Effective as of: April 20th, 2016
PLEASE READ ALL THE TERMS OF THIS AGREEMENT COMPLETELY AND CAREFULLY BEFORE USING UVO eSERVICES. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF UVO eSERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE FEATURES OFFERED THROUGH THE UVO eSERVICES APP ARE PROVIDED THROUGH YOUR WIRELESS MOBILE DEVICE AND RELY ON YOUR DATA PLAN. STANDARD DATA AND OTHER FEES WILL BE CHARGED BY YOUR MOBILE CARRIER TO PARTICIPATE IN SUCH FEATURES PURSUANT TO THE TERMS AND CONDITIONS OF YOUR DATA PLAN.
Welcome to UVO eServices or UVO EV Services (UVO EV Services are Kia’s UVO product for Kia electric vehicles)! You have arrived at either: myuvo.com, the Kia UVO smartphone application (the “UVO eServices App”), or otherwise have UVO eServices Hardware (defined below) installed within your Vehicle (defined below) (collectively, the “UVO eServices”). For purposes of clarity, the term “UVO eServices” in these Terms also refers to and includes “UVO EV Services”, which is the trade name of the services that are offered in Kia electric vehicles. These Terms are the agreement between us and you regarding our provision of UVO eServices to you, regardless of how you access or use UVO eServices. If you activate, receive, use, accept or otherwise access UVO eServices, you accept and agree to be bound by these Terms.
Table of Contents
It is important that you read and understand the entire Terms before using UVO eServices. This table of contents highlights key issues and points and you can click on the headings to be taken to the full explanation.
If You Want to Use UVO eServices,
then carefully read these Terms, as they constitute a written agreement between you and KMA and they affect your legal rights and obligations. If you are under the age of majority in your state of residence, you may use UVO eServices only with involvement of a parent or guardian who is a member in good standing and maintains a MyUVO Account (defined below).
Each time you access and/or use UVO eServices (other than to simply read these Terms), you agree to be bound by and comply with all of the terms and conditions of these Terms and any Additional Terms (defined below). Therefore, do not use UVO eServices if you do not agree to all of the terms of these Terms and any Additional Terms. The business realities associated with operating UVO eServices are such that, without the limitations that are set forth in these Terms -- such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and arbitration of certain disputes – we would not make UVO eServices available to you.
In some instances, both these Terms and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of UVO eServices or to a service or product offered thereon (in each such instance, and collectively, “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
Full Details of Terms of Service
In addition to UVO eServices listed in the introductory paragraph above, by “UVO eServices”, we additionally mean any Internet domain address within which these Terms are posted and all features, widgets, applications, content, and downloads that are operated by us and that are available through or interact with UVO eServices and/or post a link to this Master Terms of Service (“Terms”). UVO eServices are provided by Kia Motors America, Inc. (collectively, “KMA,” “we,” “our” or “us”). Also, as used in these Terms, the terms “KMA,” “we,” “our,” or “us” shall be deemed to collectively refer to the following entities, each of which are intended beneficiaries of these Terms: (i) Kia Motors America, Inc. and its parent company, affiliates, successors and assigns and authorized Kia dealers in the United States; (ii) any Service Provider (defined below) engaged by KMA to provide services that are offered as part of UVO eServices, and their affiliates, successors and assigns; and (iii) any employees, directors, officers, subcontractors, representatives and agents of any of the foregoing. As used in these Terms, the terms “you” and “your” shall be deemed to refer to, and these Terms shall be binding upon, any person or entity who has purchased, rented or leased a Vehicle equipped with, or uses as a driver or occupant (e.g., additional drivers or passengers of your Vehicle), UVO eServices.
1. SERVICE REQUIREMENTS AND SERVICE PROVIDERS. Your Kia vehicle (“Vehicle”) must come equipped with UVO eServices hardware (the “UVO eServices Hardware”), which is the equipment, including hardware and software, used to assist with providing UVO eServices, including, UVO EV Services hardware, which is installed on our electric Vehicles. Additionally, you must have a wireless mobile Device with Bluetooth® wireless technology with UVO eServices App downloaded onto your mobile Device in order to utilize UVO eServices. Additionally, you must have an active account (“MyUVO Account”) to receive access to some of the features available through UVO eServices. By signing-up or otherwise registering for a MyUVO Account, you represent and warrant that you are the owner of your Vehicle or otherwise have all necessary permissions from the owner of the Vehicle to bind owner to this Agreement. Kia Motors America, Inc. may interact with and/or engage one or more third party providers as necessary to provide UVO eServices. Those third party providers include any person, company, or entity who provides any service, equipment, or facilities in connection with UVO eServices or UVO eServices Hardware, including, but not limited to, wireless service providers, telematics service providers, such as Cellco Partnership, d/b/a Verizon Wireless (“Verizon”), underlying wireless carriers, suppliers, licensors, public safety answering points, emergency responders and other service providers (such as police, fire and ambulance), towing companies, automobile makers, distributors and dealers. Such third party providers are referred to in these Terms as “Service Provider(s)”. Kia Motors America, Inc., or our Service Providers, may receive and respond to your requests for service through an automated operator or through KMA Consumer Affairs.
2. QUESTIONS, CUSTOMER SERVICE AND FEEDBACK YOU SUBMIT. If you have any questions regarding using UVO eServices, you may contact KMA Consumer Affairs by sending us a message here or calling toll-free at: 1-800-333-4542. We have no obligation to provide you with customer support of any kind. We want to hear from you and will try to assist, but whatever customer support we may offer from time to time, will be at our sole discretion, and will be provided only if you have created a MyUVO Account.
