Terms & Conditions

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1. Definitions

In these Terms & Conditions:

(a) "we", "us", "our" and "Protunes" refer to KVC Technology Pty Ltd (ACN 698 813 062, ABN 74698813062), trading as Protunes Engine Management, which operates this Platform from Melbourne, VIC, Australia.

(b) "Customer" refers to any individual or entity who registers an account, submits a calibration request, makes a booking, or purchases or downloads any product or service via this Platform.

(c) "Trade Customer" refers to a Customer who is a workshop, dealer, reseller or other business acquiring goods or Services in the course of a business, whether or not an approved trade account has been issued.

(d) "Calibration File" or "Tuning File" refers to any digital software calibration, engine control unit (ECU) or transmission control unit (TCU) map, binary, patch file, definition, tune file or related digital asset supplied by us.

(e) "Products" refers to physical goods supplied by us, including performance parts, hardware, tools, interface devices and accessories.

(f) "Services" refers to all calibration, tuning, diagnostic, workshop and associated technical services offered by us, whether delivered digitally, remotely or in person.

(g) "Platform" refers to the Protunes website and any associated online ordering, account, portal or delivery system.

(h) "Customer Material" refers to any file, data or media the Customer supplies to us, including original ECU and TCU binaries, datalogs, dynamometer reports, photographs and vehicle information.

(i) "Assisted Assessment" refers to an assessment of evidence produced with the aid of automated or machine-learning tools — see Clause 18.

(j) "ACL" refers to the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth).

(k) "consumer" means a consumer within the meaning of the ACL. Whether a Customer is a consumer depends on the purchase, not on the Customer: a business that acquires goods to re-supply them, or to use them in repairing or treating another person's vehicle, is generally not acquiring them as a consumer.

(l) "Emissions-Related Modification" refers to any Product, Calibration File, tuning option or Service that removes, bypasses, disables or defeats an emissions control device or system — including EGR, DPF, SCR/AdBlue, catalytic converter, GPF/OPF, secondary air or evaporative emissions control — or the on-board diagnostic monitoring of such a system.

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2. Acceptance of Terms

By registering an account, submitting a calibration request, making a booking, completing a purchase, confirming acceptance at checkout, or downloading any Calibration File, the Customer acknowledges that they have read, understood and agree to be legally bound by these Terms & Conditions in their entirety, together with our Refund & Returns Policy and our Privacy Policy.

If you do not agree to these Terms & Conditions, you must not use this Platform or purchase any Products or Services.

We record the date and time acceptance is given at checkout, and the date acceptance is given at account registration. Where an order includes an Emissions-Related Modification, we also record the date and time of the off-road declaration required by Clause 3(h).

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3. Vehicle Use, Emissions and Legal Compliance

(a) Emissions-Related Modifications — off-road and competition use only. Every Emissions-Related Modification is supplied strictly for off-road, closed-circuit or competition use. The Customer warrants that no such modification will be installed on, or used in, a vehicle that is registered for or operated on a public road.

(b) The Customer acknowledges that tampering with an emissions control system is prohibited for road-registered vehicles in Australia and in most other jurisdictions, and that we will not supply such a modification for road use. A Customer who uses, or facilitates the use of, such a modification on a public-road vehicle does so entirely at their own risk and in breach of these Terms.

(c) All other calibrations, Products and Services. The Customer is solely responsible for ensuring that any modification, calibration or Product complies with all applicable laws and regulations in the jurisdiction in which the vehicle is operated, including the Australian Design Rules, the vehicle modification and roadworthiness requirements of the relevant State or Territory, and any applicable national code of practice.

(d) We do not warrant that any modification is legal for road use in any particular jurisdiction, do not certify any vehicle as compliant, and do not provide engineering certification or roadworthiness approval.

(e) The Customer accepts sole responsibility for any fine, penalty, defect notice, roadworthiness failure, registration consequence, insurance consequence or other legal consequence arising from the use of a modified vehicle.

(f) Modification may void a vehicle manufacturer's warranty and may void or reduce cover under an insurance policy. The Customer is responsible for making their own enquiries of the manufacturer and insurer before proceeding.

(g) To the maximum extent permitted by law, we exclude all liability for any consequence arising from a Customer's breach of this clause, including regulatory penalties, defect notices, insurance voidance, personal injury, property damage and third-party claims.

