Effective Date: August 16, 2019
PLEASE READ THIS AGREEMENT CAREFULLY. ITSETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THESERVICES, AS DEFINED BELOW.
THESE TERMS REQUIRE YOU ARBITRATE ANY DISPUTESYOU 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 Kiarelating to or arising out of the Site, including for the provision or supportof 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 otherinformation and all revisions, modifications, and enhancements theretocontained in the Site.
IF YOU WANT TO USE THE SERVICES, THENCAREFULLY READ THESE ENTIRE TERMS (including all links to details), as theyconstitute 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 complywith these Terms and any Additional Terms (defined below) thenposted. 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 yourgrants and waivers of rights, the limitations on our liability, your indemnityof us, and the arbitration of certain disputes – we would not make the Servicesavailable 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 alllayout, 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 andobject code); (ii) trademarks, trade dress, logos, trade names, service marks,and/or trade identities of various parties, including those of Kia and itsvehicles (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 samemodel year. Details of a selected vehicle may vary from the vehicle showndepending on the features you choose. Vehicle availability may belimited.
All prices, specification, and equipment are based upon informationavailable at the time of posting and are subject to change withoutnotice. 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. Kiamakes reasonable efforts to ensure that the pricing and product informationcontained 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 pricingrefers to the Manufacturer’s Suggest Retail Price (the “MSRP”). Unlessotherwise indicated, MSRP excludes destination and delivery charges, anyapplicable taxes, any applicable fees, such as title and registration, orenvironmental charges or fees, any industry specific fee, any applicableconsumer rebates or incentives, and the cost of any dealer added options. Optional equipment is not included unless specifically indicated. Anycalculation of any price, tax, incentive, lease or finance terms is for yourreference 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 belimited 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, ourlicensors and/or certain other third parties. All right, title, andinterest in and to the Content available via the Services is the property ofKia 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 fullestextent 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 withthese Terms and any Additional Terms, Kia grants you a limited,non-exclusive, revocable, non-assignable, personal, and non-transferablelicense to: (i) download (temporary storage only), display, view, use, play,and/or print one copy of the Content (excluding source and object code in rawform or otherwise, other than as made available to access and use to enabledisplay and functionality) on a personal computer, mobile phone or otherwireless device, or other Internet enabled device (each, a “Device”) foryour personal, non-commercial use only. The foregoing limited license:(i) does not give you any ownership of, or any other intellectual propertyinterest in, any Content, and (ii) may be immediately suspended or terminatedfor any reason, in Kia’s sole discretion, and without advance notice orliability. In some instances, we may permit you to have greater access toand use of Content, subject to certain Additional Terms.
D. Rights of Others. When using the Services, you mustrespect 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 yourpersonal liability, including potential criminal liability. If youbelieve that your work has been infringed by means of an improper posting ordistribution of it via the Services, then please see Section 5 below.
2. Service and Content UseRestrictions
A. Service Use Restrictions. You agree that you will not: (i) usethe Services for any political or commercial purpose (including, withoutlimitation, 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 anyright of any third party, or are otherwise objectionable to Kia; (iv) reverseengineer, decompile, disassemble, reverse assemble, or modify any Servicessource or object code or any software or other products, services, or processesaccessible through any portion of the Services; (v) engage in any activity thatinterferes with a user’s access to the Services or the proper operation of theServices, or otherwise causes harm to the Services, Kia, or other users of theServices; (vi) interfere with or circumvent any security feature of theServices or any feature that restricts or enforces limitations on use of oraccess 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 theServices: (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 unauthorizedassociation 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, createderivative works from, publish by hard copy or electronic means, publiclyperform, display, disseminate, distribute, broadcast, retransmit, circulate ortransfer to any third party or on any third-party application or website, orotherwise use or exploit such Content in any way for any purpose except asspecifically permitted by these Terms or any Additional Terms or with the priorwritten 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 productto manipulate such Content in any way that adversely affects any userexperience.
C. Availability of Services andContent. Kia may immediately suspend or terminate the availability of the Services andContent (and any elements and features of them), in whole or in part, for anyreason, in Kia’s sole discretion, and without advance notice orliability.
