FTECU TERMS OF USE

Last Modified: July 25, 2019

  1. Your Acceptance

Welcome to the Terms of Use for FTECU. This is an agreement (“Agreement”) between FTECU, Inc. (“FTECU”), the owner and operator of www.FTECU.com and the FTECU software, applications, components, FTECU Products (defined below) offered (collectively the “Platform”) and you (“you”, “your” or “User”), a User to the Platform. Throughout this Agreement, the words “FTECU,”  “us,”  “we,” and “our,” refer to our company, FTECU, as is appropriate in the context of the use of the words.

By clicking “I agree”, accessing, or using the Platform or the FTECU Products you agree to all terms contained in this Agreement and the Privacy Policy.  We may amend this Agreement and our Privacy Policy and may notify you when we do so.  PLEASE BE AWARE THAT THERE ARE ARBITRATION AND CLASS ACTION PROVISIONS THAT MAY AFFECT YOUR RIGHTS.  If you do not agree to the Terms of Use or the Privacy Policy please stop using the Platform and any FTECU Products immediately.

  1. User Information and Accounts

Users may be required to register before accessing the Platform or the FTECU Products. Your information will be collected and disclosed as stated in our Privacy Policy. All Users are required to provide truthful and accurate information when registering for our Platform and must be over the age of 18.  We reserve the right to verify all User credentials and to reject any Users. You are entirely responsible for maintaining the confidentiality of password and account and for any and all activities that occur under your account. You agree to notify FTECU immediately of any unauthorized use of your account or any other breach of security. FTECU will not be liable for any losses you incur as a result of someone else using your password or account, either with or without your knowledge.

  1. Access

After registering, where required, we shall grant you access to the Platform as permitted by us and in accordance with this Agreement. All rights not explicitly granted are reserved for FTECU.   Where you use any software provided by FTECU you must agree to the FTECU End User License Agreement. If you breach this Agreement, your access to the Platform or your license to use our Software may be terminated at our discretion.  Additionally, we may revoke your access or any license granted if we believe that your actions may harm us, our business interests, or any third party rights.  Failure by us to revoke your access does not act as a waiver of your conduct.

  1. Platform Ownership

User acknowledges that the structure, organization, and code of the Platform and all related software components and FTECU Products are proprietary to FTECU and/or FTECU’s licensors and that FTECU and/or its licensors retains exclusive ownership of the Platform, any documentation, information and any and all other intellectual property rights relating to the Platform, including all modifications, copies, enhancements, derivatives, and other software and materials developed hereunder by FTECU.  User shall not sell, copy, reproduce, transfer, publish, disclose, display or otherwise make available the Platform or FTECU Products, access to the Platform or FTECU Products, or any portions of the Platform including any modifications, enhancements, derivatives, and other software and materials developed hereunder by FTECU to others in violation of this Agreement.  User shall not remove any proprietary, copyright, trademark, or service mark legend from any portion of any of the Platform, including any modifications, enhancements, derivatives, and other software and materials developed by FTECU.  User agrees to make all necessary and reasonable efforts to comply with the above provisions, in a manner which User  takes to maintain its own intellectual property rights, in order to maintain FTECU’s rights as stated within this Agreement and to take appropriate action as instructed or required by FTECU to maintain its intellectual property rights.

 

  1. Platform and Products

Through the Platform, FTECU may make available products and services, including but not limited to harnesses, data links, and flash tuning software (collectively “FTECU Products”).  Where you have purchased any FTECU Products please follow the provided documentation.  Failure to follow the instructions may cause undesired results and issues.  Always use common sense when using the FTECU Platform and the FTECU Products.  The FTECU Products are not meant for usage on public roads and streets and may be only used for close course racing.  FTECU Products may not be for use in the state of California on any pollution-controlled vehicle  and are intended for racing vehicles only and are not applicable for use on pollution-controlled street/highway vehicles. Please be aware that any FTECU Products and the FTECU Platform are offered “as-is” and “as-available.”  Additionally, the FTECU Products along with any information or content found on our Platform, including any notifications, reports, analysis, or tools provided, are offered only for informational purposes only.  You agree that any information or notifications from the Platform may be inaccurate, unsubstantiated or possibly even incorrect. The FTECU Platform and FTECU Products are not intended to, and do not, constitute legal, professional, medical, or healthcare advice or diagnosis, and may not be used for such purposes.   Please consult with a certified professional or health care professional before making any decisions based on your personal facts and circumstances. Do not take any action or inaction based on information found on our Platform. Any information provided by the Platform while generally accurate is not foolproof and may lead to inaccurate, misleading, wrong, or erroneous information. Any information provided by the Platform is not a substitute for in person professional advice and diagnosis.   Further, FTECU has no liability to Users for any third party content, including but not limited information provided by your bike or other motorized vehicle, User Content,  data, information, copy, images, URL names, and anything else submitted by you or any third parties using the Platform (collectively “Non-FTECU Content”).  Specifically, FTECU shall not be liable for any errors or accuracy related to any Non-FTECU Content.  All errors shall be at the sole responsibility and expense of the User or the third party submitting such Non-FTECU Content. Additionally, we shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Platform, directly or indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you; inability to access to the Platform; failure of a communications satellite, strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation of or access to the Platform.

