10. Resolving Disputes By Binding Arbitration
MOST CUSTOMER CONCERNS CAN BE RESOLVED QUICKLY AND TO THE CUSTOMER'S SATISFACTION BY CALLING KIA’S CONSUMER ASSISTANCE CENTER AT 1-800-333-4KIA (4542). IN THE UNLIKELY EVENT THAT KIA’S CONSUMER ASSISTANCE CENTER 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. KIA 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 KIA WILL BE ENTITLED TO RECOVER ATTORNEYS´ FEES FROM THE OTHER PARTY TO THE SAME EXTENT AS YOU WOULD BE IN COURT.
A. Arbitration Agreement. Kia and you agree to arbitrate any and all disputes and claims between us arising out of or relating to the Services or the Terms, or use of the Site, or products, services, or programs you purchase, enroll in or seek product/service support for, whether you are a customer or a visitor, via the Site (including any 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 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 Terms (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 for which you seek product or service support via the Site; 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 the Terms.
For purposes of this arbitration provision, references to "Kia," "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 Site or Services. Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into this Agreement, you and Kia 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 Kia for any reason.
B. Written Notice of Dispute. 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 Kia should be addressed to: Kia America, Attn: Legal Department - Arbitration, 111 Peters Canyon Road, Irvine, CA 92606 (the “Notice Address”'). The Notice must describe the nature and basis of the claim or dispute and set forth the specific relief you seek from Kia (the “Demand”'). If Kia and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Kia may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Kia or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Kia 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. Mass Arbitration. YOU AND KIA AGREE THAT IN THE EVENT THAT MASS ARBITRATION IS ATTEMPTED OR SOUGHT, SUCH ARBITRATION SHALL BE ADMINISTERED PURSUANT TO THE FOLLOWING RULES.
For purposes of this Agreement, “Mass Arbitration” means 25 or more arbitration demands that: (i) are filed within 180 days of each other, (ii) allege similar or identical claims or causes of action, and (iii) either (a) the parties to those arbitration demands seek to simultaneously or collectively administer and/or arbitrate together, or (b) are filed by the same counsel or in coordination with each other.
In the event that Mass Arbitration is attempted or sought involving 250 arbitration demands or less, you and Kia agree the arbitration provider shall: (i) group the arbitration demands into batches of no less than 25 arbitration demands per group; and (ii) provide for resolution of each group or batch as a single arbitration with one set of filing and administrative fees and a single arbitrator assigned per group or batch. In the event that Mass Arbitration is attempted or sought involving over 250 arbitration demands, you and Kia agree that the arbitration provider shall: (i) group the arbitration demands into batches of no less than 250 arbitration demands per group; and (ii) provide for resolution of each group or batch as a single arbitration with one set of filing and administrative fees and a single arbitrator assigned per group or batch. All Mass Arbitration shall be subject to all other substantive and procedural terms contained within this Agreement.
You and Kia agree to cooperate in good faith with the arbitration provider to implement the aforementioned protocol for Mass Arbitration with regard to resolution, fees, and administration. To the extent a dispute arises regarding the administration of a Mass Arbitration, including, but not limited to, whether any conditions precedent have been satisfied or the advancement of fees, you and Kia agree to appointment of a Process Arbitrator pursuant to the Mass Arbitration Supplementary Rule of the American Arbitration Association (“AAA”).
If any part of this section 10(C) is found to be unenforceable, the unenforceable portion shall be stricken, and the remainder of this Section 10(C) and this Agreement shall be enforced to the maximum extent permitted by law.
If the arbitration provider is unwilling or unable to follow the procedures set forth in this Section 10(C) with regard to Mass Arbitration, the parties may attempt to retain a different, mutually agreeable and widely-recognized arbitration organization that will agree to follow the procedures set forth in this this Section 10(C). In the event that the parties are unable to retain or agree to such an alternative arbitration provider, the alternative dispute resolution provisions set forth in these Terms shall not apply to those demands within the Mass Arbitration.
If this specific Section 10(C) is found to be unenforceable in its entirety, then the entirety of this Section 10 arbitration provision shall be null and void. However, if only a portion of this Section 10(C) is found to be unenforceable, then the unenforceable portion of the provision shall be stricken, and the remainder of Section 10 enforced.
D. Filing Fees. After Kia receives Notice at the Notice Address that you have commenced arbitration, Kia 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 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 in court, 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 KMA 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, Kia 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 Kia for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.
E. Discovery. Discovery and/or the exchange of non-privileged information relevant to the dispute will be governed by the AAA Rules.
F. No Class Action Matters. YOU AND KIA 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. Further, unless both you and Kia agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. 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.
G. Jurisdictional Issues. Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any dispute arising hereunder may only be instituted in state or Federal court in Orange County, California. Accordingly, you and Kia consent to the exclusive personal jurisdiction and venue of such courts for such matters.