In your communications with us, please keep in mind that unless we expressly request them, we do not seek any unsolicited ideas or materials for products or services, or even improvements to products or services, such as ideas, concepts, inventions, or designs for vehicles or vehicle features or otherwise (collectively, “Unsolicited Ideas and Materials”). Any information and materials you send to us via UVO eServices (regardless of whether we have requested them or not) are deemed Unsolicited Ideas and Materials and licensed to us as set forth below. In addition, we retain all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. KMA’s receipt of your Unsolicited Ideas and Materials is not an admission by us of their novelty, priority, or originality, and it does not impair our right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
By providing Unsolicited Ideas and Materials to us or others via UVO eServices, you hereby grant to KMA 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 Unsolicited Ideas and Materials (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter 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 Unsolicited Ideas and Materials and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any Unsolicited Ideas and Materials for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effectuate the rights and license that you grant to KMA to your Unsolicited Ideas and Materials, you also hereby grant to KMA, and agree to grant to KMA, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any Unsolicited Ideas and Materials, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Unsolicited Ideas and Materials, even if it is altered or changed in a 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 of the rights granted in this Section 2.
From time to time, areas on UVO eServices may expressly request submissions of concepts, improvements, feedback, or other potential content from you (“Invited Submissions”). Where this is the case, please carefully read any Additional Terms which appear elsewhere on UVO eServices to govern those submissions, as they will affect your legal rights. If no Additional Terms govern those submissions, then this Section 2 of these Terms will apply in full to any Invited Submissions and you grant us a license to them just as if they were Unsolicited Ideas and Materials.
If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities (including purchases) that occur under your MyUVO Account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of UVO eServices using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your MyUVO Account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your MyUVO Account or any MyUVO Account rights.
We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your MyUVO Account. We also reserve the more general and broad right to terminate your MyUVO Account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability after which your MyUVO Account will be deactivated and your access to all of UVO eServices will terminate. This means that we can decide to cease providing UVO eServices to you at any time and for any reason, even for reasons unrelated to you or your MyUVO Account with us. We also reserve the more general and broad right to begin charging you a fee to access some or all of the services offered through UVO eServices and we will provide you notice and collect your payment information before doing so. If you choose not to pay for access after we provide notice to you that fees will apply to your continued access of the UVO eServices, we reserve the right to immediately cancel/terminate your access to UVO eServices, in our sole discretion. Additionally, we may cancel your access to UVO eServices without prior notice to you if we have received information that establishes you are no longer the renter/owner/lessee of your Vehicle. This means, for example, we can terminate your access to any or all of UVO eServices immediately if you breach any part of these Terms, interfere with our efforts to provide UVO eServices, interfere with our business, or if your wireless phone number is used for illegal or improper purposes. You do not have any right to have UVO eServices reactivated, even if you cure any of these problems. Whether to allow you to have access to UVO eServices again will be entirely up to us. We can suspend your access to any of UVO eServices for any reason, including, without limitation, for network or system maintenance or improvement, or if there is network congestion.
If you have UVO eServices installed in your Vehicle and you purchased your Kia Vehicle from a previous owner as a used car, you must disable access and terminate the previous owner’s MyUVO Account. If you fail to do so, the previous Vehicle owner may continue to have access to Vehicle information that is collected as you use the Vehicle and he or she may be able to interact and change the Vehicle’s settings. If you wish to disable a previous owner’s access to UVO eServices, you must either bring your Vehicle to a Kia dealer or call KMA Consumer Affairs at: 1-800-333-4542. You will be required to offer proof of ownership before a previous owner’s MyUVO Account will be disabled. KMA is not responsible or liable for any claims, damages or liability that may arise from any user’s failure to timely disable a previous Vehicle owner’s access and use of a MyUVO Account.
4. UVO eSERVICES CONTENT, OWNERSHIP, LIMITED LICENSE AND RIGHTS OF OTHERS.
A. Content. UVO eServices contain a variety of: (i) materials and other items relating to KMA and its products and services, and similar items from our licensors and other third parties, including all layout, information, 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 UVO eServices, and the compilation, assembly, and arrangement of the materials of UVO eServices and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of KMA (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively, “Content”).
B. Ownership. UVO eServices (including past, present, and future versions) and the Content are owned or controlled by KMA and our licensors and certain other third parties. All right, title, and interest in and to the Content available via UVO eServices is the property of KMA or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible. KMA owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on UVO eServices.
C. Limited License. Subject to your strict compliance with these Terms and the Additional Terms, KMA grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to 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 via a standard web browser to enable display) 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 KMA’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. In using UVO eServices, you must respect the intellectual property and other rights of KMA 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. KMA respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via UVO eServices, then please send us a message to let us know here.
5. RESTRICTIONS ON USE OF UVO eSERVICES.
A. UVO eServices Use Restrictions. You agree that you will not: (i) use UVO eServices for any political or commercial purpose; (ii) use any meta tags or any other “hidden text” utilizing any KMA Trademarks; (iii) engage in any activities through or in connection with UVO eServices that seek to attempt to or do harm any individuals or entities or are 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 KMA; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any of UVO eServices source or object code or any software or other products, services, or processes accessible through any portion of UVO eServices; (v) engage in any activity that interferes with a user’s access to UVO eServices or the proper operation of UVO eServices, or otherwise causes harm to UVO eServices, KMA, or other users of UVO eServices; (vi) interfere with or circumvent any security feature of UVO eServices or any feature that restricts or enforces limitations on use of or access to UVO eServices, including the Content; (vii) use UVO eServices outside of the United States; or (viii) otherwise violate these Terms or any Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Content: (i) you will not monitor, gather, copy, or distribute such Content (except as may be a result of standard search engine activity or use of a standard browser) on UVO eServices by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any 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 not 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 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 as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of KMA or, in the case of Content from a licensor, 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 UVO eServices and Content. KMA may immediately suspend or terminate the availability of UVO eServices and Content (and any elements and features of them) for any reason, in KMA’s sole discretion, and without advance notice or liability.
