IMPORTANT! PLEASE READ

KELLEY BLUE BOOK PROVIDES ITS KARPOWER ONLINE® SERVICE (THE “SERVICE”) TO YOU SUBJECT TO YOUR ACCEPTANCE OF THE FOLLOWING TERMS OF SERVICE. BY CLICKING THE “OK” BUTTON AND/OR USING THE SERVICE, YOU ACCEPT AND AGREE TO ADHERE TO THESE TERMS OF SERVICE, CONFIRM THAT YOU HAVE READ AND UNDERSTOOD THEM, AND AGREE TO BE BOUND BY THEM.


KARPOWER ONLINE
TERMS OF SERVICE

These terms of service (these “Terms”) govern all use of the Karpower Online service (the “Service”) provided by Kelley at www.karpower.com (the “Website”). As used herein, “Kelley” refers to Kelley Blue Book Co., Inc., and “You” or “Your” refers to the person or company who is being licensed to use the Service under these Terms.

  1. DEFINITIONS. For the purposes of this Agreement, the terms set forth below shall have the following meanings:
    1. "Content” shall mean the software, object code, images, graphics, icons, logos, text (including without limitation tutorials, user manuals, help files and other documentation), structured text (including without limitation CSS, XML and HTML data) and multimedia data contained in or made available through the Service.
    2. Data” shall mean the custom data generated by the Service, including but not limited to the Content, Values, Reports, and/or vehicle specifications, and constitutes proprietary information of Kelley.
    3. Effective Date” shall mean the date Kelley provides You with a User name and temporary password to allow You access to the Service via the Website.
    4. Features” shall mean any new feature(s) that augment or enhance the current Services.
    5. Kelley Marks” shall mean the Kelley trademarks and service marks, including “Kelley Blue Book,” “Blue Book,” “Bluebook,” and the Kelley Blue Book seal and such other names, logos, and other intellectual property Kelley used, uses or may use in the future on the Website or elsewhere related to its business, products or services (including, without limitation, all improvements, additions, derivatives and other modifications thereof)
    6. Online Inventory Listing” shall mean a vehicle listing that is displayed on a website accompanied by a Kelley Blue Book® Value, in accordance with this Agreement, including, without limitation, the usage requirements set forth in Section 3.A below.
    7. Report” shall mean a report generated from the Service.
    8. User” shall mean any user of the Service and/or Data who is an employee of You.
    9. Values” shall mean the prices or values (e.g. MSRP, dealer invoice, fair purchase price for a new vehicle; trade-in, lending, auction, certified pre-owned, and suggested retail for a used vehicle) provided by the Service.
  2. LICENSE AND REQUIREMENTS FOR USE.
    1. Grant of License
      1. By Kelley. Kelley hereby grants to You, subject to Your and Your Users continued compliance with all of the Terms, a non-exclusive, non-transferable, fee-bearing license during the Term to access and use the Service and Data in accordance with these Terms. 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 Service and Data and their compliance with these Terms. You shall make no other use of the Service or Data 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. Kelley shall make the Services purchased by you available to You pursuant to this Agreement during a subscription term. You agree that Your purchase of Services under this Agreement are neither contingent on the delivery of any future functionality or Features dependent on any oral or written public comments made by Kelley regarding future functionality or Features.
      2. By You. IF YOUR SUBSCRIPTION TO THE SERVICE INCLUDES DMS INTEGRATION, YOU HEREBY AUTHORIZE KELLEY, ITS AGENTS, AND/OR THIRD PARTY PROVIDERS TO ACCESS DATA FROM YOUR DEALER MANAGEMENT SYSTEM AND TO USE SUCH DATA IN CONNECTION WITH THE RELATED SERVICES OFFERED BY KELLEY AND ITS AFFILIATES.
    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 access and use 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.
  3. AUTHORIZED USES. You may use the Data to display vehicle pricing in Online Inventory Listings and to generate window stickers (if authorized) as permitted in this Section. No other license or right is hereby granted or shall be deemed granted with respect to the Data.
    1. Online Inventory Listings Display Requirements. You may use the Data to create Online Inventory Listings in accordance with this Agreement. You may only post, publish and transfer Values, Reports or Data from the Service to a website by using a data export function provided by the Service, and solely for the limited purpose of using the Data in connection with an Online Vehicle Listing. An Online Inventory Listing may feature a Kelley Blue Book® value provided the following are applied: (i) the text label shall read “Kelley Blue Book® [INSERT TYPE OF VALUE e.g. Suggested Retail] Value” in no less than twelve (12) point type size, and (ii) the following disclaimer and copyright notice is included and shall be displayed in close proximity:

