KIA PILOT CAMPAIGN -- TERMS OF USE

Effective Date: July 16, 2015

PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR DEALER'S USE OF THE KIA PILOT CAMPAIGN CONQUEST LEADS PROVIDED THROUGH THE KORE SYSTEM.

To print a copy of these Terms of Use, click here.

Conquest leads consisting of consumer contact information for specified competitive model owners ("Leads") have been acquired by Hyundai Capital America doing business as Kia Motors Finance ("KMF") from a third party leads provider for limited use by Kia Dealers in connection with designated KMF financial offers in accordance with these Kia Pilot Campaign Terms of Use (these "Terms"). To access and use the Leads available on the OneCommand KORE System (the "Site"), you must carefully read these Terms, as they constitute a binding written agreement between the Kia Dealer accessing the Leads ("Dealer") through the Site and KMF. By clicking the "I Accept" button and/or by accessing or using the Leads on the Site (other than to simply read these Terms), you agree to these Terms on behalf of the Dealer for which you are acting to be bound by and to comply with these Terms. For purposes of these Terms, "you" or "your" means the Dealer for which you are acting in utilizing this Site.

DO NOT USE THE SITE IF YOU DO NOT AGREE.

In accessing the Site and using the Leads, subject to your compliance with these Terms, you agree and acknowledge that Dealer shall be granted a limited, revocable, non-exclusive, non-transferable, non-assignable license to use the Leads on a One-Time Use only basis solely for Dealer's marketing programs in connection with the transmission to the consumers identified in the Leads lists of KMF-provided financial services offers shown on the Site (the "KMF Offers"), and for no other purpose. You shall be solely responsible for paying OneCommand for your access and use of the Site and agree to indemnify KMF from and against your failure to make any such payments owed by you to OneCommand.

For the purposes of these Terms, "One-Time Use" means the ability to use the Leads only during the offer period specified in the KMF Offers and in which such Leads are posted to the Site and thereafter any use of the Leads is prohibited. You agree that the Leads shall not be sublet, sold, resold, archived, rented, exchanged, published, distributed, circulated or republished in any manner whatsoever, except as specifically permitted by these Terms or with the prior written consent of an officer of KMF. You shall not use or store the Leads to create a database or other list that contains Data (defined below) in any compiled or stored format. You shall not convert or use the Leads to produce statistical reports, except for count reports produced in relation to the use of the Leads for marketing purposes as authorized herein. The list of Leads may be copied as necessary to fulfill your One-Time Use, with all such copies subject to the terms of these Terms. You shall not use the Leads in any application involving individual look-ups of people. The Leads shall not be used to determine credit worthiness or eligibility for credit, employment or insurance.

KMF has provided templates for the KMF Offers that can be utilized with the Leads. Notwithstanding that KMF has included disclosures relevant to the KMF Offers within the the KMF Offer templates that are intended to comport with federal advertising laws applicable to a national advertiser of such financial services, you agree that all of Dealer's marketing efforts, communications, solicitations and ad copy, including, without limitation, the KMF Offers and the KMF Offer templates (collectively, "Marketing Materials") involving any use of the Leads, and all Marketing Materials sent or communicated to consumers appearing in the Leads list, shall be Dealer's sole responsibility and it shall be Dealer's sole responsibility to comply with all applicable state and federal laws pertinent to such Marketing Materials, including, without limitation, all advertising, privacy, telemarketing, email and similar consumer protection laws. Without limitation, it is your responsibility to read and ensure that the state disclosures provided in respect of the Marketing Materials you select for a mailing campaign through the Site are compliant with all applicable state and federal dealer advertising laws. You agree that all Marketing Materials shall be devoid of: (i) any reference to any selection criteria, actual or inferred characteristics about the recipient of such solicitation, except that such Marketing Materials may contain references to more than two (2) parent makes including the parent make of the brand vehicle identified by the Leads and if the Marketing Materials use the term "if" in referring to the parent make of vehicle owned as identified by the Leads that brand vehicle may be singly referenced in the ad copy (as in 'If you own a Toyota, Honda, or Chevrolet, you may be eligible...new Kia Optima'), and (ii) the source of the recipient's name and address.