D. Reservation of All Rights NotGranted as to Content and Services. These Terms and any Additional Termsinclude only narrow, limited grants of rights to Content and to use and accessthe Services. No right or license may be construed, under any legaltheory, by implication, estoppel, industry custom, or otherwise. Allrights 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 CommunityUsage Rules
A. User-Generated Content.
(i) General. Kia may now or in the future offerusers of the Services the opportunity to create, build, post, upload, display,publish, distribute, transmit, broadcast, or otherwise make available on orsubmit through the Service (collectively, “submit”), messages, text,illustrations, files, images, graphics, photos, comments, responses, sounds,music, videos, information, content, data, questions, suggestions, personallyidentifiable information, or other information or materials and the ideascontained therein (collectively, “User-Generated Content”). Kia may allow you to do this through forums, rooms, workspaces, email, andother communications functionality. Subject to the license you grant inthese Terms, you retain whatever legally cognizable right, title, and interestthat you have in your User-Generated Content and you remain ultimatelyresponsible for it.
(iii) License to Kia of Your User-Generated Content. Except as otherwise described in anyapplicable Additional Terms which specifically govern the submission of yourUser-Generated Content, you grant to Kia the non-exclusive, unrestricted,unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-freeright 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, andotherwise use and exploit in any manner whatsoever, all or any portion of yourUser-Generated Content (and derivative works thereof), for any purposewhatsoever in all formats, on or through any means or medium now known orhereafter developed, and with any technology or devices now known or hereafterdeveloped, and to advertise, market, and promote the same. Withoutlimitation, 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-GeneratedContent and combine same with other materials, and (b) use any ideas, concepts,know-how, or techniques contained in any User-Generated Content for anypurposes 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 managementinformation, 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, youirrevocably agree not to exercise such rights (if any) in a manner thatinterferes with any exercise of the granted rights. You understand thatyou 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-GeneratedContent, and Kia may, in its sole discretion, reject, delete, move,re-format, remove or refuse to post or otherwise make use of User-GeneratedContent without notice or any liability to you or any third party in connectionwith our operation of User-Generated Content venues in an appropriatemanner. 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 byyou or others need not be maintained on the Services by us for any period oftime and you will not have the right, once submitted, to access, archive,maintain, or otherwise use such User-Generated Content on the Services orelsewhere.
(v) Representations and WarrantiesRelated to Your User-GeneratedContent. Each time you submit any User-Generated Content, you represent and warrant thatyou 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 anyUser-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 otherrights to the User-Generated Content, or you have a lawful right to submit theUser-Generated Content and grant Kia the rights to it that you are granting bythese Terms and any Additional Terms, all without any Kia obligation to obtainconsent of any third party and without creating any obligation or liability ofKia; (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, butyou grant us the right to protect and enforce our rights to your User-GeneratedContent, including by bringing and controlling actions in your name and on yourbehalf (at Kia’s cost and expense, to which you hereby consent and irrevocablyappoint Kia as your attorney-in-fact, with the power of substitution anddelegation, which appointment is coupled with an interest).
B. Community Usage Rules. As a user of the Services, theseCommunity Usage Rules (“Rules”) are here to help you understand theconduct that is expected of members of the Services’ online forums and workspaces (“Communities”).
(i) Nature of Rules. Your participation inthe Communities is subject to all of the Terms, including these Rules:
If you submit User-Generated Content that Kia reasonably believesviolates these Rules, then we may take any legally available action that wedeem 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, theUser-Generated Content in question being removed from the Services.
(ii) Your Interactions With OtherUsers; Disputes. You are solely responsible for your interaction with other users of theServices, 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.
5. Procedure For Alleging CopyrightInfringement
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 thatyour (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 writtennotice that includes all of the following:
(i) a legend or subject line that says: “DMCA Copyright InfringementNotice”;
(ii) a description of the copyrighted work that you claim has beeninfringed or, if multiple copyrighted works are covered by a singlenotification, 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 reasonablysufficient 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 copyrightowner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that all theinformation 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 thatyou are authorized to act on the behalf of the owner of an exclusive right thatis 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 notsubstantially comply with all of the foregoing requirements, and Kia mayelect 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 knowinglymaterially misrepresents that material or activity is infringing may be subjectto liability.
We may send the information that you provide in your notice to theperson who provided the allegedly infringing work. That person may elect tosend us a DMCA Counter-Notification.
