DEFINITIONS. For the purposes of this Agreement, the terms set forth below shall have the following meanings:
“Credits” shall mean the fees Kelley charges You for access to the Service and is based on the maximum number of Valuation Reports You specify.
“Data” shall mean the custom data generated by the Service, including but not limited to the Values, Valuation Reports, and/or vehicle specifications, constitutes proprietary information of Kelley.
“Kelley Marks” shall mean the trade names, trademarks and service marks “Kelley Blue Book,” “Blue Book,” “Bluebook,” and the Kelley Blue Book seal and such other names, marks, and logos and other intellectual property Kelley used, uses or may in the future use in or related to its business, products or services, including, without limitation, all improvements, additions, derivatives and other modifications thereof.
“User” shall mean any user of the Service and/or Data who is an employee of You.
"Valuation Report” shall mean a single report of Values (e.g. MSRP and dealer invoice for a new vehicle; lending value and suggested retail for a used vehicle) from the Data for a specific vehicle identified by a Vehicle Identification Number or combination of year, make, model, series and body style for a specific geographic region (e.g. Western) and Data edition (e.g. January 2003). You will not incur additional charges when accessing a Valuation Report that is stored in Your “Recent Valuation Reports” list; however, you will be charged for each Valuation Report that is not stored in your “Recent Valuation Reports” list, regardless of whether the information is the same as that previously received by you. You will also be charged for a separate Valuation Report when another set of Values for the same vehicle is accessed by making adjustments to the particular vehicle details (e.g. adding or removing accessories/options, making mileage adjustments, choosing a different geographic region or different Data edition, or similar actions).
"Values” shall mean the prices or values (e.g. MSRP, Dealer Invoice, Fair Purchase Price for a new vehicle; lending value and suggested retail for a used vehicle) provided by the Service.
LICENSE AND AUTHORIZED USE.
Grant of License. Kelley hereby grants to You, subject to Your continued compliance with all of the Terms, a non-exclusive, non-transferable, fee-bearing license during the Term to access and use the Data in accordance with the terms and conditions of this Agreement. The foregoing license grant shall also include the right for You to permit your Users to access and use the Data only subject to the terms and conditions contained in these Terms. You shall take all reasonable steps to ensure that your Users comply with all of these Terms, and You agree that You shall be liable to Kelley for all acts of Users relating to their access and use of the Data and their compliance with these Terms. You shall make no other use of the Data or Service except as specifically set forth in these Terms and no other license or right is hereby granted or shall be deemed granted except as expressly set forth in this Section 2.
Requirements for Use. To use the Service, You must obtain and maintain at your own expense access to the World Wide Web, and pay any service fees associated with such access. After You register for an account, Kelley will send You an email with a link to the Service where you will activate Your account by creating a password and a security question (“Password”) for access to and use of the Service. You are prohibited from disclosing Your Password in any manner. For the avoidance of doubt, You may provide the Data to Your Users, but You may not provide direct access to the Service or Data to any third party, or disclose the Password in any manner, including to Your Users.
Authorized Uses. You may print and/or electronically transfer the Data from the Service (on a search-by-search basis, and without automated data-mining or similar bulk transfer) to backup or archival data storage disks and devices, but all use of the Data shall continue to be governed by these Terms after transfer. You may use the Service only through users exercising manual control over a personal computer or other computing device.
You may not reverse engineer, reverse assemble, decompile, disassemble, data-mine or data-scrub the Service or any software or computer code contained in the Data or the Website, or develop a competing product or database based on the Data or the Website. You may not (i) frame or utilize framing techniques to enclose any of the Data or Website without the express written consent of Kelley, or (ii) use any robot, spider or other automated device to monitor, copy or access the Service, the Website, or any Data. You agree not to attempt to access the Service by any means other than the interface that is provided by Kelley. You may not modify or create derivative works of the Service, the Website or Data. You may not post, publish or transfer any reports or other data from the Service to any website.
The Service may not be used in combination with any product or service that is not owned or provided by Kelley, and neither the Website nor the Data may be used in any manner that is likely to cause confusion by consumers, or that disparages, denigrates, or otherwise damages or injures the good reputation of Kelley or its products or services. Except as expressly provided herein, You may not copy, duplicate, license, lease, modify, sell, transfer, transmit, make available, distribute, publish, or assign these Terms, the Service, or any Data in any format to any third party, including posting or otherwise making it accessible on any Web site owned, created, utilized or operated, directly or indirectly, by, on behalf of or for the benefit of You
You may not republish in print or electronic format, transfer or make any use of the Data except as expressly set forth in these Terms and no other license or right is hereby granted or shall be deemed granted with respect to the Data.
