Effective Date: August 16, 2019
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICES, AS DEFINED BELOW.
THESE TERMS REQUIRE YOU ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN ACLASS ACTION FORMAT.
For the avoidance of doubt, the Terms expressly apply to: (a) youraccess to and use of the Site; (b) any and all transactions between you and Kia relating to or arising out of the Site, including for the provision or support of any products or services relating to your relationship with Kia, and (c)your access to and use of calculators, research tools, text, pictures,graphics, logos, button items, icons, images, works of authorship and other information and all revisions, modifications, and enhancements thereto contained in the Site.
IF YOU WANT TO USE THE SERVICES, THEN CAREFULLY READ THESE ENTIRE TERMS (including all links to details), as they constitute a written agreement between you and us and they affect your legalrights and obligations. Each time you access and/or use the Services(other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted. THEREFORE, DO NOT USE THE SERVICES IF YOU DO NOT AGREETO THE TERMS.
The business realities associated with operating the Services are suchthat, without the limitations that are set forth in these Terms, such as your grants and waivers of rights, the limitations on our liability, your indemnityof us, and the arbitration of certain disputes – we would not make the Services available to you.
Linkable Table of Contents
1. Content, Ownership, Limited Licenseand Rights of Others
A. Content. The Services contains a variety of:(i) materials and other items relating to Kia, and its vehicles and services,and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts,designs, graphics, button icons, instructions, illustrations, photographs,audio clips, music, sounds, pictures, videos, advertising copy, URLs,technology, software, interactive features, the “look and feel” of theServices, and the compilation, assembly, and arrangement of the materials onthe Services and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks,and/or trade identities of various parties, including those of Kia and its vehicles (collectively, “Trademarks”); and (iii) other forms ofintellectual property (all of the foregoing, collectively, “Content”).
Vehicles shown on the Services are for general illustrationonly. Vehicles shown are typically a sample vehicle only of the same model year. Details of a selected vehicle may vary from the vehicle shown depending on the features you choose. Vehicle availability may belimited.
All prices, specification, and equipment are based upon information available at the time of posting and are subject to change without notice. Kia makes no guarantees or warranties, either expressed orimplied, with respect to the accuracy of the Content presented. Allpricing on the Services is in U.S. dollars and the vehicles described areoffered for sale in the U.S. The Services in no way constitutes an offerto buy or sell vehicles from Kia or to provide financing or leasing. Kia makes reasonable efforts to ensure that the pricing and product information contained on the Services are correct. Prices, product specifications andall other information shown on the Services are for information purposes only,are subject to change at any time without obligation, may vary from region toregion, and may not be completely up to date or accurate. Most pricing refers to the Manufacturer’s Suggest Retail Price (the “MSRP”). Unless otherwise indicated, MSRP excludes destination and delivery charges, anyapplicable taxes, any applicable fees, such as title and registration, or environmental charges or fees, any industry specific fee, any applicable consumer rebates or incentives, and the cost of any dealer added options. Optional equipment is not included unless specifically indicated. Any alculation of any price, tax, incentive, lease or finance terms is for your reference only, is an estimate, and may not be completely accurate. Individual dealers set the actual transaction price. Contact yourselected dealer for the actual price of any vehicle and any applicable termsand conditions that may apply. The promotional programs and/or incentivesoffered on the Services are only available in the United States and may be limited to particular states and subject to restrictions and/or qualifications,as disclosed by the program.
B. Ownership. The Services (including past, present,and future versions) and the Content are owned or controlled by Kia, our licensors and/or certain other third parties. All right, title, and interest in and to the Content available via the Services is the property of Kia or our licensors or certain other third parties, and is protected by U.S.and international copyright, trademark, trade dress, patent, and/or otherintellectual property and unfair competition rights and laws to the fullest extent possible. Kia owns the copyright in the selection, compilation,assembly, arrangement, and enhancement of the Content on the Services.
