Terms and Conditions
Effective as of November 1, 2019
Welcome to Genesis Digital Key. These Terms and Conditions contain the agreement between you (“Customer”) and Genesis Motor America, including but not limited to its affiliates, parent company, intended beneficiaries, successors and assigns, and relevant service providers (collectively, “we,” “us,” “our,” or “Genesis”) and any replacement vendors engaged by Genesis Motor America to perform the services provided by any of its current Vendors; (iii) Call Center Agents and their affiliates, successors and assigns; and (iv) any employees, directors, officers, subcontractors, representatives and agents of any of the foregoing for the provision of Digital Key services (“Digital Key services” or “services”). If you activate, receive, use, accept or otherwise access the Digital Key services and its related services and software, including by downloading software applications or using websites to access these services, you accept and agree to be bound by these Terms and Conditions.
If you do not agree, please stop using the Digital Key services immediately. As used in this Agreement, the terms “you” and “your” shall be deemed to refer to, and this Agreement shall be binding upon, any person or entity who has purchased or leased a Vehicle equipped with or uses as a driver or occupant (e.g., additional drivers, passengers) of your Vehicle, the Digital Key Services and/or has activated the Digital Key Services. This also includes any individuals who have received permission from the vehicle owner to access the vehicle using a Digital Key.
You can contact us at any time by pressing the Connected Services button in your vehicle, or reaching out as follows:
PLEASE READ ALL PAGES OF THIS AGREEMENT COMPLETELY BEFORE USING ANY DIGITAL KEY SERVICES AND KEEP A COPY FOR YOUR FILES. READ AND KEEP A COPY OF ANY ADDITIONAL DIGITAL KEY SERVICES DOCUMENTS GIVEN OR SENT TO YOU. ANY DIGITAL KEY SERVICES DOCUMENTS (REGARDLESS OF WHETHER THEY STATE THEY BECOME PART OF YOUR DIGITAL KEY SERVICES AGREEMENT) ARE AUTOMATICALLY DEEMED A PART OF THIS AGREEMENT, AS DESCRIBED IN THIS AGREEMENT, IF YOU ACCEPT ANY OF THE SERVICES SUCH DOCUMENTS DESCRIBE.
1. SERVICE REQUIREMENTS AND SERVICE PROVIDERS. Your Genesis vehicle (“Vehicle”) must have the hardware and software necessary to use the Digital Key services and you must have a compatible smartphone device. Additionally, you must register a Genesis Owner’s account with valid contact information, including a unique username and password, which can be found at owners.Genesis.com. You do not need an active Connected Services (Connected Services) account to enable or use the Digital Key system.
Genesis and its Vendors may interact with and/or engage one or more third party providers as necessary to provide the Digital Key services. Those third party providers include any person, company, or entity who provides any service, equipment, or facilities in connection with the Digital Key services or the Digital Key system, including, but not limited to, wireless service providers, underlying wireless carriers, suppliers, licensors, and app developers. Such third party providers, including Vendors, are referred to in this Agreement as “Service Provider(s)”. In addition, Genesis’s Service Provider(s) may receive and respond to your requests or concerns related to the Digital Key services through specially trained call center personnel (“Call Center Agents”).
2. SERVICE ACTIVATION/DURATION AND CANCELLATION.
A. ACTIVATION. YOU CAN ONLY RECEIVE AND USE DIGITAL KEY SERVICES BY ACCEPTING THIS AGREEMENT. SUBJECT TO APPLICABLE LAW, YOU ACCEPT THIS AGREEMENT AND GAIN ACCESS TO THE DIGITAL KEY SERVICES WHEN YOU SIGN A CONTRACT THAT INCLUDES THIS AGREEMENT, OR WHEN YOU COMPLETE AND ELECTRONICALLY SIGN THIS AGREEMENT ONLINE OR AT YOUR DEALERSHIP, OR ACCEPT THE AGREEMENT WITHIN THE RELATED MOBILE APPLICATION OR WEBSITE, OR WHEN YOU (OR ANOTHER USER OR OCCUPANT OF YOUR VEHICLE) USE THE DIGITAL KEY SERVICES, DOWNLOAD SOFTWARE TO USE THE DIGITAL KEY SERVICES, OR ACCEPT ANY OF ITS BENEFITS (INCLUDING USING A VEHICLE WITH AN ENABLED DIGITAL KEY SERVICES SYSTEM). IF YOU DO ANY ONE OR MORE OF THESE ACTIONS TO ACCEPT, YOU ARE BOUND BY THIS AGREEMENT AND ANY LATER CHANGES OR AMENDMENTS TO IT AS PROVIDED FOR IN THIS AGREEMENT.
B. Duration. The Digital Key services start upon the vehicle owner’s enrollment in the Digital Key services via the Genesis Owner’s Portal and continues until the Digital Key services are discontinued. The Digital Key services for non-owner operators of the vehicle begins upon receipt of the invitation from the Digital Key services account owner and continues until the account owner revokes access to the non-owner operator.
C. Your Cancellation Rights. Account owners can cancel the Digital Key services at any time. To cancel your service, you will need to call Connected Services Customer Care at 844-430-9741. You will be required to provide your password/PIN in order to cancel service.You promise to notify us promptly if you sell your Vehicle, its lease ends, or it is destroyed by casualty.