D. Reservation of All Rights Not Granted as to Content and UVO eServices. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access UVO eServices. 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 KMA and its licensors and other third parties. Any unauthorized use of any Content or UVO eServices for any purpose is prohibited.
6. SPECIAL INFORMATION ABOUT SERVICE AND HARDWARE LIMITATIONS.
A. Availability. UVO eServices are only available in the fifty (50) United States and the District of Columbia. Many of UVO eServices App’s key features work through your mobile Device’s wireless communication network. SOME FEATURES AVAILABLE THROUGH UVO eSERVICES APP MAY NOT BE AVAILABLE IF YOUR DEVICE DOES NOT HAVE WIRELESS SERVICE, PARTICULARLY IN REMOTE OR ENCLOSED AREAS. The area that you are driving in may affect the type or quality of service that we can provide to you through UVO eServices. There are other problems we cannot control that may prevent us from providing UVO eServices to you at any particular time or place, or that may impair the quality of UVO eServices. Some examples are hills, tall buildings, tunnels, weather, damage to important parts of your Vehicle in an accident, or wireless network congestion or unavailability.
B. Maps and Navigation. If UVO eServices App interacts with any navigation capabilities included on your Vehicle, the routing and map data that we provide to you is based on the current map information available to us which may be provided by a third party such as through the incorporation of the Google Maps API, and may be inaccurate or incomplete. For example, our routing and map data may not include information about one-way roads, turn restrictions, construction projects, seasonal roads, detours or new roads. It may suggest using a road that is now closed for construction or a turn that is prohibited by signs at the intersection. In addition, traffic, weather and other events may cause road conditions to differ from the results generated. Therefore, you should always use good judgment, obey traffic and roadway laws and instructions and evaluate whether it is safe and legal based on current traffic, weather and other conditions to follow the directions provided. Additionally, if you utilize map or navigation functionality we make available through the UVO eServices, you acknowledge and agree to be bound by Google, Inc.’s Terms of Service (see: www.google.com/intl/en/policies/terms).
C. Outside Our Control. KMA is not responsible for any delay or failure in performance if such failure or delay could not have been prevented by reasonable precautions. Additionally, KMA is not responsible if such failure or delay is caused by acts of nature, or forces or causes beyond our reasonable control. Examples include public utility electrical failure, acts of war, government actions, terrorism, civil disturbances, labor shortages or difficulties (regardless of cause), or equipment failures including Internet, computer, telecommunication or other equipment or technology failures.
D. Software, Hardware and Equipment Updates. Some portions of UVO eServices such as the UVO eServices App may include software that we may need to change from time to time. We may do this remotely in various manners and potentially without notifying you first or through a push notification to your Device. Such changes may affect or erase data you have stored on in your MyUVO Account. We are not responsible for any lost data. You do not own UVO eServices software or acquire any rights to use or modify UVO eServices software on your own. Your Vehicle’s UVO eServices Hardware may also include software that KMA may need to change from time to time. You agree to allow this to be done through a recall without cost to you.
7. SPECIAL INFORMATION ABOUT CERTAIN SERVICES.
Not all of these services may be available, but if they are, the following applies:
A. Crash Notification Assist. UVO eServices may attempt to automatically connect you to certain Service Providers such as 911, the police, fire department, or ambulance service in the event of airbag deployment in your Vehicle. In such an event, after a ten (10) second delay (during which time you have the option to cancel the call), UVO eServices will use reasonable efforts to contact appropriate Service Providers to help you but it cannot be promised that any Service Providers will respond in a timely manner or at all. The laws in some places require an emergency to be confirmed before emergency Service Providers will provide service. If UVO eServices connect you with a Service Provider, you or the occupants of your Vehicle may need to confirm that an emergency exists. YOUR MOBILE DEVICE HAS TO HAVE WIRELESS SERVICE IN ORDER FOR THE CRASH NOTIFICATION ASSIST FEATURE TO OPERATE.
B. My Car Zone Features: Curfew Alerts, Geo-Fence, Parking Minder & Speed Watch. The My Car Zone features help you stay up to date on your Vehicle’s location and other Vehicle information while away from your Vehicle. Through UVO eServices Hardware, you can opt through the settings we make available to use certain features such as the curfew alert, geo-fence and speed watch. For example, curfew limits in terms of time stamps and GPS coordinates through geo-fencing (a predetermined area plotted in the navigation system) can be set. If the Vehicle leaves that area or is used outside of predetermined hours, you will receive a detailed alert on your Device the next time you pair your Device with the Vehicle via Bluetooth® wireless technology. The speed watch function also allows you to set a predetermined maximum speed for your Vehicle, and receive an alert next time you pair your Device with the Vehicle if exceeded. You agree to inform other users and occupants of your Vehicle about UVO eServices and system features (including information collected through UVO eServices) and obtain their consent to collect information about their use of the Vehicle and take responsibility for their actions and their compliance with these Terms. You agree to indemnify, defend and hold us harmless for any failure of other users and occupants of your Vehicle to comply with these Terms.