C. Limited License. Subject to your strict compliance with these Terms and any Additional Terms, Kia grants you a limited,non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play,and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license:(i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Kia’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
D. Rights of Others. When using the Services, you must respect the intellectual property and other rights of Kia and others. Your unauthorized use of Content may violate copyright, trademark, privacy,publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Services, then please see Section 5 below.
2. Service and Content Use Restrictions
A. Service Use Restrictions. You agree that you will not: (i) use the Services for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting productprices, and selling products); (ii) use any meta tags or any other “hiddentext” utilizing any Trademarks; (iii) engage in any activities through or inconnection with the Services that seek to attempt to or do harm any individualsor entities or are unlawful, offensive, obscene, lewd, lascivious, filthy,violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Kia; (iv) reverseengineer, decompile, disassemble, reverse assemble, or modify any Services source or object code or any software or other products, services, or processes accessible through any portion of the Services; (v) engage in any activity that interferes with a user’s access to the Services or the proper operation of the Services, or otherwise causes harm to the Services, Kia, or other users of the Services; (vi) interfere with or circumvent any security feature of the Services or any feature that restricts or enforces limitations on use of or access to the Services, the Content, or the User-Generated Content (definedbelow); (vii) harvest or otherwise collect or store any information (includingpersonally identifiable information about other users of the Services,including email addresses, without the express consent of such users); (viii)attempt to gain unauthorized access to the Services, other computer systems ornetworks connected to the Services, through password mining or any other means;or (ix) otherwise violate these Terms or any Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Services: (i) you will not monitor, gather, copy, or distribute the Content(except as may be a result of standard search engine activity or use of astandard browser) on the Services by using any robot, rover, “bot”, spider,scraper, crawler, spyware, engine, device, software, extraction tool, or anyother automatic device, utility, or manual process of any kind; (ii) you willnot frame or utilize framing techniques to enclose any such Content (includingany images, text, or page layout); (iii) you will keep intact all Trademark,copyright, and other intellectual property notices contained in such Content;(iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands;(v) you will not make any modifications to such Content; (vi) you will notcopy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except asspecifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Kia or, in the case of Content from alicensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
C. Availability of Services and Content. Kia may immediately suspend or terminate the availability of the Services and Content (and any elements and features of them), in whole or in part, for any reason, in Kia’s sole discretion, and without advance notice or liability.
D. Reservation of All Rights Not Granted as to Content and Services. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Services. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Kia and its licensors andother third parties. Any unauthorized use of any Content orthe Services for any purpose is prohibited.
4. Content You Submit and Community Usage Rules
A. User-Generated Content.
(i) General. Kia may now or in the future offer users of the Services the opportunity to create, build, post, upload, display,publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”), messages, text,illustrations, files, images, graphics, photos, comments, responses, sounds,music, videos, information, content, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User-Generated Content”). Kia may allow you to do this through forums, rooms, workspaces, email, and other communications functionality. Subject to the license you grant inthese Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.
(iii) License to Kia of Your User-Generated Content. Except as otherwise described in any applicable Additional Terms which specifically govern the submission of your User-Generated Content, you grant to Kia the non-exclusive, unrestricted,unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell,re-sell, sublicense (through multiple levels), display, publicly perform,transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known orhereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host,index, cache, archive, store, digitize, compress, optimize, modify, reformat,edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts,know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing productsand/or services. You understand that, in exercising such rights, metadata,notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant that you haveall necessary authority to do so. In order to further effect the rightsand license that you grant to Kia to your User-Generated Content, you alsohereby grant to Kia, and agree to grant to Kia, the unconditional, perpetual,irrevocable right to use and exploit your name, persona, and likeness inconnection with any User-Generated Content, without any obligation orremuneration to you. Except as prohibited by law, you hereby waive, andyou agree to waive, any moral rights (including attribution and integrity) thatyou may have in any User-Generated Content, even if it is altered or changed ina manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any ofthe rights granted in this Section 4(A)(iii).