D. Our Cancellation and Suspension Rights. We may cancel your Digital Key services without cause, in which case we will give you notice 30 days prior to the effective date of cancellation after which your account will be deactivated and your Digital Key services will terminate. This means that we can decide to cease providing the Digital Key services to you at any time and for any reason, even for reasons unrelated to you or your account with us. Additionally, we may cancel your Digital Key services without prior notice to you if we have received information that establishes you are no longer the owner/lessee of your Vehicle or an authorized user of the Digital Key services for a particular vehicle., Also, we may cancel your Digital Key services immediately without prior notice to you for any good cause. This means, for example, we can terminate your Digital Key services immediately if you breach any part of this Agreement, interfere with our efforts to provide service, interfere with our business, if your Digital Key services or wireless phone number is used for illegal or improper purposes, or if an emergency or exigent circumstance arises requiring immediate cancellation of your Digital Key services. You do not have any right to have Digital Key services reactivated, even if you cure any of these problems, or if circumstances do not warrant reactivation. Whether to allow you to have Digital Key services again will be entirely up to us. We can also suspend your access for network or system maintenance or improvement, or if there is network congestion, or if we suspect your Digital Key services are being used for any purpose that would allow us to cancel it.
3. CHANGES TO THESE TERMS AND CONDITIONS. We can change these Digital Key Terms and Conditions at any time, after giving 30 days’ notice to you (or such longer period as required by law). This includes changing any or all of this Agreement, even the prices and services provided. If any such change materially affects your rights under this Agreement, or negatively impacts your Digital Key services in a material way, we will provide you with notice of such change in writing, which may include by electronic mail. We will notify you of any other non-material changes by publishing a notice of the change or a revised version of these Terms and Conditions on the Customer Web Portal and/or in the mobile application. AFTER RECEIVING NOTICE OF A CHANGE THAT MATERIALLY AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT OR NEGATIVELY IMPACTS YOUR DIGITAL KEY SERVICES IN A MATERIAL WAY, YOU MAY CANCEL YOUR DIGITAL KEY SERVICES OR AGREE TO THE CHANGE. YOUR CONTINUED USE OF THE SERVICES AFTER NOTIFICATION IS TAKEN AS YOUR ACCEPTANCE AND AGREEMENT TO THE CHANGES, AND YOU AGREE TO BE BOUND BY THE NEW TERMS AND CONDITIONS. You can obtain a copy of the current Terms and Conditions for your Agreement, in the Owner’s Portal, by calling us, or by pressing the Connected Services button in your Connected Services enabled vehicle and asking a Call Center Agent.
4. SPECIAL INFORMATION ABOUT SERVICE AND SYSTEM LIMITATIONS.
A. Availability. Digital Key Services are only available in the 50 United States. NOT ALL DIGITAL KEY SERVICES ARE AVAILABLE EVERYWHERE, PARTICULARLY IN REMOTE OR ENCLOSED AREAS, OR ON ALL VEHICLES, AT ALL TIMES. The area that you are driving in may affect the type or quality of service that we can provide to you, including, but not limited to, updating of the invitee access list.
B. Technology and Communications. Digital Key services that mimic the actions of the key fob will work on the vehicle if the user’s phone has been previously paired to the vehicle and the account is approved for access to the vehicle. Certain services, however, such as updating the user access list, cannot work unless your vehicle is in a place where we have an agreement with a wireless service provider for service in that area, and you can access cellular service. These services also cannot work unless you are in a place where the wireless service provider we have hired for that area has coverage, network capacity, and reception when the Digital Key Services are needed, and technology that is compatible with the services.
C. Vehicle and Equipment. The Digital Key services are provided using embedded hardware installed in your vehicle which receives certain signals sent from the approved smartphone containing the Digital Key app via local communications. YOUR VEHICLE HAS TO HAVE A WORKING ELECTRICAL SYSTEM (INCLUDING ADEQUATE BATTERY POWER) FOR THE DIGITAL KEY SERVICES SYSTEM TO OPERATE. YOUR SMARTPHONE MUST ALSO BE FUNCTIONING IN ORDER FOR THE DIGITAL KEY SERVICES SYSTEM TO OPERATE. If you try to add or modify any equipment or software in your Vehicle including the Digital Key services system, the Digital Key services may not work and we can terminate your Digital Key services.
D. Geography and Environment. There are other problems we cannot control that may prevent us from providing Digital Key services to you at any particular time or place, or that may impair your ability to use the Digital Key services. Some examples are obstructions between the smartphone and your vehicle or damage to important parts of your Vehicle in an accident.
E. Outside Our Control. Genesis is not responsible for any delay or failure in performance if such failure or delay could not have been prevented by reasonable precautions. Additionally, Genesis is not responsible if such failure or delay is caused by acts of nature, or forces or causes beyond our reasonable control. Examples include public utility electrical failure, acts of war, government actions, terrorism, civil disturbances, labor shortages or difficulties (regardless of cause), or equipment failures including Internet, computer, telecommunication or other equipment or technology failures.
