ONECOMMAND -- KIA OWNER RETENTION EXPERIENCE (KORE) PROGRAM
TERMS and CONDITIONS
By accessing this Website and utilizing the features and products herein, Dealer hereby agrees as follows:
1. FTC and Other DNC Registrations
Dealer hereby authorizes OneCommand, in connection with the KORE Program Services ("OneCommand"), to annually (or more frequently as required by applicable law) register Dealer with the FTC Do Not Call Registry and the do not call registry of each state identified by Dealer in its subscription agreement (collectively, "DNC Registration") so that Dealer is authorized to obtain the FTC and each such state's DNC lists, and Dealer agrees to reimburse OneCommand (via charges to Dealer's Kia Dealer Parts Statement Account handled by Kia Motors America, Inc. ("KMA")) for all charges imposed by said governmental agencies for said registrations.
Use of the Services/Adoption of Telephone Solicitation Policy. Dealer acknowledges receipt of OneCommand's KORE Telephone Solicitation Policy (the "Policy"). Prior to using the Services, Dealer agrees to take any and all action necessary to adopt and enforce the Policy , the terms of which are hereby incorporated into this Agreement. Dealer may amend the Policy for its use in connection with the Services, but only according to terms which, upon application to the Services, would be in compliance with applicable laws and only where such amendment is more restrictive than the terms provided in the Policy and/or applicable law (whichever is more restrictive). Dealer shall provide timely written notice of any changes to the Policy to OneCommand. Dealer acknowledges that telephone solicitation is regulated pursuant to federal and state law, and any modifications made by Dealer to the Policy which are less restrictive than applicable law may be in violation of such law. Dealer agrees to comply with all applicable federal and state laws when using the Services, including laws that apply in the state where Dealer calls using the Services are made, as well as laws that apply in states where Dealer calls using the Services are received. Dealer agrees to take reasonable steps, independent of OneCommand and KMA, to stay informed as to applicable state and federal laws as it applies to Dealer's use of the Services. Dealer further agrees that all marketing and other campaigns designed for use with the Services shall be designed solely by Dealer, subject to technical support and a help line that may be available from time to time through OneCommand. Dealer shall have access to recommended best of class scripts of OneCommand in the design of Dealer's KORE consumer telephone campaign by Dealer. Dealer’s failure to strictly follow and enforce the Policy and/or failure to operate in connection with applicable law shall be grounds for termination of this Agreement by OneCommand. No Services fees shall be refundable pursuant to a termination as a result of a violation of this Section, and Dealer agrees to pay, in addition to any other damages resulting from such violation, all remaining Services fees due or to become due through the remainder of the then existing Term as defined in the Agreement. Dealer further covenants to OneCommand to promptly notify OneCommand in writing of all requests that Dealer receives from consumers to be included on Dealer's no-call list, so that the Services will not permit calls to be made to such consumer in respect of the Services. Dealer hereby agrees and acknowledges that OneCommand, or a third party designated by OneCommand, may review and evaluate digitized telephone calls arising from the Services to Dealer's Dealers for internal quality assurance or at Dealer’s request, and may utilize and publish call traffic statistics without identifying Dealer.
Dealer acknowledges and understands that there are strict legal limitations on the sending of pre-recorded or text messages to wireless phone and other wireless devices. Dealer certifies that no calls or text messages will be made to a wireless phone or other wireless device in respect of the Services, unless Dealer has first received advance written consent from each proposed consumer recipient, which consent complies with applicable law. OneCommand agrees that it shall never override the FTC's, any states' or Dealer's specific Do Not call list or KMA's do not call list in performing the Services.
E-Mail/Text Message Policies
Dealer agrees to abide by all applicable laws and OneCommand policies (as such policies may be adopted or amended by OneCommand from time to time and either posted on the KORE Website (in which case the revisions shall be effective 30 days thereafter) or provided by OneCommand to Dealer in writing) regarding the use of the Services to transmit any electronic mail (e-mail) or text message to consumers (collectively, each a “Message”). OneCommand's policies in this regard include but are not limited to the following:
Dealer agrees that it will not use the Kore Services to transmit any Message that:
· is obscene, or defamatory or violates any intellectual property rights or any other rights of any third party;
· facilitates or promotes violent, discriminatory or illegal activity;
· contains any sexually explicit content or images or other image that may be harmful to minors;
· promotes pyramid schemes;
· is false, misleading, or likely to mislead or deceive (including, without limitation, information relating to the source or the author of the message);
· contains viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
· violates any state, federal or other laws, including without limitation, the CAN-SPAM Act or any other applicable anti-spam law or law prohibiting the sending of unsolicited text messages.
