EFFECTIVE DATE: JUNE 1, 2018
For the avoidance of doubt, this Agreement expressly applies to: (a)your access to and use of the sites; (b) any and all transactions between youand Genesis relating to or arising out of the sites, including for theprovision or support of any products or services relating to your relationshipwith Genesis, and (c) your access to and use of calculators, research tools,text, pictures, graphics, logos, button items, icons, images, works ofauthorship and other information and all revisions, modifications, andenhancements thereto contained in the sites.
You may not use or enroll in or purchase any products or services, andyou may not accept this Agreement, if you are not of a legal age to form abinding contract with Genesis. If you accept this Agreement, you represent thatyou have the capacity to be bound by it or if you are acting on behalf of acompany or entity that you have the authority to bind. Before you continue, youshould print or save a local copy of this Agreement for your records.
1. OWNERSHIP OF THE SITE
The site is protected by United States and international copyright,trademark, and other intellectual property laws. Genesis websites may offerfeatured articles, pictures, information, images, surveys, contests andsweepstakes, advertising, logos, trademarks, audio, video, text, data, music,sound, graphics, photographs, videos, software, and other content and materialson the site (collectively referred to hereinafter as “Content,” but excludingspecifically User Content as defined below) we hope will be of interest to ourvisitors. The Content may not be copied, reproduced, published, republished,uploaded, posted, displayed, transmitted, modified, used to prepare derivativeworks, distributed, or redistributed in any way in any medium whatsoever nowknown or later invented, except that you may download one copy of the Contenton any single computer for your personal, noncommercial home use only, providedyou retain all trademark, copyright and other proprietary notices displayed on,embedded in, or otherwise appearing in any Content. Any attempt to modify theContent or to use the Content for any other purpose constitutes a violation ofour copyright and other proprietary rights, and may subject you to injunctiverelief, statutory damages, and other penalties. The use of any such material onany other website or networked computer environment is prohibited without theexpress written permission of Genesis. Genesis makes no representations orwarranties that the Content is available, appropriate, or legal to access.Except for User Content (as hereinafter defined), all Content posted on orotherwise available via the site is owned by Genesis or used by Genesis withauthorization. Please feel free to browse the site, but you must respect therules and restrictions set forth in these TOU and our intellectual propertyrights as set forth in these TOU. No right, title or interest in or to the siteor any Content is transferred to you, and all rights not expressly granted inthese TOU are reserved by Genesis. Please note that downloading software,information, data, images, or other Content from the site does not give youtitle or other rights to such Content.
2. RESTRICTIONS ON THE USE OF THE SITE
As a condition of using the site, you agree that you will not:
(a) Without the prior written consent of Genesis, modify, distribute, transmit,display, perform, reproduce, publish, license, create derivative works of,transfer, or sell any Content;
(b) Remove, obscure, or otherwise modify any copyright, trademark,confidentiality, or other proprietary rights notices displayed on, embedded in,or otherwise appearing in any Content;
(c) Submit, display, or transmit any User Content (as hereinafter defined) thatinfringes any patent, trademark, trade secret, copyright, or other proprietaryrights of any party, or User Content that you do not own or have the necessaryand appropriate rights to make available under any law or under contractual orfiduciary relationships;
(d) Submit, display, or transmit any User Content that exceeds our capacitylimits;
(e) Submit, display, or transmit any spam, duplicative messages, unauthorizedpromotions or advertisements, surveys, contests, chain letters, or pyramidschemes;
(f) Forge headers, create a false identity, or otherwise manipulate identifiersin order to deceive others or disguise the origin of any User Contenttransmitted to or via the site;
(g) Use the site to threaten, defame, abuse, assault, stalk, harass, orotherwise violate the rights of any other person or entity, including, withoutlimitation, rights of privacy or publicity;
(h) Publish, post, display, offer, or disseminate any profane, obscene,indecent, unlawful, terroristic, violent, or hateful User Content;
(i) Collect, store, publish, post, sell, transmit, or disclose personal dataabout other users of the site;
(j) Use the site in any way that violates any applicable law regulation; or
(k) Monitor or copy Content other than as expressly authorized under these TOU.