5. SPECIAL NOTICES.
A. Software, Hardware and Equipment Updates. The Digital Key services involve server and vehicle software that we may need to change from time to time. We may do this remotely without notifying you first. It may also require device application updates, including mandatory updates, to the Digital Key applications, including mobile and wearable apps. Such changes may affect or erase data you have stored on the Digital Key application on your device. We are not responsible for any lost data. You do not own the Digital Key services software in the vehicle or on your device or website, or acquire any rights to use or modify the software on your own. Your Vehicle’s systems also involve software that we may need to change from time to time. You agree to allow the updates described in this Agreement to be done remotely or by a dealership without notifying you.
B. Telecommunications/GPS Changes. The Digital Key system uses digital wireless telecommunications technology outside of our control. Telecommunications technologies have been known to change over time, resulting in the obsolescence of certain telecommunications networks.&bsp; If the telecommunications technology used by your Digital Key system changes in a way that results in incompatibility of those technologies with your Digital Key system, then your Digital Key system will not work and we may be forced to cancel your Digital Key services. If other changes occur to the telecommunications technology used by your Digital Key system, we will notify you of the effective date of cancellation and any applicable changes to these Terms and Conditions.
C. Wireless Carriers. You do not have any right in the wireless phone number assigned to your Digital Key system. We can change the number at any time. As a condition to providing wireless service, the wireless carrier requires that you agree to the following terms. You agree that you have no contractual relationship whatsoever with the wireless carrier and that you are not a third-party beneficiary of any agreement between the Digital Key Services or any Service Provider and any wireless carrier. IN ADDITION, YOU AGREE THAT THE WIRELESS CARRIER HAS NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU.
6. SPECIAL INFORMATION AND AGREEMENTS ABOUT CERTAIN SERVICES
A. Daylight Savings Time. Notifications and preferences set up via the customer web portal do not account for daylight savings time. Based on your geographic location you may have to adjust your settings.
B. Default Notifications. We may set default feature notification preferences at the start of your Digital Key services. The email address you provide during enrollment will be used to provide you with relevant automated feature notifications. It is up to you to modify these notification preferences whether by operator, web, mobile app, in-vehicle app or phone.
C. Mobile and Wearable Apps. We hereby grant you a non-exclusive, non-transferable license to download, install, and use the application to access the Services on your mobile or wearable device for your own personal, non-commercial use according to this Agreement. This license is conditioned on your acceptance of all terms, conditions, policies, and notices accompanying the application or any of its content, including your agreement not to modify the content displayed in the application and to keep intact all copyright, Trademark, and other proprietary notices. The contents of the application including, but not limited to, text, images, audio, video and biometric information and their arrangement as well as the underlying code, are the property of, or licensed by, Genesis and are subject to copyright and other intellectual property protection. All trademarks, logos and service marks used in the application (collectively, “Trademarks”) are the property of their respective owners. The Trademarks may not be modified, downloaded, copied, used or distributed except as an integral part of the authorized download, copy or transmission of the application. Except as expressly stated here, we grant no other rights or licenses under any patents, Trademarks, copyrights, or other proprietary or intellectual property rights. Genesis hereby reserves all rights to enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
You are prohibited to make any use of the application that (a) infringes any third-party intellectual property, publicity or privacy rights, (b) violates any applicable law or regulation, (c) is defamatory, obscene, profane, false, threatening, pornographic, inappropriate or unprofessional, (d) contains any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information, or (e) is otherwise tortious or criminal. Subject to the foregoing, we do not generally make editorial determinations about your transmissions or any content you provide. However, we reserve the right to take any actions in our sole discretion to minimize our liability arising from your use of the application, or to preserve our relationships with our Service Providers. We also retain the right to provide mandatory software updates to mobile and/or wearable devices that may limit or prohibit use of outdated versions of the mobile and/or wearable apps. We will cooperate with any valid subpoenas or court orders directing us to disclose the identity of anyone posting any information or content that violates this Agreement.
D. Third Party Devices and Applications. Use of the application and Digital Key services necessarily involves hardware, services, and applications that were not developed by and are not under the control of Genesis, including but not limited to your device, your wireless service provider’s network, Internet browsers, email and SMS programs, dialers and other applications. Genesis and its Service Providers (i) do not guarantee that third party hardware, services and applications will function correctly with this application, (ii) expressly deny any liability related to involvement and interaction with these third party hardware, services and applications, and (iii) cannot guarantee and expressly disclaim liability for the above third parties’ privacy and security compliance including that related to conversations or data transmissions over the Internet or wireless network.
E. Local Laws. Local laws may limit the use of certain features in the application, including but not limited to the feature to remotely start the engine in your vehicle. It is your responsibility to be aware of local regulations that would result in restrictions on your use of the application. Genesis and its Service Providers expressly deny any liability for any violation of local law created by your use of the application.
F. Fees, Costs and Other Expenses. The application requires a data network operated by a wireless service provider to function. Your account with your wireless service provider is your responsibility and not the responsibility of the Digital Key services. Depending on your data plan, you may incur charges from your wireless service provider for use of their network and/or for specific services, for example, making phone calls, sending or receiving text messages and/or emails or other services. You are solely responsible for any and all costs you incur as a result of your use of the application.