C. Content-Based Services. The information available via content-based services (e.g., maps, navigation and guidance, POI search and download, traffic, charging station location data available in connection with Kia electric vehicles) is limited to that information which is available in the databases of the Service Providers selected by us, which may or may not be complete or accurate at all times. Use common sense when relying on information provided. For example, UVO EV Services available for Kia electric vehicles may offer functionality that allows a user to find a Vehicle charging station. However, the availability and accuracy of the information provided are dependent upon many factors. In order to receive accurate information on Vehicle charging station locations, you must maintain a Sirius XM satellite radio subscription with continuous service/data availability or otherwise purchase updates at an additional cost from your local Kia dealer. Even if you have current satellite service/data availability, charging station location information provided through UVO EV Services may still be out of date because location information is not updated regularly. You should check the availability of any charging station you plan to utilize before you begin your trip. KMA is not responsible or liable for any claims, damages or liability in the event you do not have the most current or accurate information available and/or are unable to reach a charging station and you are stranded for any reason.
D. Location Sharing. You understand that when UVO eServices are active in your Vehicle, your Vehicle’s location information will be sent to all persons/Devices you have designated in your preferences via UVO eServices and you consent to the delivery and sharing of such location information.
E. Diagnostic Information/Maintenance Alerts. If UVO eServices identifies an issue through its automatic diagnostics function, it will communicate your Vehicle’s issue and location to the KMA Consumer Affairs team or recommend that you schedule an appointment with a Kia dealership. Additionally, through UVO eServices Hardware, you can opt through the settings to run manual or regularly scheduled diagnostic tests of your Vehicle (e.g., once a month). Your Vehicle may only send diagnostic trouble codes to UVO eServices that result in a dashboard warning light. In some instances, multiple codes may be generated for the same occurrence. The current diagnostic status of your Vehicle presented online and in your monthly vehicle report may be delayed. You should visit a qualified repair facility for a complete and current diagnostic status of your Vehicle. You authorize KMA to maintain and send diagnostic information to Kia dealers. This service is provided to you as a courtesy for your convenience only and the Vehicle owner is responsible for maintaining the Vehicle in accordance with the schedule published in the owner’s manual.
8. YOUR RESPONSIBILITIES.
A. Passwords/PINs. You promise to be fully responsible for the protection of your password/PINs. Anyone who has access to your password or PINs may be able to access UVO eServices and your MyUVO Account, and we have no responsibility for nor obligation to inquire about the authority of anyone using your password/PINs or other information that can be used to identify your MyUVO Account to request UVO eServices for your Vehicle.
B. Proper Use of UVO eServices. You are responsible for ensuring safety and compliance with all regulations, ordinances and other laws applicable to your Vehicle. You promise to use emergency services only for actual emergencies. You promise not to use UVO eServices for any fraudulent, unlawful, or abusive purpose, or in any way that is not described in materials provided by us to you or that interferes with our, or our Service Providers’, provision of services to you or to our other customers. You promise you will not abuse or do anything to damage our business operations, services, reputation, employees or facilities. If you do any of these things, you agree to indemnify, defend and hold us harmless from and against any and all costs, expenses (including attorneys’ fees), losses, damages and other liabilities which arise from or in connection with a claim or demand that any third party makes against us, which results, in whole or in part, from that use or misuse, or your actions or failure to act.
C. Other Users/Occupants of Your Vehicle. YOU ARE SOLELY RESPONSIBLE FOR ANY USE OF UVO eSERVICES IN YOUR VEHICLE, EVEN IF YOU ARE NOT THE ONE USING IT, AND EVEN IF YOU LATER CLAIM THE USE WAS NOT AUTHORIZED. YOU ARE ALSO SOLELY RESPONSIBLE FOR THE SERVICES REQUESTED BY YOU, OR BY ANYONE USING YOUR VEHICLE. You will take efforts to educate and inform all users and occupants of your Vehicle about UVO eServices and its features and limitations. We have no obligation to inquire about the authority of anyone using your Vehicle. If you, another driver, or a passenger of your Vehicle, uses UVO eServices to commit a crime or for another improper purpose, you agree to indemnify, defend and hold KMA harmless from and against any and all costs, expenses (including attorneys’ fees), losses, damages and other liabilities which arise from such improper use.
9. LINKS BY YOU TO UVO eSERVICES. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the websites that are a part of UVO eServices, so long as: (a) the links only incorporate text, and do not use any trademarked logos or graphics that are owned by or licensed to KMA, (b) the links and the content on your website do not suggest any affiliation with KMA or cause any other confusion, and (c) the links and the content on your website do not portray KMA 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 KMA. KMA reserves the right to suspend or prohibit linking to UVO eServices for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
10. LINKED-TO WEBSITES; ADVERTISEMENTS; DEALINGS WITH THIRD PARTIES.
A. Linked Sites; Advertisements. UVO eServices may contain links, as part of third-party ads on UVO eServices or otherwise, to or from third-party websites (“Linked Sites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with KMA. KMA may have no control over the content, operations, policies, terms, or other elements of Linked Sites or advertisements available through UVO eServices, and KMA does not assume any obligation to review any Linked Sites or third party advertisements. KMA does not endorse, approve, or sponsor any Linked Sites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, KMA is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Sites or advertisements. Finally, KMA will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Sites or advertisements. 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 rules issued by the operator of the Linked Sites. KMA 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 on or through UVO eServices (including on or via Linked Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). KMA disclaims all liability in connection therewith.
