General Terms and Conditions

 

1. Introduction
   • The General Terms and Conditions (hereinafter referred to as “the GTC”) apply to all products and other digital content supplied by xAutomotive GmbH (hereinafter referred to as xAutomotive) against payment or free of charge. The GTC apply only to you as private customer (hereinafter referred to as “you”).
   • The GTC apply to the entire business relationship. xAutomotive's failure to respond to dissenting letters of confirmation from you is in no way be deemed to constitute consent.
   • The use of “xHP Flashtool”, “xDelete” or any other application from xAutomotive (hereinafter referred to as “the Applications”) is governed by the GTC. Please read them carefully, because by purchasing the application you agree to the GTC.
   • xAutomotive reserves the right to make changes to the Applications and the GTC at any time; Any changes do not affect an existing agreement between you and xAutomotive unless both parties agree to it.


2. Conclusion of Contract / Access to the Application
   • The contract is concluded if after selecting one of the Applications on xautomotive.com (hereinafter referred to as “the Webshop”) and your successful payment you get a download or voucher code by e-mail from xAutomotive. The Application is provided to you as part of a one-off provision and the Applications are provided "as is". xAutomotive does not have the obligation to update the Applications (e.g. continued usability in the event of changes to the Application environment, e.g. changes in the operating system).
   • The Applications are only provided through download; xAutomotive does not provide any devices, hardware etc. unless separately purchased. You are obliged to treat your download and/or voucher code confidentially and to protect it from misuse by third parties. In the event of loss of the download code or suspicion of misuse of such data, you must inform xAutomotive immediately. Furthermore, xAutomotive is entitled to block access to all Applications in the event of misuse. You are liable for any misuse for which you are responsible.
     • xAutomotive informs you about the technical requirements and prerequisites of the Applications in the Webshop. To check if the Application is suitable for your operating system, your hardware and your car, you have to obey the information and use xAutomotive’s tools provided on the Website, e.g. "Check Support" (https://www.xautomotive.com/pages/supported-cars) and provide the details of your car. These tools then indicate whether the Application should be suitable in general.
     • Note that you have to cooperate for the faultless functioning of the Applications. In the event of a dispute, you must immediately disclose your digital environment to xAutomotive at the time of the conclusion of the contract.
     • If xAutomotive is in default with the provision of the Applications, a grace period of 7 days is agreed.
   • As the Applications are not supplied on a tangible medium and xAutomotive’s performance has begun with your download you have no right of withdrawal according to Art 16 lit m Directive 2011/83/EU amended by Directive (EU) 2019/2161 (i.e. § 18 Abs 1 Z 11 Austrian FAGG).


3. Terms of Payment
   • The Application must be paid for in full before delivery (i.e. provision of a download-link by xAutomotive or similar). You can do this by selecting one of the payment options offered in the Webshop.
   • Payments by you are deemed to have been made in full when irrevocably credited to the bank account of xAutomotive or confirmed by the payment service provider.
   • The bank charges and expenses for payment transactions incurred by the transfer are always at your expense. This does not include fees that are charged to xAutomotive directly by the payment service provider commissioned by xAutomotive.


4. Copyright / Intellectual property
   • The Application and all of its contents including, but not limited to, all texts, images and source code are owned and copyrighted by xAutomotive with all rights reserved unless otherwise indicated.
   • Any content, that is a trademark, logo, or service mark, is also a registered or unregistered trademark of xAutomotive. The Application’s name is trademarked and owned by xAutomotive.
   • The Application is for your personal and non-commercial use only. You are granted a non-exclusive, non-assignable and non-transferable license to use the Applications only within the provisions of these GTC. Except as otherwise expressly provided, you are strictly forbidden to modify, copy, distribute, transmit, display, perform, reproduce, reverse-engineer, decompile, use, publish, license, create derivative works from, transfer, or sell any information or content contained in, or available as part of or in connection with the Applications or xAutomotive services.
   • The Applications may be used only by you, and you shall not rent, lend, sub-license or transfer the application or any data residing on it or any of your rights under this agreement to anyone else. You may not develop or derive for commercial sale any data in machine-readable or other form that incorporates or uses any substantial part of the Application, unless granted by xAutomotive to do so. You may not transfer to or store any data residing or exchanged over the Application in any electronic network for use by more than one user unless you obtain prior written permission from xAutomotive.
   • You do not acquire ownership but only a right to use the Applications within the scope of these GTC. All copyrights, rights of use and other property rights to the Application remain with xAutomotive.


5. Privacy Policy / Data protection
   • xAutomotive collects, processes and stores personal data exclusively in accordance with the provisions of the GDPR and national laws.
   • xAutomotive uses your personal data exclusively for the purpose of fulfilling the contract and shall not disclose your data to third parties who are not involved in the fulfilment of the contract.
   • The legal basis for processing the data of the customer in the context of an order is Art. 6(1) (b) General Data Protection Regulation (EU-GDPR).
   • xAutomotive may use the information, it collects from the customer by registration, make a purchase, sign up for our newsletter, respond to a survey or marketing communication, surf the website, or use certain other application features in the following ways:
   • To allow us to better service the customer in responding to the customer service requests.
   • To quickly process the customer transactions.
   • To ask for ratings and reviews of services or products
   • Detailed information regarding xAutomotive’s processing of personal data and data protection can be found under https://www.xautomotive.com/policies/privacy-policy


6. Permitted Use
   • The Application is a complete customization solution. It gives you the possibility to customize settings of your car. Any driving optimized with the Application is not allowed on public roads, but only and exclusively on separate race tracks. Any use of the Applications for driving outside race tracks is strictly prohibited.
   • The usage of the Applications and any optimizations or changes made with the Application to your car and its settings may result in loss of roadworthiness and/or car manufacturer's warranty commitments at all. Driving on public roads with changed or optimized car settings can lead to severe penalties. Any use of the Applications is therefore exclusively at the your own responsibility and risk. You are responsible for obeying local laws!