7. YOUR RESPONSIBILITIES
A. Passwords/PINs. You promise to be fully responsible for the protection of your password/PINs. Anyone who has access to your password or PINs may be able to access the Digital Key services features and account, Digital Key or Owner Portal Web Sites, Mobile Apps, and In-vehicle Apps. We have no responsibility for, nor obligation to inquire about, the authority of anyone using your password/PINs or other information that can be used to identify your account to request Digital Key services for your vehicle.
B. Proper Use of the Services. You are responsible for ensuring safety and compliance with all regulations, ordinances and other laws applicable to your Vehicle. You promise not to use the Digital Key services for any fraudulent, unlawful, or abusive purpose, or in any way that is not described in materials provided by us to you or that interferes with our provision of services to you or to our other customers. You promise to notify us if you no longer have ownership or possession of the vehicle, including third party sale, loss, or total damage to the vehicle. You promise you will not abuse or do anything to damage our business operations, services, reputation, employees or facilities. If you do any of these things, you agree to indemnify, defend, and hold us harmless from and against any and all costs, expenses (including attorneys’ fees), losses, damages, and other liabilities which arise from or in connection with a claim or demand that any third party makes against us, which results in whole or in part from that use or misuse, or your actions or failure to act.
C. Safeguarding and Use of Others’ Information. Certain information you receive through your Digital Key services belongs to us or third parties who provide it through us. It may be covered by one or more copyrights, trademarks, service marks, patents, trade secrets or other legal protections. You promise not to use any content you receive through Digital Key services except as expressly authorized by us. You cannot license, lease, sell, resell, have licensed, have leased, have sold or resold, or otherwise transfer or convey any of it or use it for commercial purposes. You agree you will not copy, store, reproduce, distribute, modify, display, publish, perform, transmit, broadcast, or create derivative works from any of it. Certain Service Providers impose further terms and conditions on providing services (for example, the end user terms covering navigation and location data). By using the Digital Key services, you also agree to be bound by those additional terms and conditions. You can access these additional terms and conditions online at Owners.Genesis.com and or request a copy by emailing us, calling us, writing us or by pressing the Connected Services button in your Vehicle and asking a Call Center Agent.
D. Other Users/Occupants of Your Vehicle. YOU ARE SOLELY RESPONSIBLE FOR ANY USE OF DIGITAL KEY SERVICES IN YOUR VEHICLE, EVEN IF YOU ARE NOT THE ONE USING IT, AND EVEN IF YOU LATER CLAIM THE USE WAS NOT AUTHORIZED. YOU ARE ALSO SOLELY RESPONSIBLE FOR THE SERVICES REQUESTED BY YOU, OR BY ANYONE USING OR OCCUPYING YOUR VEHICLE, THROUGH THE DIGITAL KEY SERVICES. You promise to educate and inform all users and occupants of your Vehicle about the Digital Key services, system features and limitations and our use of such user’s and occupants’ information as permitted by these Terms and Conditions. We have no obligation to inquire about the authority of anyone using your vehicle. If you, another driver or a passenger of your Vehicle uses the Digital Key services to commit a crime or for another improper purpose or if such other driver or occupant of your Vehicle disputes Genesis’s collection and use of information as permitted in these Terms and Conditions, you agree to indemnify, defend and hold Genesis harmless from and against any and all costs, expenses (including attorneys’ fees), losses, damages, and other liabilities which arise from such improper use.
We use the information we collect from you or occupants of your Vehicle to deliver the Digital Key services to you, manage your Digital Key services account, improve occupant and vehicle safety, analysis and research purposes, improve your Digital Key services experience at our dealers, provide service notifications/alerts and enhance your overall ownership experience. We will not sell, trade, or rent your information to others without your authorization. We share certain information collected from the Digital Key services with our dealers to assist in performing service diagnosis and repair and to improve your customer experience. We share the information we collect with Service Providers for purposes of providing the Digital Key services and maintaining your account. We may also share information as necessary with third parties for analysis and research purposes. Sharing this analysis and research, or the results thereof, with third parties who are not our Service Providers and/or partners will only occur with your express written consent. All Service Providers or third parties are contractually obligated to keep your information confidential if it is identifiable to you and use such information only as we specify. We may also disclose information to individuals designated by you to be contacted in an emergency. When required, you agree we may release information, including location data, to comply with applicable laws or regulations, in legal proceedings to respond to judicial subpoenas or court orders, in cooperation with law enforcement agencies, and to enforce the terms of this Agreement and any agreement related to the lease or financing of your vehicle. Any data which we collect or which you provide to us which is not identifiable to you, including functionality use, statistics, performance data, quality metrics, shall be owned by us.
