Privacy Policy of Kelly-Moore Paint Company, Inc.

This privacy policy (the “Policy”) applies to (a) the use and access of any and all internet Websites operated by Kelly-Moore Paint Company, Inc., a California corporation (hereafter referred to interchangeably as “Kelly-Moore”, “We”, “Our” or “Us”) including but not limited to www.kellymoore.com, (collectively, the “Sites”), but not does apply to any third party sites that may be linked to the Sites and (b) the consummation or proposed consummation of any transactions of any kind between You (as hereinafter defined) and Kelly Moore. For purposes of this Policy, the terms “You”, “Customer”, “User” and “Your” refers to you, as a user of the Sites, an actual Customer and/or proposed Customer of Kelly-Moore.   You and Kelly-Moore may be referred to hereinafter individually as a “Party” or collectively as the “Parties”. The term “Personal Information” means information that You provide to Us which personally identifies You, such as Your name, telephone number, email address and such other information identified in paragraph 2 (A) (i) of this Policy.

BY EITHER (A) USING OR ACCESSING THE SITES AND/OR (B) CONSUMMATING TRANSACTIONS WITH KELLY-MOORE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS POLICY.  SHOULD YOU NOT AGREE WITH THE TERMS OF THE POLICY PLEASE DO NOT USE ANY OF THE SITES AND/OR DELIVER PERSONAL INFORMATION TO KELLY-MOORE.

1.         CHANGES TO THE POLICY. We may modify this Policy from time to time in Our sole discretion and without advance notice. When changes are made, We will notify You by making the revised version available on the Sites and will indicate on the Sites and any accounts set up by You (each, an “Account”) the date on which revisions were last made. You should revisit this Policy on a regular basis as revised versions will be binding on You without further notice. Any such modification will be effective upon Our posting of a new or revised Policy. Your continued use of any of the Sites after any posted modification to this Policy indicates Your assent to the modified and/or restated Policy.

2.         KELLY-MOORE PRACTICES.

         (A)       What information do We collect?

                        (i)         Personal Information. Kelly-Moore may collect Personal Information from You when You voluntarily provide it to Us by (1) registering on any of the Sites; (2) registering to enter a promotion, participate in an event or survey, receive newsletters or other literature; (3) making product, project, or service inquiries; (4) contacting Us (including Our Webmaster, customer service representatives, or other employees) by e-mail; and/or (5) providing other Personal Information to Us in furtherance of Our business relationship, including any information provided to Us at (a) the point of sale or (b) the preparation or execution of any Account agreement or credit application between You and Kelly-Moore. In connection with these activities, We may collect Personal Information from You, including, but not limited to, Your name, physical address, e-mail address, age, gender, telephone number, fax number or cellular phone number, User name and/or password associated with the use of any of the  Sites or Web portal(s), occupation, company name, name of position within company, whether You are a Kelly-Moore customer, Your primary field of expertise, the type of product You are seeking, the type of project You are or will be working on, the time frame for starting Your project, where You typically shop for paint, how You heard about Kelly-Moore, or other information necessary to conduct business with You.

                        (i)         Non-Personal Information. As part of the standard operation of the Sites, We may collect/obtain certain non-Personal Information from You including, but not limited to, Your browser type (e.g., Safari or Internet Explorer), operating system (e.g., Windows or Macintosh), Internet service provider, IP address, Web sites visited, and the domain name from which You accessed the Sites (e.g., yahoo.com). In addition, We may collect information about Your browsing behavior, such as the date and time You visit the Sites, the areas or pages of the Sites that You visit, the amount of time spent viewing the Sites, the number of times You return to the Sites, and other computer-related information. We may use cookies to collect this information, which may be combined with Your personal information. A cookie is a small text file that may be stored on the hard drive of Your computer, which enables Us to recognize Your computer when You return to the Sites. You are always free to decline cookies, but in doing so You may not be able to use certain features on the Sites. The “help” segment of the toolbar on most browsers explains how to configure a browser to not accept new cookies, how to have the browser inform a User when they receive a new cookie, and how to erase cookies from a computer’s hard drive. We may use Web beacons to assist Us in understanding how visitors to the Sites and how such sites and/or to collect information regarding User’s activities on the Web. We may utilize the services of a third party to collect such information for Us.