3. SITE SECURITY USE RESTRICTIONS
(a) Use any robot, “bot,” spider, crawler, engine, device, software, tool,routine, or any other automatic device or manual process of any kind on thesite for any purpose whatsoever without our written permission;
(b) Engage in any activity that interferes with the proper working of or accessto the site or to any host or network;
(c) Attempt to access data or information not intended for you or log onto aserver or account that you are not authorized to access;
(d) Access or attempt to access any system or servers on which the site ishosted or modify or alter the site in any way;
(e) Upload or otherwise transmit files that contain viruses, worms, Trojanhorses, malicious code, spyware, adware, sniffers, corrupted files, or similarsoftware or programs;
(f) Restrict or prevent any other user from using the site and/or any products,services, or Content posted on or offered through the site;
(g) Post or upload User Content (as hereinafter defined) that disrupts thenormal flow of dialogue with an excessive amount of User Content (floodingattack) to the site, or that otherwise negatively affects other users’ abilityto use the website; or
(h) Link to, frame, or otherwise reproduce the site or any other Genesiswebsite without the prior written consent of Genesis.
Genesis reserves the right to investigate any violations of itssystem, network, or website security, to involve and cooperate with lawenforcement authorities in investigating such violations, and to prosecuteviolators to the fullest extent of the law.
4. DISPUTE RESOLUTION POLICY: BINDINGARBITRATION
MOST CUSTOMER CONCERNS CAN BE RESOLVED QUICKLY AND TO THE CUSTOMER'SSATISFACTION BY CONTACTING GENESIS CUSTOMER SERVICE DEPARTMENT AT CUSTOMERCARE@GENESISMOTORSUSA.COM OR CALLING (844) 340-9741. IN THEUNLIKELY EVENT THAT THE GENESIS CUSTOMER SERVICE DEPARTMENT IS UNABLE TORESOLVE YOUR CONCERNS, WE EACH AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDINGARBITRATION OR SMALL CLAIMS COURT INSTEAD OF IN COURTS OF GENERAL JURISDICTIONTO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO THE TERMS OF THISAGREEMENT. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT. ARBITRATIONUSES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITEDDISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. ARBITRATORSCAN AWARD THE SAME DAMAGES AND RELIEF THAT A COURT CAN AWARD. ANY ARBITRATIONUNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS TO THE MAXIMUMEXTENT PERMITTED BY LAW; CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVEARBITRATIONS ARE NOT PERMITTED. GENESIS WILL PAY ALL ADMINISTRATIVE COSTS OFTHE ARBITRATOR, NO MATTER WHO WINS, SO LONG AS YOUR CLAIM IS NOT FRIVOLOUS ORBROUGHT IN BAD FAITH. HOWEVER, IN ARBITRATION, BOTH YOU AND GENESIS WILL BEENTITLED TO RECOVER ATTORNEYS´ FEES FROM THE OTHER PARTY TO THE SAME EXTENT ASYOU WOULD BE IN COURT.
(a) Genesis and you agree to arbitrate any and all disputes and claims betweenus arising out of or relating to this Agreement, use of the sites, or products,services, or programs you purchase, enroll in or seek product/service supportfor, whether you are a Visitor or Customer, via the sites or through mobileapplication, except any disputes or claims which under governing law are notsubject to arbitration, to the maximum extent permitted by applicable law. Thisagreement to arbitrate is intended to be broadly interpreted and to make alldisputes and claims between us subject to arbitration to the fullest extentpermitted by law. However, any dispute you or we may have relating tocopyrights or other intellectual property (as set forth in Section 5 below)shall not be governed by this agreement to arbitrate. For the avoidance ofdoubt, this means that any claims you or we may have relating to intellectualproperty rights against the other, including injunctive and other reliefsought, may be brought in a court of competent jurisdiction. The agreement toarbitrate otherwise includes, but is not limited to:
claims based in contract, tort, warranty,statute, fraud, misrepresentation or any other legal theory; claims that arosebefore this or any prior Agreement (including, but not limited to, claimsrelating to advertising); claims that are currently the subject of purportedclass action litigation in which you are not a member of a certified class;claims relating to your vehicle for which you seek product or service supportvia the sites; claims arising out of or relating to the Telephone ConsumerProtection Act; claims relating to your data privacy or information security; andclaims that may arise after the termination of this Agreement.