B. Monitoring and Recording. For quality assurance purposes, the Service Providers may monitor and record conversations between their respective service centers and you and your Vehicle’s occupants, as well as any conversations between their service centers and you or others contacting the service centers to discuss your account outside of the vehicle. YOU CONSENT, ON BEHALF OF YOURSELF, AND ANYONE ENGAGED IN A CONVERSATION WITH A SERVICE PROVIDER ABOUT YOUR VEHICLE OR YOUR ACCOUNT, TO THE MONITORING AND RECORDING OF ALL CONVERSATIONS BETWEEN THE SERVICE CENTERS AND SUCH PERSONS AND YOU RELEASE GENESIS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES AND LOSSES THAT MAY RESULT FROM ANY SUCH MONITORED AND/OR RECORDED CONVERSATIONS. Call recordings may be shared with Genesis dealers and other Service Providers. We may also be legally required to provide location data and other information obtained through the Digital Key services to law enforcement agencies. YOU RELEASE GENESIS FROM AND AGAINST ANY AND ALL CLAIMS OR LIABILITIES ARISING OUT OF THE DISCLOSURE OF INFORMATION UNDER THOSE CIRCUMSTANCES.
C. Your Consent. YOU CONSENT ON BEHALF OF YOU AND OCCUPANTS IN YOUR VEHICLE TO WIRELESS COMMUNICATION BEING CONDUCTED IN YOUR VEHICLE TO ENABLE OUR SERVICE PROVIDERS TO DELIVER THE DIGITAL KEY SERVICES YOU AND OCCUPANTS IN YOUR VEHICLE. YOU ON BEHALF OF YOU AND OCCUPANTS IN YOUR VEHICLE ALSO CONSENT TO THE COLLECTION, RECORDING AND USE OF THE INFORMATION DESCRIBED IN THIS AGREEMENT AND RELEASE GENESIS FROM AND AGAINST ANY AND ALL CLAIMS OR LIABILITIES ARISING OUT OF THE COLLECTION AND USE OF THIS INFORMATION. YOU ALSO AGREE THAT WE MAY CONTACT YOU IN YOUR VEHICLE, BY ELECTRONIC MAIL, OR BY TELEPHONE AT ANY NUMBER WE HAVE ON FILE FOR YOU, AND, IN SOME CIRCUMSTANCES, BY PRERECORDED MESSAGE, EVEN IF DOING SO MAY RESULT IN ADDITIONAL TELECOMMUNICATIONS FEES OR CHARGES TO YOU, TO DISCUSS YOUR ACCOUNT, OFFER UNSOLICITED PROMOTIONS, OR TO DELIVER SERVICES.
9. NO WARRANTIES. Warranties are special kinds of promises. YOUR VEHICLE’S LIMITED WARRANTY does not cover the Digital Key services or the wireless service, which is provided to you on an “as is” and “where is” basis, without any warranty of any kind, express or implied. IN ADDITION, GENESIS CANNOT PROMISE UNINTERRUPTED OR PROBLEM-FREE SERVICE, AND CANNOT PROMISE THAT THE DATA OR INFORMATION PROVIDED TO YOU WILL BE ERROR-FREE. ALL DATA AND INFORMATION IS PROVIDED TO YOU ON AN “AS IS” BASIS. GENESIS HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ABOUT THE DIGITAL KEY SERVICES SYSTEM, THE DIGITAL KEY SERVICES AND ANY DATA AND INFORMATION AND SERVICES PROVIDED THROUGH IT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO CONTENT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, CORRECTNESS, RELIABILITY, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED BY THIS AGREEMENT.
10. LIMITATIONS OF LIABILITY. YOU AND WE ARE EACH WAIVING IMPORTANT RIGHTS. UNLESS FORBIDDEN BY LAW IN A PARTICULAR INSTANCE, WE EACH AGREE AS FOLLOWS:
A. WE ARE NOT LIABLE FOR THE ACTIONS OR INACTIONS OF ANY SERVICE PROVIDER WE CONTACT FOR YOU OR YOUR VEHICLE, OR FOR OUR INABILITY TO CONTACT ANY SERVICE PROVIDER IN ANY PARTICULAR SITUATION.
B. WE ARE NOT LIABLE TO YOU FOR (1) ANY INJURIES TO PERSONS OR PROPERTY ARISING OUT OF OR RELATING TO YOUR OR THE OCCUPANTS OR YOUR VEHICLE’S USE OF THE DIGITAL KEY SERVICES SYSTEM OR DIGITAL KEY SERVICES, OR (2) ANY DAMAGES ARISING OUT OF OR RELATING TO THE INSTALLATION, REPAIR, OR MAINTENANCE OF THE DIGITAL KEY SERVICES.
C. THE MAXIMUM AGGREGATE LIABILITY OF GENESIS TO YOU UNDER ANY THEORY (INCLUDING BUT NOT LIMITED TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, OR PRODUCTS LIABILITY) IS LIMITED TO THE GREATER OF (I) $500 OR (II) THE TOTAL AMOUNT PAID BY YOU FOR THE PORTION OF THE DIGITAL KEY SERVICES GIVING RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE DATE YOUR CLAIM AROSE. YOU AGREE THAT GENESIS WOULD NOT HAVE AGREED TO PROVIDE THE DIGITAL KEY SERVICES TO YOU IF YOU DID NOT AGREE TO THIS LIMITATION. THIS AMOUNT IS THE SOLE AND EXCLUSIVE LIABILITY OF GENESIS AND ANY OTHER THIRD PARTY BENEFICIARIES TO YOU, AND IS PAYABLE AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. IN THE EVENT YOU WISH TO OBTAIN A GREATER AMOUNT THAN THIS LIMITATION, YOU HAVE THE OPTION TO PURCHASE SUCH GREATER AMOUNT BY PAYING AN ADDITIONAL MONTHLY AMOUNT AND A RIDER SHALL BE ATTACHED TO THIS AGREEMENT SETTING FORTH THE ADDITIONAL CHARGE AND ADDITIONAL AMOUNT OF THE LIMITATION OF LIABILITY.