Kelley Proprietary Information. The Service, Website, Data, and all improvements, additions, derivatives and other modifications thereto, and any information pertaining to the foregoing are the exclusive property of Kelley and shall be considered and treated by You as the proprietary information of Kelley (the “Kelley Proprietary Information”). With the exception of Your use of the Service and Data in accordance with these Terms, You agree not to, directly or indirectly, disclose, sell or otherwise transfer or exploit the Kelley Proprietary Information, or any portion thereof, to any other person or entity or allow any other person or entity to use the Kelley Proprietary Information, or any portion thereof, without the prior written consent of Kelley, which may be withheld in Kelley’s sole discretion.
Retention of Ownership. You acknowledge and agree that Kelley is the owner of the Kelley Marks and the Kelley Proprietary Information and You agree that it has no right, title, or interest in any of the Kelley Marks or Kelley Proprietary Information except the right to use the Kelley Marks and the Kelley Proprietary Information in accordance with and subject to this Agreement. You further agree not to challenge or assist with or participate in any challenge, directly or indirectly, of Kelley’s ownership of the Kelley Marks and the Kelley Proprietary Information or any right, title or interest therein or any portion thereof.
MAINTENANCE. The Service, Website, or Data may not be available due to any of the following reasons:
Scheduled Maintenance - time elapsed during any scheduled maintenance performed by Kelley on the Services, Website or Data. Emergency maintenance may occur at any time, as Kelley deems necessary. Kelley will use commercially reasonable efforts to schedule maintenance during hours other than normal business hours;
Emergency Maintenance - time elapsed during any maintenance performed on the Website or updates to the Data, which maintenance is required as a result of conditions beyond Kelley’s reasonable control. Emergency maintenance may occur at any time, as Kelley deems necessary;
Your telecommunications or Internet services;
Software or hardware not provided or controlled by Kelley;
Force Majeure events;
Acts or omissions of You, Your Users, agents, employees or contractors; or
An increase in demand for system resources that has not allowed Kelley a reasonable time to accommodate.
TERM AND TERMINATION.
Term. Credits purchased by You shall be available to You as of the date payment is received by Kelley (“Effective Date”) until the earlier of: i) access to the maximum number of Valuation Reports accessed by You or Your Users, or ii) one year from the Effective Date (the “Term”). Note: All Credits purchased but not used will expire one year after date of purchase and no refunds will be given.
Termination. Kelley may deny You access to all or part of the Service without notice if You engage in any conduct or activities that Kelley believes in it sole and absolute discretion violates applicable law or any of these Terms. You agree that any termination of Your access to the Service under any provision of these Terms may be effected without prior notice, and acknowledge and agree that Kelley may immediately deactivate or delete Your account and all related information and/or bar any further access to such files or the Service. Further, You agree that Kelley shall not be liable to You or any third-party for any termination of Your access to the Service. Either party may terminate this Agreement immediately upon the occurrence of a material breach hereof by the other party, if such material breach is capable of cure and has not been cured within ten (10) days after the date of written notice thereof to the breaching party by the non-breaching party.
Rights Upon Termination. Upon termination, regardless of the reason therefor or the fault (if any) of any party, any rights and/or licenses granted hereunder or in connection with the Service shall immediately terminate. For purposes of clarification, You may keep copies of the Data and/or Valuation Reports previously accessed and stored by You for archival purposes.
Survival. The provisions of Sections 1, 3, 4, 6.C, 6.D, 8.B, and 9 through 16 will survive any termination of this Agreement.
PAYMENT. Credits are payable in advance and non-refundable. If Kelley elects to invoice You for the Credits, access to the Service will be granted by Kelley upon receipt of Your payment. Payment for Credits or use of the Service does not transfer any right, title, or interest in the Service, Kelley Marks or Data to You except as specifically set forth in these Terms. You will assume responsibility for and pay all applicable state, local, federal or other taxes (exclusive of taxes based on Kelley’s net income), which result from this agreement or the products and services provided hereunder. Except as expressly provided in these Terms, all payments made by You are non-refundable.
You must have a valid Kelley account during the Term. The account may be used only by You or a User. Each account will be assigned a personal, non-transferable password. You acknowledge and agree that no account or password may be “shared” or used by more than one individual. You shall notify Kelley immediately of any unauthorized use of any password or Your account or any other breach of security that is known or suspected by You.
