General Terms & Conditions for the Ordering of Polestar Performance Software
1.1. These terms and conditions (these “Terms”) apply between Polestar Automotive Australia Pty Ltd ACN 645 163 202 (“Polestar”, “we” or “us”) and you when you order any of the performance software made available by Polestar, such as Polestar performance updates, performance improvements or optimisation of your Polestar vehicle (collectively referred to as the “Performance Software”) through the domain polestar.cn, any sub-domains, Polestar’s mobile websites or the Polestar mobile application (collectively referred to as the “Site”). By ordering the Performance Software through the Site, you accept to be bound by these Terms. When we accept your order, a legally binding agreement is created between you and Polestar, which includes these Terms.
1.2. Polestar reserves the right to amend these Terms without prior notice by uploading a new version of these Terms on the Site. The version available on the Site at the time of ordering is the version applicable in respect of your order.
1.3. These Terms only apply in the event you order any Performance Software after the delivery of your Polestar vehicle.
2. ORDER PROCESS
2.1. You place your order for the Performance Software through the Site. Once your order is placed and paid for, you will receive an order confirmation if we accept the order.
2.2. We reserve the right not to accept your order. We also reserve the right to cancel all or part of an accepted order by providing you written notice, if, (a) we identify a defect that affects the security of the Performance Software, (b) the price of the Performance Software presented on the Site is obviously wrong, or (c) if we cannot deliver the Performance Software for any reason beyond our reasonable control, without being liable for any damages or costs, other than a full refund of the amount received from you in connection with the cancelled order. If payment has already been made for an order which is thereafter cancelled, we will refund the corresponding amount to you through the same means as you used when paying for the Performance Software.
2.3. Polestar provides the Performance Software in Australia. The Performance Software can only be delivered to, and installed on, a Polestar vehicle in Australia. If you attempt to use the Polestar vehicle with the Performance Software outside Australia, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding the use of your Polestar vehicle with the Performance Software.
2.4. If you are a lease customer (i.e. leasing the vehicle from a third party), you are required to obtain approval from the owner of the vehicle (i.e. the leasing company) prior to ordering the Performance Software. Please note that it is not possible to transfer the Performance Software to another vehicle. It is your sole responsibility to ensure that you comply with your obligations in the agreement between you and the owner and Polestar waives any and all liability for any failure by you to comply with these obligations. You are also required follow the agreed process with the owner of the vehicle when the vehicle is returned at the end of the leasing period. Although the obligation to inform and obtain consent from the owner of the vehicle for the Performance Software lies with you, Polestar will, if requested, inform the owner about the order of the Performance Software.
3. PRICE AND PAYMENT
3.1. The prices applicable for the various Performance Software are stated on the Site and are inclusive of GST (to the extent applicable).
3.2. The Performance Software shall be paid through any of the payment methods available and described on the Site. Please note if you select a payment method offered by a third party, third party terms and conditions may apply.
4.1. The Performance Software will be delivered remotely to your nominated Polestar vehicle through Over-the-Air (“OTA”) delivery within 1-2 weeks after the date of your order.
4.2. Once the OTA delivery occurs, you will be prompted to install the Performance Software in the Polestar vehicle.
5. NO CANCELLATIONS OR RETURNS FOR CHANGE OF MIND
5.1. We do not provide a refund or an exchange, and you cannot cancel your order, for the Performance Software if you change your mind about purchasing it.
6. YOUR LEGAL RIGHTS AS A CONSUMER
6.1. If you are a consumer, you have legal rights under the Australian Consumer Law and other Commonwealth, State and Territory laws, including where the Performance Software fails to comply with any consumer guarantees.
6.2. Our goods (including the Performance Software) comes with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
6.3. You should notify Polestar support on https://www.polestar.cn/au/contact in writing of any issues with the Performance Software as soon as practicable.
7.1. In addition to your rights at law, the Performance Software comes with a warranty. The warranty covers any malfunctions or defects identified in the Performance Software during the warranty period which is stated in Section 7.3 below.
7.2. The warranty does not cover defects caused by misuse, abnormal or improper use of the Performance Software, such as if the Performance Software has been modified in any way.
7.3. The warranty period begins on the date the Performance Software is delivered through OTA and: (a) if the Performance Software is ordered on or before the date that is 1 month after the delivery of the Polestar vehicle, continues for the same duration that is remaining on the warranty of the Polestar vehicle; or (b) if the Performance Software is ordered after that time, continues for 24 months.
7.4. Please contact Polestar support on https://www.polestar.cn/au/contact for any warranty related question.
8. LIMITATION OF LIABILITY
8.1. If you are a consumer, we are only liable to you for losses which you suffer to the extent set out in applicable mandatory law (including the Australian Consumer Law).
8.2. If you are not a consumer, Polestar shall in no event be liable for any indirect damages, such as loss of revenue/profits, loss of production, loss of contracts, loss of business, loss of opportunity or loss of reputation. Polestar’s liability under these Terms shall in no event exceed the value of the order in respect of which the claim relates. The limitation of liability set out in this Section 8.2 shall not apply in respect of damage caused by willful misconduct or gross negligence.
8.3. You must furthermore at all times adhere to any instructions provided by Polestar in respect of the use of the Performance Software. Polestar is not responsible for any loss or damage caused by misuse, or abnormal or improper use, of the Performance Software(s) or for normal wear and tear.
9. SPECIFIC RESPONSIBILITIES
9.1. You are solely responsible for taking any necessary measures following the purchase of the Performance Software as mandated under applicable law, such as re-registration of the vehicle with local authorities (if applicable). You shall bear any costs incurred in relation to the purchase of the Performance Software, such as any increased charging costs due to your use of the Performance Software functionality that results in higher electrical consumption and more frequent charging, increased insurance premiums, vehicle tax or any other taxes or fees.
10.1. All intellectual property rights, such as trade marks and materials covered by copyright, displayed on the Site are registered and unregistered intellectual property rights owned by Polestar, its affiliates or licensors. It is prohibited, except for your own personal and non-commercial use, to use the Site and its content, such as copy, reproduce, download, post, transfer or distribute, without prior written permission from Polestar. You may furthermore not use the Performance Software for any commercial or business purposes or resell the Performance Software.
12. APPLICABLE LAW AND COMPLAINTS
12.1. These Terms are governed by the laws in force in New South Wales, Australia.
12.2. All disputes and claims arising out of or relating to these Terms shall be subject to the exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, Australia.