(iv) Exclusive Right to Manage OurServices. Kia may, but will not have any obligation to, review, monitor, display, post,store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Kia may, in its sole discretion, reject, delete, move,re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes toour attention that we believe is offensive, obscene, lewd, lascivious, filthy,violent, harassing, threatening, abusive, illegal or otherwise objectionable orinappropriate, or to enforce the rights of third parties or these Terms or anyapplicable Additional Terms, including, without limitation, the contentrestrictions set forth below in the Rules (definedin Section 4(B)). Such User-Generated Content submitted by you or others need not be maintained on the Services by us for any period of time and you will not have the right, once submitted, to access, archive,maintain, or otherwise use such User-Generated Content on the Services or elsewhere.
(v) Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside orare the parent or legal guardian, or have all proper consents from the parentor legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content:(a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant Kia the rights to it that you are granting by these Terms and any Additional Terms, all without any Kia obligation to obtainconsent of any third party and without creating any obligation or liability of Kia; (b) the User-Generated Content is accurate; (c) the User-Generated Contentdoes not and, as to Kia’s permitted uses and exploitation set forth in theseTerms, will not infringe any intellectual property or other right of any thirdparty; and (d) the User-Generated Content will not violate these Terms(including the Rules) or any Additional Terms, or cause injury or harm to anyperson.
(vi) Enforcement. Kia has no obligation to monitor orenforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Kia’s cost and expense, to which you hereby consent and irrevocably appoint Kia as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
B. Community Usage Rules. As a user of the Services, these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of members of the Services’ online forums and workspaces (“Communities”).
(i) Nature of Rules. Your participation in the Communities is subject to all of the Terms, including these Rules:
If you submit User-Generated Content that Kia reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligatedto take any action not required by law. We may require, at any time,proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Services.
(ii) Your Interactions With Other Users; Disputes. You are solely responsible for your interaction with other users of the Services, whether online or offline. We are not responsible or liable forthe conduct or content of any user. We reserve the right, but have noobligation, to monitor or become involved in disputes between you and otherusers. Exercise common sense and your best judgment in your interactionswith others (e.g., when you submit any personal or other information)and in all of your other online activities.
C. Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to us here. For alleged infringements of intellectual property rights, see Section 5, below.
5. Procedure For Alleging Copyright Infringement
A. DMCA Notice. Kia will respond appropriately tonotices of alleged copyright infringement that comply with the U.S. DigitalMillennium Copyright Act (“DMCA”), as set forth below. If you owna copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improperposting or distribution of it via the Services, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has beeninfringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringingor is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or pageof the Services on which the material appears);
(iv) your full name, address, telephone number and email address;
(v) a statement by you that you have a good faith belief that use ofthe material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner(or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
Kia will only respond to DMCA Notices that it receives by mail, emailor telephone at the addresses below:
By Mail: Kia Motors America, Inc., 111 Peters Canyon Road, Irvine,CA 92606 (Attn: DMCA Agent, Consumer Affairs)
By Email: DMCA@kiausa.com
By Telephone: (949) 468-4512
It is often difficult to determine if your copyright has beeninfringed. Kia may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Kia may elect to remove allegedly infringing material that comes to its attention vianotices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting Kia’s other rights, Kia may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and anyother website owned or operated by Kia.
B. Counter-Notification. If access on the Services to a work that you submitted to Kia is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCA Counter-Notification”;
(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL or page ofthe Services from which the material was removed or access to it disabled);
(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, e-mail address, and the username of your account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or,if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notificationto us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten(10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Services. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
6. Notices and Questions
Except with respect to notices of alleged copyright infringement(described above) or for demands to arbitrate under the dispute resolution provision (described below), which must be submitted as described in those sections, and unless explicitly stated otherwise in the Site, you may contactus with any notices or questions here. You acknowledge that the provision of customer support is at Kia’s sole discretion and that we have no obligation to provide you with customer support of any kind.