      “© YYYY Kelley Blue Book Co., Inc. (MM/DD/YYYY – MM/DD/YYYY Edition for STATE). All Rights Reserved. Blue Book is a trademark of Kelley Blue Book Co., Inc. The specific information required to determine the value for this particular vehicle was supplied by the dealer (or by a third party on behalf of the dealer). Vehicle valuations are approximations and may vary from vehicle to vehicle. Kelley Blue Book assumes no responsibility for errors or omissions.”
    2. Window Sticker Display Requirements. If indicated as a licensing option on the Order Form, You may use the Data to create Window Stickers in accordance with this Agreement. A Window Sticker may feature a Kelley Blue Book® value provided the following are applied: (i) the text label shall read “Kelley Blue Book® [INSERT TYPE OF VALUE e.g. Suggested Retail] Value” in no less than fourteen (14) point type size, and (ii) the following disclaimer and copyright notice is included and shall be displayed in close proximity:

      “© YYYY Kelley Blue Book Co., Inc. (MM/DD/YYYY – MM/DD/YYYY Edition for STATE). All Rights Reserved. The specific information required to determine the value for this particular vehicle was supplied by the dealer (or by a third party on behalf of the dealer) generating this window sticker. Vehicle valuations are approximations and may vary from vehicle to vehicle. This window sticker is intended for the individual use of the dealer and may not be sold or transmitted to another party. Kelley Blue Book assumes no responsibility for errors or omissions.”
    3. Kelley Approval. At any time during the term of this Agreement, Kelley may request to review Your usage of the Data. If Kelley, in its sole discretion, determines that the Values or other elements of the Data are not properly displayed, Kelley shall consider You to be in material breach of this Agreement and may terminate this Agreement in accordance with Section 8.B below.
    4. Limitation of Online Use of Data. Notwithstanding anything else in this Agreement, no Data shall be posted or otherwise accessible on any website owned, created, utilized or operated, directly or indirectly, by, on behalf of or for the benefit of You other than Online Inventory Listings in accordance with Section 3.A above.
  4. UNAUTHORIZED USES.
    1. No Publication of Lending or Auction Values. In no event shall You cause Kelley’s Lending Values and/or Auction Values to be published, posted, or otherwise accessible, electronically or in print, to the general public. You may publish on an intranet website, or other secure website that is not accessible to the general public, which is owned, created, utilized or operated, directly or indirectly, by, on behalf of, or for the benefit of, You and made available to Users.
    2. No Removal of Disclaimers. In no event shall You remove from Online Listings, window stickers, Reports or anywhere else the disclaimers appear as required by the Service. Any such removal of disclaimers will be considered a material breach of this Agreement and Kelley may terminate this Agreement in accordance with Section 8.B below.
    3. 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 Content, or develop a competing product or database based on the Data or the Content. You may not (i) frame or utilize framing techniques to enclose any of the Data or Content 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 Content, 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 Content, or Data.
    4. The Service may not be used in combination with any product or service that is not owned, provided, or authorized by Kelley, and neither the Content 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, the Content or any Data in any format to any third party, including posting or otherwise making it accessible on any website owned, created, utilized or operated, directly or indirectly, by, on behalf of or for the benefit of You.
    5. 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.
  5. CHANGES TO SERVICE. Kelley may change the Service at any time and for any reason. Such changes may include the addition, modification, and/or removal of Features, or the requirement of fees for previously-free Features. Kelley will be under no obligation to provide new or enhanced Features or Services. Kelley may cancel or suspend Your use of the Service or any Feature at any time; such cancellation or suspension may be without cause and/or without notice. Upon cancellation, Your right to use the Service stops immediately. In the event of termination of the Service or a Feature, Your sole remedy shall be a prorated refund of any fees paid by you to Kelley in advance for the affected service or Feature.
  6. OWNERSHIP
    1. Kelley Marks. Kelley will retain all right, title and interest (including all intellectual property rights) in and to the Kelley Marks and You will do nothing inconsistent with such ownership. No right, title or interest is granted to You in the Kelley Marks by these Terms, except the right to use the Kelley Marks in accordance with and subject to these Terms, and Your use of the Kelley Marks will inure to the benefit of Kelley.
    2. Kelley Proprietary Information. The Service, Website, Content, 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.
    3. 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 You have 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.