11. WIRELESS AND LOCATION-BASED FEATURES.
A. Wireless Features. UVO eServices offer many features and services that are available to you via your wireless mobile Device. These features and services may include the ability to access UVO eServices’ features and upload content to UVO eServices, receive messages from UVO eServices, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees will 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 for, 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 UVO eServices for Wireless Features, then you agree to notify KMA of any changes to your wireless contact information (including phone number) and update your MyUVO Account on UVO eServices to reflect the changes.
12. CONSENT TO COLLECTION, ACCESS, MONITORING AND RECORDING.
A. Monitoring and Recording With Sales, Customer Service Representatives and Interactive Voice Response. For quality assurance and other purposes, we and our Service Providers may monitor and record conversations between service center representatives and your Vehicle’s occupants, as well as any conversations between service center representatives and you or others contacting the service centers to discuss your MyUVO Account outside of the Vehicle. Additionally, we and our Services Providers may collect and store audio files of voices inside your Vehicle when you use certain features of UVO eServices that incorporate voice recognition technologies. YOU CONSENT, ON BEHALF OF YOURSELF, ALL OCCUPANTS OF YOUR VEHICLE, AND ANYONE ENGAGED IN A CONVERSATION WITH US OR A SERVICE PROVIDER ABOUT YOUR VEHICLE OR YOUR MYUVO ACCOUNT, TO THE COLLECTION, MONITORING, STORAGE AND RECORDING OF ALL CONVERSATIONS BETWEEN THE SERVICE CENTER REPRESENTATIVES AND SUCH PERSONS AND YOU RELEASE KMA FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES AND LOSSES THAT MAY RESULT FROM ANY SUCH MONITORED AND/OR RECORDED CONVERSATIONS. Call recordings may be shared with Kia dealers and other Service Providers. KMA may also be legally required to provide location data and other information obtained through UVO eServices Hardware to law enforcement agencies. YOU RELEASE KMA FROM AND AGAINST ANY AND ALL CLAIMS OR LIABILITIES ARISING OUT OF THE DISCLOSURE OF INFORMATION UNDER THOSE CIRCUMSTANCES.
13. NO WARRANTIES. Warranties are special kinds of promises. Your UVO eServices Hardware may be covered by your Vehicle’s warranty so please check your warranty for details about specifically what is covered. HOWEVER, YOUR VEHICLE’S WARRANTY does not cover UVO eServices App, which is provided to you on an “as is” and “where is” basis, without any warranty of any kind, express or implied. IN ADDITION, KMA CANNOT PROMISE UNINTERRUPTED OR PROBLEM-FREE SERVICE, AND CANNOT PROMISE THAT THE DATA OR INFORMATION PROVIDED TO YOU WILL BE ERROR-FREE. ALL DATA AND INFORMATION IS PROVIDED TO YOU ON AN “AS IS” BASIS. KMA HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ABOUT UVO eSERVICES HARDWARE, UVO eSERVICES, AND ANY DATA AND INFORMATION AND SERVICES PROVIDED THROUGH IT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO CONTENT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, CORRECTNESS, RELIABILITY, NON-INFRINGEMENT, MERCHANTABILITY, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, FREEDOM FROM COMPUTER VIRUS OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED BY THESE TERMS.
14. LIMITATIONS OF LIABILITY. YOU AND WE ARE EACH WAIVING IMPORTANT RIGHTS. UNLESS FORBIDDEN BY LAW IN A PARTICULAR INSTANCE, WE EACH AGREE AS FOLLOWS:
A. WE ARE NOT LIABLE FOR THE ACTIONS OR INACTIONS OF ANY SERVICE PROVIDER WE CONTACT FOR YOU OR YOUR VEHICLE, OR FOR OUR INABILITY TO CONTACT ANY SERVICE PROVIDER IN ANY PARTICULAR SITUATION.
B. WE ARE NOT LIABLE TO YOU FOR: (1) ANY INJURIES TO PERSONS OR PROPERTY ARISING OUT OF OR RELATING TO YOUR OR THE OCCUPANTS OR YOUR VEHICLE’S USE OF UVO eSERVICES, INCLUDING THE FEATURES AVAILABLE THROUGH UVO eSERVICES, OR (2) ANY DAMAGES ARISING OUT OF OR RELATING TO THE INSTALLATION, REPAIR, OR MAINTENANCE OF UVO eSERVICES HARDWARE.
C. THE MAXIMUM AGGREGATE LIABILITY OF KMA TO YOU UNDER ANY THEORY (INCLUDING, BUT NOT LIMITED TO, FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, OR PRODUCTS LIABILITY) IS LIMITED TO TEN DOLLARS (U.S. $10.00). YOU AGREE THAT KMA WOULD NOT HAVE AGREED TO PROVIDE UVO eSERVICES TO YOU IF YOU DID NOT AGREE TO THIS LIMITATION. THIS AMOUNT IS THE SOLE AND EXCLUSIVE LIABILITY OF KMA AND ANY OTHER THIRD PARTY BENEFICIARIES TO YOU, AND IS PAYABLE AS LIQUIDATED DAMAGES AND NOT AS A PENALTY.
