6818v1
ADS WEBSITE LICENSE
AGREEMENT
ADS WEBSITE & APPLICATION LICENSE AGREEMENT
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ADS Website & Application
License Agreement
TERMS OF USE OF THE ADS WEBSITE &
APPLICATION(S)
Last Updated & Effective : November 1 4, 2024
1. INTRODUCTION AND ACCEPTANCE
ADS Performance Group LLC. and its affiliates (“Company,” “we,” “us” and “our”) offers
you access to its interactive online websites, applications, and services. These Terms of Use,
together with our Privacy Policy , and any additional terms which might apply to certain
products, applications(s) or services, govern your use of our websites (“Website”), products,
applications(s) or services – together, our (“Services”). Our Services
include www.holley.com and all other locations on which we place or reference these
Terms of
Use.
PLEASE READ THESE TERMS OF USE AND OUR PRIVACY POLICY CAREFULLY BEFORE
USING
OUR SERVICES. WHEN YOU ACCEPT THE TERMS OF USE DURING OUR SIGN -UP PROCESS
OR
WHEN YOU ACCESS OR USE THE SERVICES, (OTHER THAN TO READ THESE TERMS OF USE
FOR THE FIRST TIME) YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND, AND
AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF USE, WHICH MAY
CHANGE
FROM TIME TO TIME AS SET FORTH IN SECTION TITLED “AMENDMENT”; ADDITIONAL
TERMS”
SECTION BELOW. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, DO NOT
USE OUR SERVICES.
NOTHING IN THESE TERMS MODIFIES, LIMITS OR RESTRICTS ANY RIGHTS OR REMEDIES
THAT MAY BE AVAILABLE TO YOU UNDER APPLICABLE LAW WHICH WE ARE
PROHIBITED BY
SUCH LAW FROM MODIFYING, LIMITING OR RESTRICTING.
2. INTELLECTUAL PROPERTY
Our Services and associated content (and any derivative works or enhancements of the
same)
including, but not limited to, all text, illustrations, files, images, software, source code, logos,
scripts, graphics, photos, sounds, music, videos, information, content, materials, products,
services, URLs, technology, documentation, Applications and interactive features included
with
or available through our Services and all intellectual property rights to the same, including,
without limitation, all trademarks, service marks, trade names and trade dress that may
6818v1 appear in our Services are owned by us, our licensors, our affiliates, or identified
third parties
(collectively, the “ Service Content ”). Except for the limited use rights granted to you in
these
Terms of Use, and to the extent permitted by applicable law, you shall not acquire any right,
title or interest in our Services or any Service Content. Any rights not expressly granted in
these Terms of Use are expressly reserved.
3. ACCESS AND USE
A. We may offer certain portions of our Services at no charge (e.g., Websites) and others for
a
one-time fee, on a subscription basis or under any other lawful pricing structure. We will
give you
notice of any Additional Terms (see below) which apply if we charge you a fee, and please
read those
terms carefully before choosing to make a purchase or subscription. In all instances, unless
stated
otherwise in applicable Additional Terms, our Services are not being sold to you; rather, you
are being
granted a limited license to access and use our Services. In addition, the license to use our
paid
Services do not necessarily transfer across operating systems and/or different equipment
(e.g., mobile
devices to computers, etc.).
B. Third- Party Terms:
i.IN CERTAIN INSTANCES, YOUR USE OF OUR WEBSITE OR OTHER SERVICES MAY
CONTAIN LINKS
TO THIRD PARTY WEBSITES AND, IF YOU CHOOSE TO ACCESS, BE SUBJECT TO YOUR
AGREEMENT TO CERTAIN THIRD -PARTY PRIVACY POLICIES OR OTHER TERMS. LINKED
WEBSITES
ARE NOT UNDER OUR CONTROL, AND WE ARE NOT RESPONSIBLE FOR THEIR CONTENT.
IN SUCH
INSTANCES, WE WILL PROVIDE YOU NOTICE OF THIS IN THE PRIVACY POLICY OR OTHER
APPLICABLE TERMS POSTED IN THE SERVICE. BY USING THE APPLICABLE SERVICE, YOU
AGREE
TO ALL SUCH THIRD -PARTY TERMS.
ii. Without limiting the foregoing, if we offer any mobile applications (“Applications”), you
acknowledge and agree that the availability of our Applications and related Services are
dependent
on the third -party from whom you chose to receive the Application license in accordance
with the
relevant third party terms , e.g., the Apple iTunes, Google Play, or other App stores (“App
Store").