    4. Intellectual Property Rights. The Service, Content, Kelley Marks and Data are protected by state, federal and common law concerning intellectual property and other intangible rights, including without limitation, all rights in copyrights, patents, trademarks, service marks, moral rights, trade names, domain names, technology, mask works, know-how, design rights, trade dress, trade secrets, inventions, ideas, processes, formulas, source code and object code, data, and similar rights including the information in any application, registration, or renewal thereof that may be protected under the laws, regulations, or rules of any country (collectively, the "IP Rights"). You hereby acknowledge and agree that Kelley and its suppliers and licensors are the owners of, and retain all right, interest and title in and to the IP Rights. Any modifications, extensions, simplifications, or enhancements to the Service, the Proprietary Data or Content suggested, conceived of, designed, prototyped or implemented by Kelley or You (collectively, the "Improvements") shall become the exclusive property of Kelley, and You hereby irrevocably assign to KBB all of Your right, title and interest in the Improvements. Kelley shall have the sole and exclusive right to apply to register the Improvements in its own name in any and all countries, to obtain renewals, and to manufacture, reproduce, publish, distribute and sell them.
  7. MAINTENANCE. The Service, Website, or Data may not be available due to any of the following reasons:
    1. 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;
    2. 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;
    3. Your telecommunications or Internet services;
    4. Software or hardware not provided or controlled by Kelley;
    5. Force Majeure events;
    6. Acts or omissions of You, Your Users, agents, employees or contractors; or
    7. An increase in demand for system resources that has not allowed Kelley a reasonable time to accommodate.
  8. TERM AND TERMINATION.
    1. Term. Your subscription shall commence on the Effective Date and continue for a period of one year unless terminated as provided for herein.
    2. Termination. Kelley reserves the right to terminate, suspend, or discontinue Your access to the Services, or any portion or Feature thereof, for any or no reason and at any time with or without notice to you. In the event of termination of the Service or Feature, Your sole remedy shall be a prorated refund of any fees paid by you to Kelley in advance for the specific service or Feature that was affected. You agree that any termination of Your access to the Service or any Feature 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 or any Feature. 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.
    3. 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 Reports previously printed, accessed and/or stored by You for archival purposes.
    4. Survival. The provisions of Sections 1, 4, 5, 6, 8, 9, 10.B, and 13 through 19 will survive any termination of this Agreement.
  9. FEES, TAXES, AND PAYMENT TERMS. The subscription fees for the Service, User license fees and any set up fees are payable upon the Effective Date and non-refundable. Kelley will send You an invoice. Additional services or Features, such as imports and exports, will be billed monthly. Any additional services or Features that You request or order via phone, email or in writing during the Term will be invoiced on a prorated basis for the remainder of the Term. Kelley may, from time to time and in its sole discretion, make additional Features, Content sets, and/or Data available to You at no additional charge. Upon renewal of the Agreement, continued access to such additional services and/or Features may be subject to additional fees. Payment is due 30 days after date of invoice. 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 Services provided hereunder. Accounts unpaid forty-five (45) days after date of invoice may have Service suspended or terminated. Such interruption does not relieve You of the obligation to pay the fees. Late payments shall bear interest at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less). Without limiting any of Kelley’s remedies for non-payment or late payment of invoices, You agree to be liable to Kelley for any and all interest, costs of collection, court costs and reasonable attorneys’ fees relating to any action or proceeding to collect fees due for use of the Service pursuant to this Agreement. Payment for Features or use of the Service does not transfer any right, title, or interest in the Service, Content, Data, or Kelley Marks to You except as specifically set forth in these Terms. Except as expressly provided in these Terms, all payments made by You are non-refundable.
  10. YOUR ACCOUNT.
    1. 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.
    2. 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.
  11. KELLEY PRIVACY POLICY. Click here to view Kelley’s Privacy Policy. The Service may contain links to third party information and service providers who may collect personal information from You in order to provide You with information or services. Kelley has no control over the privacy policy of any third party company, so please examine their privacy policy prior to submitting any personal information. Kelley reserves the right to contact You in the event of any changes that may affect Your account. Kelley reserves the right to reveal Your identity or user account information in the event of a claim, investigation, complaint or legal action arising from Your or Your Users use of the Service, including, without limitation, furnishing such material and information regarding Your identity and any other information we may have about You.