7. Warranty / Compensation
   • The selection of the Applications in the Webshop and compatibility verification is your sole responsibility. Only if a download is not successful due to technical reasons (e.g. loss of internet-connection), you are entitled to further downloads of the Applications.
   • The Applications may include inaccuracies or typographical errors. xAutomotive may – without being obliged to - make changes or improvements to the Application at any time. The Application is provided ‘as is' and without warranties of any kind either expressed or implied, to the fullest extent permissible pursuant to applicable law. Any mandatory statutory warranty claims under consumer law remain unaffected.
   • xAutomotive disclaims all warranties or merchantability and fitness for a particular purpose, if not expressively stated otherwise by xAutomotive (i.e. usage on race tracks only). xAutomotive does not warrant that the functions contained in the Applications will be uninterrupted or error free or that defects in the Applications will be corrected within a certain timeframe. According to the state of the technology, the opposite (e.g. freedom from errors) is not possible with software. Any damage and defects must be reported to xAutomotive as soon as possible.
   • xAutomotive strives that the Webshop is operational 24/7. This does not include downtime due to maintenance and updates or times when the service is unavailable via the internet due to technical or other problems beyond xAutomotive's control (force majeure, fault of third parties etc).
   • xAutomotive makes no representation that materials in the application are appropriate or available for use at your location. You have the sole responsibility to first check if the applications (and its purchase, use etc) are legally allowed at your location. If you use the Application, you do so on your own initiative and are responsible for compliance with local laws.


8. Limits on Liability
   • xAutomotive shall not be liable for the contents of any communication, message, or information provided to xAutomotive by the customer or other third parties. xAutomotive shall also not be liable for the content of websites not controlled, owned or operated by xAutomotive and accessed directly or indirectly e.g. via a link.
   • xAutomotive shall not be liable for any damages or injury caused by, including but not limited to, any harm, failure of performance, error, omission, interruption, defect, or delay in operation of your vehicle or (if applicable) yourself. This also applies to all persons traveling with in your vehicle and all valuables stored in the vehicle at any time you make use of the Application. Claims for damages in cases of slight negligence are excluded. This does not apply to personal injury. In all other cases, liability is limited to the actual and direct damage incurred by you. There is no liability for indirect or consequential damages, such as travel expenses, hotel costs, loss of profit as well as further damages.
   • xAutomotive is not involved where the vehicle modified with the Applications is used. Should you be affected by claims, demands and claims for damages (direct damage and consequential damage) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, such as administrative fines, based on a use outside of race tracks, you are responsible for this breach of duty. xAutomotive is free from any responsibility arising from or in any way connected with such a breach of duty. If your jurisdiction do not allow the limitation of liability for especially for consequential or incidental damages, the above may not apply to you.


9. Indemnification / Remedy
   • You agree to indemnify and hold harmless xAutomotive from all claims, liabilities, damages, and expenses (including attorneys' fees and expenses) arising out of or relating to (a) your use of the Application; (b) any alleged breach of these GTC.
   • Given the nature of these terms, you understand and agree that, in addition to money damages, xAutomotive will be entitled to equitable relief upon a breach of them by you.


10. Final Provision
    • Austrian law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
    • The competent court in Linz is agreed as the exclusive place of jurisdiction. If you are a consumer and have your habitual residence in a member state of the EU you also enjoy the protection of the mandatory provisions of your local law. You (as a consumer) may choose to assert claims in connection with the GTC that arise from customer protection standards both in Austria and in the EU member state in which you live.
    • Any waiver by xAutomotive is not to be construed as a waiver of any proceeding or of any claim of subsequent breach of the GTC.
    • Each provision of the GTC must be construed as separately applying and surviving, even if for any reason one or other of those provisions is held to be inapplicable or unenforceable in any circumstances. The GTC must be severable and construed to the extent of their enforceability in light of the mutual intent of the parties, if they are deemed unenforceable by the competent court in the first place.
    • The GTC replace all subsequent GTC, also included in the registration. xAutomotive intends that the GTC constitute the entire agreement between xAutomotive and you. Any changes to the GTC between xAutomotive between you and xAutomotive must be in written form.
    • Pursuant to § 19 Abs 1 Act on Alternative Dispute Resolution in Consumer Matters of 19 February 2016 (AStG), xAutomotive would like to point out that xAutomotive is covered by the following alternative dispute resolution bodies:

Dispute Resolution for Consumer Transactions:

http://www.verbraucherschlichtung.or.at

Internet Ombudsman:

http://www.ombudsmann.at/

You can also contact xAutomotive directly at the following e-mail address to lodge a complaint:

support@xAutomotivetuning.com

Please note that xAutomotive will not participate in arbitration proceedings.

The EU Commission provides an internet platform for online dispute resolution. It is intended as a contact point for out-of-court dispute resolution in connection with contractual obligations arising from online sales contracts:

http://ec.europa.eu/consumers/odr