MODI-FY TERMS OF SERVICE
Published – 22 September 2021
Effective – 22 September 2021
These Terms replace and supersede all prior versions
1 – Introduction
Modi-fy is a registered trademark operated by Espiral Imparavel – Unipessoal Lda (‘Espiral Imparavel’). The terms ‘We’, ‘Our’ and ‘Us’ used throughout this website refer to Espiral Imparavel as the sole company responsible for the operation of the Modi-fy business including its website, web applications and brand (‘website’).
These Terms of Service (‘TOS’) apply to all users of this website. They lay down the terms and conditions under which We enable users to access the website and all the tools and services provided online and offline via contact center, e-mail or any other form of communication. All users are advised to carefully read all the TOS that are applicable to them before using the website, and to ensure that they understand them, as they set out their rights and obligations.
The latest version of these TOS will be available on this location. Please read, print and save these for your records – We will not save a copy for you.
We reserve the right to update, change or replace any part of these TOS from time to time without notice in Our sole and absolute discretion. The user is responsible for checking this page for any updates and changes. The user’s continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
You accept the TOS, conditions, policies and notices stated here by simply visiting this website, creating a user account, using and/or purchasing any tools and services provided by Us online or offline or interacting with Us in any other form.
Any new tools, services or features added will be subject to the same TOS.
2 – Privacy Policy
Your privacy is very important to Us. Please read our Privacy Policy (the ‘Privacy Policy’). Here we detail the types of Data We collect from you and your devices (‘Data’), how We use your Data and the legal bases We have to process your Data. The Privacy Statement also describes how We use your content, which includes among others any files and documents you submit to Us and/or are generated by Our platform in order to provide the Service you requested or to meet Our legal obligations (‘Your Content’).
3 – No Unlawful or Prohibited Use
Users must not use the website and the services provided by Us for any purpose that is unlawful or prohibited by these terms, conditions, and notices. Users cannot use the website or the services provided by Us in any manner that could damage, disable, overburden, or impair any vehicle or person. The TOS, and the relationship of the users with Us, is governed by the laws of Portugal. The user and Espiral Imparavel agree to submit any legal matter arising from the TOS to the exclusive jurisdiction of the courts of Leiria, Portugal. Notwithstanding this, the user agrees that We shall still be allowed to apply for injunctive remedies in any jurisdiction.
4 – Use of Services
a) Creating an Account
Some functionalities of the website including the purchase of services require users to create an account. Users must provide current, complete and accurate information as prompted by the applicable registration form. Opening an account is free of charge and carries no obligation to purchase from the website. All users must be at least the age of majority in your state or province of residence and must have full legal capacity to enter into a purchase.
Users are entirely responsible for maintaining the confidentiality of password and account information. Furthermore, users are entirely responsible for any and all activities that occur under your account. You agree to notify Us immediately of any unauthorized use of your account or any other breach of security. We are not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, users could be held liable for losses incurred by Espiral Imparavel or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
After the registration process, users will be asked to input their email address and password to be able to access and use their accounts. Users are responsible at all times by these key elements of information and must never disclose it to any third party or let any third party use them. Users cannot create or use accounts other than their own created initially, be it under their own identity or that of a third party. Failure to comply with these conditions could result in Us closing the users account immediately.
Users must inform us immediately of any fraudulent use of their login credentials by a third party as soon as they become aware of this, by emailing Us at support@modi-fy.com. Users must compensate Espiral Imparavel for any damage, loss or cost incurred as a result of a third party accessing the users account on Our website, if the user involved authorised it or was aware of it.
b) Your Content
‘Your Content’ means any text, information, or material, such as files, electronic documents, or images, that you upload and import into, or create in connection with or through your use of the services, including any outputs produced through the use of the services.
Users are required to upload content, including Electronic Control Unit (“ECU”) files, in order to perform a modification service through Our online platform. Users agree to upload content strictly in line with what is requested in the process and will not:
- Upload, or otherwise make available, files or information protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same.
- Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another.
- Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
- Harvest or otherwise collect information about others, including e-mail addresses.
- Violate any applicable laws or regulations.
- Create a false identity for the purpose of misleading others.
We reserve the right to delete any content uploaded at Our sole discretion as well as the right to terminate your access at any time, without notice, for any reason whatsoever.
