End User License Agrement 

Welcome! 
Two Stroke Performance Pty Ltd offers device hardware for transport vehicles (“Transport Vehicles”). This includes a device (“Hardware”) and an accompanying software platform (“Software”) which enables the user to access the Engine Control Unit (ECU) and to change the data that is stored in the ECU. The Software contains proprietary rights in data including maps, images and other information relating to the engine that is supplied through the Hardware.

The purpose of this agreement is to register the Hardware and Software of the end user in accordance with these terms and conditions. Acceptance will be registered as a confirmation of these terms contained at the end of this agreement. In accepting these terms you are agreeing to be contractually bound in the use of both the Hardware and Software supplied by Two Stroke Performance Pty Ltd.

1. Acceptance and Term
1.1 TWO STROKE PERFORMANCE PTY LTD ACN 616 728 066 (we, us or our) owns this website, the Hardware and the Software and the Services which are accessible at https://www.twostrokeperformance.com.au (Site) , and may be available through other suppliers. These Terms are entered into between you and us, together the Parties and each a Party. It is a requirement of use that you register your device and accept the Terms through our Site in order to begin using the Hardware and Software. Acceptance of these terms will enable the function of the Hardware and the Software and will generate a registration file which will be recorded and sent from the Software to the Hardware. Each registration file will be assigned to each registered user via a User Account.
1.2 You are required to register the Hardware and Software for each device as a account holder and registered user (User Account), these Terms set out the terms and conditions upon which we agree to grant you, as a sub account holder or an end user, a right to use the Services as described on the Site, and provide any other services to you as set out in these Terms, in accordance with the terms of this End User License Agreement (EULA).
1.3 In these Terms, “you” means (as applicable): (a) the entity (for example the company) registered with us as a sub account holder; or (b) the individual accessing or using the Services (as an end user or an authorised member of Personnel of the sub account holder).
1.4 If you are using the Services on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and its Personnel to these Terms.
1.5 You accept these Terms by clicking a box indicating your acceptance along with registration which includes the user name (first and last name), age, registered address, company representative, email address, device identification number and the verification code for each device.
1.6 These Terms will commence on the date on which you accept these Terms and will continue until the date these Terms are terminated in accordance with the Termination clause below (Term).
1.7 If you are using the Services as an Account Holder, the Terms will govern your access and use of the Services, Hardware and Software.

2. Licence to use the Hardware and Software
2.1 In consideration for your compliance with these Terms, we grant you a non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the Services for the Term, in accordance with the Terms and Conditions agreed to by the Account Holder (Licence).

3. Accessing the Services
3.1 We will create your User Account and provide you with the log in email and password to register your device. Once you have logged in, you may update your password. The Account Holder will also be able to update your password. Your registration of your device is considered acceptance of the Terms.
3.2 If a legal entity such as a company has an Account created for them, you, as the legal entity, are the Account owner, and regardless of any change in any contact details, you and the company will remain responsible for your Account as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account.
3.3 We are not responsible for the management or administration of your Account.

4. Restrictions on Use
4.1 You must not (and must ensure your Personnel do not) access or use the Services except as permitted by the Licence and you must not (and must not permit any other person to) use the Services in any way which is in breach of any applicable Laws or which infringes any person’s rights, or Intellectual Property Rights, including:
(a) Road safety Laws and any associated regulations;
(b) use the Services in any way that damages the Hardware, interferes with or interrupts the supply of the Services;
(c) introduce malicious programs into our hardware and software or systems, including viruses, malware worms, trojan horses and e-mail bombs;
(d) assign others use of the device (other than your authorised Personnel and the Account Holder);
(e) carry out security breaches or disruptions of the hardware or software, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
(f) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services;
(g) if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
(h) circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users.

5. Third Party Inputs
5.1 You acknowledge and agree that:
(a) the provision of the Services may be contingent on, or impacted by, third parties, other customers’ use of the Services, suppliers, or subcontractors (Third Party Inputs); and
(b) despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible and will have no Liability, for any default or breach of these Terms or Law, if such default or breach was caused or contributed to by any Third Party Inputs.
5.2 You acknowledge that the Services include certain optional functionality that may interface or interoperate with third party software or services.
5.3 To the extent that you choose to use such functionality and they are not a part of the Services, you are responsible for the purchase of, the requirements and the licensing obligations related to the applicable third party software and services.
5.4 It is your responsibility to ensure these requirements are met in order for you to benefit from the specific functionality made available to you.