Dealer will not utilize the Services to transmit any Messages in text form to a wireless phone or wireless device to any consumer unless Dealer has obtained such consumer's express consent to receive such Messages. Dealer must also provide all Message recipients with the ability to opt-out of receiving future Messages from Dealer as follows:
· by sending a Message to Dealer with “stop” (regarding Text OneCommand) or “unsubscribe" (regarding Email OneCommand), in the text; and
· via the same mechanism as the recipient consents (or opts-in) to receiving Messages from Dealer. Dealer must include a prominent description of the opt-out mechanism at the same location and time as Dealer provides the recipient an opportunity to consent/opt-in. Dealer will not send any Messages to any consumers who have chosen to opt-out of receiving Messages from Dealer.
2. Intellectual Property.
Password Usage/Consumer Information.
Dealer agrees to take strict measures to protect the security of its assigned password for this KORE Website, and agrees that all consequences resulting from Dealer’s use of said password shall be the sole responsibility of Dealer. Dealer is solely responsible for all information submitted through the Services via its assigned password. Dealer represents, warrants and covenants to OneCommand that any and all information of Dealer's customers or other persons which is provided to OneCommand by Dealer hereunder in connection with the Services or used through the Services by Dealer is provided by Dealer in compliance with all applicable laws, including without limitation consumer privacy laws. Dealer may not rent, disclose, publish, sell, assign, lease, sublicense, market or transfer any content of the Services nor use the Services in any manner not expressly authorized by this Agreement. OneCommand will not resell Dealer’s proprietary or customer information ("Dealer's Data"). OneCommand will not reveal Dealer’s Data to any third party, other than a third party performing services under the terms of the Agreement ; without the express, written consent of the Dealer. Dealer acknowledges that any reports obtained from this Website in connection with the Services are solely for use by Dealer and its employees or agents. Dealer’s distribution or resale of such information is prohibited.
Date Retrieval Agreement.
Dealer agrees that as a condition to activation and/or continuation of the KORE Services hereunder, Dealer will agree to OneCommand's and/or applicable third party terms regarding data retrieval. Dealer acknowledges that OneCommand's access terms have been provided to Dealer (as set forth in the DMS access form executed by Dealer), and that such terms may be modified from time to time by OneCommand or applicable third party provider upon notice to Dealer.
OneCommand KORE Subscription Agreement
1. License of KORE Products and Services
OneCommand hereby grants to Dealer, and Dealer hereby accepts from OneCommand a non-transferable, non-exclusive license to access and use, via an exclusive password, the KORE Program products and services listed on the first page of this Agreement and such other Services as are provided to the Dealer from time to time subject to the terms and conditions set forth in this Agreement (the “License”). This License is restricted to use by Dealer for Dealer’s own internal business purposes. It does not extend to any parent, subsidiary, affiliate, separate roof top or any other person or entity. Dealer shall have no right to sublicense, distribute or otherwise transfer or permit usage of the Services by any other person except as expressly authorized and contemplated hereunder. Title to the Services and all rights of copyright, patent or other intellectual property therein are and shall at all times remain solely and exclusively with OneCommand. Dealer shall keep this License free and clear of all liens, claims and encumbrances.