You acknowledge that these Terms of Use are between you and Company and not with the
App
Store. Company, not the App Store, is solely responsible for its Services, including the
Application,
the content thereof, maintenance, support services, and warranty therefor, and addressing
any
claims relating thereto (e.g., product liability, legal compliance or intellectual property
infringement). In order to use our Applications, you must have access to a wireless network
or
cellular service as applicable, and you agree to pay all fees associated with such access. You
also
agree to pay all fees (if any) charged by the App Store in connection with the Services,
including
the applicable Application. You agree to comply with, and your license to use the
Application is
conditioned upon your compliance with, all applicable third -party terms of agreement (e.g.,
applicable federal, state, and local laws, and the App Store’s terms and policies) when using
our
Services, including the Application. You acknowledge that the App Store (and its
subsidiaries) are
third-party beneficiaries of the Terms of Use and will have the right to enforce them.
C. Our Services are provided for your personal, non- commercial use only. You acknowledge
that
we reserve the right to discontinue the Services, in whole or in part, at any time if we
determine that
you have violated these Terms of Use . When using our Services, you agree to comply with
all
applicable federal, state, and local laws including, without limitation, trade dress, patent,
trademark
and copyright law. Except as expressly permitted in these Terms of Use or as we may
otherwise
permit, you may not use, reproduce, duplicate, reverse engineer, distribute, create
derivative works
based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit
Service Content
for any purpose whatsoever without obtaining prior written consent from us or, in the case
third -party
content, its applicable owner. In certain instances, we may suggest, ask or otherwise permit
you to
download, install and/or print Service Content (e.g., schematics for parts, warranties,
manuals, etc.).
In such a case, you may do so only in the manner authorized and for your non -commercial
use only.
You acknowledge that you do not acquire any ownership rights by downloading, installing
or printing
Service Content.
D. Furthermore, except as expressly permitted in these Terms of Use, you may not:
6818v1 I. Remove, alter, cover, or distort any copyright, trademark, or other proprietary
rights notice we
include in or through our Services or Service Content or copies of such documents;
Ii. Circumvent, disable or otherwise interfere with our security -related features including,
without
limitation, any features that prevent or restrict the use of or copying of any software or
other
Service Content;
Iii. Use an automatic device (such as a robot or spider) or manual process to copy or
“scrape” the
Website or Service Content for any purpose without our express written permission.
Notwithstanding the foregoing, Company grants the operators of public search engines
permission
to use spiders to copy materials from the site for the sole purpose of and solely to the extent
necessary for creating publicly available searchable indices of the materials, but not caches
or
archives of such materials. Company reserves the right to revoke these exceptions either
generally or in specific cases;
Iv. Collect or harvest any personally identifiable information or non -personally identifiable
information
about another user or third party without consent from our Services including, without
limitation,
usernames, passwords, email addresses;
v. Solicit other users to join or become members of any commercial online service or other
organization without our prior written approval;
VI. Attempt to or interfere with the proper working of our Services or impair, overburden,
or disable
the same;
Vii. Decompile, reverse engineer, or disassemble any portion of our software or other
Service Content,
or our Services;
Viii. Use network -monitoring software to determine architecture of or extract usage data
from our
Services;
Ix. Performing any fraudulent or illegal activity which infringes the rights of ADS or others,
including
encouraging conduct that violates any applicable local, state or federal law, either civil or
criminal,
or impersonating another user, person, or entity (e.g., using another person’s Account
without
permission (as defined below), or falsifying your age or date of birth ;
x. Violate any applicable laws and regulations including without limitation U.S. export laws
and
regulations (including, without limitation, violations of the Export Administration Act and
the
Export Administration Regulations administered by the Department of Commerce ); or
xi.engage in any conduct that would violate any applicable law related to the control of
emissions
from motor vehicles, including illegally altering or modifying a vehicle’s required emission
controls
and equipment.