  1. Software Licensing

Some portions of the FTECU Products or Platform may contain software.  In order to use such FTECU software you agree to enter into and abide by the FTECU End User Licensing Agreement (“EULA”).

  1. User Responsibilities

User hereby represents and warrants that: (i) User shall use the Platform solely for purposes as permitted by us; (ii) User is duly authorized and has the power and authority to enter into this Agreement; (iii) User will not violate any agreements with any third parties as a result of entering into this Agreement with FTECU; (iv) User shall comply with all United States federal and state laws and any laws of the User’s jurisdiction when using the Platform or any associated FTECU Products; and (v) User shall abide by the FTECU End User Licensing Agreement.

  1. User Privacy

We value your privacy and understand your privacy concerns. You must agree to our Privacy Policy prior to using the Platform, the privacy policy is subject to this Agreement.  Please review our Privacy Policy so that you may understand our privacy practices.  All information we collect is subject to our Privacy Policy, and by using the Platform you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

  1. Use of the Platform

When using our Platform, User is responsible for its use of the Platform. You agree to the following:

  • You way not copy, distribute or disclose any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping”;
  • You may not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Platform;
  • You may not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract data;
  • You may not use automated bots or other software to send more messages through our Platform than humanly possible;
  • You may not use the Platform on a computer that is used to operate nuclear facilities, life support, or other mission critical applications where life or property may be at stake;
  • You may not decompile, reverse engineer, disassemble, modify, rent, sell, lease, loan, distribute, or create derivative works or improvements to the Platform or any portion of it;
  • You may not access our Platform in an attempt to build a similar or other competitive product;
  • You may not use the Platform in an unlawful manner;
    • You may not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
    • You may not collect or harvest any personally identifiable information, including account names, except where permitted, from the Platform;
    • You may not impersonate any person or entity or misrepresent your affiliation with a person or entity;
    • You may not violate or infringe other people’s intellectual property, privacy, or other contractual rights while using our Platform;
    • You may not violate any requirements, procedures, policies or regulations of networks connected to FTECU;
  • You may not sell, lease, loan, distribute, transfer, or sublicense the Platform or access to it or derive income from the use or provision of the Platform unless enabled through the functionality of our Platform;
    • You may not interfere with or disrupt the Platform;
    • You may not violate any US state or federal laws or regulations and you solely are responsible for such violations;
    • You agree not to use the Platform in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.
    • You agree that you will not hold FTECU responsible for your use of our Platform; and
    • You agree not to cause, or aid in, the disruption, destruction, manipulation, removal, disabling, or impairment of any portion of our Platform, including the de-indexing or de-caching of any portion of our Platform from a third party’s website, such as by requesting its removal from a search engine.

If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Platform may at our discretion be terminated or suspended.  Additionally, if we believe that your actions may harm us or a third party we may suspend or terminate your use of the Platform.  Generally, we will provide an explanation for any suspension or termination of your use of any of our Platform, but FTECU reserves the right to suspend or terminate any account at any time without notice or explanation.

  1. User Content

User’s ability to submit or transmit any information through the Platform, including but not limited to data, test results, lab information, written content, images, videos, or any other information will be referred to as “User Content” throughout this Agreement. Please be aware that we are not required to host, display, migrate, or distribute any of your User Content and we may refuse to accept or transmit any User Content.   You agree that you are solely responsible for any User Content submitted and you release us from any liability associated with any User Content submitted.  Except for the confidentiality of your test results and reports, we may provide industry standard security but we cannot guarantee the absolute safety and security of any such User Content.  Any User Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion.

When submitting any User Content to our Platform you represent and warrant that you own all rights to the User Content and you have paid for or otherwise have permission to use any User Content submitted.  Furthermore, you represent and warrant that all User Content is legal and the User Content does not interfere with any third party rights or obligations.

When you submit any User Content to us, you grant FTECU, its partners, affiliates, Users, representatives and assigns a non-exclusive, limited, fully-paid, royalty-free, revocable, world-wide, universal, transferable, assignable license to display, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works, or use and reuse all or part of your User Content for the purposes of providing you any services associated with the Platform for the duration of this Agreement. Additionally, you grant to FTECU a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Platform any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation of our Platform. We reserve the right to remove, delete, modify, screen, edit, or refuse any User Content for any reason or no reason, and with or without notice to you.