You are solely responsible for any and all activities that occur under Your account and ensuring that each User exits or logs-off from his or her account at the end of each session of use. You agree to abide, and to cause each User to abide, by all applicable local, state, national and foreign laws, treaties and regulations in connection with the Service. In addition, without limitation, You agree not to, and not to permit any User to: (i) use information from the Service in connection with sending unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise, (ii) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent, (iii) use the Data to transmit unlawful, harassing, libelous, abusive, tortious, defamatory, threatening, harmful, invasive of another’s privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way, (iv) transmit any material that may infringe the intellectual property rights or other rights of third parties, including without limitation trademarks, service marks, copyright or right of publicity, (v) transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as “Trojan horses”, “worms”, “time bombs”, “spyware”, “malware”, “root kits”, or “cancelbots”, (vi) interfere with or disrupt servers or networks connected to the Service or the Website or violate the regulations, policies or procedures of such networks, (vii) attempt to gain unauthorized access to the Service, Website, Data, other accounts, computer systems or networks connected to the Service or the Website, through password mining or any other means, or (viii) harass or interfere with another person’s use and enjoyment of the Service or Website. Kelley has no obligation to monitor the Service, the Website, the Data, or Your or any User’s use thereof. However, Kelley reserves the right at all times to monitor, review, retain and disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.
NO ENDORSEMENT. Kelley does not endorse any sites on the Internet that may be linked through the Service or on the Website. Any such links are provided by Kelley as a matter of convenience only, and in no event shall Kelley be responsible for any content, services, products, or other materials on or available from or through such sites.
NO WARRANTIES. THE SERVICE AND DATA ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. KELLEY MAKES NO REPRESENTATION, WARRANTY OR GUARANTY WHATSOEVER AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE, THE WEBSITE, OR ANY DATA. KELLEY DOES NOT REPRESENT, WARRANT OR GUARANTY THAT: (I) THE USE OF OR ACCESS TO THE SERVICE, WEBSITE OR DATA WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICE OR DATA WILL MEET YOUR OR ANY USER’S REQUIREMENTS OR EXPECTATIONS, (III) THE QUALITY OF ANY PRODUCTS, SERVICE, DATA, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU OR ANY USER THROUGH THE SERVICE WILL MEET ANY REQUIREMENTS OR EXPECTATIONS, (IV) ERRORS OR DEFECTS IN THE SERVICE, THE WEBSITE, OR THE DATA WILL BE PREVENTED OR CORRECTED, (V) THE SERVICE, THE WEBSITE OR THE DATA, OR THE SERVER(S) THAT MAKE THE SERVICE, THE WEBSITE OR DATA AVAILABLE OR STORE THE DATA, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. KELLEY HEREBY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, OR OF WORKMANLIKE EFFORT. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, KELLEY EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, AVAILABILITY, DATA, COMPLETENESS, LEGALITY, OPERABILITY, OR RELIABILITY OF ANY DATA, INFORMATION, OR MATERIAL IN CONNECTION WITH THE SERVICE, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE FOREGOING AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THERE IS NO WARRANTY OF CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION WITH REGARD TO THE SERVICE, WEBSITE OR DATA. YOU UNDERSTAND AND AGREE THAT YOU AND THE USERS MAY ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN DATA, INFORMATION, AND MATERIALS FROM THE SERVICE AND WEBSITE AT ITS, HIS OR HER OWN DISCRETION AND RISK AND THAT YOU AND THE USERS SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS, HIS OR HER PERSONAL COMPUTER OR OTHER COMPUTING DEVICE (AND ANY SOFTWARE OR HARDWARE THEREOF) OR ANY LOSS OF DATA OR INFORMATION IN CONNECTION WITH THE USE OF OR ACCESS TO THE SERVICE, THE WEBSITE OR ANY DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU OR ANY USER FROM KELLEY SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY NOT EXPRESSLY PROVIDED HEREIN OR OTHERWISE MODIFY THE TERMS HEREOF.
LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KELLEY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, DATA, REVENUE OR OTHER ECONOMIC ADVANTAGE OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICE, THE WEBSITE, OR DATA, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE OR FOR ANY DATA OBTAINED FROM OR THROUGH THE SERVICE OR WEBSITE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF KELLEY, AND EVEN IF KELLEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF KELLEY UNDER ANY PROVISION OF THESE TERMS AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICE OR U.S. $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIMITING LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. AS A RESULT, THE ABOVE LIMITATIONS AND/OR EXCLUSION MAY NOT APPLY TO YOU. IF SO, THE FOREGOING LIMITATIONS AND EXCLUSIONS SHALL APPLY TO THE GREATEST EXTENT PERMITTED, AND ALL IMPLIED WARRANTIES (IF ANY) ON THE SERVICE ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF YOUR ORIGINAL SUBSCRIPTION TO THE SERVICE.
INDEMNIFICATION. You shall indemnify Kelley, and hold Kelley harmless, from and against all actions, claims, damages, demands, liabilities, losses and suits including, but not limited to, reasonably attorneys’ fees and costs, from any and all actions, claims, damages, demands, liabilities, losses and suits asserted against Kelley or any of its suppliers or licensors that may arise or result, directly or indirectly, from Your account, Your use of the Service, the Website, any Data, or violation of these Terms by You or any of Your Users.