6. Your obligations
You agree to:
(a) comply with these Terms, our reasonable requests or requirements, and all applicable Laws;
(b) abide by every relevant state or territory law under these Terms or at Law;
(c) use the Hardware and Software in a convenient and safe access to your environment including all systems, information technology and telecommunications services (Environment),
(d) ensure that only your Personnel and Authorised Users access and use the Services and such use and access is in accordance with these Terms;
(e) ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked; and
(f) make any changes to your Environment, such as system upgrades, that may be required to support the delivery and operation of any Services or Hardware.

7. Payment
7.1 On delivery of the Software and Hardware you have agreed to pay us:
(a) the Hardware Price;
(b) all Delivery Costs (where applicable);
(c) the Service Plan Fees; and
(d) any other amount payable to us under these Terms,
in accordance with the payment terms.
7.2 In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honored by your card issuer, and that you will maintain sufficient funds in your account to cover the Hardware Price and/or Service Plan Fee (as applicable).
7.3 If any payment has not been made in accordance with these Terms, we may (at our absolute discretion):
(a) immediately cease or suspend providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so (including the engagement of any debt collection services and/or solicitor’s fees to recover our costs); and/or
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with this clause 7.

8. Support Services
During the Term we will provide you with technical support services as required. This may be communicated via email and/or telephone during business hours, or as otherwise agreed between the Parties, provided that where required, you assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you have done in relation to the fault).

9. Warranties
9.1 You represent, warrant and agree that:
(a) The use of the device is to be used for competition, or off road use only. The Hardware and Software is not intended to be used on public roads and highways.
(b) you have an understanding of basic engine tuning, and the ability to determine safe changes based on current engine performance.
(c) there are no legal restrictions preventing you from entering into these Terms;
(d) all information and documentation that you provide to us in connection with these Terms is true, correct and complete;
you have not relied on any representations or warranties made by us in relation to the Software, Hardware and Services (including as to whether the Hardware and Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
(e) the Hardware and Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Hardware and Services to third parties (other than your authorised Personnel) without our prior written consent;
(f) you will not use the Hardware and Services for any illegal purpose;
(g) you will not install the Hardware into any aircraft or drone that isn’t consider
(h) you will not alter or modify the Hardware in any way that is not contemplated by the purposes of the Hardware; and
(i) you are not and have not been the subject of an Insolvency Event.

10. Intellectual Property
10.1 You agree that all Intellectual Property Rights:
(a) in the Services, including the Software and Hardware;
(b) in the Intellectual Property developed, adapted, modified or created by us, or our Personnel (including in connection with these Terms, the Software and the Services and any Data or machine learning algorithms output from the Services) maps, or other data we upload in the Software; and
(c) in any Feedback,
will at all times vest, or remain vested, in us Two Stroke Performance Pty Ltd (or, if applicable, our third party service providers). To the extent that ownership of the Intellectual Property Rights do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
10. 2 You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.
10.3 In the use of any Intellectual Property Rights in connection with these Terms, you must not (and you must ensure that your authorized Personnel do not) commit any Intellectual Property Breach.
10.4 You agree to use the device in conjunction with the Two Stroke Performance Trade mark registration 2237418 and any other subsequent Trade Marks: https://search.ipaustralia.gov.au/trademarks/search/view/2237418?q=Two+Stroke, patent, or design registration rights which are exclusively managed by Gareth Benson Lawyers and Associates on behalf of Two Stroke Performance Pty Ltd.
10.5 This clause 10 will survive termination or expiry of these Terms.