  1. Monitoring User Content

FTECU shall have the right, but not the obligation, to monitor all User Content on the Platform at all times, to determine compliance with this Agreement and any guidelines established by us. Without limiting the foregoing, FTECU shall have the right, but not the obligation, to remove any User Content at its sole discretion. For example, we may remove User Content if we believe that any User Content may harm us or our business interests or violate any United States laws or regulations. We have no obligation to retain or provide you with copies of any User Content after your termination of this Agreement.

  1. Platform Availability

Although we try to provide continuous availability to you, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time.  Specifically, we do not guarantee any uptime or specific availability of the Platform.  You agree and acknowledge that the Platform uses remote access and may not always be either 100% reliable or available.  Only Users who are eligible to use our Platform may do so and we may refuse service or terminate your access at any time. We cannot guarantee that anything found on our Platform will work to the functionality desired by you or give you any desired results.

  1. Modification of Platform

We reserve the right to alter, modify, update, or remove the Platform or any portions thereof, at any time at our discretion.  We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications or provide you access to previous versions of our Platform.  Nothing in this section obligates us to take measures to update the Platform for security, legal or other purposes.

  1. Payments

You agree to pay for all costs, fees, and taxes listed when purchasing any access to the Platform or for any additional purchases. User authorizes FTECU or its third party payment processors to charge their method of payment on file at the time of purchase. Where applicable, you must agree to our third party payment processors terms and conditions for processing payments. All information that you provide in connection with a purchase or transaction must be accurate, complete, and current.   Where you have failed to pay or where payments are overdue, FTECU may suspend or terminate your access to the paid portions of the Platform, without liability to us.

  1. Taxes

Taxes may be added to any purchases as listed at the time of purchase. Where FTECU does not charge you taxes for any purchases or payments, you agree to pay any and all applicable taxes. Additionally, where requested by us, you agree to provide us tax documentation to support any claims of on-time tax payment.

  1. Pricing and Price Increases

The pricing for all FTECU Products or paid subscriptions are listed on the FTECU Platform.  FTECU may increase the price of any FTECU Products or paid subscriptions, at our discretion and we reserve the right to do so at any time. In the event of a price increase to your subscription, FTECU shall notify you and you will have the chance to accept or reject any price increase before the paid subscription renewal.  Please notify us if you intend to reject a price increase. You agree that FTECU has no obligation to offer any FTECU Products for the price originally offered to you at sign up.

  1. Refunds

At FTECU we want you to be satisfied with our services and products.  Therefore we offer a 30 day refund policy on all unopened and unused FTECU Products. For any refund requests please contact us at sales@ftecu.com or via the Platform, once we have received your refund request we will contact you and provide you with an authorization for a refund. Please be aware that you must contact us BEFORE a refund may be issued, DO NOT SHIP anything before we respond to your refund request and provide you with a return authorization. Once you have received a return authorization from FTECU, please follow the return instructions as provided. You will be required to pay for any return shipping or handling. We are not responsible for loss or damage of your return shipments.  If you have purchased any FTECU Products from a reseller, such purchases are not eligible for a refund through us.

  1. Shipping

At checkout you may be able to select from multiple shipping options for the FTECU products.  Shipping is generally available in the United States, and other locations as listed. Prices for each location may vary.  Standard shipping times and rates will apply; if you have any questions regarding our shipping policies please contact us.  Please be aware that as we do not transport the products we cannot guarantee shipping times.  Before we can ship your order, FTECU must prepare your product and ensure quality control.   We recommend you check all shipments immediately once you have received them.  If you have any issues with your shipment, please contact us immediately.

Risk of Loss

All items purchased through the Platform are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon tender of the item to the third party shipping carrier.

  1. Product Descriptions and Size

Please be aware that all photos of any products sold on the Platform are for illustrative purposes only.  Although we use reasonable efforts to ensure that our products are almost entirely similar to the photos offered on our Platform, it is possible that some photos shown on our Platform may not be entirely representative of the actual product.  The final products received by you may vary slightly in color, size, look, finish, or style.  Additionally, you should be aware that all dimensions are approximate and not exact.

  1. Intellectual Property

The name “FTECU”, the FTECU Platform along with the design of the FTECU Platform and any text, writings, images, templates, scripts, graphics, interactive features and any trademarks or logos contained therein (“Marks”), are owned by or licensed to FTECU, subject to copyright and other intellectual property rights under U.S. and foreign laws and international conventions. FTECU reserves all rights not expressly granted in and to the Platform. You agree to not engage in the use, copying, or distribution anything contained within the Platform unless we have given express written permission.