Without limiting Kia’s other rights, Kia may, in appropriatecircumstances, 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 workthat you submitted to Kia is disabled or the work is removed as a result of aDMCA Notice, and if you believe that the disabled access or removal is theresult of mistake or misidentification, then you may send us a DMCACounter-Notification to the addresses above. Your DMCACounter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCACounter-Notification”;
(ii) a description of the material that has been removed or to whichaccess has been disabled and the location at which the material appeared beforeit 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 faithbelief that the material was removed or disabled as a result of mistake ormisidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, e-mail address, andthe username of your account;
(v) a statement that you consent to the jurisdiction of the FederalDistrict 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 UnitedStates District Court for the Central District of California), and that youwill 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 knowinglymaterially misrepresents that material or activity was removed or disabled bymistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace thematerial 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 theDMCA Counter-Notification. However, we will not do this if we firstreceive notice at the addresses above that the party who sent us the DMCACopyright Infringement Notice has filed a lawsuit asking a court for an orderrestraining the person who provided the material from engaging in infringingactivity relating to the material on the Services. You should also beaware that we may forward the Counter-Notification to the party who sent us theDMCA 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 resolutionprovision (described below), which must be submitted as described in thosesections, and unless explicitly stated otherwise in the Site, you may contactus with any notices or questions here. You acknowledge that the provision ofcustomer support is at Kia’s sole discretion and that we have no obligation toprovide 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 affiliationwith Kia or cause any other confusion, and (c) the links and the content onyour website do not portray Kia or its products or services in a false,misleading, derogatory, or otherwise offensive matter, and do not containcontent that is unlawful, offensive, obscene, lewd, lascivious, filthy,violent, threatening, harassing, or abusive, or that violate any right of anythird party or are otherwise objectionable to Kia. Kia reserves the rightto 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 anythird party.
8. Linked-To Websites; Advertisements;Dealings with Third Parties
A. Linked Services; Advertisements. The Service may contain links, as partof third-party ads on the Services or otherwise, to or from third-partywebsites (“Linked Services”), including websites operated by Kiadealers, licensors, licensees and certain other third parties who may havebusiness relationships with Kia. Kia may have no control over thecontent, operations, policies, terms, or other elements of Linked Services, andKia does not assume any obligation to review any Linked Services. Kia does notendorse, 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 suchServices. Finally, Kia will under no circumstances be liable for anydirect, indirect, incidental or special loss or other damage, whether arisingfrom 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-partyLinked Services. Any activities you engage in connection with any of thesame are subject to the privacy and other policies, terms and conditions of useand/or sale, and rules issued by the operator of the Linked Services. Kiadisclaims 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 theServices, and download applications to your wireless Device (collectively, “WirelessFeatures”). Standard messaging, data, and other fees may be chargedby your carrier to participate in Wireless Features. Fees and charges mayappear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certainWireless Features may be incompatible with your carrier or wirelessDevice. You should check with your carrier to find out what plans areavailable and how much they cost. Contact your carrier with questionsregarding these issues.
B. Terms of Wireless Features. You agree that as to the WirelessFeatures for which you are registered, we may send communications to yourwireless Device regarding us or other parties. Further, we may collectinformation related to your use of the Wireless Features. If you haveregistered 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 BindingArbitration
MOST CUSTOMER CONCERNS CAN BE RESOLVED QUICKLY AND TO THE CUSTOMER'SSATISFACTION 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 THROUGHBINDING 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, BOTHYOU AND KIA WILL BE ENTITLED TO RECOVER ATTORNEYS´ FEES FROM THE OTHER PARTY TOTHE 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 theServices or the Terms, or use of the Site, or products, services, or programsyou purchase, enroll in or seek product/service support for, whether you are acustomer or a visitor, via the Site (including any mobile application), exceptany disputes or claims which under governing law are not subject toarbitration, to the maximum extent permitted by applicable law. This agreement toarbitrate is intended to be broadly interpreted and to make all disputes andclaims between us subject to arbitration to the fullest extent permitted bylaw. However, any dispute you or we may have relating to copyrights or otherintellectual 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. Theagreement 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 thatmay arise after the termination of the Terms.
For purposes of this arbitration provision, references to"Kia," "you," and "us" shall include ourrespective 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 priorAgreements between us relating to or arising from any aspect of your use oraccess of the Site or Services. Notwithstanding the foregoing, either party maybring an individual action in small claims court. You agree that, by enteringinto 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 andenforcement of this arbitration provision. This arbitration provision shallsurvive termination of this Agreement or your relationship with Kia for anyreason.