2. Term and Termination
The term of this Agreement and the License granted hereunder shall commence on the Effective Date and shall continue for the period set forth on the face of this Agreement, or, if no such period is provided, shall continue for a period of one (1) year (the “Term”). The Term shall automatically renew for one year at the end of each then current term at OneCommand's then current rates for the KORE Program, unless Dealer provides written notice of termination to OneCommand within thirty (30) days of the end of the then current Term. This Agreement and the License shall also terminate at the option of OneCommand in the event of breach by Dealer of the terms of this Agreement, upon written notice thereof from OneCommand to Dealer and exhaustion of a 30-day period to cure said breach without cure. The termination of this Agreement (for whatever reason) shall not terminate any liability or obligation of Dealer hereunder which accrues prior to such termination, including, without limitation, Dealer’s obligation to pay any amounts due to OneCommand through the end of the then current Term or liability for loss or damage on account of such breach. Upon termination, Dealer shall cease using the Services, as well as all confidential information and other information, documentation and processes of OneCommand. OneCommand also may terminate this Agreement immediately upon written notice to Dealer upon Dealer's use of the Services in violation of this Agreement or otherwise in a manner that could reasonably harm the reputation of the Services or the reputation of OneCommand or any of its officers, managers, directors or owners. Dealer may not terminate this Agreement other than due to breach of this Agreement by OneCommand. In the event of breach of this Agreement by OneCommand, Dealer may terminate this Agreement after providing written notice of the breach to OneCommand and exhaustion of a 30-day period for OneCommand to cure said breach without cure. If Dealer terminates this Agreement early without cause, then all unpaid balances and the remaining unbilled term of the Agreement are due and payable effective immediately. If OneCommand terminates this Agreement and the License early for reasons other than breach of this Agreement or damage to reputation by Dealer, One Command agrees to refund to Dealer remaining license fees received in advance from Dealer. Unless agreed otherwise in writing by the parties, the term of any products and services which are included in the OneCommand KORE package shall be conterminous with the Term of this Agreement.
3. Payment of Fees
Dealer shall pay the Dealer Net Fee applicable to the License package selected by Dealer (as indicated on the first page of this Agreement) to OneCommand, and any other fees payable for other products or services from OneCommand, through KMA's Dealer Parts Statement system ("KMA DPS"), and Dealer consents to the arrangement of KMA serving as OneCommand's billing and collection agent in such regard. The Dealer Net Fee (and any other charges owing to OneCommand) shall be billed to Dealer through the KMA DPS on a monthly basis. If any payment due by Dealer hereunder is past due by fifteen (15) or more days, and if, after OneCommand has notified Dealer, via fax or certified mail, to cure the matter and the past due payment is not remedied within ten (10) days from the Fifteenth (15th) day past due, OneCommand may, in addition to any other remedies of OneCommand, "disconnect" Dealer from the use of the Services. OneCommand will "reconnect" Dealer to the Services upon payment by Dealer (via billing through the KMA DPS) of a $200 reconnection fee and all outstanding payments due to date. Any payment due by Dealer which has not been received by Onecommand within ten (10) days of its due date may be assessed a $50.00 late payment fee. OneCommand reserves the right to pass on to Dealer increases in OneCommand's third party costs and governmental taxes, after written notice of such increase. In addition, Onecommand may at its option, upon thirty (30) days prior written notice to Dealer, implement general price increase applicable to the Services.
4. Intellectual Property. Dealer represents and warrants to OneCommand that in all cases where the trademark, copyright or other intellectual property of a third party is used by Dealer in connection with the Services. Dealer has the written consent of said third party (through ownership rights or a valid, enforceable license) to use said intellectual property in the manner and to the extent so used and in the jurisdiction used. Dealer further represents and warrants to OneCommand that the use of the intellectual property of any third party as contemplated by this Agreement or the Services will not infringe the intellectual property rights of any third party.
5. Additional Intellectual Property Issues. Dealer shall not itself, or permit any third party to, modify, reverse engineer, reverse compile or disassemble the Services in whole or in part, including without limitation the object or source code underlying the Services, nor shall it use the process which is used with the Services or any variation thereof for any reason whatsoever other than as expressly authorized and contemplated by this Agreement. Dealer acknowledges and agrees that all content, products, services, programs and/or technology on the KORE Website is the property of OneCommand, and Dealer shall not claim any interest in such property except as expressly provided and contemplated under this Agreement. Such information may not be copied, distributed, displayed, adapted, modified or made into derivative works, or otherwise used even if merged with other websites, except as expressly authorized and contemplated by this Agreement. Any use of content, code or process without the express written permission of OneCommand or the rightful owner is strictly prohibited. OneCommand reserves any rights not expressly licensed herein. Dealer agrees not to alter or remove any copyright or trademark notice or proprietary legend contained in or on any content. Any trademark, logos and service marks displayed on the KORE Website, whether registered or unregistered are property of their respective owners. Dealer agrees that it will not directly or indirectly infringe on any copyrights or patents or other intellectual property either approved or pending for OneCommand, including without limitation, any attempts to develop a similar or like system that would be competitive with the Services
6. Dealer Equipment/ISP. This License is solely for the use and availability of the Services. Any and all additional items of equipment exclusive of the Services which Dealer may need to access to use this program are not intended to be the subject of this Agreement. Dealer acknowledges that access to the Services is via an internet service provider (“ISP”) static line and that Dealer is responsible for the installation and cost of said line at its place of business. Dealer shall select an ISP of its choice. Dealer acknowledges that OneCommand shall have no responsibility for the quality of service extended to Dealer by its selected ISP. OneCommand recommends that Dealer acquire two ISPs as an added backup to ensure that Dealer’s access to the Services remains uninterrupted.