For purposes of this arbitration provision,references to "Genesis," "you," and "us" shallinclude our respective parent entities, subsidiaries, affiliates, agents,employees, predecessors in interest, successors and assigns, websites of theforegoing, as well as all authorized or unauthorized users or beneficiaries ofservices, products or information provided or made available under this orprior Agreements between us relating to or arising from any aspect of your useor access of the sites. Notwithstanding the foregoing, either party may bringan individual action in small claims court. You agree that, by entering intothis Agreement, you and Genesis are each waiving the right to a trial by juryor to participate in a class or representative action to the maximum extentpermitted by law. This Agreement evidences a transaction in interstatecommerce, and thus the Federal Arbitration Act governs the interpretation andenforcement of this arbitration provision. This arbitration provision shallsurvive termination of this Agreement or your relationship with Genesis for anyreason.
(b) A party who intends to seek arbitration must first send to the other, bycertified mail, a written Notice of Dispute ("Notice''). The Notice toGenesis should be addressed to: Customer Care, Genesis Motor America, LegalDepartment, 10550 Talbert Avenue, Fountain Valley, CA 92728-0850. ("NoticeAddress''). The Notice must describe the nature and basis of the claim or disputeand set forth the specific relief you seek from Genesis ("Demand''). IfGenesis and you do not reach an agreement to resolve the claim within 30 daysafter the Notice is received, you or Genesis may commence an arbitrationproceeding. During the arbitration, the amount of any settlement offer made byGenesis or you shall not be disclosed to the arbitrator until after thearbitrator determines the amount, if any, to which you or Genesis is entitled.In arbitration, and to the extent otherwise permitted by law, the parties mayexchange “offers of compromise” or stipulate to judgments or awards in the sameway the parties could in court, including for example, under California Code ofCivil Procedure Section 998 for arbitrations taking place in California. Suchoffers of compromise shall have the same force and effect as they would in acourt proceeding. The arbitration proceedings shall otherwise remainconfidential, except for purposes of seeking court intervention (if necessary).
You may obtain more information about arbitration from www.adr.org.
(c) After Genesis receives notice at the Notice Address that you have commencedarbitration, it will promptly reimburse you for your payment of the filing fee.The filing fee currently is $200, but is subject to change by the arbitrationprovider. The arbitration will be governed by the Consumer Arbitration Rules(the "AAA Rules") of the American Arbitration Association("AAA"), as modified by this Agreement, and will be administered bythe AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or bywriting to the Notice Address. The AAA Rules may change from time to time, andyou should review them periodically.
All issues are for the arbitrator to decide, including the scope andenforceability of this arbitration provision as well as the Agreement´s otherterms and conditions, and the arbitrator shall have exclusive authority toresolve any such dispute relating to the scope and enforceability of thisarbitration provision or any other term of this Agreement including, but notlimited to any claim that all or any part of this arbitration provision orAgreement is void or voidable. However if putative class or representativeclaims are initially brought by either party in a court of law, and a motion tocompel arbitration is brought by any party, then the court shall decide whetherthis agreement permits class proceedings. For the avoidance of doubt, the courtand arbitrator shall be bound by the terms of this Agreement, including withregard to the class and representative waiver provision. In any arbitration,the arbitrator shall be bound by the terms of this Agreement and shall followthe applicable law. The arbitrator shall not have the power to commit manifesterrors of law or legal reasoning, and any award rendered by the arbitrator thatemploys a manifest error of law or legal reasoning may be vacated or correctedby a court of competent jurisdiction for any such error. Unless Genesis and youagree otherwise, any arbitration will be governed by the substantive laws ofyour state, and hearings will take place in the county (or parish) of yourbilling or registered address. Case management and other hearings shall beheard via telephone unless otherwise agreed to. Except as otherwise providedfor herein, Genesis will pay all AAA filing, administration and arbitrator feesfor any arbitration initiated in accordance with the notice requirements above.If, however, the arbitrator finds that either the substance of your claim orthe relief sought in the Demand is frivolous or brought for an improper purpose(as measured by the standards set forth in Federal Rule of Civil Procedure11(b)), then the payment of all such fees will be governed by the AAA Rules. Insuch case, you agree to reimburse Genesis for all monies previously disbursedby it that are otherwise your obligation to pay under the AAA Rules.