E. You agree to fully cooperate with us to investigate any suspected or actual activity that is
in
breach of these Terms of Use.
F. You understand and agree that your use of the Services and/or Service Content while
operating a motor vehicle (or during any other activity that requires your attention) may be
distracting, dangerous, or prohibited by federal, state, or local law. You are sole ly
responsible for your
exercising good judgment, acting in a safe and responsible manner and taking into account
the real
world conditions, and obeying all applicable laws and regulations at all times. You
understand that
failing to pay full attention in the operation of a vehicle or in other activities may cause an
accident,
damage, injury, death, or other serious consequences to you, your passengers, or
bystanders. You
assume sole responsibility for your use of the Services and Service Content, regardless if use
of a
Service or Service Content is possible while operating a motor vehicle, and to the extent
permitted by
law, under no circumstances will we be liable for any loss or damage caused by such use.
6818v1 4. MOBILE APPLICATION USE
A. You must obey all applicable laws, traffic rules, and traffic regulations governing the
operation
of your vehicle and use of the Application(s), and you will not access and/or use any Service
or
Application(s) in a manner that violates any law, rule, or regulation. Without limiting the
foregoing, it
is your sole responsibility to exercise discretion and observe all safety measures required
by law,
traffic rules, and traffic regulations while accessing and/or using the Services and
Application(s).
Access to and/or use of the Services and Application(s) are at your sole discretion and risk
and your
sole responsibility and the Services and Application(s) should be accessed and/or used only
when you
can safely operate them, and under no circumstances will we be liable for any loss or
damage caused
by such use;
B. If others use the Services or Application(s) through your user account or vehicle, you will
ensure that they only use the Services or Application(s) when it is safe to do so, and in
compliance
with the law and these Terms of Use;
C. We may remotely deliver, install, update, or change the software used to deliver the
services
provided in the Application(s) or used by your vehicle systems which may change from time
to time as
set forth in section titled “Amendment”;
D. You understand that the download, operation and/or use of Applications(s) may: (i) have
an
unintended or adverse effect on your vehicle, any vehicular system or software operating in
or with
the Application(s), and/or one or more other Apps, (ii) result in a modification or change to
your
vehicle, any system or software operating in or with the vehicle, one or more other
Application(s),
and/or the functionality of any one or more of the foregoing; and/or (iii) render all or a
portion of the
vehicle, any system or software operating in or with the vehicle, and/or one or more other
Application(s), lowered performance, inaccessible or unusable. You understand and agree
that the
download, operation and use of Application(s) is at your own discretion and risk and is
your own
responsibility, and that we have no obligation to provide customer support for the
Application(s) or
with regard to any effect it may have on your vehicle, any system or software operating in
or with the
vehicle, and/or one or more ot her Application(s).
E. Your use of our Services is subject to our Privacy Policy, which is available at
https://www.ADSShocks.com/private-policy/ . We will handle your personal information
and other information or
materials you share with us in accordance with our Privacy Policy and these Terms of Use.
5. USER REGISTRATION
A. IN ORDER TO ACCESS OR USE SOME FEATURES OF OUR SERVICES OR SERVICE
CONTENT
(ONLINE ORDERING, APPLICATION, ETC.) YOU MAY HAVE TO BECOME A REGISTERED
USER. IF YOU
ARE UNDER THE AGE OF THIRTEEN (13) (or equivalent minimum age in your home
country) , THEN
YOU ARE NOT PERMITTED TO REGISTER AS A USER OR OTHERWISE PROVIDE US ANY
PERSONAL
INFORMATION.
B. If you become a registered user, you will provide true, accurate and complete registration
information and, if such information changes, you will promptly update the relevant
registration
information. During registration, you will create a username and password (an “Account”).
You are
solely responsible for safeguarding and maintaining the confidentiality of your Account. You
are solely
responsible for the activity that occurs under your Account, whether you have authorized
the activity.
breach of security or unauthorized use of your Account.
6. USER CONTENT
A. We may now or in the future permit users to post, upload, transmit through, or otherwise
make available through our Services (collectively, “submit”) messages, text, illustrations,
data, files,
images, logos, graphics, photos, comments, sounds, music, videos, information, content,
and/or other
materials, ratings and reviews, videos and podcasts (“User Content”). Subject to the rights
and license
you grant herein, you retain all right, title and interest in your User Content. We do not
guarantee any
confidentiality with respect to User Content even if it is not published through our Services.