Ownership of Marketing Materials. The Marketing Materials are owned, controlled or licensed by KMF, its subsidiaries or affiliates and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties. Except as expressly set forth in these Terms or otherwise expressly granted to you in writing by KMF, no rights (either by implication, estoppel or otherwise) are granted to Dealers. Any and all rights to use any Marketing Materials not expressly granted to you under this Terms are hereby reserved for KMF and/or its members, managers, subsidiaries, affiliates or its licensors. Nothing contained in these Terms will affect, impair or limit in any way KMF's rights to exploit fully any or all of the Marketing Materials. You acknowledge and agree that you will not, directly or indirectly, contest, challenge, aid or abet in contesting or challenging the validity or ownership of the Marketing Materials, or take any action whatsoever in derogation of KMF's rights therein, or in breach of, any terms and conditions contained in this Terms. You acknowledge and agree that you will not acquire or claim any rights in the Marketing Materials, or aid or abet anyone else in doing so.

Data Rights and Privacy Matters. In consideration of the Leads provided by KMF on the Site, you agree that KMF may retain all rights to all Leads data and information related to or derived from any Leads and/or the Site (collectively, the "Data"). You/Dealer shall have no independent ownership or other rights in such Data, agree to keep the Data confidential and agree not share it with third parties without KMF's prior written approval, and agree only to use the Data consistent with the terms and conditions set forth in these Terms. You represent, covenant and warrant that you will provide accurate and transparent information to Leads regarding your use of the Data, which shall include disclosure of your practices with respect to the use of the Data, and you agree to do so in compliance with all applicable laws and self-regulatory requirements regarding the use of the Data. From time-to-time, KMF may ask to audit you and/or certify to KMF your compliance with this section and/or to provide proof of compliance, and you agree to promptly do so and allow KMF to review and audit your applicable business records. If you should become unwilling or unable to comply with this Section, you agree to provide KMF or OneCommand with prompt written notice, in which event if KMF and you cannot reach a mutually acceptable resolution, KMF may terminate the Terms and your access and use of the Leads through the Site.

You must retain, or cause your advertising agencies to retain, a sample copy of each mail piece and/or telemarketing script which is used by you in conjunction with the Leads for a minimum period of twenty-four (24) months after the applicable mail drop or last date of use of any such telemarketing script. Upon request by KMF or Provider (defined below), in the event of a regulatory audit concerning the use of the Leads, you agree to promptly provide designated copies of your Marketing Materials to KMF/Provider.

Termination of the Availability of the Leads. KMF may immediately suspend or terminate the availability of the Leads for any reason, in KMF's sole discretion, and without advance notice or liability. This means that KMF can decide to cease providing the Leads to you at any time and for any reason, even for reasons unrelated to you or your relationship with KMF.

Representations and Warranties. Dealer represents and warrants that: (i) it has the legal right and capacity to enter into these Terms in Dealer's jurisdiction and to comply with these Terms; (ii) all information Dealer provides to KMF is true, accurate, complete and current; and (iii) Dealer holds and will continue to hold all rights necessary to enter into and perform your obligations under these Terms. Dealer also agrees that it will be responsible for obtaining and maintaining all modem, telecommunications equipment, computer hardware, wireless devices and other equipment needed for access to and use of the Leads and the Site and you will be responsible for all charges related thereto.

Indemnity. You agree to defend, indemnify, and hold KMF and any third party providers from which KMF acquired the Leads ("Providers", and together with KMF, the "KMF Parties") harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys' fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any KMF Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your use of the Leads and your activities in connection with Leads; (ii) your breach or alleged breach of these Terms; (iii) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Site/Leads or your activities in connection with the Site/Leads; (iv) any Marketing Materials that infringe, violate, or misappropriate any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (v) any misrepresentation made by you; and (vi) KMF Parties' use of the information that you submit to KMF (all of the foregoing, "Claims and Losses"). You will cooperate as fully required by KMF Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, KMF Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. KMF Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of the subject KMF Party.

Limitation of Liability. UNDER NO CIRCUMSTANCES WILL ANY KMF PARTIES 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:

1. the Leads;
2. your use of or inability to use the Leads;
3. any action taken in connection with an investigation by KMF Parties or law enforcement authorities regarding your access to or use of the Site or the Leads;
4. any action taken in connection with copyright or other intellectual property owners or other rights owners; or
5. any damage to any user's computer, hardware, software, modem, or other equipment or technology, including damage from any security breach 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.

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if KMF Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Site). Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you. It is intended and you agree that the Providers each are an intended third-party beneficiary of this Agreement.