We reserve the right at all times to disclose any information as deemed necessary to satisfy any applicable law, regulation, legal process or governmental request, in Our sole discretion.
Solely for the purposes of operating or improving the Services and the service offering, when you upload content, you grant Us a nonexclusive, worldwide, royalty-free, sublicensable, perpetual, irrevocable and transferrable license to use, reproduce, publicly display, distribute, modify (so as to better showcase your content, for example), publicly perform, and translate the content.
No compensation will be paid with respect to the use of your content, as provided herein. We are under no obligation to use any content you may provide and We may remove any content at any time in Our sole discretion.
The user is the sole owner of the outputs generated by the services provided by Our online platform as per the user’s request, including Modified ECU files. Individual results of the modification service may vary depending on the specific ECU file provided, vehicle setup and health, quality of the installation, overall environmental conditions, specific testing equipment used and other factors. The user is solely responsible for this content and assumes all risks associated with the use of it, including any reliance on its accuracy, completeness or usefulness by others. It is the user’s responsibility to make sure their use of the Services and its outputs, such as Modified ECU files is legal as some may not comply with local laws and may affect manufacturer’s warranty.
c) Intended Use
The solutions We provide are not intended for use in public roads and can only be used for competition purposes, off-track or closed track events duly approved/licenced by the respective regulatory authorities.
It is the user’s sole responsibility to ensure that the solutions purchased from Us are not used for any purpose that is unlawful in the country of use or prohibited by Modi-fy’s TOS and notices.
5 – Links to Third Party Sites
We may have links in Our website/WebApp which will let you leave the Modi-fy site. The linked sites are not under Our control and We are not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. We are not responsible for webcasting or any other form of transmission received from any linked site. We are providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Us of the site.
6 – Prices and Payment Terms
All prices are set in Euros and are exclusice of taxes.
Tax charges are managed at checkout by Stripe, our payment gateway provider. Where applicable and based solely on the informaction you provide to Stripe, sales tax, VAT, and GST will be added to the cost of the transaction at the point of checkout/payment. If you are not charged taxes by Stripe, you are still responsable for determining if taxes are payable, and if so, self-remitting taxes to the appropriate tax authorities in your jurisdiction.
Modi-fy reserve the right to change the prices of the services provided at our sole discretion and without notice.
We reserve the right at any time, to modify or discontinue, the Service (or any part thereof) with or without notice (unless otherwise required by applicable law).
We shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
Digital products and services are paid for by the user in full before delivery.
7 – Cancellations, Exchanges and Refunds
In accordance to the European law your right to cancel your Modi-fy purchase is waived when you purchase a digital download and/or redeem a voucher code. Once you have purchased a digital download from Modi-fy you will not be able to cancel that purchase, get an exchange or a refund. Nevertheless, if you are dissatisfied with your purchase, please get in touch with Us via support@modi-fy.com or through Our online support tools.
8 – Data Protection
We collect, process and store all your personal data in line with the provisions of the GDPR and national laws. We will use your personal data solely for the purposes of contractual performance and will never transfer your data to third parties not involved in fulfilling the contract.
9 – Disclaimer of Warranties
ALL MODI-FY WEBSITE, CONTENT, TOOLS AND/OR SERVICES ARE PROVIDED ON AN ‘AS IS’, ‘AS AVAILABLE’ AND ‘WITH ALL FAULTS’ BASIS WITHOUT ALL WARRANTIES, EXPRESS OR IMPLIED OF ANY KIND, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ESPIRAL IMPARAVEL, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF. ESPIRAL IMPARAVEL MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE MODI-FY WEBSITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE MODI-FY WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. ESPIRAL IMPARAVEL DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND ESPIRAL IMPARAVEL WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
YOU HEREBY RELEASE AND FOREVER DISCHARGE US FROM, AND HEREBY WAIVE AND RELEASE, EACH AND EVERY PAST, PRESENT AND FUTURE DISPUTE, CLAIM, CONTROVERSY, DEMAND, RIGHT, OBLIGATION, LIABILITY, ACTION AND CAUSE OF ACTION OF EVERY KIND AND NATURE (INCLUDING PERSONAL INJURIES, DEATH, AND PROPERTY DAMAGE), THAT HAS ARISEN OR ARISES DIRECTLY OR INDIRECTLY OUT OF, OR RELATES DIRECTLY OR INDIRECTLY TO, YOUR USE OF THE MODI-FY WEBSITE AND/OR SERVICES, ANY INTERACTIONS OR TRANSACTIONS OF YOU WITH, OR ACT OR OMISSION OF YOU IN RELATION TO OTHER USERS.