It is solely
your responsibility to monitor and protect any intellectual property rights that you may
have in your
User Content, and we do not accept any responsibility for the same.
B. You shall not submit any User Content protected by copyright, trademark, patent, trade
secret, moral right, or other intellectual property or proprietary right without the express
permission
6818v1 of the owner of the respective right. You are solely liable for any damage resulting
from your failure to
obtain such permission or from any other harm resulting from User Content that you
submit.
C. You represent, warrant, and covenant that you will not submit any User Content that:
i. Violates or infringes in any way upon the rights of others, including, but not limited to, any
copyright, trademark, patent, trade secret, moral right, or other intellectual property or
proprietary right of any person or entity;
Ii. Impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive
of
privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise
objectionable, or
otherwise violates any applicable law;
iii. Encourages conduct that would constitute a criminal offense, give rise to civil liability or
otherwise violate any law, including any law related to the control of emissions from motor
vehicles;
iv.is an advertisement for goods or services or a solicitation of funds;
v. Includes personal information such as messages which identify phone numbers, social
security
numbers, account numbers, addresses, or employer references;
Vi. Contains a formula, instruction, or advice that could cause harm or injury; or
vii.is a chain letter of any kind
Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other
user from
using or enjoying our Services will not be permitted.
D. Our Services may allow you to submit or post User Content. Except to the extent
prohibited by
law:
i. By submitting User Content to us, simultaneously with such posting you automatically
grant, or
represent or warrant that the owner has expressly granted, to us (and, to the extent
necessary to
provide services to us, our licensors and licensees) a worldwide, royalty -free, perpetual,
irrevocable, non- exclusive, fully sublicensable, and transferable right and license to use,
reproduce, distribute, create derivative works based upon (including, without limitation,
translations), publicly display, publicly perform, transmit, and publish the User Content (in
whole
or in part) as we, in our sole discretion, deem appropriate including, without limitation, (1)
in
connection with our business; and (2) in connection with the businesses of our affiliates,
licensees,
assignees, successors, parents, subsidiaries, and their related companies. We may exercise
this
grant in any format, media or technology now known or later developed for the full term of
any
copyright that may exist in such User Content. Furthermore, you also grant other users
permission
to access your User Content and to use, reproduce, distribute, create derivative works based
upon, publicly display, publicly perform, transmit, and publish your User Content for
personal,
non-commercial use as permitted by the functionality of our Services and these Terms of
Use.
Notwithstanding the foregoing, to the extent permitted by law, you waive any and all claims
you
(or any copyright holder) may now or later have in any jurisdiction to so -called “moral
rights” or
rights of “droit moral” with respect to the User Content.
Ii. By submitting User Content, unless you tell us not to do so (and we will provide you with
a means
to opt out), you also grant us (and, to the extent necessary to provide services to us, our
licensors
and licensees) a worldwide, perpetual, irrevocable, fully sublicensable, and transferable
right, but
not the obligation, to use any and all names, identities, titles, likenesses, distinctive
appearances,
physical likenesses, images, portraits, pictures, photographs (whether still or moving),
screen
personas, voices, vocal styles, statements, gestures, mannerisms, personalities, performance
characteristics, biographical data, signatures, and any other indicia or imitations of identity
or
likeness listed, provided, referenced, or otherwise contained in the User (all attributes,
collectively, per person, a “Persona”), including, without limitation, your name and
geographical
6818v1 location (e.g., “Fred P. – Wyoming, OH”), for purposes of advertising and trade, in
any format,
medium, or technology now known or later developed without further notice, approval, or
compensation, unless prohibited by law. Our uses of your Persona will be consistent with
the
terms of our Privacy Policy, where it is applicable.
Iii. Notwithstanding the generality of the foregoing, unless you tell us not to do so (and we
will
provide you with a means to opt out), we reserve the right to display advertisements in
connection with your User Content and to use your User Content for advertising, marketing,
promotional, and other commercial purposes. You acknowledge and agree that your User
Content
may be included on the websites and advertising networks of our distribution partners,
marketing
partners, accounts, and third -party service providers (including their downstream users).