(h) Off-road declaration. Where an order includes an Emissions-Related Modification, the Customer must declare, when placing the order, that it will be fitted to or used in a vehicle only off-road or in closed-circuit competition, and not in a vehicle registered for or operated on a public road. We record that declaration with the order. We may decline or cancel, with a full refund, any such order placed without it, or where we have reason to believe it is untrue.

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4. Digital Delivery & File Downloads

(a) Calibration Files and other digital products are delivered electronically through the Platform. No physical media is supplied for a digital product. Physical Products are dealt with in Clauses 5 to 8.

(b) It is the Customer's sole responsibility to ensure they have the technical capability, compatible hardware interface tools and appropriate ECU flashing equipment required to use a Calibration File before purchase.

(c) We do not guarantee compatibility with any specific third-party hardware device, interface tool or software platform unless expressly stated in the product description.

(d) Once a Calibration File has been downloaded or accessed, the transaction is considered fulfilled for the purposes of digital delivery.

(e) The Customer is responsible for retaining their own copy of any file supplied, and in particular of any original unmodified ECU or TCU binary. We do not provide a file archival or backup service.

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5. Physical Goods — Orders, Pricing and Availability

(a) A price displayed on the Platform is an invitation to treat and not an offer. No contract of sale is formed until we accept the order, which occurs on dispatch or on written confirmation, whichever is earlier.

(b) Pricing errors. Where a Product is listed at a price that is manifestly incorrect — including as a result of a supplier data error, a currency-conversion or freight-calculation error, or a typographical error — we may decline or cancel the order and will refund any amount paid in full. We will notify the Customer before cancelling, and will offer the Product at the corrected price where we are able to.

(c) Product listings, including images, specifications, weights and fitment information, are supplied by manufacturers and suppliers. We take reasonable care in reproducing them but do not warrant that they are free from error. Where fitment is critical, the Customer is responsible for confirming it before ordering.

(d) Products are subject to availability. Where a Product is unavailable after an order is placed, we will offer a refund, a substitute of equivalent specification, or a backorder, at the Customer's election.

(e) Prices are in Australian dollars and include GST unless stated otherwise. Prices may change without notice; the price applying to an order is the price displayed when that order is accepted.

(f) Nothing in this clause excludes, restricts or modifies any right or remedy under the ACL.

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6. Shipping and Delivery

(a) Dispatch and delivery timeframes published on the Platform are estimates given in good faith and are not guaranteed. We are not liable for delay caused by carriers, customs, incorrect or incomplete delivery details supplied by the Customer, public holidays, or any cause outside our reasonable control.

(b) The Customer is responsible for the accuracy of the delivery address and contact details. Re-delivery or redirection costs arising from incorrect details are payable by the Customer.

(c) Title in Products passes to the Customer on receipt of payment in full. Risk passes on delivery, except that where the Customer instructs a carrier to leave goods unattended, the Customer bears the risk of loss or damage from the time the goods are left.

(d) Loss or damage in transit should be reported to us as soon as possible, and where practicable within seven (7) days of delivery or of the expected delivery date, so that a claim can be made within the carrier's own time limits. A late report does not of itself remove a right under the ACL, but it may limit what we are able to recover from the carrier.

(e) Nothing in this clause excludes, restricts or modifies any right or remedy under the ACL, including the consumer guarantee that goods will be supplied within a reasonable time.

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7. Imported Goods — Freight, Customs and Duty

(a) Some Products are imported. Where a Product is listed as an imported item, the displayed price is a landed price and includes international freight, applicable import duty and GST unless the listing states otherwise. No further amount is payable on delivery.

(b) Where an importing authority assesses duty, tax or a charge differently from the amount included in the price, we will bear the difference on any order already accepted, and will correct the listing for future orders.

(c) Imported Products may be subject to customs inspection, which can extend delivery beyond any estimate given.

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8. Returns, Refunds and Cancellations

(a) Returns, refunds and cancellations are governed by our Refund & Returns Policy, which forms part of these Terms and covers both digital products and physical Products. The dispatch, transit and return-window terms published on that page apply to every order.

(b) In summary, and without limiting that policy: goods and services supplied to a consumer come with guarantees that cannot be excluded under the ACL; a Calibration File is not refundable except as set out in Clause 9; and a Product may be returned or exchanged for change of mind only where that policy allows it, only within seven (7) days of delivery, never once it has been fitted, installed, flashed or used, and less the handling and restocking fee stated in that policy, which applies to an exchange as it does to a return.

