immediate effect and delete his/her user account; any further rights and claims to which Dynoshare may be entitled by law and/or under these Terms & Conditions remain unaffected.
Article 11. Force majeure
11.1 Any failures or shortcomings of the Vendor regarding the performance of the contract constitute force majeure and are not attributable to the Vendor if the failures or shortcomings arise through no fault of the Vendor, and are not for the Vendors’ expense pursuant to the law, the Agreement, or generally accepted standards, also if foreseen at the time of concluding the Agreement. Delivery and all other obligations the Vendor may have been suspended while force majeure persists.
11.2 In any case, force majeure includes: the Vendor not receiving timely and proper delivery of an important performance of a third party in connection with its own deliverable performance; strikes; traffic disruption; government measures that obstruct Vendor in meeting its obligations in a timely or sound manner; a general shortage of necessary materials and other goods or services required for achieving the agreed performance, and excessive absence through illness.
11.3 If performance is delayed because of force majeure for longer than three months, either party, under exclusion of other rights, is authorized to dissolve the contract in accordance with the law, without the Vendor being liable to the Customer or third parties for any damages. 12.4 Vendor is also entitled to invoke force majeure if the circumstance that obstructs (continued) performance occurs after the Vendor should have met its obligation. 12.5 If the Vendor has partially met its obligations at the time force majeure occurs, or if the Vendor is able to meet its obligations only partially, it is entitled to invoice the already delivered or deliverable portion separately, and the Customer is obliged to pay this invoice as if it were a separate contract. However, the above mentioned does not apply if the already delivered or deliverable portion has no independent value.
Article 12. Jurisdiction and applicable law
12.1 The Agreement is exclusively governed by the laws of the Netherlands. The Vienna Convention of the International Sales of Goods (CISG) does not apply.
12.2 Parties hereby consent to the exclusive jurisdiction of the Dutch Civil Court in Vendors’ business location, in case any dispute arises under the Agreement. Only Vendor may deviate from this provision governing jurisdiction and instead comply with the statutory jurisdiction rules.