7. Links by You to the Services
We grant you a limited, non-exclusive, revocable, non-assignable,personal, and non-transferable license to create hyperlinks to the Services, solong as: (a) the links only incorporate text, and do not use any Trademarks,(b) the links and the content on your website do not suggest any affiliation with Kia or cause any other confusion, and (c) the links and the content on your website do not portray Kia or its products or services in a false,misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy,violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Kia. Kia reserves the right to suspend or prohibit linking to the Services for any reason, in its solediscretion, without advance notice or any liability of any kind to you or any third party.
8. Linked-To Websites; Advertisements;Dealings with Third Parties
A. Linked Services; Advertisements. The Service may contain links, as part of third-party ads on the Services or otherwise, to or from third-party websites (“Linked Services”), including websites operated by Kiadealers, licensors, licensees and certain other third parties who may have business relationships with Kia. Kia may have no control over the content, operations, policies, terms, or other elements of Linked Services, andKia does not assume any obligation to review any Linked Services. Kia does not endorse, approve, or sponsor any Linked Services, or any third-party content,advertising, information, materials, products, services, or other items. Furthermore, Kia is not responsible for the quality or delivery of the productsor services offered, accessed, obtained by or advertised at such Services. Finally, Kia will under no circumstances be liable for anydirect, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright orother intellectual property rights, caused by the exhibition, distribution orexploitation of any information or content contained within these third-party Linked Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services. Kia disclaims all liability in connection therewith.
B. Dealings with Third Parties. Any interactions, correspondence,transactions, and other dealings that you have with any third parties found onor through the Services (including on or via Linked Services or advertisements)are solely between you and the third party (including issues related to thecontent of third-party advertisements, payments, delivery of goods, warranties(including product warranties), privacy and data security, and the like). Kia disclaims all liability in connection therewith.
9. Wireless Features
A. Wireless Features. The Services may offer certainfeatures and services that are available to you via your wireless Device. These features and services may include the ability to access the Services’features and upload content to the Services, receive messages from the Services, and download applications to your wireless Device (collectively, “WirelessFeatures”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Services for Wireless Features, then you agree to notify usof any changes to your wireless contact information (including phone number)and update your accounts on the Services to reflect the changes.
10. Resolving Disputes By Binding Arbitration
MOST CUSTOMER CONCERNS CAN BE RESOLVED QUICKLY AND TO THE CUSTOMER'S SATISFACTION BY CALLING KIA’S CONSUMER ASSISTANCE CENTER AT 1-800-333-4KIA(4542). IN THE UNLIKELY EVENT THAT KIA’S CONSUMER ASSISTANCE CENTER IS UNABLETO RESOLVE YOUR CONCERNS, WE EACH AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF IN COURTS OF GENERALJURISDICTION TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO THE TERMSOF THIS AGREEMENT. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT.ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FORMORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BYCOURTS. ARBITRATORS CAN AWARD THE SAME DAMAGES AND RELIEF THAT A COURT CANAWARD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUALBASIS TO THE MAXIMUM EXTENT PERMITTED BY LAW; CLASS ARBITRATIONS, CLASS ACTIONSOR REPRESENTATIVE ARBITRATIONS ARE NOT PERMITTED. KIA WILL PAY ALLADMINISTRATIVE COSTS OF THE ARBITRATOR, NO MATTER WHO WINS, SO LONG AS YOURCLAIM IS NOT FRIVOLOUS OR BROUGHT IN BAD FAITH. HOWEVER, IN ARBITRATION, BOTH YOU AND KIA WILL BE ENTITLED TO RECOVER ATTORNEYS´ FEES FROM THE OTHER PARTY TO THE SAME EXTENT AS YOU WOULD BE IN COURT.