(d) Discovery and/or the exchange of non-privileged information relevant to thedispute will be governed by the AAA Rules.
(e) YOU AND GENESIS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY INYOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTEDCLASS OR REPRESENTATIVE PROCEEDING TO THE MAXIMUM EXTENT PERMITTED BY LAW. Ifthis specific subparagraph (e) is found to be unenforceable in its entirety,then the entirety of this arbitration provision shall be null and void.However, if only a portion of this subparagraph (e) is found to beunenforceable, then the unenforceable portion of the provision shall bestricken, and the remainder of subparagraph (e) enforced. Any claims or causesof action seeking relief not subject to individual arbitration under applicablelaw shall be stayed in a court of competent jurisdiction pending completion ofindividual arbitration to the maximum extent permitted by law.
(f) Notwithstanding any provision in this Agreement to the contrary, we agreethat if Genesis makes any change to this arbitration provision (other than achange to the Notice Address) after your enrollment in a service or program oryour use of the sites, you may reject any such change and require Genesis toadhere to the language in this arbitration provision as written at the time ofyour enrollment or purchase if a dispute between us arises, by providing Noticeto Genesis at the Notice Address in subsection (b) above.
5. PROCEDURES FOR MAKING COPYRIGHTINFRINGEMENT CLAIMS
It is our policy to respond appropriately to notices of allegedinfringement that comply with the Digital Millennium Copyright Act (“DMCA”),including by removing or disabling access to material claimed to be the subjectof infringing activity. If you are a copyright owner, or are authorized to acton behalf of a copyright owner, please notify our designated DMCA agentimmediately to report alleged copyright infringement taking place on the siteat: email@example.com, or by mail at Genesis Motor America, LegalDepartment, 10550 Talbert Avenue, Fountain Valley, California 92708. DMCAnotices must be in writing and must include the following information:
(a) Your full legal name and your electronic or physical signature;
(b) A description of the copyrighted work that you claim has been infringed;
(c) The URL of the site and a description of where the material that you claimis infringing is located on that site;
(d) Your address, telephone number, and email address;
(e) A statement by you that you have a good faith belief that the allegedinfringing material is not authorized by the copyright owner, its agent, or thelaw; and
(f) A statement by you, made under penalty of perjury, that all the informationin your notice is accurate, and that you are either the copyright owner orauthorized to act on the behalf of the owner of an exclusive right that isallegedly infringed.
6. TRADEMARKS AND PROPRIETARY RIGHTS NOTICES
All trademarks, logos, trade names, or service marks (collectively,the “Marks”) mentioned, used, or displayed on the site are either owned byGenesis or otherwise are authorized for our use. You may not display orreproduce the Marks other than with the prior written consent of Genesis. Youmay not remove, obscure, or otherwise modify any copyright, trademark,confidentiality, or other proprietary rights notices displayed on, embedded in,or otherwise appearing in any Content offered by, viewed on, or receivedthrough the site or any other Genesis website. We may seek appropriate legalaction in a court of competent jurisdiction to enforce these and otherintellectual property rights, subject to the exception(s) set forth in Section4 and 5 above.
