Jestr Tuning Customer and User Agreement
Jestr Tuning: Jestr Tuning, LLC , a Limited Liability Corporation
Customer or You: Any person or company who is tuned, will be tuned, or purchases products on the Web Store or in person in accordance with the terms of this Agreement.
Web Store: The Jestr Tuning Web Store site operated by Jestr Tuning LLC, where you can read or purchase Products for direct distribution or use on your vehicle.
Products: Software, content and digital materials created for use in connection with Jestr Tuning and distributed via the Web Store.
The Jestr Tuning Web Store is a publicly available site on which customer can purchase Products for distribution and use in connection with Jestr Tuning.
2. Accepting this Agreement
2.1 Your use of the Web Store to distribute Products is governed by a legal agreement between you and Jestr Tuning consisting of the Jestr TuningTerms of Service (found at Disclaimer) and this Jestr Tuning Agreement (together, the “Agreement”).
2.2 You may not use the Web Store and may not enter into this Agreement if you are (a) not of legal age to form a binding contract with Jestr Tuning, or (b) a person or entity barred from using Jestr Tuning Services under the laws of the United States or other countries including the country in which you are resident or from which you use Jestr Tuning services.
2.3 You represent and warrant that you have full power, capacity, and authority to accept this Agreement. If you are agreeing to be bound by this Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not accept the Agreement or use the Web Store on behalf of your employer or other entity.
3. Pricing and Payments
3.1 This Agreement covers both Products and services you choose to purchase.
In order to charge a fee for your Products using the Web Store payment processing services, you must have a valid Payment Account under a separate agreement with a Payment Processor. If you already have a Payment Account with a Payment Processor before signing up for the Web Store, then the terms of this Agreement shall supersede your Payment Account terms and condition for Products sold via the Web Store.
4. Use of the Jestr Tuning Services and Web Store by You
4.1 You agree to use the Web Store only for purposes that are permitted by (a) this Agreement and the Jestr Tuning Policies
4.2 You agree that you are solely responsible for (and that Jestr Tuning has no responsibility to you or to any third party for) any Products or services you purchase in the Web Store and for the consequences of your actions (including any loss or damage which Jestr Tuning or any third party may suffer) by doing so.
4.3 You agree that you are solely responsible for (and that Jestr Tuning has no responsibility to you or to any third party for) any breach of your obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which Jestr Tuning or any third party may suffer) of any such breach.
4.4 You agree that Jestr Tuning accepts no responsibility for any damages during or after services are provided.
4.5 You agree that you are allowing Jestr Tuning to perform services AT YOUR OWN RISK.
4.6 You agree that Jestr Tuning is not responsible for any damage that may occur to the vehicle being serviced at any time.
4.7 You agree to hold harmless and keep indemnified Jestr Tuning, its officials, officers, or participants, agents, and the owners of the property upon which this event is conducted from any and all claims, actions or costs of any nature whatsoever arising out of the participation in this event.
4.8 You agree that Jestr Tuning will issue NO REFUNDS or REIMBURSEMENTS for services rendered.
4.9 You agree that catastrophic engine failure will occur and Jestr Tuning is not responsible for any damages caused by misuse, abuse of products, and services provided.
4.10 You agree you are waiving your rights to sue Jestr Tuning based on the following conditions stated: Despite all careful attention given to the foreseeable conditions, unfortunate accidents can and do happen. Jestr Tuning does not carry any insurance for the above subjects.
4.11 You agree that Jestr Tuning is not responsible for services done on the your vehicle during or after the services are rendered.
4.12 You agree that all services provided by Jestr Tuning are for racing use only which do not carry any type of warranty and therefore Jestr Tuning is not liable for any incident.
5. License Grants
5.1 You grant to Jestr Tuning and its affiliates a worldwide, nonexclusive, and royalty-free license to: (a) host, link to, copy, translate, publicly perform, publicly display, test, distribute and otherwise use the Products and any content contained in, accessed by, or transmitted through the Products according to the publishing options selected by you on the Product upload page of the Web Store and (b) copy, perform, display, and use the Product for administrative and demonstration purposes in connection with the operation and marketing of the Web Store.
5.2 You grant to the user a non-exclusive, worldwide, and perpetual license to perform, display, and use the Products and any content contained in, accessed by, or transmitted through the Products in connection with Jestr Tuning. If you choose, you may include a separate end user license agreement (EULA) in your Product that will govern the user’s rights to the Products in lieu of the previous sentence.