B. Written Notice of Dispute. A party who intends to seekarbitration 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 andbasis 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 theclaim within 30 days after the Notice is received, you or Kia may commence anarbitration proceeding. During the arbitration, the amount of any settlementoffer 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 sameway the parties could in court, including for example, under California Code ofCivil 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 remainconfidential, 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 theNotice Address that you have commenced arbitration, Kia will promptly reimburseyou for your payment of the filing fee. The filing fee currently is $200, butis subject to change by the arbitration provider. The arbitration will begoverned by the Consumer Arbitration Rules (the “AAA Rules”) of the AmericanArbitration Association (“AAA”), as modified by this Agreement, and will beadministered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or bywriting 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 andenforceability of this arbitration provision as well as the Agreement’s otherterms and conditions, and the arbitrator shall have exclusive authority toresolve any such dispute relating to the scope and enforceability of thisarbitration provision or any other term of this Agreement including, but notlimited to any claim that all or any part of this arbitration provision orAgreement is void or voidable. However if putative class or representativeclaims 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 shalldecide whether this Agreement permits class proceedings. For the avoidance ofdoubt, the court and arbitrator shall be bound by the terms of this Agreement,including with regard to the class and representative waiver provision. In anyarbitration, the arbitrator shall be bound by the terms of this Agreement andshall follow the applicable law. The arbitrator shall not have the power tocommit manifest errors of law or legal reasoning, and any award rendered by thearbitrator 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 thesubstantive laws of your state, and hearings will take place in the county (orparish) of your billing or registered address. Case management and otherhearings shall be heard via telephone unless otherwise agreed to. Except asotherwise provided for herein, Kia will pay all AAA filing, administration andarbitrator fees for any arbitration initiated in accordance with the noticerequirements 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 ofCivil Procedure 11(b)), then the payment of all such fees will be governed bythe 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 ofnon-privileged information relevant to the dispute will be governed by the AAARules.
E. No Class Action Matters. YOU AND KIA AGREE THAT EACH MAY BRINGCLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS APLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDINGTO 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 orclass proceeding. The arbitrator may award injunctive relief only in favor ofthe individual party seeking relief and only to the extent necessary to providerelief warranted by that party's individual claim. If this specificsubparagraph (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 theunenforceable portion of the provision shall be stricken, and the remainder ofsubparagraph (e) enforced. Any claims or causes of action seeking relief notsubject 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 requiredabove or with respect to the enforcement of any arbitration decision or award,any action or proceeding relating to any dispute arising hereunder may only beinstituted 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. THESERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS”BASIS. Therefore, to the fullest extent permissible by law, Kia, and eachof 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 orother warranties so the above disclaimers may not apply to the extent suchjurisdictions’ laws are applicable. The above disclaimers apply to thefullest extent permitted by applicable law.
12. LIMITATIONS OF OUR LIABILITY
TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NOCIRCUMSTANCES 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 ORDAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:
(a) the Services (including the Content and the User-GeneratedContent);
(b) your use of or inability to use the Services, or the performanceof 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 intellectualproperty 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, orother 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 anyother 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 theforegoing events or circumstances were foreseeable and even if Kia Parties wereadvised 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, bynegligence, acts of god, telecommunications failure, or destruction of theServices).
Some jurisdictions do not allow the exclusion or limitation ofincidental or consequential damages of the sort that are described above, sothe above limitation or exclusion may not apply to you. The abovedisclaimers 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 CAUSESOF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES AND YOURRIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAIDKIA TO ACCESS THE SERVICES OR IN CONNECTION WITH THE TRANSACTION(S) THATUNDERLIE 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 underSection 1542 of the Civil Code of California (“Section 1542”) and anysimilar law of any state or territory of the United States that may beapplicable 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 ORSUSPECT 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 applyto all claims not known or suspected to exist with the intent of waiving the effectof laws requiring the intent to release future unknown claims.
This Agreement may be updated from time to time. You should check thiswebsite regularly for updates to this Agreement. Each time you access, use, orsign-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 toyou, or reasonably made available to you in writing by Kia. However, nounilateral amendment will retroactively modify the parties' agreed-to disputeresolution provisions of this Agreement for then-pending disputes, unless theparties expressly agree otherwise in writing.
14. General Provisions
A. Kia’s Consent or Approval. As to any provision in these Terms orany Additional Terms that grant Kia a right of consent or approval, or permitsKia to exercise a right in its “sole discretion,” Kia may exercise that rightin its sole and absolute discretion. No opt-in consent or approval may bedeemed to have been granted by Kia without being in writing and signed by anofficer of Kia.