D. WE HAVE NO LIABILITY FOR SERVICE INTERRUPTIONS. NO ONE, INCLUDING, WITHOUT LIMITATION, KMA AND OUR SERVICE PROVIDERS, IS LIABLE TO YOU FOR DROPPED CALLS OR INTERRUPTED SERVICE (EXCEPT CALL CREDIT OFFERED BY A TELEMATICS SERVICE PROVIDER (IF ANY)), OR FOR PROBLEMS CAUSED BY OR CONTRIBUTED TO BY YOU, BY ANY THIRD PARTY, BY BUILDINGS, HILLS, TUNNELS, NETWORK CONGESTION, ATMOSPHERIC CONDITIONS, WEATHER, UNAVAILABILITY OF OR LACK OF UP-TO-DATE CHARGING STATION LOCATION INFORMATION FOR KIA ELECTRIC VEHICLES, OR ANY ISSUES KMA OR OUR SERVICE PROVIDERS ARE UNABLE TO CONTROL. UNDER NO CIRCUMSTANCES WILL KMA OR ITS SERVICE PROVIDERS BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES 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 UVO eSERVICES (INCLUDING THE CONTENT); YOUR USE OF OR INABILITY TO USE UVO eSERVICES, OR THE PERFORMANCE OF UVO eSERVICES; ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY KMA OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR ACCESS TO OR USE OF UVO eSERVICES; ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS OR OTHER RIGHTS OWNERS; ANY ERRORS OR OMISSIONS IN UVO eSERVICES’ TECHNICAL OPERATION; OR ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, SOFTWARE, MODEM, OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING DAMAGE FROM ANY SECURITY BREACH, VEHICLE HACKING EVENT OR FROM 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 FORM OF LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR EQUIPMENT FAILURE OR MALFUNCTION.
E. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, YOU AGREE TO EXCUSE ANY NON-PERFORMANCE BY US CAUSED, IN WHOLE OR IN PART, BY AN ACT OR OMISSION OF A THIRD PARTY, OR BY ANY EQUIPMENT FAILURE, ACT OF GOD, NATURAL DISASTER, STRIKE, EQUIPMENT OR FACILITY SHORTAGE, OR OTHER CAUSES BEYOND THE CONTROL OF KMA.
F. YOU AGREE THAT KMA IS NOT LIABLE FOR ANY ERRORS, UNAVAILABILITY, DEFECTS, PROBLEMS, OR MISTAKES IN DATA OR INFORMATION TRANSMITTED THROUGH UVO eSERVICES.
G. You agree that the limitations of liability and indemnities in these Terms will survive even after you no longer access UVO eServices has ended or you no longer have your Vehicle. These limitations of liability apply not only to you, but to anyone using your Vehicle, to anyone making a claim on your behalf, and to any claims made by your family, employees, customers, or others arising out of or relating to UVO eServices.
NOTE: Some states do not allow an exclusion or limitation of incidental or consequential damages or certain other damages, so some of the limitations above may not apply in some situations.
15. NOT INSURANCE. UVO eServices are provided by KMA as a convenience. We are not an insurance company. You promise you will obtain and maintain appropriate insurance covering personal injury, loss of property, and other risks. FOR YOURSELF AND FOR ANYONE ELSE CLAIMING UNDER YOU, YOU HEREBY RELEASE AND DISCHARGE KMA FROM AND AGAINST ALL HAZARDS COVERED BY YOUR INSURANCE. NO INSURANCE COMPANY OR INSURER WILL HAVE ANY RIGHT OF SUBROGATION AGAINST KMA.
16. YOUR RESPONSIBILITY FOR ANY THIRD PARTY CLAIMS. IN ORDER TO RECEIVE ANY OF THE UVO eSERVICES, YOU AGREE THAT YOU WILL INDEMNIFY, DEFEND AND HOLD KMA HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, JUDGMENTS, FINES, PENALTIES, SETTLEMENTS, INTEREST AND AMOUNTS ANYONE ELSE, INCLUDING, WITHOUT, LIMITATION, OTHER PEOPLE’S USE OF UVO eSERVICES WHO ARE OCCUPANTS OF YOUR VEHICLE, CLAIMS FROM US, PLUS ANY AND ALL COSTS AND EXPENSES WE MAY INCUR (INCLUDING REASONABLE OUTSIDE ATTORNEYS’ FEES), RESULTING FROM ANY CLAIM, DEMAND OR ACTION, REGARDLESS OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND, OR ACTION ALLEGING LOSS, COSTS, EXPENSES, DAMAGES, OR INJURIES (INCLUDING INJURIES RESULTING IN DEATH) ARISING OUT OF OR IN CONNECTION WITH: (1) YOUR BREACH OR ANTICIPATORY BREACH OF THESE TERMS OR ANY ADDITIONAL TERMS; (2) THE ACTIVITIES CONTEMPLATED BY THESE TERMS OR UVO eSERVICES, WHETHER BROUGHT BY YOU, THE OCCUPANTS OF YOUR VEHICLE, YOUR EMPLOYEES, OR THIRD PARTIES, EVEN IF DUE TO THE SOLE NEGLIGENCE OF KMA OR ANY OF THE SERVICE PROVIDERS; (3) THE USE OR POSSESSION OF DATA OR INFORMATION PROVIDED IN CONNECTION WITH UVO eSERVICES; (4) CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING OUT OF OR RELATED IN ANY WAY DIRECTLY OR INDIRECTLY TO THESE TERMS; (5) YOUR VIOLATION OR ANTICIPATORY VIOLATION OF ANY LAWS, RULES, REGULATIONS, CODES, STATUTES, ORDINANCES, OR ORDERS OF ANY GOVERNMENTAL OR QUASI-GOVERNMENTAL AUTHORITIES IN CONNECTION WITH YOUR USE OF UVO eSERVICES OR YOUR ACTIVITIES IN CONNECTION WITH UVO eSERVICES; (6) 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; (7) ANY MISREPRESENTATION MADE BY YOU; (8) THE USE, FAILURE TO USE, OR INABILITY TO USE UVO eSERVICES, EXCEPT WHERE THE CLAIMS RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF KMA OR ANY OF THE SERVICE PROVIDERS; AND (9) YOUR FAILURE TO COMPLY WITH ALL OF YOUR OBLIGATIONS HEREUNDER, INCLUDING, WITHOUT LIMITATION, FAILURE TO GET THE CONSENT OF OTHERS IN YOUR VEHICLE TO MONITOR AND RECORD ACTIVITIES WITHIN THE VEHICLE (COLLECTIVELY, “CLAIMS AND LOSSES”). You will cooperate as fully required by KMA in the defense of any Claim and Losses. Notwithstanding the foregoing, KMA retains the exclusive right to settle, compromise, and pay any and all Claims and Losses. KMA reserves 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 an officer of KMA.