A. Arbitration Agreement. Kia and you agree to arbitrateany and all disputes and claims between us arising out of or relating to the Services or the Terms, or use of the Site, or products, services, or programs you purchase, enroll in or seek product/service support for, whether you are a customer or a visitor, via the Site (including any mobile application), exceptany disputes or claims which under governing law are not subject to arbitration, to the maximum extent permitted by applicable law. This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims between us subject to arbitration to the fullest extent permitted by law. However, any dispute you or we may have relating to copyrights or other intellectual property shall not be governed by this agreement to arbitrate. Forthe avoidance of doubt, this means that any claims you or we may have relatingto intellectual property rights against the other, including injunctive andother relief sought, may be brought in a court of competent jurisdiction. The agreement to arbitrate otherwise includes, but is not limited to:
claims based in contract, tort, warranty, statute, fraud,misrepresentation or any other legal theory; claims that arose before this orany prior Terms (including, but not limited to, claims relating toadvertising); claims that are currently the subject of purported class actionlitigation in which you are not a member of a certified class; claims relatingto your vehicle for which you seek product or service support via the Site;claims arising out of or relating to the Telephone Consumer Protection Act;claims relating to your data privacy or information security; and claims that may arise after the termination of the Terms.
For purposes of this arbitration provision, references to"Kia," "you," and "us" shall include our respective parent entities, subsidiaries, affiliates, agents, employees,predecessors in interest, successors and assigns, websites of the foregoing, aswell as all authorized or unauthorized users or beneficiaries of services,products or information provided or made available under this or prior Agreements between us relating to or arising from any aspect of your use or access of the Site or Services. Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into this Agreement, you and Kia are each waiving the right to a trial by juryor to participate in a class or representative action to the maximum extentpermitted by law. This Agreement evidences a transaction in interstatecommerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. This arbitration provision shall survive termination of this Agreement or your relationship with Kia for any reason.
B. Written Notice of Dispute. A party who intends to seek arbitration must first send to the other, by certified mail, a written Noticeof Dispute (“Notice”). The Notice to Kia should be addressed to: Kia MotorsAmerica, Attn: Legal Department - Arbitration, 111 Peters Canyon Road, Irvine,CA 92606 (the “Notice Address”'). The Notice must describe the nature and basis of the claim or dispute and set forth the specific relief you seek fromKia (the “Demand”'). If Kia and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Kia may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Kia or you shall not be disclosed to the arbitrator until afterthe arbitrator determines the amount, if any, to which you or Kia is entitled.In arbitration, and to the extent otherwise permitted by law, the parties mayexchange “offers of compromise” or stipulate to judgments or awards in the same way the parties could in court, including for example, under California Code of Civil Procedure Section 998 for arbitrations taking place in California. Suchoffers of compromise shall have the same force and effect as they would in acourt proceeding. The arbitration proceedings shall otherwise remain confidential, except for purposes of seeking court intervention (ifnecessary).
You may obtain more information about arbitration from www.adr.org.
C. Filing Fees. After Kia receives Notice at the Notice Address that you have commenced arbitration, Kia will promptly reimburse you for your payment of the filing fee. The filing fee currently is $200, but is subject to change by the arbitration provider. The arbitration will be governed by the Consumer Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The AAA Rules may change from time to time, andyou should review them periodically.
All issues are for the arbitrator to decide, including the scope and enforceability of this arbitration provision as well as the Agreement’s otherterms and conditions, and the arbitrator shall have exclusive authority to resolve any such dispute relating to the scope and enforceability of this arbitration provision or any other term of this Agreement including, but not limited to any claim that all or any part of this arbitration provision or Agreement is void or voidable. However if putative class or representative claims are initially brought by either party in a court of law, and a motion tocompel arbitration is brought by any party in court, then the court shall decide whether this Agreement permits class proceedings. For the avoidance of doubt, the court and arbitrator shall be bound by the terms of this Agreement,including with regard to the class and representative waiver provision. In any arbitration, the arbitrator shall be bound by the terms of this Agreement and shall follow the applicable law. The arbitrator shall not have the power to commit manifest errors of law or legal reasoning, and any award rendered by the arbitrator that employs a manifest error of law or legal reasoning may bevacated or corrected by a court of competent jurisdiction for any such error.Unless KMA and you agree otherwise, any arbitration will be governed by the substantive laws of your state, and hearings will take place in the county (or parish) of your billing or registered address. Case management and other hearings shall be heard via telephone unless otherwise agreed to. Except as otherwise provided for herein, Kia will pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substanceof your claim or the relief sought in the Demand is frivolous or brought for animproper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Kia for all moniespreviously disbursed by it that are otherwise your obligation to pay under theAAA Rules.