7. Indemnification. It is the responsibility of Dealer to make all decisions related to the appropriateness of data supplied for use through the Services (whether by telephone, e-mail or text messaging), as well as Dealer’s responsibility to maintain and enforce Dealer’s Telephone Solicitation Policy and the use of the Services in compliance with all applicable laws. Dealer expressly assumes the risk of any error or omission in connection with the information used or transmitted pursuant to this Agreement and the calls made or Messages sent by or on behalf of Dealer. OneCommand agrees to indemnify Dealer in the event that OneCommand sends calls on Dealer’s behalf in violation of applicable law provided that Dealer (i) has followed the terms of the Telephone Solicitation Policy in the form recommended by OneCommand, (ii) have used only scripts exactly as approved in writing by OneCommand, and (iii) have otherwise complied with the terms of this Agreement and followed all applicable federal, state and other laws. In no event shall OneCommand provide indemnification, however, in cases where Dealer has elected to override applicable Do Not Call registries. In addition, Dealer shall indemnify, defend and hold harmless OneCommand, KMA, and their respective managers, officers, directors, employees and owners from and against any and all losses, damages, liability, claims, costs (including reasonable attorneys’ fees and court costs), judgments and other expenses arising out of, or on account of, any breach of this Agreement or the terms of the License or any allegations, incidents or claims related to the use of the Services. The indemnification obligation described above shall survive termination of this Agreement for the applicable statute of limitations period. Notwithstanding the above, phone numbers provided to OneCommand by Dealer will be properly scanned against the most recent Federal Do Not Call registry provided to or obtained by OneCommand as provided hereunder and against other applicable Do Not Call registries that have been specifically subscribed for by Dealer and have been provided to or obtained by OneCommand as provided hereunder. OneCommand shall reimburse Dealer for fines legally required and actually paid to a governmental agency by Dealer where the fine results directly from OneCommand's failure to properly scan a phone number as provided in the immediately preceding sentence.
8. Warranty and Liability Exclusions. Use of the Services is at Dealer’s sole risk. OneCommand does not warrant that the Services will be uninterrupted or error free. OneCommand does not warrant internet security. OneCommand makes no other warranty, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or information security in relation to the use of the Services or any related services. Dealer acknowledges that certain products are provided through software or services of third parties, and ONECOMMAND PROVIDES NO SEPARATE WARRANTIES FOR THIRD PARTY PRODUCTS AND SERVICES, BUT ONECOMMAND AGREES TO ASSIGN ALL SUCH WARRANTIES TO DEALER TO THE EXTENT ASSIGNABLE. With respect to Mail programs, OneCommand does not guarantee any minimum number of Dealer service department visits. In no event shall OneCommand, KMA or their respective officers, managers, directors, employees or owners be liable for damages, claim or loss of Dealer or any other person arising out of the ownership, operation, use or otherwise of the Services, including without limitation compensatory, incidental, indirect, special, consequential or exemplary damages, loss of profits, loss of sales or business, loss of goodwill or damages resulting from lost data or inability to use data, or damages resulting from use of the Services by Dealer and/or any person in violation of applicable law, irrespective of whether OneCommand has been informed of, knew of or should have known of the likelihood of such damages. This limitation applies to all causes of action whatsoever arising out of or in any way related to or connected with this agreement, whether arising from negligence, breach of contract, breach of warranty, strict liability, misrepresentation, or other torts. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN ONECOMMAND AND DEALER, ONECOMMAND’S MAXIMUM LIABILITY TO DEALER WITH RESPECT TO THIS AGREEMENT AND THE SERVICES SHALL BE EQUAL TO THE LESSER OF THE AGGREGATE FEES PAID UNDER THIS AGREEMENT BY DEALER AND RECEIVED BY ONECOMMAND DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE IN WHICH THE FACTS UNDERLYING THE CLAIM FOR INDEMNIFICATION OCCURRED AND $50,000. DEALER WILL NOT USE THE SERVICES TO SEND ANY ELECTRONIC MAIL OR TEXT MESSAGES TO ANY CONSUMER UNLESS CONSUMER DEALER HAS OBTAINED SUCH CONSUNER'S “OPT-IN” CONSENT TO RECEIVE SUCH MESSAGES.