  1. Idea Submission

FTECU or any of its employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names. Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to FTECU. The sole purpose of this policy is to avoid potential misunderstandings or disputes when FTECU’s products might seem similar to ideas you submitted to FTECU. If, despite our request that you not send us your ideas, you agree to the following: (1) your Submissions and their contents will automatically become the property of FTECU, without any compensation to you; (2) FTECU may use or redistribute the Submissions and their contents for any purpose and in any way; (3) there is no obligation for FTECU to review the Submission; and (4) there is no obligation to keep any Submissions confidential.

  1. Disclaimer

THE PLATFORM AND ALL FTECU PRODUCTS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER FTECU, NOR ANY OF OUR EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS, AFFILIATES, OR AGENTS MAKE ANY CLAIMS,  REPRESENTATIONS, WARRANTIES, OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (1) THE PLATFORM OR ANY FTECU PRODUCTS; (2) ANY INFORMATION OR CONTENT PROVIDED VIA THE PLATFORM; (3) THE SAFETY PERFORMANCE OR DURABILITY OF THE FTECU PRODUCTS OR PRODUCTS; OR (4) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO FTECU, OR VIA THE PLATFORM. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. FTECU DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM OR THE SERVER THAT MAKES THE PLATFORM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS. FTECU DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PLATFORM IS ACCURATE, COMPLETE, OR USEFUL. FTECU DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND FTECU SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES.  FTECU DOES NOT WARRANT the accuracy, completeness, timeliness, or usefulness, or endorse any FTECU Products or products sold.

  1. Limitation of Liability

IN NO EVENT SHALL FTECU, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE FTECU IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.  SOME STATES, Including New Jersey, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU OR ANY NEW JERSEY RESIDENTS. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (1) death or personal injury caused by FTECU’s negligence or that of any of its officers, employees or agents; (2) fraudulent misrepresentation; or (3) any liability which it is not lawful to exclude either now or IN THE FUTURE.  WHERE A TOTAL DISCLAIMER OF LIABILITY IS DISALLOWED YOU AGREE THAT OUR TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNTS YOU HAVE PAID FOR ANY FTECU PRODUCTS OR ONE HUNDRED USD, WHICHEVER IS GREATER.

  1. Indemnity

You agree to defend, indemnify and hold harmless FTECU, its officers, directors, employees, affiliates, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:

  • your use of and access to the FTECU Platform and the FTECU Products;
  • your violation of any term of this Agreement; or
  • your violation of any third party right, including without limitation any copyright, property, or contractual right.

This defense and indemnification obligation will survive this Agreement and your use of the FTECU Platform. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases.  You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements.  In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.

  1. Copyrights

We take copyright infringement very seriously.  If you believe that any content owned by you has been infringed upon please send us a message which contains:

  • Your name.
  • The name of the party whose copyright has been infringed, if different from your name.
  • The name and description of the work that is being infringed.
  • The location on our Platform of the infringing copy.
  • A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
  • A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.

You must sign this notification and send it to our Copyright Agent: Copyright Agent of FTECU, sales@ftecu.com or by mail at 1010 N. Batavia St., Suite J, Orange, CA 92867

Counter Notice

In the event that you receive a notification from FTECU stating content posted by you has been subject to a copyright takedown notice, you may respond by filing a counter-notice pursuant to the DMCA.  Your counter-notice must contain the following:

  • Your name, address, email and physical or electronic signature.
  • The notification reference number (if applicable).
  • Identification of the material and its location before it was removed.
  • A statement under penalty of perjury that the material was removed by mistake or misidentification.
  • Your consent to the jurisdiction of a federal court in the district where you live (if you are in the U.S.), or your consent to the jurisdiction of a federal court in the district where your Vendor is located (if you are not in the US).
  • Your consent to accept service of process from the party who submitted the takedown notice.

Please be aware that we may not take any action regarding your counter-notice unless your notification strictly complies with the foregoing requirements.    Please send this counter-notice in accordance with the takedown notice instructions above.

  1. Choice of Law

This Agreement shall be governed by the laws in force in the state of California. The offer and acceptance of this contract is deemed to have occurred in the state of California.

  1. Disputes

Any dispute relating in any way to this Agreement or our Platform shall be submitted to confidential arbitration in Orange, CA. Arbitration under this Agreement shall be conducted pursuant to the applicable rules between businesses and consumers (“Rules”) then prevailing at the American Arbitration Association. Arbitration shall be conducted in English by one (1) arbitrator as selected pursuant to the Rules; the arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.  Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. Where permitted by the Rules, both parties may make any and all appearances telephonically or electronically. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned (New Jersey Users are exempted from the foregoing one (1) year limitation).   Notwithstanding the foregoing, either party may seek equitable relief to protect its interests (including but not limited to injunctive relief), or make a claim for nonpayment, in a court of appropriate jurisdiction, and issues of intellectual property ownership or infringement may be decided only by a court of appropriate jurisdiction and not by arbitration. In the event that the law does not permit the abovementioned dispute to be resolved through arbitration or if this arbitration agreement is unenforceable, you agree that any actions and disputes shall be brought solely in a court of competent jurisdiction located within Orange County, CA.