D. Discovery. Discovery and/or the exchange of non-privileged information relevant to the dispute will be governed by the AAA Rules.
E. No Class Action Matters. YOU AND KIA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS APLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING TO THE MAXIMUM EXTENT PERMITTED BY LAW. Further, unless both you and Kiaagree otherwise, the arbitrator may not consolidate more than one person'sclaims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If this specific subparagraph (e) is found to be unenforceable in its entirety, then theentirety of this arbitration provision shall be null and void. However, if onlya portion of this subparagraph (e) is found to be unenforceable, then the unenforceable portion of the provision shall be stricken, and the remainder of subparagraph (e) enforced. Any claims or causes of action seeking relief not subject to individual arbitration under applicable law shall be stayed in acourt of competent jurisdiction pending completion of individual arbitration tothe maximum extent permitted by law.
F. Jurisdictional Issues. Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award,any action or proceeding relating to any dispute arising hereunder may only be instituted in state or Federal court in Orange County, California. Accordingly, you and Kia consent to the exclusive personal jurisdiction andvenue of such courts for such matters.
11. DISCLAIMER OF REPRESENTATIONS ANDWARRANTIES
YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS”BASIS. Therefore, to the fullest extent permissible by law, Kia, and each of their respective employees, officers, directors, members, managers,shareholders, agents, vendors, licensors, licensees, contractors, successors,and assigns (collectively, the “Kia Parties”), hereby disclaim and makeno representations, warranties, endorsements, or promises, express or implied,as to:
(a) the Services (including the Content and the User-GeneratedContent);
(b) the functions, features, or any other elements on, or madeaccessible through, the Services;
(c) any products, services or instructions offered or referenced at orlinked through the Services;
(d) security associated with the transmission of your User-GeneratedContent transmitted to Kia via the Services;
(e) whether the Services, or the servers that make the Servicesavailable, are free from any harmful components (including viruses, Trojanhorses, and other technologies that could adversely impact your Device);
(f) whether the information (including any instructions) on theServices is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to, or errors on, the Services will berepaired or corrected;
(h) whether your access to the Services will be uninterrupted;
(i) whether the Services will be available at any particular time orlocation; and
(j) whether your use of the Services are lawful in any particularjurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONALTERMS PROVIDED BY A KIA PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THEKIA PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDINGTHE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRDPARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOMFROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable. The above disclaimers apply to the fullest extent permitted by applicable law.
12. LIMITATIONS OF OUR LIABILITY
TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY KIA PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS ORDAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH OR FOR ANY DIRECT, INDIRECT,ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:
(a) the Services (including the Content and the User-Generated Content);
(b) your use of or inability to use the Services, or the performance of the Services;
(c) any action taken in connection with an investigation by KiaParties or law enforcement authorities regarding your access to or use of theServices;
(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(e) any errors or omissions in the Services’ technical operation; or
(f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach orfrom any virus, bugs, tampering, fraud, error, omission, interruption, defect,delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the formof lost profits, loss of goodwill, loss of data, work stoppage, accuracy ofresults, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Kia Parties were advised of or should have known of the possibility of such losses or damages,regardless of whether you bring an action based in contract, negligence, strictliability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Services).
Some jurisdictions do not allow the exclusion or limitation ofincidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you. The above disclaimers apply to the fullest extent permitted by applicable law.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONALTERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KIAPARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAIDKIA TO ACCESS THE SERVICES OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF ATRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANYEXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.
You further understand and expressly agree that all rights under Section 1542 of the Civil Code of California (“Section 1542”) and any similar law of any state or territory of the United States that may be applicable with respect to the foregoing release are hereby expressly andforever waived. You acknowledge that Section 1542 provides that: “AGENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HERSETTLEMENT WITH THE DEBTOR.” The releases hereunder are intended to apply to all claims not known or suspected to exist with the intent of waiving the effect of laws requiring the intent to release future unknown claims.