5.3 Jestr Tuning may use consultants and other contractors in connection with the performance of obligations and exercise of rights under this agreement, provided that such consultants and contractors will be subject to the same obligations as Jestr Tuning. After termination of this Agreement, Jestr Tuning will not distribute your Product, but may retain and use copies of the Product for support of the Web Store
5.4 You represent and warrant that you have all and will maintain all necessary rights to grant the licenses to the Products and any content contained in, accessed by, or transmitted through the Products to Jestr Tuning, its affiliates, and users of your Products.
5.5 Except for the license rights granted in this Agreement, (a) you retain all rights in the Products; and (b) each party retains all rights it would have independent of this Agreement, including rights under the U.S. Copyright Act or analogous laws in other jurisdictions. Jestr Tuning acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any content that you submit, post, transmit or display on, or through, the Products, including any intellectual property rights which subsist in that content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Jestr Tuning, you agree that you are responsible for protecting and enforcing those rights and that Jestr Tuning has no obligation to do so on your behalf.
6. Privacy and Information
6.1 In order to continually innovate and improve the Web Store, Jestr Tuning may collect certain usage statistics from the Web Store and user machines, devices, or other hardware, including but not limited to, information on how the Web Store and Products are being used.
7. Terminating this Agreement
7.1 This Agreement will continue to apply until terminated by either you or Jestr Tuning as set out below.
7.2 Jestr Tuning may at any time, terminate this Agreement with you if:
(A) you have breached any provision of this Agreement; or
(B) Jestr Tuning is required to do so by law; or
(C) Jestr Tuning decides to no longer provide the Web Store.
8. DISCLAIMER OF WARRANTIES
8.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE Web Store IS AT YOUR SOLE RISK AND THAT THE Web Store IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY WARRANTY WITH RESPECT TO THE TIMING, FREQUENCY, OR IMPLEMENTATION OF DISTRIBUTION OF ANY UPDATES TO PRODUCTS AND SERVICES.
8.2 YOUR USE OF THE Web Store AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE Web Store IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
8.3 JESTR TUNING FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT JESTR TUNING, ITS DISTRIBUTORS, SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT Jestr Tuning OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
10.1 To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Jestr Tuning, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) your use of the Web Store in violation of this Agreement, the Web Store Program Policies, or any applicable laws or regulations, (b) your Product that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) any third party claims arising out of or relating to your Product or your use of the Web Store.
10.2 To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless the applicable Payment Processors (which may include Jestr Tuning and/or third parties) and the Payment Processors’ affiliates, directors, officers, employees and agents from and against any and all third party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from taxes related to Your distribution of Product distributed via the Web Store.
11. Changes to the Agreement
Jestr Tuning may make changes to this Agreement from time to time. When these changes are made, Jestr Tuning will make a new copy of the Agreement available on the Web site http://www.jestrtuning.com/pages/disclaimer.html. The changes will become effective, and will be deemed accepted by you, (a) immediately for those who become customers after the notification is posted, or (b) for pre-existing customers, the modified Agreement will become effective upon your services rendered by Jestr Tuning (except changes required by law which will be effective immediately) or 7 days after the posting of the notification if you continue to use the Web site and Jestr Tuning services.
12. General Legal Terms
12.1 This Agreement constitutes the whole legal agreement between you and Jestr Tuning and governs your use of the Web Store, and completely replaces any prior agreements between you and Jestr Tuning in relation to the Web Store. The Jestr Tuning Agreement, Jestr Tuning Web Store Policies, and Jestr Tuning Terms of Service shall take precedence in that order in the event of a conflict between them, to the extent of such conflict.
12.2 You agree that if Jestr Tuning does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which Jestr Tuning has the benefit of under any applicable law), this will not be taken to be a formal waiver of Jestr Tuning’s rights and that those rights or remedies will still be available to Jestr Tuning.
12.3 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
12.4 You acknowledge and agree that each member of the group of companies of which Jestr Tuning is the parent shall be third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to this Agreement.
12.5 EXPORT RESTRICTIONS. Products available on the Web Store may be subject to export controls or restrictions by the United States or other countries or territories. You agree to comply with all applicable U.S. and international export laws and regulations. These laws include restrictions on destinations, end users, and end use.
12.6 The rights granted in this Agreement may not be assigned or transferred by either you or Jestr Tuning without the prior written approval of the other party. Neither you nor Jestr Tuning shall be permitted to delegate their responsibilities or obligations under this Agreement without the prior written approval of the other party.
12.7 This Agreement, and your relationship with Jestr Tuning under this Agreement, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and Jestr Tuning agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from this Agreement. Notwithstanding this, you agree that Jestr Tuning shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
12.8 The obligations in Sections 5, 6, 7, 11, 12, 13, and 15 will survive any expiration or termination of this Agreement.