(c) A defect in a Calibration File as we supplied it is dealt with under Clause 9(c). Where the ACL requires a remedy because a Product or Calibration File has a major failure, is not fit for a purpose made known to us, or does not match its description, we will provide the remedy the ACL requires.

(d) A claim that a Product or Calibration File is faulty, damaged, incorrect or not as described should be made in writing to [email protected] within seven (7) days of delivery or, for a fault that could not reasonably have been found on delivery, within seven (7) days of it becoming apparent, with a clear description of the alleged defect.

(e) Where a Trade Customer does not acquire a Product or Calibration File as a consumer under the ACL, a claim must be made within the periods in sub-clause (d), and a claim made later is not accepted.

(f) Nothing in this clause limits any right or remedy available to a consumer under the ACL.

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9. Calibration Files — No Warranty, No Liability, No Refund

(a) No warranty. Calibration Files are supplied without any express warranty or guarantee from us, whether as to power, torque, performance, drivability, reliability, durability, compatibility, fitness for a particular purpose or otherwise. Dyno results, figures and descriptions of past work show what was recorded on a particular vehicle; they are not a promise that any other vehicle will achieve the same.

(b) No refund. Calibration Files are not refundable — whether for change of mind, an incorrect order, incompatible hardware, a decision not to proceed, or once the file has been downloaded, accessed or flashed. The only refunds are those in sub-clause (c) and those the ACL gives a consumer (Clause 31).

(c) A defect in the file as we supplied it. Where a Calibration File has a defect in the file itself, as we supplied it, and the Customer reports it in accordance with Clause 8(d), our only obligation — and, to the maximum extent permitted by law, the Customer's only remedy — is for us to correct the file or supply it again, and if we cannot do so within a reasonable time, to refund the price paid for that file. A file is not defective merely because it does not suit hardware, modifications, fuel or a vehicle other than those it was ordered for, or because a result differs from an estimate or from another vehicle.

(d) No other liability. Except as set out in sub-clause (c), and to the maximum extent permitted by law, we accept no liability for any loss, damage, cost or claim arising from or in connection with a Calibration File or its use, including damage to any engine, transmission, drivetrain, ECU, TCU or other component, and any consequential loss. Clauses 11, 12 and 13 apply in addition to this sub-clause. This does not limit a consumer's rights under Clause 31.

(e) What the law requires. Where the Customer acquires a Calibration File as a consumer, it comes with consumer guarantees that cannot be excluded, and nothing in this clause excludes, restricts or modifies them or any other right that cannot lawfully be excluded. Where our liability for a failure to comply with a consumer guarantee can lawfully be limited, it is limited as set out in Clause 13(e).

(f) Physical Products carry the manufacturer's warranty, where one is offered, in addition to a consumer's rights under the ACL. We will assist in making a manufacturer claim, but we do not give that warranty ourselves.

(g) Services are provided with due care and skill, as required by the ACL. Except where a right cannot be excluded by law, no additional express warranty is given as to workmanship, performance, reliability, durability or fitness for a particular purpose.

(h) Nothing in this clause excludes, restricts or modifies any guarantee provided under the ACL.

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10. Disclaimer of Other Warranties

To the maximum extent permitted by applicable law (including the ACL where it applies), we disclaim all warranties not expressly stated in these Terms & Conditions, whether express or implied, including implied warranties of merchantability, fitness for a particular purpose, durability or non-infringement.

Nothing in this agreement is intended to exclude, restrict or modify any right or remedy that a consumer may have under the ACL or equivalent applicable legislation that cannot lawfully be excluded by agreement.

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11. Performance Enhancement Risk — ECU, Engine & Flashing

(a) All performance enhancement introduces additional mechanical stress across vehicle components. The Customer acknowledges and accepts that component failures — including engine, drivetrain, transmission, turbocharger, injector, fuelling and cooling system failures — are a known and foreseeable risk of any engine performance optimisation, and that vehicle reliability cannot be guaranteed following modification.

(b) The Customer specifically acknowledges the following additional risks associated with ECU flashing and calibration software:

• ECU failure or bricking — an ECU may become unresponsive, fail to boot, or suffer irreversible corruption during or after a flashing procedure, regardless of the quality of the Calibration File supplied;
• Incorrect or failed flashing procedure — errors made by the Customer, their technician or their flashing hardware may cause ECU damage, data corruption, vehicle immobilisation or other harm, independent of the content of the Calibration File;
• Interrupted programming — the Customer is responsible for maintaining adequate battery voltage, a stable supply and suitable equipment throughout programming;
• Engine failure from calibration — even a correctly applied calibration may reveal pre-existing mechanical weaknesses, or may interact with wear, third-party modifications or fuel quality in ways that contribute to failure;
• Warranty and insurance — a manufacturer warranty and/or insurance policy may be voided as a result of ECU calibration modification.