10 – Limitation on Liability
UNDER NO CIRCUMSTANCES SHALL ANY OF THE COMPANY PARTIES BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH OUR SERVICES OR THESE TERMS OF USE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH OUR SERVICES INCLUDING, WITHOUT LIMITATION, SERVICE CONTENT IS TO STOP USING OUR SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF GOODS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH OUR SERVICES OR ANY LINKS PLACED IN OUR SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH OUR SERVICES OR ANY LINKS PLACED IN OUR SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD-PARTY OR CONDUCT OF A THIRD-PARTY USING OUR SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF ALL THE COMPANY PARTIES EXCEED THE LESSER OF THE TOTAL PAYMENTS RECEIVED FROM YOU BY ESPIRAL IMPARAVEL DURING THE PRECEDING THREE (3) MONTH PERIOD OR €100. FURTHERMORE, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH ANY OF OUR SERVICES OR THESE TERMS OF USE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
IN SOME JURISDICTIONS LIMITATIONS OF LIABILITY ARE NOT PERMITTED. IN SUCH JURISDICTIONS, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. THESE LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW EVEN IF (A) A REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE; OR (B) WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF DAMAGES.
THESE TERMS SET FORTH THE ENTIRE LIABILITY OF ESPIRAL IMPARAVEL AND ITS AFFILIATES AS WELL AS YOUR EXCLUSIVE REMEDY WITH RESPECT TO ACCESS AND USE OF THE SERVICES.
11 – Indemnification
You agree to indemnify and hold harmless Espiral Imparavel and its officers, directors, employees, parents, partners, successors, agents, licensors, licensees, distribution partners, affiliates, subsidiaries, and their related companies (collectively, the ‘Company Parties’) from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys’ fees and costs) arising out of, related to, or that may arise in connection with: (i) your use of Our Services; (ii) User Content provided by you or through use of your Account; (iii) any actual or alleged violation or breach by you of these Terms of Use; (iv) any actual or alleged breach of any representation, warranty, or covenant that you have made to Us; or (v) your acts or omissions. You agree to cooperate fully with Us in the defence of any claim that is the subject of your obligations hereunder.
12 – Termination
We reserve the right in Our sole discretion and at any time to terminate or suspend your Account and/or block your use of Our Services for any reason including, without limitation if you have failed to comply with the letter and spirit of these TOS. You agree that We are not liable to you or any third party for any termination or suspension of your Account or for blocking your use of Our Services.
Any suspension or termination shall not affect your obligations to Us under these TOS. The provisions of these TOS which by their nature should survive the suspension or termination of your Account or these TOS shall survive including, but not limited to, Our intellectual property rights or Our licensors, the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability and provisions related to the choice of law.
13 – Feedback
You have no obligation to provide Us with ideas, suggestions, proposals, or bug or crash reports (‘Feedback’). If you submit Feedback to Us however, then you grant Us a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, sublicensable, and transferable license to make, use, sell, have made, offer to sell, import, export, reproduce, publicly display, distribute, modify, and publicly perform the Feedback. We are and shall be under no obligation (1) to maintain Feedback in confidence; (2) to pay compensation for Feedback; or (3) to respond to any Feedback.
14 – Copyright
No part of this Website may be copied or imitated in whole or in part. No logo, graphic, sound or image from this Website may be copied or re-transmitted unless expressly permitted in writing by Us. These prohibitions are without limitation to Our legal rights.
15 – Trademarks
The trademarks and logos (‘Trademarks’) used and displayed on this website are registered and unregistered trademarks of Espiral Imparavel and/or others. They may not be used in any advertising or other publicity materials in relation to the distribution of any information or materials obtained from this website without the prior written consent of the Trademark owner. These prohibitions are without limitation to Our legal rights.
16 – Subscription Service
Users can sign up to our monthly or annual subscription service, instead of purchasing services on a pay as you go basis. A subscription provides users with access to the full range of solutions, subject to a maximum of 8 executions per day.
The user can cancel the subscription at any point in time.
17 – Contact Information
For any questions regarding these TOS please email Us on support@modi-fy.com.