B. Indemnity. You agree to defend, indemnify, andhold 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 theinvestigation, defense, or settlement thereof, arising out of or in connectionwith: (i) your User-Generated Content; (ii) your use of the Services and youractivities in connection with the Services; (iii) your breach or alleged breachof these Terms or any Additional Terms; (iv) your violation or allegedviolation of any laws, rules, regulations, codes, statutes, ordinances, ororders 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 notsubmitted by you, that infringes, violates, or misappropriates any copyright,trademark, trade secret, trade dress, patent, publicity, privacy, or otherright 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”). Youwill cooperate as fully required by the Kia Parties in the defense of anyClaims and Losses. Not with standing the foregoing, the Kia Partiesretain the exclusive right to settle, compromise, and pay any and all Claimsand Losses. The Kia Parties reserve the right to assume theexclusive defense and control of any Claims and Losses. You will not settle anyClaims 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 theUnited States, and is primarily intended for users located in the U.S. Kia makes no representation that the Services are appropriate or available foruse beyond the U.S. All Content contained on the Services applies to theUnited States market only. If you use the Services from other locations,you are doing so on your own initiative and are responsible for compliance withapplicable local laws regarding your online conduct and acceptable content, ifand to the extent local laws apply. We reserve the right to limit theavailability of the Services and/or the provision of any content, program,product, service, or other feature described or available on the Services toany 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 anyapplication to these Terms of the Convention on Contracts for the InternationalSale of Goods.
D. Severability; Interpretation. If any provision of these Terms, orany Additional Terms, is for any reason deemed invalid, unlawful, void, orunenforceable by a court or arbitrator of competent jurisdiction, then thatprovision will be deemed severable from these Terms or the Additional Terms,and the invalidity of the provision will not affect the validity orenforceability of the remainder of these Terms or the Additional Terms (whichwill remain in full force and effect), unless otherwise stated herein. Tothe extent permitted by applicable law, you agree to waive, and you herebywaive, any applicable statutory and common law that may permit a contract to beconstrued against its drafter. Wherever the word “including” is used inthese Terms or any Additional Terms, the word will be deemed to mean“including, without limitation.” The summaries of provisions and sectionheadings are provided for convenience only and shall not limit the full Terms.
E. Communications. By entering into this Agreement orusing the Services, you expressly agree to receive communications from us,including via e-mail, online message, text message, telephone calls, and pushnotifications. You agree that texts, telephone calls or prerecorded messagesmay be generated by automatic telephone dialing systems, and that thisAgreement constitutes your written consent to receive such communications.Communications from Kia may include but are not limited to: operationalcommunications concerning your user account or use of the Services, updatesconcerning new and existing products or features on the Site or Services,communications concerning promotions run by us or our third-party partners, andnews 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 FROMOUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THEPROMOTIONAL 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 ANDWRITE THE WORD “STOP.”
F. Investigations; Cooperation withLaw Enforcement; Termination; Survival. Kia reserves the right, without anylimitation, to: (i) investigate any suspected breaches of security of itsServices 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 andcooperate with law enforcement authorities in investigating any of theforegoing matters, (v) prosecute violators of these Terms and any AdditionalTerms, and (vi) discontinue the Services, in whole or in part, or, except asmay be expressly set forth in any Additional Terms, suspend or terminate youraccess to it, in whole or in part, including any user accounts orregistrations, at any time, without notice, for any reason and without anyobligation to you or any third party. Any suspension or terminationwill not affect your obligations to Kia under these Terms or any AdditionalTerms. Upon suspension or termination of your access to the Services, orupon notice from Kia, all rights granted to you under these Terms or anyAdditional Terms will cease immediately, and you agree that you willimmediately discontinue use of the Services. The provisions of theseTerms and any Additional Terms (including the terms applicable toUser-Generated Content), which by their nature should survive your suspensionor termination will survive, including the rights and licenses you grant to Kiain these Terms, as well as the indemnities, releases, disclaimers, andlimitations on liability and the provisions regarding jurisdiction, choice oflaw, no class action, and mandatory arbitration.
G. Assignment. Kia may assign its rights andobligations under these Terms and any Additional Terms, in whole or in part, toany party at any time without any notice. These Terms and any AdditionalTerms may not be assigned by you, and you may not delegate your duties underthem, without the prior written consent of an officer of Kia.
H. No Waiver. Except as expressly set forth in theseTerms 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 ormodification of any term of these Terms or any Additional Terms will beeffective unless in writing and signed by the party against whom the waiver ormodification is sought to be enforced. For avoidance of doubt, nothingherein shall be construed to restrict Kia’s right to amend these Terms or anyAdditional Terms as otherwise permitted in those agreements.
I. Connectivity. You are responsible for obtaining andmaintaining all Devices and other equipment and software, and all internetservice 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 tothem.