Arbitration Opt Out

You may opt-out of this dispute resolution provision by notifying FTECU within 30 days of the date on which you entered into this Agreement or purchased a subscription, whichever is earlier. You must do so by writing to 1010 N. Batavia St., Suite J, Orange, CA 92867, attn: Arbitration Opt-Out, and you must include your name, address, account information, and a clear statement that you do not wish to resolve disputes with FTECU through arbitration.  Where you opt out of arbitration, all disputes shall be heard in a court of competent jurisdiction located within Orange County, CA.

  1. Class Action Waiver

You and FTECU agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action.  This class action waiver does not apply to New Jersey residents.

  1. Severability

In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.

If two or more provisions of this Agreement or any other agreement you may have with FTECU are deemed to conflict with each other’s operation, FTECU shall have the sole right to elect which provision remains in force.

  1. Non-Waiver

We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law.  Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.

  1. Assignment and Survival

You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent.  We may assign our rights and/or obligations under this Agreement to any other party at our discretion.  All portions of this Agreement that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Representation and Warranties, Access, Payment, Indemnification, and Arbitration sections.

  1. Termination

You may cancel your access to the Platform or any recurring payments at any time via your FTECU dashboard or contacting us at sales@ftecu.com. Please be aware that upon termination of your account, access to portions of our Platform may be become immediately disabled and any User Content may become immediately inaccessible.  We may terminate this Agreement with you if we determine that: (1) you have violated any applicable laws while using our Platform; (2) if you have violated any portion of this Agreement or any of our Platform policies; or (3) if we believe that any of your current or future actions may legally harm FTECU, our business interests or a third party, at our discretion.  In the event of termination, we will strive to provide you with a timely explanation; however, we are not required to do so.

  1. Entire Agreement

This Agreement along with the Privacy Policy and the FTECU End User License Agreement (“EULA”) constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersede all prior or contemporaneous agreements or understandings written or oral, relating to its subject matter. Where this Agreement and the EULA directly contradict, this Agreement shall control. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by a duly authorized representative of each party.  Where this Agreement conflicts with our Privacy Policy or any other documentation listed on our website this Agreement shall supersede and control.

  1. Amendments

We may amend this Agreement from time to time.  When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you.  You may refuse to agree to the amendments, but if you do, you must immediately cease using our Platform and our Platform.

  1. Electronic Communications

The communications between you and FTECU use electronic means, whether you visit the Platform or send FTECU e-mails, or whether FTECU posts notices on the Platform or communications with you via mobile notifications or e-mail.  For contractual purposes, you (1) consent to receive communications from FTECU in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that FTECU provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

  1. Export Controls

The Platform, the FTECU Products and software, and the underlying information and technology may not be downloaded, accessed, or otherwise exported or re-exported (1) into (or to a national or resident of) any country to which the U.S. has currently embargoed goods; or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Platform, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list, and that you will otherwise comply with all applicable export control laws.

  1. Platform Issues

Where you have any questions, issues, or if you are having trouble accessing or using the Platform, please contact us at sales@ftecu.com

  1. California Users

Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about FTECU must be sent to our agent for notice to: sales@ftecu.com or by mail at 1010 N. Batavia St., Suite J, Orange, CA 92867

Lastly, California Users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

 

FTECU END USER LICENSE AGREEMENT

Last Updated: July 25, 2019

THIS IS A LEGAL AGREEMENT BETWEEN YOU (THE INDIVIDUAL OR THE ENTITY USING THE FTECU SOFTWARE AND SERVICE) AND FTECU, INC. PLEASE READ THE FOLLOWING TERMS CAREFULLY.

YOU MUST AGREE TO THE TERMS OF THIS FTECU END USER LICENSE AGREEMENT (THE “AGREEMENT”) IN ORDER TO USE THE FTECU SOFTWARE. BY CLICKING ON THE “I AGREE” BUTTON OR BY PURCHASING THE FTECU SOFTWARE AND ANY ASSOCIATED PRODUCTS, YOU AGREE TO BE BOUND TO THE AGREEMENT. YOU MAY NOT USE THE FTECU SOFTWARE IN ANY MANNER UNLESS YOU HAVE ACCEPTED THE AGREEMENT.

The FTECU Software is offered with FTECU Products sold on our website and offers any functionality that is made available via the Software, which may include bike tuning and vehicle performance tuning.  The following general terms and conditions permit you to: 1) download and use the FTECU Software, including any additional FTECU Software updates that FTECU may make available to you, (“Software”) to access the FTECU application (the “Service”); 2) access the Service with the Software; and 3) use the accompanying documentation provided by FTECU for using the Software and accessing the Service.