(c) We strongly advise against proceeding if you are unwilling to accept the risks described in this clause. To the maximum extent permitted by law, we bear no liability for ECU failure or bricking, engine failure, incorrect or failed flashing procedures, or any consequential vehicle damage or repair cost — whether arising from the calibration, the flashing process, pre-existing mechanical condition, or any combination of them. A defect in a Calibration File as we supplied it is dealt with only under Clause 9(c). By accepting these Terms, the Customer confirms they have been warned of these risks and voluntarily assume responsibility for such outcomes. This does not limit a consumer's rights under Clause 31.

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12. Exclusions

Except where a right or remedy cannot be excluded by law, we are not responsible for any failure or damage resulting from:

• pre-existing faults, or mechanical or electrical failures not caused by us;
• engine, gearbox, transmission or drivetrain failure not caused by us;
• ECU or TCU hardware failure;
• aftermarket modifications not performed by us;
• racing, motorsport or competition use;
• abuse, misuse or negligence;
• contaminated or incorrect fuel;
• poor maintenance or overheating;
• accident damage;
• third-party products or workmanship;
• use of a Product or Calibration File on a vehicle, ECU, hardware or software configuration other than the one it was supplied for, or with modifications not disclosed when ordering;
• failure to follow our instructions or the instructions of the flashing tool's manufacturer;
• use contrary to Clause 3; or
• any circumstance outside our reasonable control.

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13. Limitation of Liability

(a) To the maximum extent permitted by applicable law, we and our suppliers are not liable for any special, incidental, consequential or indirect loss, including loss of business profits, business interruption, loss of income, loss of use, towing or transport costs, loss or corruption of data, or any other loss arising out of the use of or inability to use any Product, Calibration File or Service — even where we have been advised of the possibility of such loss. This does not limit a consumer's right under the ACL to compensation for reasonably foreseeable loss (Clause 31).

(b) To the maximum extent permitted by law, our total aggregate liability under or in connection with these Terms & Conditions, including under Clause 9(c), does not exceed the amount actually paid by the Customer for the specific Product, Calibration File or Service giving rise to the claim.

(c) Without limiting sub-clause (a), and to the maximum extent permitted by law, we expressly exclude liability for, and the Customer releases us from all claims in relation to:

• ECU or TCU failure, bricking or damage of any kind arising from or in connection with the flashing or application of any Calibration File;
• engine, transmission or drivetrain failure or damage of any kind arising from or in connection with any calibration, tune or performance modification;
• incorrect, failed or interrupted flashing procedures, whether caused by operator error, incompatible hardware, software faults, power interruption, communication failure or any other circumstance;
• consequential costs arising from any of the above, including repair costs, towing, vehicle recovery, vehicle replacement or loss of use;
• any loss, claim or damage arising from a Customer's breach of Clause 3.

This sub-clause does not apply to loss to the extent it is caused by a defect in a Calibration File as we supplied it, which is dealt with only under Clause 9(c), or by our failure to exercise due care and skill in performing a Service, for which our liability is limited by sub-clause (b). It does not limit a consumer's rights under Clause 31.

(d) Where we are liable, our liability is reduced to the extent that the loss was caused or contributed to by the Customer, their technician or equipment, a third party, or the condition of the vehicle.

(e) Where the goods or services concerned are not of a kind ordinarily acquired for personal, domestic or household use or consumption, and to the extent section 64A of the ACL permits, our liability for a failure to comply with a consumer guarantee is limited, at our option, to replacing or repairing the goods or supplying equivalent goods, or paying the cost of doing so; or, for services, to supplying the services again or paying the cost of having them supplied again.

(f) Nothing in this clause limits our liability for death or personal injury caused by our own negligence, for fraud, or for any liability that cannot lawfully be limited or excluded under the ACL.

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14. Order Verification and Fraud Review

(a) We may verify the identity of a Customer, the authority to use a payment method, or the delivery destination before dispatching an order, and may withhold dispatch while we do so.