This Agreement may be updated from time to time. You should check this website regularly for updates to this Agreement. Each time you access, use, or sign-in to any of the Services, you signify your acceptance and agreement,without limitation or qualification, to be bound by the then current Agreement. Modifications take effect as soon as they are posted to the Site, delivered to you, or reasonably made available to you in writing by Kia. However, no unilateral amendment will retroactively modify the parties' agreed-to dispute resolution provisions of this Agreement for then-pending disputes, unless the parties expressly agree otherwise in writing.
14. General Provisions
A. Kia’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grant Kia a right of consent or approval, or permits Kia to exercise a right in its “sole discretion,” Kia may exercise that right in its sole and absolute discretion. No opt-in consent or approval may be deemed to have been granted by Kia without being in writing and signed by an officer of Kia.
B. Indemnity. You agree to defend, indemnify, and hold the Kia Parties harmless from and against any and all claims, damages,losses, costs, investigations, liabilities, judgments, fines, penalties,settlements, interest, and expenses (including attorneys’ fees) that directlyor indirectly arise from or are related to any claim, suit, action, demand, orproceeding made or brought against any Kia Party, or on account of the investigation, defense, or settlement there of, arising out of or in connection with: (i) your User-Generated Content; (ii) your use of the Services and your activities in connection with the Services; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection withyour use of the Services or your activities in connection with the Services;(v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright,trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and(vii) Kia Parties’ use of the information that you submit to us (including yourUser-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by the Kia Parties in the defense of any Claims and Losses. Not with standing the foregoing, the Kia Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. The Kia Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of anofficer of a Kia Party.
C. Operation of Services; Availabilityof Products and Services; International Issues. The Services are operated in the United States, and is primarily intended for users located in the U.S. Kia makes no representation that the Services are appropriate or available for use beyond the U.S. All Content contained on the Services applies to the United States market only. If you use the Services from other locations,you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. We reserve the right to limit the availability of the Services and/or the provision of any content, program,product, service, or other feature described or available on the Services to any person, entity, geographic area, or jurisdiction, at any time and in oursole discretion, and to limit the quantities of any content, program, product,service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
D. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms,and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect), unless otherwise stated herein. To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean“including, without limitation.” The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
E. Communications. By entering into this Agreement or using the Services, you expressly agree to receive communications from us,including via e-mail, online message, text message, telephone calls, and push notifications. You agree that texts, telephone calls or prerecorded messages may be generated by automatic telephone dialing systems, and that this Agreement constitutes your written consent to receive such communications.Communications from Kia may include but are not limited to: operational communications concerning your user account or use of the Services, updates concerning new and existing products or features on the Site or Services,communications concerning promotions run by us or our third-party partners, and news concerning Kia and industry developments. Standard text messaging chargesapplied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS,YOU MAY RESPOND TO THE TEXT FROM THE MOBILE DEVICE RECEIVING THE MESSAGE AND WRITE THE WORD “STOP.”
F. Investigations; Cooperation with Law Enforcement; Termination; Survival. Kia reserves the right, without any limitation, to: (i) investigate any suspected breaches of security of its Services or its information technology or other systems or networks, (ii)investigate any suspected breaches of these Terms and any Additional Terms,(iii) investigate any information obtained by Kia in connection with reviewinglaw enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Services, in whole or in part, or, except asmay be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Kia under these Terms or any Additional Terms. Upon suspension or termination of your access to the Services, or upon notice from Kia, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Services. The provisions of these Terms and any Additional Terms (including the terms applicable to User-Generated Content), which by their nature should survive your suspensionor termination will survive, including the rights and licenses you grant to Kia in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
G. Assignment. Kia may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Kia.
H. No Waiver. Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or Kia inexercising any of rights, powers, or remedies hereunder will operate as awaiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. For avoidance of doubt, nothingherein shall be construed to restrict Kia’s right to amend these Terms or any Additional Terms as otherwise permitted in those agreements.
I. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to,and use of, the Services and you will be responsible for all charges related to them.