  1. LICENSE GRANT

FTECU hereby grants you (the “Licensee”) a personal, non-exclusive, transferable, non-sub-licensable, revocable limited license, to use the Software on your FTECU purchased Device and to access the Service with the Software only on the Device purchased and only in the countries and languages in which the Software and the Service are made available.  Licensee may not use the license to tune or configure other devices and must purchase a separate license for each FTECU Device purchased.  “Device” means any product or device sold by FTECU that contains the accompanying Software.

  1. USE OF THE LICENSE

As the Licensee you will be able to tune, reconfigure, or “flash” your FTECU Device using the Software made available with the Device.  Please be aware that the license to the Software is granted and contained within the Device and shall not be removed or otherwise altered.  Licensee shall be required to register or create an account in order to access the Software.  Where Licensee creates an account, he or she shall provide truthful, accurate, and up-to-date information.

  1. PERMITTED TRANSFER OF LICENSE TO A THIRD PARTY

The license held by Licensee is non-transferable, except as follows.  Licensee may transfer his or her license with the sale of the FTECU Device containing the Software.  Upon sale, the license held by Licensee shall be terminated and transferred to the third party that has purchased the Device from Licensee.  Licensee must immediately discontinue access to the Software and any associated applications.  Where any logins are required to access the Software or Services, Licensee shall deliver such information to the purchaser of the FTECU Device.

  1. LICENSEE OBLIGATIONS.

4.1. RESTRICTIONS. You may not (except as permitted by law): (a) use the Software for illegal or unlawful purposes based on the state and federal laws of the United States or the jurisdiction where you reside; (b) use the Software and Service other than for your own use; (c) access the Service with software or means other than the Software; (d) copy, reproduce, distribute, or in any other manner duplicate the Software, in whole or in part; (e) sell, lease, license, sublicense, distribute, assign, transfer or otherwise grant any rights in the Software or the Service, in whole or in part; (f) modify, port, translate, or create derivative works of the Software or the Service; (g) decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms, of the Software or the Service by any means; (h) remove any proprietary notices, labels or marks from the Software; or (i) use the Software or the Service for purposes of comparison with or benchmarking against products or services made available by third parties.

4.2. COMPLIANCE WITH LAWS. (a) You will comply with laws and regulations that apply to your data, including laws, regulations and industry standards concerning privacy and data protection. (b) You bear sole responsibility for your use of the Services, including compliance with all laws, regulations and standards that apply to such use. You may not use the Service (including data stored, transmitted or processed using the Services) in ways that would impose additional regulatory or other legal obligations upon FTECU and/or its service providers because of that use.

  1. PROPRIETARY AND DATA RIGHTS.

5.1. SOFTWARE AND SERVICE. FTECU, its licensors, and its service providers own all right, title, and interest in the Software and the Service including, but not limited to, all patent, copyright, trade secret, trademark and other intellectual property rights associated therewith, and all title to such rights shall remain solely in FTECU and/or its licensors and/or its service providers. Unauthorized copying of the Software or the Service, or failure to comply with the above restrictions, will result in automatic termination of this Agreement and all licenses granted hereunder, and FTECU shall be entitled to all available legal and equitable remedies for breach of this Agreement.

5.2. DATA USAGE. FTECU may use or share your personal contact information (e.g., name, address, telephone number, email address, IP address, and location) where it is necessary for us to complete a transaction and also in accordance with our Privacy Policy. Additionally, we may use your data and information that we collect in providing the Service for our internal purposes to develop, tune, enhance, and improve our products and services.

  1. SUPPORT

If you require support for our Software and Service, Licensee may refer to the FTECU website for additional information.

  1. DISCLAIMER OF WARRANTIES

YOU ACKNOWLEDGE AND AGREE THAT FTECU, ITS AFFILIATES, AND ITS SERVICE PROVIDERS PROVIDE THE SOFTWARE AND SERVICE “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. CONSEQUENTLY, YOU AGREE TO TAKE ALL PRECAUTIONS AND SAFEGUARDS NECESSARY TO PROTECT YOUR DATA AND SYSTEMS FROM LOSS OR DAMAGE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FTECU, ITS AFFILIATES, AND ITS SERVICE PROVIDERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

  1. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FTECU, ITS OFFICERS, DIRECTORS, EMPLOYEES, ITS LICENSORS, OR ITS SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, OR COST OF COVER, ARISING FROM THE USE OF THE SOFTWARE OR THE SERVICE, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OR WHERE IT SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.  WHERE A TOTAL LIMITATION OF LIABILITY IS NOT PERMITTED, YOU AGREE THAT OUR TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNTS PAID FOR THE SOFTWARE OR ONE-HUNDRED U.S. DOLLARS, WHICHEVER IS GREATER.