(b) Where we are unable to verify an order to our reasonable satisfaction, we may cancel it and refund the amount paid in full. Payment of an order does not oblige us to dispatch it.

(c) We may decline to supply, or may suspend or close an account, where we reasonably suspect fraud, unauthorised use of a payment method, or a breach of these Terms.

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15. Intellectual Property

(a) All Calibration Files, tuning files, maps, calibration data, definitions, documentation and related digital materials provided by us remain our exclusive intellectual property at all times, unless otherwise agreed in writing.

(b) The Customer is granted a limited, non-exclusive, non-transferable licence to use a purchased Calibration File solely for its intended purpose on the specific vehicle for which it was supplied.

(c) The Customer must not:

• reproduce, copy or duplicate any Calibration File in whole or in part;
• distribute, sell, transfer, sublicense or share any Calibration File with any third party;
• upload any Calibration File to a public platform or file-sharing service;
• reverse-engineer, decompile, disassemble or tamper with any Calibration File;
• use any Calibration File on any vehicle other than the vehicle for which it was supplied;
• publish or publicly disclose any Calibration File or its contents.

(d) Unauthorised reproduction, distribution or commercial use may result in immediate termination of access, recovery of our losses, and civil or criminal proceedings to protect our rights.

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16. Customer Responsibilities & Accurate Information

(a) The Customer is solely responsible for providing accurate and complete vehicle information at the time of ordering, including make, model, year, variant, ECU type, existing modifications, and any relevant hardware or software configuration.

(b) The Customer warrants that the vehicle is mechanically suitable for the requested Service, that all known faults and modifications have been disclosed, that the Customer is authorised to instruct us to perform work on the vehicle, and that all information supplied is accurate.

(c) We accept no liability for an incorrect, incompatible or non-functional Calibration File arising from inaccurate or incomplete information provided by the Customer.

(d) Where a Service cannot be completed or delivered because of inaccurate information, a futile service fee may apply in accordance with Clause 20.

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17. Customer Material — Files, Datalogs and Photographs

(a) The Customer warrants that they own or are authorised to supply all Customer Material, and that supplying it does not breach any third party's rights or any obligation of confidence.

(b) The Customer grants us a non-exclusive licence to store, process and use Customer Material for the purpose of providing the Services, including diagnosis, calibration development, quality review and internal staff training.

(c) Publication requires separate consent. We will not publish Customer Material, or results derived from it, on any publicly accessible page — including the public tune archive and shareable performance certificates — except where the Customer has expressly agreed. Where a Customer requests publication, the Customer warrants that the vehicle owner has consented.

(d) We take reasonable steps to retain and protect Customer Material but do not provide an archival service. The Customer is responsible for keeping their own copies, and in particular of any original unmodified ECU or TCU binary.

(e) Storage limits apply to uploaded datalogs and may be varied. We may remove Customer Material after a reasonable period, or on request, subject to any record-keeping obligation.

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18. Assisted Assessments — Automated Diagnostic Aids

(a) We may use automated and machine-learning tools to assist in assessing photographs, datalogs and other evidence — for example, spark-plug condition reads and component-failure analyses.

(b) An Assisted Assessment is a diagnostic aid. It is produced in part by automated means, is based only on the material and context supplied, and is not a substitute for physical inspection by a qualified technician.

(c) An Assisted Assessment is not a warranty, not a certification, not a determination of the cause of any failure, and not an attribution of responsibility for it.

(d) The Customer must not rely on an Assisted Assessment as the sole basis for a repair, a warranty claim, a claim against a third party, or a representation to any other person.

(e) Where an Assisted Assessment is provided to a Trade Customer, that Trade Customer is responsible for how it is communicated to a vehicle owner, and must not present it as a determination of cause.

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19. Account Security

(a) Where the Customer holds an account, the Customer is responsible for keeping their username, password and access credentials confidential, and for all activity carried out through the account.

(b) An account is issued to a single business or individual and must not be shared, transferred or made available to any other person. Sharing account access is treated as distribution of the files accessible through it, and is a breach of Clause 15.

(c) The Customer must notify us promptly at [email protected] on becoming aware of unauthorised access to their account.

(d) We may suspend or terminate an account where we identify credential sharing, unauthorised file distribution, fraud or a security risk, and may do so without notice where the risk is immediate.