D. NEITHER YOU NOR WE CAN RECOVER (1) PUNITIVE OR EXEMPLARY DAMAGES, (2) TREBLE, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, OR (3) ATTORNEY’S FEES (EXCEPT IN CONNECTION WITH INDEMNIFICATION CLAIMS AS PROVIDED IN THIS AGREEMENT). YOU AND WE AGREE NOT TO MAKE, AND TO WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIM FOR DAMAGES OTHER THAN DIRECT, ACTUAL, COMPENSATORY DAMAGES AS LIMITED IN THIS AGREEMENT.
E. WE HAVE NO LIABILITY FOR SERVICE INTERRUPTIONS OF 30 DAYS OR LESS. TO RECEIVE SERVICE CREDIT FOR LONGER INTERRUPTIONS, YOU MUST NOTIFY US WITHIN 60 DAYS AFTER THE TIME WHEN THAT SERVICE INTERRUPTION STARTED. EXCEPT FOR ANY CREDITS PROVIDED VOLUNTARILY BY US FOR A DROPPED CALL, OR CREDITS FOR INTERRUPTED SERVICE AS DESCRIBED ABOVE, NO ONE IS LIABLE TO YOU FOR DROPPED CALLS OR INTERRUPTED SERVICE, OR FOR PROBLEMS CAUSED BY OR CONTRIBUTED TO BY YOU, BY ANY THIRD PARTY, BY BUILDINGS, HILLS, TUNNELS, NETWORK CONGESTION, WEATHER, OR ANY OTHER THINGS GENESIS IS UNABLE TO CONTROL.
F. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, YOU AGREE TO EXCUSE ANY NON-PERFORMANCE BY US CAUSED IN WHOLE OR IN PART BY AN ACT OR OMISSION OF A THIRD PARTY, OR BY ANY EQUIPMENT FAILURE, ACT OF GOD, NATURAL DISASTER, STRIKE, EQUIPMENT OR FACILITY SHORTAGE, OR OTHER CAUSES BEYOND THE CONTROL OF GENESIS.
G. IF ANOTHER WIRELESS SERVICE PROVIDER IS INVOLVED IN ANY PROBLEM (FOR EXAMPLE, BECAUSE OF ROAMING), YOU ALSO AGREE TO ANY LIMITATIONS OF LIABILITY THAT IT IMPOSES ON ITS CUSTOMERS.
H. YOU AGREE THAT GENESIS IS NOT LIABLE FOR ANY ERRORS, DEFECTS, PROBLEMS, OR MISTAKES IN DATA OR INFORMATION TRANSMITTED THROUGH THE DIGITAL KEY SERVICES SYSTEM.
I. You agree that the limitations of liability and indemnities in this Agreement will survive even after the Agreement has ended. These limitations of liability apply not only to you, but to anyone using your vehicle, to anyone making a claim on your behalf, and to any claims made by your family, employees, customers, or others arising out of or relating to your Digital Key services or system.
NOTE: Some states do not allow an exclusion or limitation of incidental or consequential damages or certain other damages, so some of the limitations above may not apply in some situations.
11. YOUR INSURANCE OBLIGATIONS. The service Genesis provides is intended as a convenience. The provision of the Digital Key services is not related to the value of your vehicle or any property in it, or the cost of any injury to or damages suffered by you or anyone else as a result of the operation of your vehicle. We are not an insurance company. You promise you will obtain and maintain appropriate insurance covering personal injury, loss of property, and other risks. FOR YOURSELF AND FOR ANYONE ELSE CLAIMING UNDER YOU, YOU HEREBY RELEASE AND DISCHARGE GENESIS FROM AND AGAINST ALL HAZARDS COVERED BY YOUR INSURANCE. NO INSURANCE COMPANY OR INSURER WILL HAVE ANY RIGHT OF SUBROGATION AGAINST GENESIS.