GRAMM-LEACH BLILEY PRIVACY ACT AGREEMENT: Kelley represents and warrants to You that it has implemented and presently maintains safeguards designed to ensure the security and confidentiality of “Customer Information” that You may allow Kelley to access during its business relationship with You. “Customer Information” is non-public personal information collected by You about Your customers, including the fact that a customer may be a credit customer of You. Kelley agrees that “Customer Information” will be held in strict confidence and accessed only for the business purposes of providing the Service. Kelley agrees to protect this “Customer Information” according to commercially reasonable standards and no less rigorously than it protects its own customers’ confidential information. Kelley agrees to return or destroy all Customer Information received from You upon request by You. Should Kelley violate any terms of this section, then You may immediately terminate this Agreement and Kelley will refund to You any unused Credits paid to Kelley. You may seek injunctive relief, in addition to a claim for a prorated refund of the Credits, in order to prevent or remedy any breach of the confidentiality obligations of this section.
INTERNET DELAYS; FORCE MAJEURE: The Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Kelley is not responsible for any delays, delivery failures, or other damage resulting from such problems. Kelley shall not be liable in any way for its failure to perform hereunder if such failure is occasioned by any of the following: war; fire; flood; interruption of transportation; embargo; accident; explosion; governmental orders, regulations, restrictions, priorities or rationing; strike, lockout or other labor problems; or any reasonable cause beyond the control of Kelley.
You may not sell, mortgage, assign or otherwise transfer any of your rights or obligations under this Agreement to any other person or entity without the express, prior written consent of Kelley, which consent may be withheld in Kelley’s sole discretion.
You represent that You are acting on Your own behalf and are not acting as an agent for or on behalf of any third party. No joint venture, partnership, employment, or agency relationship exists between Kelley and You as a result of these Terms or Your use of or access to the Service or Website.
A breach by You of any of the provisions in these Terms may result in irreparable and continuing harm to Kelley for which there may be no adequate remedy at law. You agree that Kelley shall be entitled to seek injunctive relief and/or specific performance regarding these Terms and any other relief as may be appropriate (including monetary damages if applicable), without the requirement of posting a bond.
You agree that Kelley may communicate with You electronically. You agree that all agreements, notices, disclosures, and other communications Kelley sends to You electronically will satisfy any requirement that such communication be in writing. Such electronic communications may consist of e-mail or other notices on the Website or through the Service. You are responsible for providing and maintaining a current e-mail address with Kelley. In the event that the last e-mail address that You have provided us is not valid, or for any other reason is not capable of delivering to You the notice described above, Kelley’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes, modifications, additions, or deletions described in the notice.
All notices, authorizations and consents to Kelley with respect to this Agreement shall be in writing and given by U.S. mail or nationally recognized overnight courier. Any communication given by U.S. mail shall be deemed to have been validly and effectively given on the third (3rd) business day after deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, and on the business day after being sent by nationally recognized overnight courier, charges prepaid, return receipt requested, addressed to Kelley Blue Book, Attn: President, 195 Technology Drive, Irvine, CA 92618.
No party has the right, power or ability to create a liability or obligation for or of the other party. Neither party’s waiver of the breach of any provision shall constitute a waiver of any other provision or that provision in any other instance. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of any conflict of law rules or principles. The parties agree to the exclusive jurisdiction of federal and state courts located in Orange County, California and waive all claims that such jurisdiction is inconvenient, lacks jurisdiction or other claims which seek to change the agreed upon venue.
Kelley reserves the right, at its sole discretion, to change, modify, add or delete portions of these Terms at any time by notifying You of any such change, modification, addition, or deletion at the last e-mail address that You provided us, and/or by prominently posting notice of any such change, modification, addition, or deletion on the Website. Any such change, modification, addition, or deletion shall become effective immediately upon posting of such notice on the Website.
These Terms set forth the entire understanding and agreement between You and Kelley with respect to the Service and any other subject matter of these Terms. These Terms supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Service or any other subject matter covered by these Terms. Notwithstanding the foregoing, You may also be subject to additional terms and provisions which apply when You use or access other portions of the Website or to other services provided by Kelley at the Website or other websites.
Neither party shall issue any press releases or other announcement or disclosure regarding this Agreement without the other parties’ prior written approval. If any term of this Agreement is held invalid, illegal or unenforceable for any reason, the remainder of the provision shall continue in full force and effect, and it is the intent of the parties that a valid, legal and enforceable provision with the same intent and economic effect be substituted. Each of the parties shall perform its respective obligations under this Agreement in a manner that complies with applicable laws and regulations. This Agreement will be interpreted in accordance with its terms and without any strict construction in favor of or against either party.