DISCLAIMER OF WARRANTIES. THE SITE, INCLUDING, WITHOUT LIMITATION, THE MARKETING MATERIALS, ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE KMF PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) THE MARKETING MATERIALS ON OR PROVIDED THROUGH THE SITE; (C) THE LEADS; (D) ANY DOWNLOADABLE ITEMS; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITE; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SITE; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO KMF OR VIA THE SITE. IN ADDITION, THE KMF PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.

THE KMF PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR OTHER MALWARE. THE KMF PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. THE KMF PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE KMF PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THESE TERMS.

BY ACCESSING OR USING THE SITE, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE.

WAIVER OF INJUNCTIVE RELIEF. DEALER AGREES THAT IN THE EVENT IT INCURS ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF KMF'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO DEALER ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE DEALER TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE MARKETING MATERIALS, THE SITE OR ANY OTHER WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE KMF PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE OR OTHER MATERIALS OWNED OR CONTROLLED BY THE KMF PARTIES OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.

Updates to Terms. KMF reserves the right to prospectively modify these Terms ("Updated Terms"), which will be applicable only to Your use of the Leads after the update. 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 the Site so that they are accessible via a link on the Site, and that your use of the Leads 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 the Leads and any new transactions with KMF to which the Updated Terms apply. Therefore, you should review these Terms on a regular and frequent basis. The Updated Terms will be effective as of the time they are posted on the Site unless a later date is specified in them or any other notice to you.

Our Relationship. Despite anything else these Terms say, these Terms do not create any fiduciary relationships between you and KMF. It also does not create any relationship of principal and agent, partnership, or employer and employee.

Connectivity. You are responsible for obtaining and maintaining all devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Site.

Dispute Resolution. Certain portions of this Section are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and KMF agree that we intend that this Section satisfies the "writing" requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement.

1. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Site, the Marketing Materials, the Leads, the Data, these Terms, or any additional terms, whether heretofore or hereafter arising (collectively, "Dispute"), or to any of KMF's actual or alleged intellectual property rights (an "Excluded Dispute", which includes those actions set forth in Section D below, 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 (A). Your notice to us must be sent to: Hyundai Capital America, 3161 Michelson Drive, Suite #1900, Irvine, CA 92612 (Attn: General Counsel). For a period of sixty (60) days from the date of receipt of notice from the other party, KMF 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 KMF to resolve the Dispute or Excluded Dispute on terms with respect to which you and KMF, in each of our sole discretion, are not comfortable.
2. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section A (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND KMF (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SITE INCLUDING THE LEADS. The Federal Arbitration Act ("FAA"), not state law, shall govern the arbitrability of all disputes between KMF and you regarding these Terms and the Leads/Site. 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 a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing 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 KMF consent to in writing. 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 KMF to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then KMF will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply applicable law and the provisions of these Terms, will be bound by these 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 only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party's individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms or the Site.
3. 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 (A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
4. Injunctive Relief. The foregoing provisions of this Section will not apply to any legal action taken by KMF 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 the Site, any Marketing Materials,, the Leads, the Data and/or KMF's intellectual property rights (including such KMF may claim that may be in dispute), KMF's operations, and/or KMF's products or services.
5. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. YOU AND KMF AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section (B) above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section (F) below. Notwithstanding any other provision of this Section, any and all issues relating to the scope, interpretation and enforceability of this Section (E), including the class action waiver provisions contained herein, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.
6. Federal and State Courts in Orange County, California. Except to the extent that arbitration is required in Section (B) above, 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 KMF consent to the exclusive personal jurisdiction and venue of such courts for such matters.
7. 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.

Investigations; Cooperation with Law Enforcement; Termination; Survival. KMF reserves the right, without any limitation, to: (i) investigate any suspected breaches of the Site security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms, (iii) investigate any information obtained by KMF in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms, and (vi) discontinue the Leads, in whole or in part, or, 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 KMF under these Terms. Upon suspension or termination of your access to the Site or Leads, or upon notice from KMF, all rights granted to you under these Terms will cease immediately, and you agree that you will immediately discontinue use of the Leads. The provisions of these Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to KMF 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.

Miscellaneous Provisions. Section titles contained herein are for convenience only. If any provision of these 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, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms (which will remain in full force and effect). 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. These 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. KMF may assign its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of KMF.