E. We have the right, but not the obligation, to monitor User Content. We have the right in
our
sole discretion and for any reason whatsoever to edit, refuse to post, remove, or disable
access to any
7. UNSOLICITED IDEAS
While Company constantly strives to improve its products, services, technology and
promotional
techniques, we must take steps to ensure our own ability to innovate. As such, it is our
policy not to
accept, review, or consider any unsolicited ideas, products, works, materials, proposals,
artwork,
content or the like (“Submissions”) from anyone other than our employees, agents, and our
existing
suppliers and contractors. To the extent permitted by law, if you nevertheless provide us an
unsolicited Submission which is not marked Confidential or Proprietary, then regardless of
what your
Submission says, you unconditionally agree that: (A) your Submissions along with related
intellectual
property rights will immediately upon submission become the sole and exclusive property
of Company,
without compensation to you or any other person or party; (B) Company can use,
reproduce, disclose,
publish and distribute the Submissions for any purpose whatsoever, without restriction and
in any
way; (C) there is no obligation for Company to review the Submissions; and (D) there is no
obligation
to keep any Submissions confidential.
8. SERVICE CONTENT & THIRD-PARTY LINKS
A. We provide our Services including, without limitation, Service Content for educational,
entertainment and/or promotional purposes only. You may not rely on any information and
opinions
expressed through any of our Services for any other purpose. In all instances, it is your
responsibility
to evaluate the accuracy, timeliness, completeness, or usefulness of any Se rvice Content.
Under no
circumstances will we be liable for any loss or damage caused by your reliance on any
Service
Content.
B. The products displayed on our Website and/or Applications may not be available
everywhere.
Product availability is subject to change without notice and may vary. All prices are quoted
in U.S.
Dollars, unless stated otherwise. Company reserves the right to modify or discontinue, at
any time,
some or all products, and we will provide a notice on our Website .
C. Service Content may include content posted by a third -party or will represent the
opinions and
judgments of a third -party. We do not endorse, warrant and are not responsible for the
accuracy,
timeliness, completeness, or reliability of any opinion, advice, or statement offered through
our
Services by anyone other than our authorized employees or spokespersons while acting in
their official
capacities.
D. Our Services may link or contain links to other websites maintained by third parties. We
do
not operate or control, in any respect, or necessarily endorse the content found on these
third -party
websites. You assume sole responsibility for your use of third- party links. We are not
responsible for
any content posted on third- party websites or liable to you for any loss or damage of any
sort incurred
as a result of your dealings with any third- party or their website.
9. INDEMNIFICATION
6818v1 You are responsible for your use of the Services, and agree to indemnify and hold
harmless Company
and its officers, directors, employees, parents, partners, successors, agents, licensors,
licensees,
distribution partners, affiliates, subsidiaries, and their related companies (collectively, the
“Company
Parties”) from and against any and all claims, liabilities, losses, damages, obligations, costs
and
expenses (including reasonable attorneys’ fees and costs) arising out of, related to, or that
may arise in connection with: (i) your use of our Services other than in compliance with
these Terms of Use; (ii)
User Content provided by you or through use of your Account; (iii) any actual or alleged
violation or breach by you of these Terms of Use; (iv) any actual or alleged breach of any
representation, warranty, or covenant that you have made to us; or (v) your acts or
omissions. Your obligation to
indemnify the Company Parties does not apply to the extent that the claim was caused by
any
Company Party. You agree to cooperate fully with us in the defense of any claim that is the
subject of
your obligations hereunder.
10. DISCLAIMER OF WARRANTIES
A. THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER SECTION 9
AND 10
WILL NOT APPLY TO THE EXTENT THAT THEY ARE PROHIBITED BY APPLICABLE LAW.
NOTHING IS
INTENDED TO EXCLUDE, MODIFY, OR RESTRICT THE OPERATION OF STATUTORY
CONSUMER
PROTECTION WARR ANTIES OR CONSUMER GUARANTEES (INCLUDING UNDER THE
AUSTRALIAN
CONSUMER LAW) OR ANY OTHER CONDITION OR WARRANTY WHICH MAY BE IMPLIED
BY
LEGISLATION AND CANNOT BE EXCLUDED.