9. No Assignment. Dealer may not assign this Agreement or any of Dealer's rights or obligations hereunder without the prior written consent of OneCommand which may be exercised in the sole discretion of OneCommand. OneCommand may assign this Agreement for any reason, in its sole discretion, including statutory assignments such as merger, and OneCommand’s rights and/or obligations hereunder, including without limitation assignment of amounts due by Dealer to a financial institution, factor or leasing company of OneCommand’s choice.
10. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the United States but without regard to conflicts of law principles thereof. Jurisdiction and venue for any dispute between the parties arising under or involving the terms of this Agreement shall be exclusively in the United States District Court for the Central District of California or courts located in Orange County, California, and the judgment of said courts on any matter may be entered in any court having jurisdiction over a party to this Agreement.
11. Severability. In the event any provision of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected thereby and shall continue to be valid and enforceable and if, for any reason, any applicable authority finds that any provision of this Agreement is invalid, illegal or unenforceable as written, but by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. If it is determined that the Services cannot be used for one or more applications by Dealer as a result of restrictions set forth in applicable law, Dealer agrees to comply with all such restrictions, and such restrictions shall not otherwise impact the terms of this Agreement.
12. Status of Parties. Nothing contained in this Agreement and no action taken by the parties pursuant hereto shall be deemed to constitute the parties as a partnership, an association, joint venture or other entity.
13. Notice. Any notice or demand desired or required to be given hereunder shall be in writing and (unless otherwise specified herein) deemed given when personally delivered (including delivery by commercial overnight courier service), or when deposited in the United States mail, postage prepaid, sent certified or registered, and addressed to the address set forth on the signature page hereof, or to such other address or person as hereafter may be designated in writing by the applicable party. Notice may also be provided by facsimile to the facsimile number provided on the signature page hereof with evidence of successful transmission.
14. Force Majeure. Delays or failure of OneCommand in the performance of its obligations hereunder, including but not limited to operation of the Services, shall be excused where such a delay or failure is caused by events beyond the reasonable control of OneCommand, including, but not limited to, accidents, fires, earthquakes, equipment malfunctions, service interruptions (including televisions, telephone, the internet), labor disputes and otherwise.
15. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors, legal representatives and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto (and their respective heirs, successors, legal representative and permitted assigns) any rights, remedies, liabilities or obligations under or by reason of this Agreement.
16. Changes to the Program or System.
a. Changes by OneCommand. OneCommand reserve the right to modify, add, delete, or substitute hardware, software, materials, programs or services, or portions thereof, as part of its continued maintenance of the Program. In its sole discretion, OneCommand may change the amount, structure, method and/or basis of Dealer’s fees at any time during the Term of the Licensee, which change shall be effective upon thirty (30) days written notice to Dealer and shall not require an affirmative response or any further action by the parties; provided, however, that any postal rate changes will be effective immediately. During each License Term (and renewal thereof), any Dealer customers who are not part of the Dealer's “active” database will be placed into a pending activation file until Dealer either removes such Customer from the Program or increases its financial commitment hereunder to accommodate such customers on the Program. Dealer agrees to install and use only the most current version of the Services provided to Dealer by OneCommand including any of the modifications provided by OneCommand, and shall not use old versions of the Services.
c. Modification of Services. Dealer acknowledges that the Services may be altered, modified or updated from time to time throughout the Term of this Agreement to reflect OneCommand’s then current Service offering.
17. Entire Agreement.