12. YOUR RESPONSIBILITY FOR ANY THIRD PARTIES’ CLAIMS. IN ORDER TO RECEIVE DIGITAL KEY SERVICES, YOU AGREE THAT YOU WILL INDEMNIFY, DEFEND AND HOLD GENESIS HARMLESS FROM AND AGAINST ANY AND ALL AMOUNTS ANYONE ELSE CLAIMS FROM US, PLUS ANY AND ALL COSTS AND EXPENSES WE MAY INCUR (INCLUDING ATTORNEYS’ FEES), RESULTING FROM ANY CLAIM, DEMAND OR ACTION, REGARDLESS OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND, OR ACTION ALLEGING LOSS, COSTS, EXPENSES, DAMAGES, OR INJURIES (INCLUDING INJURIES RESULTING IN DEATH) ARISING OUT OF OR IN CONNECTION WITH (1) THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT, WHETHER BROUGHT BY YOU, THE OCCUPANTS OF YOUR VEHICLE, YOUR EMPLOYEES, OR THIRD PARTIES, EVEN IF DUE TO THE SOLE NEGLIGENCE OF GENESIS OR ANY OF THE SERVICE PROVIDERS; (2) THE USE OR POSSESSION OF DATA OR INFORMATION PROVIDED IN CONNECTION WITH DIGITAL KEY SERVICES; (3) CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING OUT OF OR RELATED IN ANY WAY DIRECTLY OR INDIRECTLY TO THIS AGREEMENT; OR (4) THE USE, FAILURE TO USE, OR INABILITY TO USE DIGITAL KEY SERVICES, EXCEPT WHERE THE CLAIMS RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF GENESIS OR ANY OF THE SERVICE PROVIDERS. IN ADDITION, IF YOU HAVE AUTHORIZED GENESIS TO CHARGE AMOUNTS DUE AGAINST YOUR CREDIT, DEBIT OR BANK CARD ACCOUNT OR OTHER SIMILAR ACCOUNT BY GIVING US A CARD OR ACCOUNT NUMBER, THEN YOUR AGREEMENT IN THIS SECTION EXTENDS TO CLAIMS, EXPENSES, LIABILITIES, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OR OWNERSHIP OF THE CREDIT OR DEBIT CARD ACCOUNT, OR OTHER SIMILAR PAYMENT ACCOUNT, OR FROM THE ISSUER’S REFUSAL TO PAY AMOUNTS CHARGED TO SUCH ACCOUNT.
13. RESOLVING DISPUTES.
A. Governing Law. To the fullest extent permitted by law and except as explicitly provided otherwise, this Agreement and any disputes arising out of or relating to it will be governed by the laws of the state of California without regard to its conflict of law principles.
B. Time Limits. EXCEPT WHERE PROHIBITED BY LAW, YOU ARE NOT ALLOWED TO BRING ANY CLAIM AGAINST GENESIS (OR ANY OTHER THIRD PARTY BENEFICIARY) MORE THAN ONE YEAR AFTER THE CLAIM ARISES.
C. Binding Arbitration
MOST CUSTOMER CONCERNS CAN BE RESOLVED QUICKLY AND TO THE CUSTOMER'S SATISFACTION BY CONTACTING GENESIS’S CUSTOMER SERVICE DEPARTMENT AT CONSUMERAFFAIRS@HMAUSA.COM OR CALLING 800-633-5151. IN THE UNLIKELY EVENT THAT GENESIS'S CUSTOMER SERVICE DEPARTMENT IS UNABLE TO RESOLVE YOUR CONCERNS, WE EACH AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF IN COURTS OF GENERAL JURISDICTION TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO THE TERMS OF THIS AGREEMENT. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT. ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. ARBITRATORS CAN AWARD THE SAME DAMAGES AND RELIEF THAT A COURT CAN AWARD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS TO THE MAXIMUM EXTENT PERMITTED BY LAW; CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ARBITRATIONS ARE NOT PERMITTED. GENESIS WILL PAY ALL ADMINISTRATIVE COSTS OF THE ARBITRATOR, NO MATTER WHO WINS, SO LONG AS YOUR CLAIM IS NOT FRIVOLOUS OR BROUGHT IN BAD FAITH. HOWEVER, IN ARBITRATION, BOTH YOU AND GENESIS WILL BE ENTITLED TO RECOVER ATTORNEYS´ FEES FROM THE OTHER PARTY TO THE SAME EXTENT AS YOU WOULD BE IN COURT.
(a) Genesis and you agree to arbitrate any and all disputes and claims between us 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 support for, whether you are a Visitor or Customer, via the sites or through mobile application, except any disputes or claims which under governing law are not subject to arbitration, to the maximum extent permitted by applicable law. This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims between us subject to arbitration to the fullest extent permitted by law. However, any dispute you or we may have relating to copyrights or other intellectual property (as set forth in Section 6 above) shall not be governed by this agreement to arbitrate. For the avoidance of doubt, this means that any claims you or we may have relating to intellectual property rights against the other, including injunctive and other relief sought, may be brought in a court of competent jurisdiction. The agreement to arbitrate otherwise includes, but is not limited to:
claims based in contract, tort, warranty, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising); claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; claims relating to your vehicle or your Digital Key services; claims relating to our websites, including for which you seek product or service support via the sites; claims arising out of or relating to the Telephone Consumer Protection Act; claims relating to your data privacy or information security; and claims that may arise after the termination of this Agreement.
For purposes of this arbitration provision, references to "Genesis," "you," and "us" shall include our respective parent entities, subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, websites of the foregoing, as well as all authorized or unauthorized users or beneficiaries of services, products or information provided or made available under this or prior Agreements between us relating to or arising from any aspect of your use or access of the sites. Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into this Agreement, you and Genesis are each waiving the right to a trial by jury or to participate in a class or representative action to the maximum extent permitted by law. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. This arbitration provision shall survive termination of this Agreement or your relationship with Genesis for any reason.