B. SUBJECT TO CLAUSE 9(A), YOU EXPRESSLY AGREE THAT USE OF OUR SERVICES IS AT
YOUR
SOLE DISCRETION AND RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW , OUR
SERVICES AND SERVICE CONTENT (INCLUDING SOFTWARE) ARE PROVIDED ON AN “AS
IS” AND “AS
AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
WITHOUT
LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE
COMPANY
PARTIE S DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT
OUR
SERVICES WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE
AVAILABILITY,
ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF OUR
SERVICES
OR SERVICE CONTE NT; (3) WARRANTIES OF TITLE, NON- INFRINGEMENT,
MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS
RECEIVED
THROUGH OR ADVERTISED OR ACCESSED THROUGH OUR SERVICES; (5) WARRANTIES
CONCERNING
THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE
USE OF OUR
SERVICES; (6) WARRANTIES THAT YOUR USE OF OUR SERVICES WILL BE SECURE OR
UNINTERRUPTED; AND (7) WARRANTIES THAT ERRORS IN OUR SERVICES OR SERVICE
CONTENT
(INCLUDING SOFTWARE) WILL BE CORRECTED.
11. LIMITATION ON LIABILITY
A. SUBJECT TO CLAUSE 9A AND 10C, AND TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL ANY OF THE COMPANY PARTIES
BE LIABLE
FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES
(EVEN IF WE
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF,
RELATING TO, OR
IN ANY WAY CONNECTED WITH OUR SERVICES, SERVICE CONTENT, OR THESE TERMS OF
USE SAVE
TO THE EXTENT THAT SUCH LOSS OR CLAIM ARISES FROM THE NEGLIGENCE OR WILFUL
MISCONDUCT OF THE COMPANY PARTIES . YOUR SOLE REMEDY FOR DISSATISFACTION
WITH OUR
SERVICES INCLUDING, WITHOUT LIMITATION, SERVICE CONTENT IS TO STOP USING OUR
SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES
INCURRED BY
REASON OF GOODS RECEIVED THROUGH OR ADVERTISED IN CO NNECTION WITH OUR
SERVICES OR
ANY LINKS PLACED IN OUR SERVICES OR SERVICE CONTENT, AS WELL AS BY REASON OF
ANY
INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH
OUR
SERVICES OR ANY LINKS PLACED IN OUR SERVICES OR SERVICE CONTENT. SUCH
LIMITATION
SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY
CONTENT POSTED
BY A THIRD -PARTY OR CONDUCT OF A THIRD -PARTY USING OUR SERVICES.
6818v1 B. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN
SAVE CLAUSE 9A
AND CLAUSE 10C, IN NO EVENT SHALL THE CUMULATIVE LIABILITY ALL OF THE
COMPANY PARTIES
EXCEED THE LESSER OF THE TOTAL PAYMENTS RECEIVED FROM YOU BY COMPANY
DURING THE
PRECEDING TWELVE (12) MONTH PERIOD OR $100.00. FURTHERMORE, SUBJECT TO
APPLICABLE
LAW, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN
ANY WAY
CONNECTED WITH ANY OF OUR SERVICES, SERVICE CONTENT, OR THESE TERMS OF USE
MUST
COMMENCE WITHIN TWELEVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES;
OTHERWISE,
SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
C. In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some
of
the foregoing limitations may not apply to you. These limitations shall apply to the fullest
extent
permitted by law .
Notice to Australian residents: these Terms of Use (and limitations) must in all cases be
read subject
to applicable statutory provisions. If we are liable to you under the Australian Consumer
Law or similar
legislation, to the extent to which we are entitled to do so, we limit our liability in respect of
any claim
under these provisions to:
i. in the case of goods, at our option: the replacement of the goods, or the supply of
equivalent
goods, the repair of goods ; the payment of the cost of replacing the goods or of acquiring
equivalent goods; or the payment of the cost of having the goods repaired; and
ii. in the case of services, at our option: the supplying of the services again, or the payment
of
the cost of having the services supplied again.
In addition, under the Australian Consumer Law, in this Section 10, “Consequential Loss”
means any
loss or damage that is not a reasonably foreseeable result of the relevant breach, including a
breach
of the consumer guarantees under the Australian Consumer Law.