  1. TERM AND TERMINATION/SUSPENSION

This Agreement begins on your acceptance of the terms and conditions of this Agreement and expires upon termination. FTECU may terminate or suspend this Agreement, and/or the licenses granted or Service provided hereunder, at any time in its sole discretion, with or without cause, by notifying you that the Service has expired or has been terminated or suspended. This Agreement shall terminate automatically upon the breach of any of its terms and conditions by you. Upon termination, you shall immediately stop use of the Software and Service and shall delete all copies of the Software.

  1. EXPORT COMPLIANCE

You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; (iii) you will obtain any authorizations that may be required to import, export, and otherwise transfer data used or processed using the Software and/or Service; and (iv) you will not use, distribute, transfer, or transmit any products, software or technical information (even if incorporated into other products) in violation of applicable export laws and regulations.

  1. TRADEMARKS

Third-party trademarks, trade names, product names and logos (the “Trademarks”) contained in or used by the Software or the Service are the trademarks or registered trademarks of their respective owners, and the use of such Trademarks shall inure to the benefit of the trademark owner. The use of such Trademarks is intended to denote interoperability and does not constitute: (i) an affiliation by FTECU with such company, or (ii) an endorsement or approval of such company of FTECU and its products or services.

  1. GOVERNING LAW

12.1. CALIFORNIA LAW. This Agreement is governed by the laws in force in the state of California.

12.1 DISPUTES. Any dispute relating in any way to this Agreement or our Platform shall be submitted to confidential arbitration in Orange, CA. Arbitration under this Agreement shall be conducted pursuant to the applicable rules between businesses and consumers (“Rules”) then prevailing at the American Arbitration Association. Arbitration shall be conducted in English by one (1) arbitrator as selected pursuant to the Rules; the arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.  Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. Where permitted by the Rules, both parties may make any and all appearances telephonically or electronically. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned (New Jersey Users are exempted from the foregoing one (1) year limitation).   Notwithstanding the foregoing, either party may seek equitable relief to protect its interests (including but not limited to injunctive relief), or make a claim for nonpayment, in a court of appropriate jurisdiction, and issues of intellectual property ownership or infringement may be decided only by a court of appropriate jurisdiction and not by arbitration. In the event that the law does not permit the abovementioned dispute to be resolved through arbitration or if this arbitration agreement is unenforceable, you agree that any actions and disputes shall be brought solely in a court of competent jurisdiction located within Orange County, CA.

12.3 ARBITRATION OPT OUT. You may opt-out of this dispute resolution provision by notifying FTECU within 30 days of the date on which you entered into this Agreement or purchased a subscription, whichever is earlier. You must do so by writing to 1010 N. Batavia St., Suite J, Orange, CA 92867, attn: Arbitration Opt-Out, and you must include your name, address, account information, and a clear statement that you do not wish to resolve disputes with FTECU through arbitration.  Where you opt out of arbitration, all disputes shall be heard in a court of competent jurisdiction located within Orange County, CA.

  1. TERMS SUBJECT TO CHANGE

You acknowledge and agree that FTECU may change the terms and conditions of this Agreement from time to time upon reasonable notice to the address you provided upon signup, including to your email address. If you do not agree to such changes in this Agreement, your only remedy is to cease using the Software and the Service. Your continued use of any part of the Software or Service after FTECU has provided you with reasonable notice of such change for your review will be considered your acceptance of such change.

  1. GENERAL TERMS

You may not assign or otherwise transfer any rights or obligations under this Agreement without FTECU’s prior written consent. This Agreement, along with the FTECU Terms of Use and Privacy Policy is the entire agreement between FTECU and you and supersedes any other communications or advertising with respect to the Software or the Service.  Where this Agreement and the FTECU Terms of Use directly contradict, the FTECU Terms of Use shall control.  If any provision of this Agreement is held invalid or unenforceable, such provision shall be revised solely to the extent necessary to cure the invalidity or unenforceability, and the remainder of this Agreement shall continue in full force and effect. The failure of FTECU to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Sections 2, 3, 5, 6, 7, 9, 10, and 12 of this Agreement shall survive the termination of this Agreement. You acknowledge and agree that you are not a third party beneficiary to any separate agreements between FTECU and its service providers related to the Software and Service (a “Third Party Agreement”), you have no right to enforce any terms of any Third Party Agreement, and you not owed any duties or obligations under any Third Party Agreement.

  1. ACCEPTABLE USE TERMS

FTECU expects that Licensee will use the Service in a legal and authorized manner in accordance with the rules set forth in the Terms of Use. Where we suspect any illegal or unauthorized use of the Services by you we may terminate this Agreement or suspend your use of the Software or Services.