11. Data
11.1 As between you and us, all Data remains the property of the Account Holder (as applicable), and, you grant us a automatic licence to copy, transmit, store and back-up or otherwise access the Data during the Term in perpetuity after the Term:
to supply the Services to you (including to enable you and your authorised Personnel to benefit from the Services);
to diagnose problems with the Services;
to develop other services, provided we de-identify the Data;
to enhance and otherwise modify the Services; and
as reasonably required to perform our obligations under these Terms.
To create other products and services that will be exclusively owned by Two Stroke Performance Pty Ltd.
11.2 You must, at all times, ensure the integrity of the Data and that your use of the Data is compliant with all Laws. You represent and warrant that:
(a) you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in these Terms;
(b) the Data is accurate and complete;
(c) the Data (and its transfer to and use by us as authorised by you) under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
(d) any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.
11.3 We assume no responsibility or Liability for the Data. You are solely responsible for the Data and the consequences of using, disclosing, storing or transmitting it.
11.4 You acknowledge and agree that the operation of the Services is reliant on the accuracy of the Data, and the provision of inaccurate or incomplete Data by you or the Account Holder may affect the use, output and operation of the Services.

12. Your Rights at Law
12. 1 Certain legislation, including the Australian Consumer Law, and similar consumer protection Laws and regulations may confer you with rights, warranties, guarantees and remedies relating to provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in this Agreement.
12.2 This clause 12 will survive the termination or expiry of these Terms.

13. Exclusions to liability
13.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) your or your Personnel’s acts or omissions;
(b) any use or application of the Hardware, Software and Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
(c) any works, services, data, hardware, materials or items which do not form part of the Hardware and Services (as expressed in these Terms), or which have not been provided by us; installed incorrectly; or that have been incorrectly installed;
(d) any Third Party Inputs;
(e) the Hardware, Services, Software and Data being unavailable, or any delay in us providing the Hardware, Services and Data to you, for whatever reason; and/or
(f) any injury, damage or loss from the use of this product
(g) by using this product you agree to assume all risks and liabilities associated with its use
(h) it is your responsibility to ensure that your use of this product is made in a safe and responsible manner.
(i) any event outside of our reasonable control.
13.2 This clause 13 will survive the termination or expiry of these Terms.

14. Limitations on liability
14.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) we will not be liable for Consequential Loss;
(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and
(c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us paying you a maximum penalty of $600.00.
14.2 You acknowledge and agree that:
(a) you are responsible for your Personnel using the Services;
(b) you use the Hardware, Software and Services at your own risk;
(c) the technical processing and transmission of the Services, including your Data, may be transferred unencrypted and involve: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices;
(d) we may use third-party service providers to assist in transmitting or hosting the Services, including for the collection of and provision of the Data. If the providers of third party applications or services cease to make their services or programs available on (c) reasonable terms, we may cease providing any affected features without liability or entitling you to any refund, credit, or other compensation;
(e) the Services may use Third Party Inputs such as products, facilities or services (including any cellular network). We do not make any warranty or representation in respect of the third-party products, facilities or services;
(f) we do not guarantee that any file or program available for download from or via the Services is free from viruses or other conditions which could damage or interfere with Data, or any hardware or software with which it might be used;
(g) any collation, conversion and analysis of Data performed as part of the Services (whether by the Services or otherwise) is likely to be subject to human input and machine errors, omissions, delays and losses, including any loss of Data; we are not liable for any such errors, omissions, delays or losses; and you are responsible for adopting reasonable measures to limit the impact of such omissions, delays, losses and errors;
(h) we are not responsible for any corruption or loss of any Data.
(i) we are not responsible for the integrity or existence of any Data in the computing environment, network or any device controlled by you or your Personnel.
(j) In the case of termination of your account in clause 15, we are not responsible for the use or application of any Hardware and Software beyond the termination date of your account.
14.3 This clause 14 will survive the termination or expiry of these Terms.

15. Termination
15.1 Either party may terminate these Terms at any time via the “cancel Account” (or similar) feature in your Account.
15.2 The Account Holder may terminate your access to your registration at any time at their discretion. If we have reason to believe you are misusing the Services, we may terminate your Account at any time, by providing you with notice, in which case we will immediately cease providing the Services to you.
15.3 This clause 15 will survive the termination or expiry of these Terms.