7. USER CONTENT
8. CHATBOT AND MANAGED CHAT FUNCTIONALITYCONSENT AND DISCLAIMERS
You must meet any age, geographic, or other eligibility requirementsspecified at each site to subscribe to a magazine, publication, product, orservice that we offer, to order anything online, to participate in certaincontests, games or sweepstakes, or to access or participate in certain servicesat or areas of our sites. By registering at those sites, or for those featuresor services, you represent that you comply with applicable restrictions.E-commerce areas may include additional restrictions on purchases, returnpolicies, delivery schedules, and the like, depending on individual site andvendor policies.
10. ONLINE SHOPPING
Subscriptions and other services requiring payment generally requireuse of a valid credit card. Genesis and its business partners reserve theright, in their sole discretion, to establish other acceptable alternativepayment methods for specific services or products, including via mobileapplication. You are solely responsible for charges owed for all goods andservices purchased through the site, including, but not limited to, applicabletaxes, shipping charges, insurance, and any other costs. If you are makingonline payments of any kind, you represent and warrant to the best of yourknowledge that (a) any credit card, debit card and bank account information yousupply is true, correct and complete, (b) charges incurred by you will behonored by your credit/debit card company or bank, (c) you will pay the chargesincurred by you in the amounts posted, including any applicable taxes, and (d)you are the person in whose name the card was issued and you are authorized tomake a purchase or other transaction with the relevant credit card and creditcard information. Furthermore, you agree and authorize us to: (i) submit atransaction using the card or financial information provided, (ii) in the caseof automatic recurring transactions, submit a transaction on a recurring basis(e.g., monthly or annual basis) for renewals, (iii) if necessary, obtainautomatic updates from card issuers or financial institutions for cards oraccount information provided to us, (iv) if necessary, bill you, in a proratedmanner (as required), in accordance with the particular fee terms for theproduct or service you are purchasing or enrolling in, and (v) if necessary(and applicable) bill your mobile carrier via a mobile application if youauthorize us to do so. You may cancel your services for ongoingtransactions/services at any time by calling customer care or by using anyother method specified on the sites (such as by logging in to your account).
12. LINKS AND THIRD PARTY SITES
The website may contain links to and from third party sites,including, but not limited to, sites operated by advertisers, vendors, and/or promotionalor business partners. Sites and e-commerce opportunities operated by thirdparties are subject to terms and conditions set by those parties, so you shouldcheck each third party site to be sure you understand the terms, conditions,policies, and requirements of that third party site. Genesis does not endorse,and the inclusion of any link on the site does not imply an endorsement of, anyindividual vendor, advertiser, or other third party or any of their products orservices, and Genesis has not taken any steps to confirm the accuracy orreliability of any of the information provided by any third party. Genesis hasno control over: (a) the quality, safety, or legality of any item advertised orlisted by any third party, including vendors, advertisers, or other businesspartners; or (b) the content of, or any products or services offered by,websites operated by third parties. Genesis does not guarantee that you will besatisfied with products or services purchased from vendors, advertisers, or otherthird parties that link to or from any Genesis website. You acknowledge andagree that Genesis has not reviewed all of the third party sites linked to orfrom the website, does not endorse such third party sites, is not responsiblefor such third party sites, and under no circumstances shall Genesis be liablefor the contents, products or services of any off-site pages or of any thirdparty sites linked to or from the website. Your linking to any other off-sitepages or other third party sites is at your own risk. Vendors and advertisersare solely responsible for the accuracy of the information they provide, forwarranties and guarantees on goods or services sold, for delivery schedules,and for return policies.
13. COMMUNITY CODE OF CONDUCT
Some websites operated by Genesis may offer community features, suchas internal messaging systems, bulletin boards, forums, or chat rooms. We donot monitor, filter, censor, edit, or regulate information and content providedby third parties on the website, including information provided in communityareas, although we reserve the right to do so in our sole discretion, with orwithout notice. Genesis does not endorse or warrant the accuracy or reliabilityof User Content posted or uploaded by users or third parties. You agree thatneither Genesis nor its affiliates, officers, directors, employees, agents,licensors, or licensees are responsible for any User Content, and agree to holdthem harmless from any liability associated with such User Content posted byother users and other third parties.