  1. PROHIBITED USES

16.1. OBLIGATION TO REPORT. If Licensee becomes aware of any violation of this section, Licensee agrees to notify FTECU immediately and cooperate in any efforts to stop or remedy the violation. FTECU and/or its service providers may investigate any violation of this section or misuse of the Service, but FTECU and/or its service providers are not obligated to do so. FTECU and/or its service providers may deem it necessary to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties, without necessarily advising Licensee. Such reporting may include disclosing appropriate Licensee information, and network and systems information related to alleged violations of this section or the Agreement. FTECU and/or its service providers may cooperate with appropriate public agencies or other appropriate third parties to assist with the investigation and prosecution of illegal conduct related to alleged violations of this section.

16.2. ACCURATE INFORMATION REQUIRED. Licensee agrees to provide accurate and complete information when Licensee purchases or uses the Service, and Licensee agrees to keep such information accurate and complete during the entire time that Licensee uses the Service.

16.3 NO ILLEGAL, HARMFUL, OR OFFENSIVE USAGE OR CONTENT. Licensee may not use, or encourage, promote, facilitate, or instruct others to use the Service for any use that FTECU and/or its service providers reasonably believes to be illegal, harmful, or offensive, or to transmit, store, or otherwise make available any content that FTECU and/or its service providers reasonably believes to be illegal, harmful, or offensive. These prohibited activities and content include:

  • Illegal activities, including any activity that is likely to be in breach of, or does breach, any applicable laws or regulations including data protection.
  • Any offensive content that is defamatory, obscene, deceptive, abusive, an invasion of privacy, objectionable, or otherwise inappropriate.
  • Any content that infringes or misappropriates the intellectual property or proprietary rights of others or assists others in infringing any such rights.
  • Any activities that may be harmful to the Services or to FTECU and/or its service providers’ reputation, including engaging in any fraudulent or deceptive practices.

16.4. NO SECURITY VIOLATIONS. Licensee may not use the Service to violate, or attempt to violate, the security or integrity of any network, computer, or communications system, software application, or network or computing device (individually or collectively “System(s)”). These prohibited activities include Licensee taking, or attempting to take, any of the following actions:

  • Gaining unauthorized access to the Service or any other accounts or Systems, whether through high-volume, automated, or electronic processes, hacking, password mining, reverse engineering, or any other means.
  • Probing, vulnerability scanning, or penetration testing of any System, or breaching any security or authentication measures without obtaining prior written approval from FTECU. In particular, social engineering, denial of service, destructive, and password sniffing or cracking tests are not permitted.
  • Monitoring data or traffic on any System without such permission. (Licensee may, however, monitor data or traffic on resources dedicated to Licensee’s exclusive use.)

16.5. NO INTERFERENCE OR DISRUPTION OF SERVICES OR OTHERS’ NETWORKS, SYSTEMS, OR INTERNET CONNECTIONS. Licensee may not make network connections to any users, hosts, or networks of the Service unless Licensee has permission to communicate with them. Licensee may not take any action, or attempt any action, that interferes with or disrupts the proper functioning of any System. These prohibited activities include Licensee taking, or attempting to take, any of the following actions:

  • Engaging in any activity that interferes with or adversely affects other FTECU and/or its service providers customers’ use of the Services.
  • Using any content or technology that may damage, interfere with, intercept, or take unauthorized control of any system, program, or data, including viruses, worms, or time bombs.
  • Using the Service in any manner that appears to FTECU and/or its service providers to threaten FTECU’s and/or its service providers’ infrastructure. This includes Licensee’s providing inadequate security, allowing unauthorized third party access, or attempting to circumvent FTECU’s and/or its service providers’ measures for controlling, monitoring, or billing usage.
  • Uploading or otherwise using viruses, worms, corrupt files, Trojan horses, or other malware, or any other content which may compromise the Service, FTECU’s and/or its service providers’ operations, or its performance for other FTECU and/or its service providers customers.
  • Interfering with the proper functioning of any System, including any deliberate attempt to overload a System by any means.
  • Monitoring or crawling a System so that such System is impaired or disrupted.
  1. INDEMNITY

You agree to defend, indemnify and hold harmless FTECU, its officers, directors, employees, affiliates, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:

  • your use of and access to the FTECU Software and the FTECU Services or associated products;
  • your violation of any term of this Agreement; or
  • your violation of any third party right, including without limitation any copyright, property, or contractual right.

This defense and indemnification obligation will survive this Agreement and your use of the FTECU Platform. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases.  You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements.  In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.

  1. SECURE ACCESS

Licensee agrees to comply with FTECU security protocols and only access the Service via the designated URL and login credentials as offered. You are solely responsible for maintaining the confidentiality and security of your login credentials and for all activities that occur on or through your Services account. You shall notify FTECU immediately if you become aware of any unauthorized use of your login credentials. You shall not (a) share your login credentials or (b) use the login credentials of others to access the Service unless you have sold the Product and Software to such third party.

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