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20. Futile Service

A futile service fee may be applied where we are unable to complete or deliver a Service because:

• (a) the Customer has provided inaccurate, incomplete or misleading vehicle specifications;
• (b) the Customer's ECU or vehicle cannot be identified or matched to a known calibration base;
• (c) the vehicle or ECU is found to contain pre-existing mechanical defects or third-party modifications that prevent safe or effective calibration; or
• (d) the Customer's hardware or flashing equipment is incompatible with the supplied Calibration File and no alternative solution can be provided.

Where a futile service fee may apply, we will tell the Customer before charging it.

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21. Deposits and Bookings

(a) A booking deposit reserves workshop time and is applied against the final invoice for the booked work.

(b) A booking may be rescheduled with at least forty-eight (48) hours' notice, subject to availability.

(c) Where a booking is cancelled with less than forty-eight (48) hours' notice, or the Customer fails to attend, the deposit may be retained as compensation for reserved time that cannot reasonably be re-let. It is not retained as a penalty, and we will retain no more than a reasonable estimate of our actual loss.

(d) Where we reschedule or cancel a booking, the Customer may choose a new date or a full refund of the deposit.

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22. Vehicle Collection and Storage

(a) A vehicle should be collected within five (5) business days after we notify the Customer that the work is complete.

(b) A storage fee may apply to a vehicle not collected within that period. We will notify the Customer of the applicable daily rate before it begins to accrue.

(c) Where a vehicle remains uncollected and amounts remain unpaid, we may exercise any lien available to us at law, and may deal with the vehicle as uncollected goods in accordance with the uncollected-goods legislation applying in the State or Territory where the work was carried out. We will give the Customer written notice before taking any such step.

(d) The Customer must ensure the vehicle is insured while in our possession, and should remove valuables and personal property before leaving it with us.

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23. Remote Technical Support

(a) Where remote technical support is offered, it is available to Customers operating current and supported operating systems (Windows 10 or later, or a specified macOS equivalent).

(b) Broadband or faster connectivity is required. The Customer is responsible for their own data and connection costs.

(c) Where a Customer is unable or unwilling to follow instructions during a remote session, we may terminate the session and direct the Customer to an alternative service arrangement.

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24. Third-Party Products, Services and Referrals

(a) We may refer or redirect Customers to independent third-party workshops, tuners or service providers ("Third-Party Providers"), and may supply Products manufactured by third parties.

(b) Where a service is provided by a Third-Party Provider, we act solely as a referral. We are not the supplier of that service, do not control the work performed, and are not a party to any contract between the Customer and the Third-Party Provider.

(c) To the maximum extent permitted by law, we disclaim responsibility for any act, omission, workmanship, advice or outcome of a Third-Party Provider. Nothing in this clause affects our own obligations under the ACL for Products we supply.

(d) Disputes, warranty claims or refund requests relating to a Third-Party Provider's services must be directed to that provider.

(e) Nothing in this agreement creates a partnership, joint venture, employment or agency relationship between us and any Third-Party Provider. Where we name a brand, product or business, we do so descriptively to identify what was supplied or done, and it does not imply endorsement or partnership.

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25. Trade, Wholesale and Reseller Accounts

Where a workshop or business ("Wholesale Party") purchases Products or Services on behalf of individual vehicle owners:

• (a) the Wholesale Party acts as the authorised agent of each individual vehicle owner for the purposes of the Services ordered;
• (b) the Wholesale Party must ensure each individual vehicle owner has been made aware of and has agreed to these Terms & Conditions before any Service is rendered;
• (c) the Wholesale Party is responsible for correct vehicle identification, for providing accurate and complete vehicle information for each vehicle, for confirming vehicle condition, and for installation and flashing procedures;
• (d) the Wholesale Party is responsible for communicating and collecting any service charge, futile service fee or other fee from the relevant owner;
• (e) the Wholesale Party accepts all obligations under these Terms on its own behalf and as representative of the individual vehicle owners;
• (f) we are not a party to, and are not responsible for, any dispute between a Wholesale Party and its own customers.

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26. Payment

(a) Payment must be completed before Products, Services or Calibration Files are supplied, unless approved account terms apply in writing.

(b) Where approved account terms apply and payment becomes overdue, we may suspend further supply until the account is brought up to date.

(c) Account credit issued by us may be applied at checkout. Account credit is not redeemable for cash and is not transferable. This does not apply where the Customer is entitled to a refund under the ACL; in that case we will refund to the original payment method on request.

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27. Website Use

(a) Content on the Platform, including text, images, product descriptions, technical documentation and the tune archive, is our property or that of our licensors, and may not be copied, republished or used commercially without our written consent.