When participating in community areas of the website, you represent and warrantthat you have the right and authorization to use any User Content you upload orpost, and you license to Genesis the right to use such User Content inaccordance with these TOU. In addition to complying with the terms, conditionsand restrictions set forth elsewhere in these TOU, including the restrictionsin Section 2, you further represent and warrant that you will abide by thefollowing rules:
(a) You will not use the website to further any illegal purpose, to violate therights of any party, or to damage any person or property.
(b) Except as specifically authorized on certain Genesis websites and indesignated classified ads sections of Genesis websites, you will not: (i)upload or otherwise post User Content with a commercial purpose, including, butnot limited to, offers to sell products or services or attempts to solicitfunds or to advertise products or services; (ii) post or upload User Contentthat constitutes or contains “affiliate marketing,” “link referral code,” “junkmail,” “spam,” “chain letters,” “pyramid schemes,” unsolicited commercialadvertisement, behavioral or viral marketing, or other spam; (iii) email suchUser Content to other users who have not indicated in writing that it is okayto contact them about other commercial services, advertisements, products, orcommercial interests; or (iv) post or upload User Content that includes linksto commercial services or websites.
(c) You will not post or upload User Content that impersonates any person orentity, including, but not limited to, a Genesis employee, or falsely states orotherwise misrepresents your affiliation with a person or entity.
(d) You will not post or upload User Content that includes personal oridentifying information about another person without that person’s explicitconsent.
(e) You will not post or upload User Content that is false, deceptive,misleading, deceitful, misinformative, or constitutes “bait and switch.”
(f) You will not post or upload User Content that advertises any illegalservice or the sale of any items the sale of which is prohibited or restrictedby any applicable law.
(g) You will not repeatedly post the same or similar User Content or otherwiseimpose an unreasonable or disproportionately large burden on our technologyinfrastructure.
(h) You will not use any form of automated device or computer program(including “bots”) that enables the submission of postings or User Content onany Genesis website without each posting being manually entered by the authorthereof, including, without limitation, the use of any such automated postingdevice to submit postings in bulk, or for automatic submission of postings atregular intervals. You will not engage in any “web-scraping” of the Genesissite.
(i) You will not use a posting agent to post User Content to any Genesiswebsite.
15. LIMITATION OF WARRANTIES
GENESIS PROVIDES THE WEBSITE AND THE CONTENT, INFORMATION, PRODUCTS,AND SERVICES PROVIDED ON OR SUPPORTED THROUGH THE WEBSITE “AS IS” AND “ASAVAILABLE,” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESSED, IMPLIED, OR STATUTORY,OTHER THAN (IF APPLICABLE) THE WARRANTY PROVIDED TO YOU UNDER THE GENESISWARRANTY PROGRAM. GENESIS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, UNLESSOTHERWISE EXPRESSLY STATED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Some states may not allow the exclusion of implied warranties, so check locallaws.
GENESIS DOES NOT WARRANT THAT THE CONTENT OR SERVICES AT THE SITE OR FUNCTIONSCONTAINED IN THE MATERIALS AT THE SITE WILL BE AVAILABLE, UNINTERRUPTED ORERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THATMAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT ALLPRODUCTS OR SERVICES LISTED, SOLD, OR ADVERTISED ARE AVAILABLE, OR THAT ALLTRANSACTIONS WILL BE COMPLETED. NEITHER GENESIS NOR ANY OF ITS AFFILIATES,OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS, ORLICENSEES WARRANT OR MAKE ANY REPRESENTATIONS THAT THE CONTENT, MATERIALS, ORINFORMATION CONTAINED AT THE SITE ARE CORRECT, ACCURATE, COMPLETE, UP TO DATE,AND/OR RELIABLE.