12. TERMINATION
A. These Terms of Use are effective until terminated by either party.
B. We reserve the right in our sole discretion and at any time to terminate or suspend your
Account and/or block your use of our Services or Service Content if we reasonably believe
that you
have failed to comply with the letter and spirit of these Terms of Use (including Additional
Terms),
including without limitation if you have failed to comply with applicable laws. You agree
that Company
is not liable to you or any third party for any termination or suspension of your Account or
for blocking
your use of our Services or Service Content.
C. Any suspension or termination shall not affect your obligations to us under these Terms
of
Use. The provisions of these Terms of Use which by their nature should survive the
suspension or
termination of your Account or these Terms of Use shall survive including, but not limited
to, the
intellectual property rights of Company or its licensors, the rights and licenses that you
have granted
hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to
choice of
law, and all of the provisions in the Section titled “MISCELLANEOUS”.
13. COPYRIGHT POLICY
A. We respect the intellectual property rights of others and expect users to do the same. In
appropriate circumstances and at our sole discretion, we may terminate and/or disable the
Account of
users suspected to be infringing the copyrights (or other intellectual property rights) of
others.
Additionally, in appropriate circumstances and in our sole discretion, we may remove or
disable access
to material on any of our websites or hosted on our systems that may be infringing or the
subject of
infringing activity.
B. In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United
States
Code, Section 512 (“DMCA”) or applicable law, we will respond promptly to claims of
copyright
6818v1 infringement that are reported to the agent that we have designated to receive
notifications of claims
infringement (its “Designated Agent”). Our Designated Agent is:
ADS Performance Products Inc. Attn: DMCA Agent 2445 Nashville Road, Suite B1, Bowling
Green, Kentucky 42101 Email: dcma@holley.com
C. If you are a copyright owner (or authorized to act on behalf of the copyright owner) and
believe that your work’s copyright has been infringed, please report your notice of
infringement to us
by providing our Designated Agent with a written notification of claimed infringement that
includes
substantially the following:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of
an
exclusive right that is allegedly infringed.
Ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple
copyrighted
works at a single online site are covered by a single notification, a representative list of such
works
at that site.
Iii. Identification of the material that is claimed to be infringing or to be the subject of
infringing activity
and that is to be removed or access to which is to be disabled, and information reasonably
sufficient
to permit us to locate the material.
Iv. Information reasonably sufficient to permit us to contact you, such as an address,
telephone
number, and, if available, an electronic mail address at which you may be contacted.
v. A statement that you have a good faith belief that use of the material in the manner
complained of
is not authorized by the copyright owner, its agent, or the law.
Vi. A statement that the information in the notification is accurate, and under penalty of
perjury, that
you are authorized to act on behalf of the owner of an exclusive right that is allegedly
infringed.
We will investigate notices of copyright infringement and take appropriate actions under
the DMCA or
applicable law. Inquiries that do not follow this procedure may not receive a response.
14. CHOICE OF LAW; JURISDICTION AND VENUE
Except to the extent required by applicable law, these Terms of Use shall be construed in
accordance
with the laws of the State of Kentucky without regard to its conflict of laws rules. Any
permitted court
legal proceedings against Company (i.e., those not subject to Mandatory Arbitration, as
provided
below) that may arise out of, relate to, or be in any way connected with our Website,
Applications or
other Services, or these Terms of Use, shall be brought exclusively in the state and federal
courts
applicable to Bowling Green, Kentucky and you waive any jurisdictional, venue, or
inconvenient forum
objections to such courts.
15. DISPUTE RESOLUTION & MANDATORY ARBITRATION
A. We each agree to first contact each other with any disputes and provide a written
description
of the problem, all relevant documents/information and the proposed resolution. You agree
to contact
us with disputes by contacting us at ADS Performance Group LLC., ATTN: General Counsel,
2445
6818 S Country Club Rd. Suite 170, Tucson AZ 85756. We will contact you based on the
contact
information you have provided us.
B. If after 30 days the parties are unable to resolve any dispute raised under the previous
provision, the dispute may only be submitted to arbitration consistent with this Section. The
parties
understand that they would have had a right or opportunity to litigate disputes through a
court and to
have a judge or jury decide their case, but they choose to have any disputes resolved
through
arbitration.