  12. 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.
  13. NO WARRANTIES. THE SERVICE, WEBSITE, CONTENT, 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, WEBSITE, CONTENT, OR ANY DATA. KELLEY DOES NOT REPRESENT, WARRANT OR GUARANTY THAT: (I) THE USE OF OR ACCESS TO THE SERVICE, WEBSITE, CONTENT, OR DATA WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICE, CONTENT, OR DATA WILL MEET YOUR OR ANY USER’S REQUIREMENTS OR EXPECTATIONS, (III) THE QUALITY OF ANY PRODUCTS, SERVICE, CONTENT, 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, WEBSITE, CONTENT, OR DATA WILL BE PREVENTED OR CORRECTED, (V) THE SERVICE, WEBSITE, CONTENT, OR DATA, OR SERVER(S) THAT MAKE THE SERVICE, WEBSITE, CONTENT OR DATA AVAILABLE OR STORE THE CONTENT AND/OR 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, CONTENT, OR DATA. YOU UNDERSTAND AND AGREE THAT YOU AND THE USERS MAY ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN DATA, CONTENT, INFORMATION, AND MATERIALS FROM THE SERVICE AND WEBSITE AT YOUR, HIS OR HER OWN DISCRETION AND RISK AND THAT YOU AND THE USERS SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR, 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, WEBSITE, CONTENT, 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.
  14. LIMITATION OF LIABILITY.
    1. 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, WEBSITE, CONTENT, 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.
    2. 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.
    3. 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.
  15. 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, reasonable 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, Website, Content, any Data, or violation of these Terms by You or any of Your Users.
  16. 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. Upon request, Kelley agrees to return or destroy all Customer Information received from You upon either completion of the contract or termination. Should KBB violate any terms of this section, then You may immediately terminate this Agreement and KBB will refund to You, pro-rated on a daily basis, any Subscription Fees paid to KBB for the balance of the contract term. Dealer may seek injunctive relief, in addition to a claim for a prorated refund of the Subscription Fee, in order to prevent or remedy any breach of the confidentiality obligations of this section.
  17. 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.
  18. MODIFICATIONS. Kelley reserves the right to, and You agree that Kelley may, at its sole discretion, change, modify, add or delete portions of these Terms at any time (“Revised Terms of Use”) 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 as follows:
    1. If the revised terms are for (i) any Features that we are adding at the time of the revision, (ii) the terms of use or any Revised Terms of Use, (iii) any Service terms, (iv) any other general terms and conditions applicable to the Services, Website or other properties, or (v) any service you receive free of charge, then the revised terms shall be effective upon posting (unless Kelley expressly states otherwise at the time of posting).
    2. If the revised terms are otherwise for any then-existing Services or Features paid for by You, then the revised terms shall be effective upon the earlier to occur of (i) 15 days after posting, or (ii) your acceptance if Kelley provides a mechanism for Your immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button.
  19. GENERAL PROVISIONS.
    1. 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. Any unauthorized assignment, grant, or transfer, or attempted assignment, grant, or transfer of the Service by You shall be deemed null and void. These Terms shall be binding upon and inure to the benefit of Your successors, heirs, and assigns. Kelley may assign or transfer these Terms in the context of a merger, acquisition, or the sale of substantially all of KBB’s assets, or to one of its affiliates, without Your prior written consent and without notice to You.
    2. 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.
    3. 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. No party has the right, power or ability to create a liability or obligation for or of the other party.
    4. 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.
    5. 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 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.
    6. 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.
    7. 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. Kelley’s failure to act with respect to a breach by You, any User or others does not waive Kelley’s right to act with respect to subsequent or similar breaches.
    8. 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. You agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. 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.
    9. Neither party shall issue any press releases or other announcement or disclosure regarding this Agreement without the other parties’ prior written approval.
    10. 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.
    11. 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.

END OF TERMS OF SERVICE