16. LIMITATION OF LIABILITY
IN NO EVENT SHALL GENESIS, OR GENESIS AFFILIATES, PARENTS,SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS,LICENSORS OR LICENSEES, OR ANYONE WHO HELPED DEVELOP, CREATE, PRODUCE, DISPLAY,TRANSMIT, OR DELIVER THE CONTENT, MATERIAL, AND INFORMATION USED IN THE SITE BELIABLE FOR LOST PROFITS OR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, TREBLE,ENHANCED, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTIONWITH, USE OF THE SITE, LINKS TO OR FROM THE SITE, INFORMATION POSTED ON THESITE, OUR SERVICES, ANY PRODUCTS OR SERVICES YOU PURCHASE, OR THESE TERMS OFUSE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TO THEMAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL OUR LIABILITY TO YOU OR ANYTHIRD PARTIES IN ANY CIRCUMSTANCES FOR ANY AND ALL LOSSES, WHETHER IN CONTRACT,TORT, OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THESITE. NEITHER GENESIS NOR ANY OF ITS AFFILIATES, PARENTS, SUBSIDIARIES,OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS OR LICENSEESSHALL BE LIABLE FOR ANY LOSSES YOU MIGHT SUSTAIN BY ENGAGING IN TRANSACTIONSWITH BUYERS OR SELLERS WHO YOU MEET AS A RESULT OF ANY CLASSIFIEDADVERTISEMENTS THAT MAY BE POSTED ON ANY GENESIS WEBSITE.
Some states do not allow the limitation of liability, so check local laws.
17. CLASSIFIED ADVERTISEMENTS
Some of our websites may provide a forum (such as classifiedadvertisements) in which non-Genesis affiliated sellers and buyers may beconnected. By engaging in transactions with buyers or sellers that you meet viaone of our websites, you proceed solely at your own risk and you agree thatGenesis is not responsible for any damages, losses, or injury that you mightsustain as a result of your transactions with such buyers and sellers. Youshould not engage in any transaction with a person with whom you are notcomfortable or whom you suspect might be engaged in improper or questionableconduct. Please be aware that Genesis, through certain of its websites, merelyprovides a forum in which buyers and sellers can connect. Neither Genesis norits websites posting classified advertisements facilitate any transaction,insure any transaction, or act as an intermediary, broker, or escrow agent inconnection with such buyer-seller transactions.
You should be very careful before you send money to any person posting anadvertisement on one of our sites. In particular, we urge you to use reputableand well-known money-transfer services and online merchant account services(such as PayPal) when engaging in transactions with sellers of goods advertisedon one of our websites. We urge you to proceed with extreme caution in usingsuch money transfer services, and under no circumstances should you delivercash to a money transfer service with instructions to disburse the funds to analleged agent of Genesis or the website on which the classified advertisementwas posted. Again, neither Genesis nor its websites posting classifiedadvertisements act as a transaction intermediary or escrow agent, and youshould not do business with any buyer or seller who directs you to work with anemployee or agent of Genesis or the applicable website in completing thetransaction.
18. INDEMNITY AND HOLD HARMLESS
You agree to hold Genesis and its affiliates, officers, directors, employees,representatives, agents, licensors, and licensees harmless from any and allclaims, demands, attorneys’ fees, damages (actual and consequential) of everykind or nature, known and unknown, disclosed or undisclosed, arising out of, orany way connected with the use of the site, any transaction occurring throughthe site, the safety or quality of any goods or services purchased or soldthrough the site, or the truth or accuracy of any claim made about such goodsor services. To the maximum extent permitted by law, California residentsexpressly agree to waive California Civil Code Section 1542, which states: “Ageneral release does not extend to claims that the creditor does not know orsuspect to exist in his or her favor at the time of executing the release,which, if known by him or her, must have materially affected his or hersettlement with the debtor.” Residents of California are entitled to thefollowing specific consumer rights information: you may contact the ConsumerInformation Center at (800) 952-5210 or firstname.lastname@example.org of the California Department of ConsumerAffairs for consumer inquiries, or you may write to the Department of ConsumerAffairs at the following address: Department of Consumer Affairs, ConsumerInformation Division, 1625 North Market Boulevard, Suite N 112, Sacramento, CA95834.