17. RESOLVING DISPUTES. Certain portions of this Section 17 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and KMA agree that we intend that this Section 17 satisfies the “writing” requirement of the Federal Arbitration Act.
A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to UVO eServices, the Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of KMA’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 17(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 17(A). Your notice to us must be sent to: Kia Motors America, Inc., 111 Peters Canyon Road, Irvine, CA 92606, Attn: Legal Department. For a period of sixty (60) days from the date of receipt of notice from the other party, KMA and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or KMA to resolve the Dispute or Excluded Dispute on terms with respect to which you and KMA, in each of our sole discretion, are not comfortable.
B. Forums for Alternative Dispute Resolution.
(i) Arbitration. If we cannot resolve a Dispute as set forth in Section 17(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section 17(B). If we cannot resolve an Excluded Dispute as set forth in Section 17(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and KMA consent, in a writing signed by you and an Officer or legal representative of KMA, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 17(B).
Upon expiration of the applicable sixty (60)-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if KMA elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party-appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and KMA do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 17(B)(i), then this paragraph and the remainder of this Section 17(B) will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an Officer or legal representative of KMA consent to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for a the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
(ii) Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of these Terms (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require KMA to pay a greater portion or all of such fees and costs in order for this Section 17 to be enforceable, then KMA will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 17(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief. The foregoing provisions of this Section 17 will not apply to any legal action taken by KMA to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to UVO eServices, any Content and/or KMA’s intellectual property rights (including such KMA may claim that may be in dispute), KMA’s operations, and/or KMA’s products or services.
E. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 17(G).
F. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 17(B)(i) holds that this restriction is unconscionable or unenforceable, then our agreement in Section 17(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 17(G).
G. Federal and State Courts in Orange County. Except to the extent that arbitration is required in Section 17(B), and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Orange County, California. Accordingly, you and KMA consent to the exclusive personal jurisdiction and venue of such courts for such matters.
H. Applicable Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California, without regard to its conflicts of law provisions.
18. WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF. IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF UVO eSERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, CONTENT, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY KMA OR A LICENSOR OF KMA.
19. GENERAL PROVISIONS.
A. Updates to Terms. KMA reserves the right to prospectively modify these Terms and any Additional Terms (“Updated Terms”), which will be applicable only to UVO eServices use and new transactions. This means the old terms will continue to govern use and transactions that occurred before the changes. You agree that we may notify you of the Updated Terms by posting them on UVO eServices so that they are accessible via a link on the UVO eServices, and that your use of UVO eServices after we post the Updated Terms (or otherwise reasonably notify you of the Updated Terms) constitutes your agreement to the Updated Terms with regard to your continued use of UVO eServices and any new transactions with us to which the Updated Terms apply. Therefore, you should review these Terms and any Additional Terms on a regular and frequent basis. The Updated Terms will be effective as of the time that we post them on UVO eServices unless a later date is specified in them or any other notice to you.
B. Communicating with Each Other. ANY WRITTEN NOTICE FROM YOU REQUIRED BY THESE TERMS WILL BE CONSIDERED GIVEN WHEN WE RECEIVE IT AT OUR ADDRESS PROVIDED IN SECTION 17 OF THESE TERMS. ANY WRITTEN NOTICE FROM US REQUIRED BY THESE TERMS WILL BE CONSIDERED GIVEN WHEN WE SEND IT BY EMAIL TO ANY EMAIL ADDRESS YOU'VE PROVIDED TO US, OR TWO (2) DAYS AFTER WE MAIL IT TO YOU AT THE MOST CURRENT HOME ADDRESS WE HAVE ON FILE FOR YOU. Any oral notices will be considered given when we call you or when you call KMA Consumer Affairs at: 1-800-333-4542. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
C. Others Covered by these Terms. EACH OF THE PERSONS/ENTITIES LISTED IN THE FIRST PARAGRAPH OF UNDER THE FULL DETAILS OF THE TERMS IS BOUND BY THIS AGREEMENT. YOU AGREE THAT YOU WILL MAKE ALL OF THE OCCUPANTS OF YOUR VEHICLE, WHETHER PASSENGERS, GUESTS OR DRIVERS OF YOUR VEHICLE, AWARE OF OUR RIGHTS AND SUBJECT TO THE LIMITATIONS OF THESE TERMS.
D. Our Relationship. Despite anything else these Terms say, these Terms do not create any fiduciary relationships between you and us. It also does not create any relationship of principal and agent, partnership, or employer and employee.