16. General
16.1 Illegal Requests: We reserve the right to refuse any request for or in relation to any Hardware, Software Services that we deem inappropriate, unreasonable, illegal or otherwise non-compliant with these Terms.
16.2 Changes to the Services: We reserve the right at any time, and from time to time, to change or remove features of the Software and Services.
16.3 Changes to the Terms: We may amend these Terms at any time, by providing written notice to you. By continuing to use the Services, you agree to the amended terms. If you do not agree to the amendment, you may terminate these Terms in accordance with the Termination clause in which you accept any ongoing liability for use of the product.
16.4 Privacy:
(a) Two Stroke Performance Pty Ltd has an established privacy policy available at: www.twostrokeperformance.com.au
(b) We agree to handle any personal information you provide to us, solely for the purpose of performing our obligations under these Terms.
(c) You agree we may use any contact details you provide to us, such as your phone number or email address, to send alerts related to the Hardware and/or Services to you. It is solely your responsibility to ensure your contact details are correct and up-to-date.
16.5 Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms.
16.6 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
16.7 Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
16.8 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.
16.9 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.
16.10 Governing law: These Terms are governed by the laws of Victoria, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
16.11 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
16.12 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
16.13 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Definitions
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in any Order, and:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Account means an account accessible to you to use the Services.
Account Holder means the person who has registered the Hardware and Software to access the Services.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Data means any information, materials or other data supplied from the use of the Hardware and Services or data inputted by you, your Personnel or the Account Holder into the Services or stored by the Services or generated by the Services as a result of your use of the Services includes but not limited to, engine operating parameters, raw GPS data, maintenance and servicing data, diagnostic tests, maps, alerts and hardware data metrics.
Feedback means any idea, suggestion, recommendation or request by you, whether made verbally, in writing, directly or indirectly, in connection with the Services.
Hardware means any hardware, sold by Two Stroke Performance Pty Ltd including the ECU, monitors and other devices. To dispel any reasonable doubt this includes a device which is connected to the vehicle, containing a touch screen, monitor, circuit boards and processors as defined fully in the registered Patent [enter number] which contains the valuable Intellectual Property rights of Two Stroke Performance Pty Ltd. Hardware includes any present or future accessories including switches, sensors, protective covers and any other improvement or enhancements the Intellectual Property rights of which are expressly reserved by Two Stroke Performance Pty Ltd.
Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties), including, but not limited, to you (or your Personnel):
(a) copying, altering, enhancing, adapting or modifying any of our Intellectual Property;
(b) creating derivative works from our Intellectual Property;
(c) providing or disclosing our Intellectual Property to, or allowing our Intellectual Property to be used by, any third party;
(d) assigning or transferring any of our Intellectual Property Rights or granting sublicenses of any of our Intellectual Property Rights, except as expressly permitted in these Terms;
(e) reverse engineering or decompiling any of our Intellectual Property Rights, except where permitted by Law; or
(g) using or exploiting our Intellectual Property for purposes other than as expressly stated in these Terms (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Laws means all applicable laws, emissions regulations, road use and road safety, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Hardware and Services.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.
License means the non-exclusive, non-transferable (except with our written permission), non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the Services including the Hardware and Software for the Term, as agreed by the parties.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Services means the provision of access to our Site, Software and Hardware which will provide you with Data and data analysis from your motor vehicle which includes the Services.
Service Plan means the plan chosen by the Account Holder, including the features and number of User Accounts, as set out on the Site or agreed between the Account Holder and us.
Software means the software used to provide any of the Services, and includes any software within any Hardware, any software as a service, including any instructions in hard copy or electronic form and any update, modification or release of any part of that software after these Terms are entered into by the Parties. To dispel any reasonable doubt this includes the software in desktop applications for the registration of the Hardware.
Terms means this End User Licence Agreement and any terms agreed under it and any documents attached to, or referred to in them.
Terms and Conditions means the terms and conditions we entered into with the Account Holder, as set out on our Site.
Transport Vehicle means cars, motorcycles, quad bikes, ATV (all terrain vehicles), UTV (Utility terrain vehicles), Jetskis, boats, snow mobiles, snow bikes.

Interpretation
In these Terms, unless the context otherwise requires:
(a) a reference to these Terms or any other document includes the document, all schedules, attachments and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to “Hardware and Services” or “Hardware or Services” includes “Hardware and/or Services”;
(c) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(d) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(e) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(f) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(g) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(h) a reference to time is to local time in Victoria; and
(i) a reference to $ or dollars refers to the currency of Australia from time to time.

For any questions and notices, please contact us at:

TWO STROKE PERFORMANCE PTY LTD ACN 616 728 066
of 2 / 5 Torca Terrace Mornington Victoria 3931
Email: admin@twostrokeperfomance.com.au

Last updated: 4 June 2023