19. TERMINATION OF SERVICES
We may eliminate or terminate any Content or product/service posted onor made available through any of our websites without notice to you at any timein our sole discretion. Without limiting any other remedy, Genesis reserves theright, in its sole discretion, to immediately issue a warning or toimmediately, temporarily, or permanently suspend or terminate yourparticipation in the site or any area of the site, and to refuse to provide ourservices to you if: (a) you breach these TOU or any of the rules or eligibilityrequirements of the site or the services offered at the site; (b) we are unableto verify or authenticate any billing information you provide to us; or (c) webelieve that your actions may cause damage, harm, or legal liability to you orto any vendor, business, or promotional partner, advertiser, other user, thepublic, or us.
Except with respect to notices of alleged copyright infringement orfor demands to arbitrate under the Dispute Resolution Policy, which must besubmitted as described above, and unless explicitly stated otherwise in thesite, you must provide all notices or complaints to Genesis via email to customercare@genesismotorsusa or mail at Genesis Customer Care, P.O.Box 20850, Fountain Valley, California 92728-0850. All notices from Genesis toyou will be sent to the email or physical address you provide to us. Noticeshall be deemed given twenty-four (24) hours after the email is sent, unless weare notified that the email address is invalid. Genesis reserves the right tosend you notice by mail via U.S. mail, overnight carrier (with tracking), postageprepaid, to the address you provided to us during any ordering or registrationprocess. In such event, notice shall be deemed given three (3) days after thedate of mailing.
Genesis reserves the right, in its sole discretion, to change, modify,add, or remove portions of these TOU at any time, so please check the site orany other Genesis website you use periodically for changes. Changes to theseTOU shall be effective upon posting. Continued use of the site following theeffective date of any changes to these TOU constitutes your acceptance of thosechanges. Each time you order, access or use any of the sites, you signify youracceptance and agreement, without limitation or qualification, to be bound bythe then current TOU. However, no unilateral amendment will retroactivelymodify the parties’ agreed-to dispute resolution provisions of this Agreementfor then-pending or existing disputes, unless the parties expressly agreeotherwise in writing. In all other respects, any modification or update to thearbitration provision at Section 5 shall be governed by subsection (f) therein.
22. GENERAL PROVISIONS
(a) Severability. If any provision of these TOU is held to be invalidor unenforceable, it shall be stricken without affecting the validity of theremaining portions of these TOU, subject to the limitations set forth andapplicable to Section 4 for Dispute Resolution. Headings are for convenienceonly, and are not intended to in any way confine, limit, construe, or describethe scope or extent of such section.
(b) No Waiver. No waiver by Genesis of any breach of these TOU by you shallconstitute a waiver of this or any other provision of these TOU or alter orlimit our right to act with respect to subsequent or similar breaches.
(d) No Agency. You acknowledge and agree that Genesis, in providing the site,is not acting for or on behalf of either you or any vendor, business orpromotional partner, or advertiser. You and our vendors, business orpromotional partners, and advertisers are independent contractors. No agency,fiduciary, partnership, joint venture, employer/employee, orfranchiser/franchisee relationship is intended or created by these TOU betweenGenesis and either you or any vendor, business or promotional partner, oradvertiser at the site.
(e) Governing Law/Venue/Forum/Jurisdiction. Your use of the website and anydispute arising out of or relating to your use of the website, or products andservices you obtain or seek support for via the website, will be governed bySection 4 of this Agreement (including with respect to the choice of law andvenue for any dispute arising under the Dispute Resolution Policy) and theFederal Arbitration Act. Interpretation or application of any provision of thisAgreement shall be governed by the laws of the State of California, irrespectiveof its conflicts of laws provisions. In the event that court intervention isrequired with respect to interpretation, application or enforcement of Section4 of this Agreement (including without limitation for petitions to confirm orvacate arbitration awards), the parties hereby consent to the jurisdiction ofthe federal courts located in Orange County, California to the maximum extentpermitted by law. This provision and the terms set forth in Section 4 of thisAgreement for Dispute Resolution shall survive termination of your relationshipwith Genesis, or termination of the Agreement.