E. Assignment. We can assign these Terms, in whole or in part, to anyone we choose. You cannot assign these Terms or your obligations to anyone else without our prior written consent and any attempted assignment in violation of this provision shall be void.
F. KMA’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grants KMA a right of consent or approval, or permits KMA to exercise a right in its “sole discretion,” KMA may exercise that right in its sole and absolute discretion. No KMA consent or approval may be deemed to have been granted by KMA without being in writing and signed by an officer of KMA.
G. Investigations; Cooperation with Law Enforcement; Termination; Survival. KMA reserves the right, without any limitation, to: (i) investigate any suspected breaches of UVO eServices and Vehicle security or its information technology or other systems or networks; (ii) investigate (including access) and use any information collected through UVO eServices in any warranty or other type of claim or in any dispute with you (e.g., in the instance you fail to follow any recommended maintenance notifications provided by or through UVO eServices and we determine that your Vehicle is no longer eligible for warranty service); (iii) investigate any suspected breaches of these Terms and any Additional Terms; (iv) investigate (including access) any information obtained by KMA in connection with reviewing law enforcement databases or complying with criminal laws; (v) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters (including, without limitation, providing information to law enforcement authorities collected by UVO eServices); (vi) prosecute violators of these Terms and any Additional Terms; and (vii) discontinue UVO eServices, in whole or in part, or, except as may 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 KMA under these Terms or any Additional Terms. Upon suspension or termination of your access to UVO eServices, or upon notice from KMA, 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 UVO eServices. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to KMA 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.
H. Operation of UVO eServices; Availability of Products and Services; International Issues. KMA controls and operates UVO eServices from its U.S.-based offices in the U.S.A., and KMA makes no representation that UVO eServices is appropriate or available for use beyond the U.S.A. If you use UVO eServices 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. UVO eServices may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of UVO eServices and/or the provision of any content, program, product, service, or other feature described or available on UVO eServices to any person, entity, geographic area, or jurisdiction, at any time and in our sole 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.
I. Export Controls. Software related to or made available by UVO eServices may be subject to export controls of the U.S.A. No software from UVO eServices may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (i) – (iii) above. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties.
J. U.S. Government Restricted Rights. If you are a government end user, then this provision applies to you. UVO eServices provided in connection with these Terms have been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer site” and/or “commercial computer site documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212 and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms.
K. 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 UVO eServices.
L. Miscellaneous Provisions. These Terms (which includes, without limitation, any other Additional Terms) is the entire agreement between you and us. It supersedes all other agreements or representations, oral or written, between us, past or present. These Terms will not be presumptively construed for or against either party. Section titles contained herein are for convenience only. 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). Even after these Terms have ended, its provisions will govern any Disputes arising out of or relating to it (unless it has been replaced by a new agreement between us). It will also be binding on your heirs and successors and on our successors and assigns. No waiver of any part of these Terms, or of any breach of it, in any one instance will require us to waive any other instance or breach. IN SOME CIRCUMSTANCES WE MIGHT DECIDE TO PROVIDE YOU SERVICE VOLUNTARILY EVEN IF YOU WOULD NOT OTHERWISE QUALIFY. THIS WILL NOT BE DEEMED A WAIVER OR REQUIRE US TO DO SO AGAIN. YOU AGREE WE WILL NOT BE LIABLE FOR ANYTHING RESULTING FROM OUR PROVISION OF SUCH SERVICE.
20. THIRD PARTY TERMS APPLICABLE TO UVO eSERVICES.
A. Apple Terms. If you are accessing or using the UVO eServices App through a Device manufactured and/or sold by Apple, Inc. (“Apple”), with such Device herein referenced as an “Apple Device”, the following additional terms and conditions are applicable to you and are incorporated into the Terms by this reference:
i. To the extent that you are accessing UVO eServices App through an Apple Device, you acknowledge that these Terms are entered into between you and KMA and, Apple is not a party to these Terms other than as third party beneficiary as contemplated below.
ii. The license granted to you in Section 4 of these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to UVO eServices App.
iii. You acknowledge that KMA, and not Apple, is responsible for providing UVO eServices App and Content thereof.
iv. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance any support services to you with respect to UVO eServices App.
v. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to UVO eServices App.
vi. Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and KMA, KMA, and not Apple is responsible for addressing any claims you may have relating to UVO eServices App, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that UVO eServices App fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
vii. Further, you agree that if UVO eServices App, or your possession and use of UVO eServices App, infringes on a third party's intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
viii. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
ix. When using UVO eServices App, you agree to comply with any and all third party terms that are applicable to any platform, website, technology or service that interacts with UVO eServices App.
x. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
B. Verizon Terms. If you are accessing or using the telematics services provided through UVO eServices, the following additional terms and conditions are applicable to you and are incorporated into the Terms by this reference:
i. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE CARRIER AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN KMA OR ITS AFFILIATE(S) AND THE UNDERLYING CARRIER. IN ADDITION, YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE UNDERLYING CARRIER SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR.
ii. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF ANY INFORMATION AVAILABLE THROUGH THE UVO ESERVICES, INCLUDING, WITHOUT LIMITATION, ANY TELEMATICS SERVICES PROVIDED TO YOU AS PART OF THE UVO ESERVICES, IS AT YOU OWN RISK AND RESPONSIBILITY.
iii. YOU ACKNOWLEDGE THAT EXCEPT AS REQUIRED BY LAW, YOU ACQUIRE NO PROPRIETARY INTEREST IN THE NUMBER ASSIGNED BY KMA OR VERIZON FOR YOUR USE IN CONNECTION WITH THE UVO ESERVICES.