(b) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice''). The Notice to Genesis should be addressed to: Consumer Affairs, Genesis Motor America, Legal Department, 10550 Talbert Avenue, Fountain Valley, CA 92728-0850. ("Notice Address''). The Notice must describe the nature and basis of the claim or dispute and set forth the specific relief you seek from Genesis ("Demand''). If Genesis and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Genesis may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Genesis or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Genesis is entitled. In arbitration, and to the extent otherwise permitted by law, the parties may exchange “offers of compromise” or stipulate to judgments or awards in the same way the parties could in court, including for example, under California Code of Civil Procedure Section 998 for arbitrations taking place in California. Such offers of compromise shall have the same force and effect as they would in a court proceeding. The arbitration proceedings shall otherwise remain confidential, 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 commenced arbitration, 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 arbitration provider. 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 by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The AAA Rules may change from time to time, and you should review them periodically.
All issues are for the arbitrator to decide, including the scope and enforceability of this arbitration provision as well as the Agreement´s other terms and conditions, and the arbitrator shall have exclusive authority to resolve any such dispute relating to the scope and enforceability of this arbitration provision or any other term of this Agreement including, but not limited to any claim that all or any part of this arbitration provision or Agreement is void or voidable. However if putative class or representative claims are initially brought by either party in a court of law, and a motion to compel arbitration is brought by any party, then the court shall decide whether this agreement permits class proceedings. For the avoidance of doubt, the court and arbitrator shall be bound by the terms of this Agreement, including with regard to the class and representative waiver provision. In any arbitration, the arbitrator shall be bound by the terms of this Agreement and shall follow the applicable law. The arbitrator shall not have the power to commit manifest errors of law or legal reasoning, and any award rendered by the arbitrator that employs a manifest error of law or legal reasoning may be vacated or corrected by a court of competent jurisdiction for any such error. Unless Genesis and you agree otherwise, any arbitration will be governed by the substantive laws of your state, and hearings will take place in the county (or parish) of your billing or registered address. Case management and other hearings shall be heard via telephone unless otherwise agreed to. Except as otherwise provided for herein, Genesis will pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the 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 Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Genesis for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.
(d) Discovery and/or the exchange of non-privileged information relevant to the dispute will be governed by the AAA Rules.
(e) YOU AND GENESIS 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 TO THE MAXIMUM EXTENT PERMITTED BY LAW. If this 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 be unenforceable, then the unenforceable portion of the provision shall be stricken, and the remainder of subparagraph (e) enforced. Any claims or causes of action seeking relief not subject to individual arbitration under applicable law shall be stayed in a court of competent jurisdiction pending completion of individual arbitration to the maximum extent permitted by law.
(f) Notwithstanding any provision in this Agreement to the contrary, we agree that if Genesis makes any change to this arbitration provision (other than a change to the Notice Address) after your enrollment in a service or program or your use of the sites, you may reject any such change and require Genesis to adhere to the language in this arbitration provision as written at the time of your enrollment or purchase if a dispute between us arises, by providing Notice to Genesis at the Notice Address in subsection (b) above.
14. GENERAL LEGAL INFORMATION.
B. Others Covered by this Agreement. EACH OF THE PERSONS/ENTITIES LISTED IN THE SECOND PARAGRAPH OF THESE TERMS AND CONDITIONS IS BOUND BY THIS AGREEMENT. YOU AGREE THAT YOU WILL MAKE ALL OF THE OCCUPANTS OF YOUR VEHICLE, WHETHER PASSENGERS, GUESTS OR DRIVERS OF YOUR VEHICLE, AWARE OF OUR RIGHTS AND SUBJECT TO THE LIMITATIONS OF THIS AGREEMENT.
C. Our Relationship. Despite anything else this Agreement says, this Agreement does not create any fiduciary relationships between you and us. It also does not create any relationship of principal and agent, partnership, or employer and employee.
D. Assignment. We can assign this Agreement or your obligations to pay under it in whole or in part to anyone we choose. You cannot assign this Agreement or your obligations to anyone else without our prior written consent and any attempted assignment in violation of this provision shall be void.
E. Final Provisions. This Agreement (which includes, without limitation, these Terms and Conditions and any other documents incorporated herein by reference) is the entire agreement between you and us. It supersedes all other agreements or representations, oral or written, between us, past or present. In the event of a conflict between any provision contained in these Terms and Conditions and any provision of any other document incorporated herein, the provision contained in these Terms and Conditions shall take precedence, and no additional or different terms shall be binding on either of us unless mutually agreed to in writing. This Agreement will not be presumptively construed for or against either party. Section titles contained herein are for convenience only. If any part of this Agreement is considered invalid by a court or arbitrator, the rest of it will remain enforceable. Even after this Agreement has ended, its provisions will govern any disputes arising out of or relating to it (unless it has been replaced by a new agreement between us). It will also be binding on your heirs and successors and on our successors and assigns. No waiver of any part of this Agreement, or of any breach of it, in any one instance will require us to waive any other instance or breach. IN SOME CIRCUMSTANCES WE MIGHT DECIDE TO PROVIDE YOU SERVICE VOLUNTARILY EVEN IF YOU WOULD NOT OTHERWISE QUALIFY. THIS WILL NOT BE DEEMED A WAIVER OR REQUIRE US TO DO SO AGAIN. YOU AGREE WE WILL NOT BE LIABLE FOR ANYTHING RESULTING FROM OUR PROVISION OF SUCH SERVICE.