(b) The Customer must not attempt unauthorised access, interfere with the operation of the Platform, introduce malicious code, or scrape, harvest or extract Platform content by automated means — including for the purpose of training a machine-learning model — without our written consent.

(c) We may modify, suspend or withdraw any part of the Platform.

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28. Indemnity — Trade Customers

(a) A Trade Customer indemnifies us against any claim, loss, damage, cost or expense (including reasonable legal costs) arising from that Trade Customer's breach of these Terms, unauthorised distribution of a Calibration File, incorrect installation or flashing, misrepresentation to a vehicle owner, or facilitation of unlawful vehicle use.

(b) This clause does not apply to a Customer who acquires Products or Services as a consumer, and does not apply to any liability arising from our own negligence, breach or wrongful act.

(c) The indemnity is reduced proportionately to the extent that we contributed to the loss.

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29. Privacy, Data and Cyber Security

(a) We collect, store and use personal information in accordance with the Privacy Act 1988 (Cth), the Australian Privacy Principles, and our Privacy Policy, which forms part of these Terms. Personal information is used to provide Services, process orders and communicate with the Customer.

(b) We take reasonable steps to protect information and digital systems. No electronic system is completely secure, and to the maximum extent permitted by law we are not liable for a cyber incident, malicious attack, unauthorised access, software corruption or data loss occurring despite those reasonable steps.

(c) Nothing in this clause limits any obligation we have under the Privacy Act 1988 (Cth), including the notifiable data breaches scheme, or any liability that cannot lawfully be excluded.

(d) We do not sell personal information. Marketing communications are sent only where consent has been given, and every such message includes an unsubscribe facility.

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30. Force Majeure

(a) We are not liable for any delay or failure to perform our obligations where caused by an event beyond our reasonable control, including natural disaster, fire, flood, pandemic, power outage, telecommunications or internet failure, carrier or supplier delay, industrial action, or government action.

(b) Where such an event continues for more than thirty (30) days, either party may cancel the affected order or booking, and we will refund any amount paid for goods not supplied or services not performed.

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31. Australian Consumer Law

Where the Customer is a consumer within the meaning of the ACL:

(a) Nothing in these Terms & Conditions excludes, restricts or modifies any guarantee, right or remedy available under the ACL that cannot lawfully be excluded by agreement. Where any provision would have that effect, it is to be read down so far as necessary to comply, and otherwise severed.

(b) Where the law allows our liability to a consumer to be limited, it is limited as set out in Clause 13(e).

(c) Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled to cancel your service contract with us and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

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32. Governing Law & Dispute Resolution

(a) These Terms & Conditions, including the Refund & Returns Policy, are governed by the laws of Victoria, Australia, and the Commonwealth laws applying there.

(b) The parties submit to the non-exclusive jurisdiction of the courts of Victoria and the courts competent to hear appeals from them. Nothing in this clause limits a consumer's right to bring a claim in the State or Territory where they live.

(c) In the event of a dispute, the parties agree to first attempt resolution in good faith through direct communication before initiating formal proceedings. Nothing in this clause prevents either party from seeking urgent interlocutory relief, or prevents a consumer from approaching a consumer affairs body or ombudsman.

(d) For Customers located outside Australia, we reserve the right to bring proceedings in the jurisdiction where the Customer is located, to the extent permitted by applicable law.

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33. Amendments

We may amend these Terms & Conditions at any time. Updated terms are published on the Platform with a revised effective date. The terms applying to an order or booking are those published when it was accepted. Continued use of the Platform after publication of updated terms constitutes acceptance of the amended terms for future orders.

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34. Severability, Waiver and Entire Agreement

(a) If any provision of these Terms & Conditions is found to be invalid, unenforceable or illegal, that provision is severed and the remaining provisions continue in full force and effect.

(b) A failure or delay by us in enforcing a provision does not waive that provision or any other.

(c) These Terms & Conditions, together with our Refund & Returns Policy and our Privacy Policy, constitute the entire agreement between us and the Customer in relation to their subject matter, and supersede all prior representations, negotiations, arrangements and understandings.

(d) Except where the ACL provides otherwise, the Customer acknowledges that they have not relied on any statement, estimate or representation that is not set out in these Terms & Conditions — including any estimate of power, torque, fuel economy or performance, or a dyno result recorded on another vehicle — in deciding to buy.