6818v1 C. We each agree that any claim or dispute between us, and any claim by either of
us against
any agent, employee, successor, or assign of the other, including, to the full extent permitted
by
applicable law, third parties who are not signatories to this agreement, whether related to
this
agreement or otherwise, including past, present, and future claims and disputes, and
including any
dispute as to the validity or applicability of this arbitration clause, shall be resolved by
binding
arbitration administered by the JAMS under its rules and procedures in effect when the
claim is filed.
D. We are entering into this arbitration agreement in connection with a transaction
involving
interstate commerce. Accordingly, this arbitration agreement and any proceedings
thereunder shall be
governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 -16. Any award by the
arbitrator(s) may
be entered as a judgment in any court having jurisdiction.
E. Exception to Arbitrate. Either of us may bring qualifying claims in small claims court.
Further,
as set forth below, we each agree that any arbitration will be solely between you and
Company, not as
part of a class-wide claim (i.e., not brought on behalf of or together with another
individual's claim). If
for any reason any court or arbitrator holds that this restriction is unconscionable or
unenforceable,
then our agreement to arbitrate doesn't apply and the class- wide dispute must be brought
in court.
16. NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY APPLICABLE LAW (AND EXCLUDING AUSTRALIA), WE
EACH WAIVE ANY
RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM
WITH THE
CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE
CAPACITY ON
BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PR OCEEDING.
17. NO TRIAL BY JURY
TO THE EXTENT ALLOWED BY LAW (AND EXCLUDING AUSTRALIA) , WE EACH WAIVE
ANY RIGHT TO
TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
18. AMENDMENT; ADDITIONAL TERMS
A. We reserve the right in our sole discretion and at any time and for any reason, to modify
or
discontinue any aspect or feature of our Services, Service Content or to modify these Terms
of Use. In
addition, we reserve the right to provide you with additional terms that may govern your
use of our
Services generally, unique of our Services, or both (“Additional Terms”). For example, our
Returns
Policy ap plies to purchases via our Services and are considered Additional Terms. To the
extent any
Additional Terms conflict with these Terms of Use, the Additional Terms will control.
B. Modifications to these Terms of Use or Additional Terms will be effective immediately
upon
notice, either by posting on the Website, notification by email or through any of our
Applications. It is
your responsibility to review the Terms of Use from time to time for any changes or
Additional Terms.
Your access and use of our Services or Service Content following any modification of these
Terms of
Use or the provision of Additional Terms will signify your assent to and acceptance of the
same. If you
object to any subsequent revision to the Terms of Use or to any Additional Terms,
immediately
discontinue use of our Services and, if applicable, terminate your Account.
19. MISCELLANEOUS
A. No waiver by either party of any breach or default hereunder shall be deemed to be a
waiver
of any preceding or subsequent breach or default. The section headings used herein are for
convenience only and shall not be given any legal import.
B. Except where specifically stated otherwise, if any part of these Terms of Use is unlawful
or
unenforceable for any reason, we both agree that only that part of the Terms of Use shall be
stricken
and that the remaining terms in the Terms of Use shall not be affected. So, for example, if a
provision
in these terms is found to be unenforceable, we agree an arbitrator (or, if permitted, a
court) shall
only strike that provision and that the remaining terms of these Terms of Use shall remain
in force.
6818v1 C. Where we have provided you with a translation of the English language version
of these Terms
of Use, our Privacy Policy or Additional Terms, you agree that the translation is provided for
your
convenience only and that the English version governs your relationship with us. The
English language
version takes precedence if there is any contradiction between the English and translated
versions.
D. These Terms of Use (including the Privacy Policy and any Additional Terms incorporated
by
reference) constitute the entire agreement of the parties with respect to the subject matter
hereof and
supersedes all previous written or oral agreements between us with respect to such subject
matter.
E. You may not assign these Terms of Use or assign any rights or delegate any obligations
hereunder, in whole or in part, without our prior written consent. Any such purported
assignment or
delegation by you without the appropriate prior written consent will be null and void and of
no force
and effect. We may assign these Terms of Use or any rights hereunder without your consent
and
without notice.