            (B)       How do We Use Your information? We may use the information We collect from You for any of the following purposes, without limitation: (1) to facilitate Your use of the Sites and better understand Your needs; (2) to fulfill Your requests for information about certain products, services, and projects; (3) to send You information, promotional materials, and offers from the company as Well as from the subsidiaries and affiliates; (4) to contact visitors to the Sites when necessary; (5) to help address problems with the Sites; (6) to administer the Sites; (7) to conduct internal reviews of the Sites (e.g., to determine the number of visitors to specific pages within any of the Sites); (8) to help Us better understand visitors’ use of the Sites; (9) to protect the security or integrity of the Sites; (10) to conduct business with You and (11) for such other purposes provided in this Policy. Non-personal information will be used for these purposes as well as to monitor the Sites and provide a greater online experience for the visitors.

            (C)       Will We disclose information We collect from You? Kelly-Moore will not sell Your information to third parties. Kelly-Moore may transfer, deliver or otherwise disclose Personal Information and non-Personal Information collected from You to the following individuals or entities for the following purposes, without limitation: (1) to Kelly-Moore’ employees, independent contractors, subsidiaries, affiliates, consultants, business associates, service providers, and suppliers, if the disclosure will enable that individual or entity to perform a business, professional, or technical support function for Kelly-Moore; (2) to employees, independent contractors, service providers, and suppliers of Kelly-Moore to fulfill a product or service request; and (3) to respond to judicial process and provide information to law enforcement agencies or in connection with an investigation on matters related to public safety, as permitted by law. In addition, We may disclose such Personal Information and non-Personal Information to Our third party marketing or service providers who may use such information in their business operations or who may contact You with information they feel may be useful to You. By providing information to Us, You consent to Your receipt from Us and/or from any of Our service providers of information and data We believe may be of interest to You.

            (D)       Do We collect information from children? We do not direct the Sites to, nor do We knowingly collect any personal information from, children under the age of 13.

            (E)       Does this Policy cover practices on third party sites? The Sites may contain links to other third party sites (such as those of Our marketing partners), which may have privacy policies that differ from Our own. We are not responsible for the activities and practices that take place on these third-party sites. Accordingly, We recommend that You review the privacy policy posted on any Site that You may access through the Sites.

            (F)       What happens to Your information in the event of unforeseen circumstances? In the event that Kelly-Moore or any of its assets are acquired by a third party, Personal Information acquired by Us may be one of the assets transferred.

            (G)       Will there be changes to this Policy in the future? Privacy laws and guidelines are part of a constantly changing environment.  As indicated above, We reserve the right, at Our discretion, to change, modify, add, or remove portions of this Policy at any time. We recommend that You revisit this Policy periodically to ensure that You are aware of Our current privacy practices. Your continued use of Our services following any changes signifies Your acceptance of these changes.

            (H)       Can I access my information? If You would like to change any contact information You have provided to Us, please contact Us at: kminfo@kellymoore.com

            (I)        How can I contact Kelly-Moore? If You have questions or concerns about this Policy, You may contact Us at: kminfo@kellymoore.com

3.         GENERAL PROVISIONS AND DISPUTE RESOLUTION TERMS APPLICABLE TO POLICY.

            (A)       This Policy represents the entire agreement between You and Us in connection with the matters contemplated hereby and the subject matter hereof and this Policy supersedes and replaces any and all prior and/or contemporaneous agreements, understandings and communications between You and Us, whether oral or written, with regard to the subject matter hereof. There are no oral or written agreements, representations or inducements of any kind existing between You and Us relating to this Policy which are not expressly set forth herein. 

             (B)      If You and We bring(s) any legal action arising out of any provision of this Policy, the prevailing party in the litigation shall be entitled to recover reasonable attorneys’ fees from the other party, in addition to any other relief that may be granted to such prevailing party.

            (C)       This Policy shall be governed by and construed in accordance with the laws of the State of California. YOU AND WE HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA AND OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF CALIFORNIA FOR ANY ACTIONS, SUITS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS POLICY (AND AGREE NOT TO COMMENCE ANY ACTION, SUIT, OR PROCEEDING RELATING THERETO EXCEPT IN SUCH COURTS), EXCEPT AS OTHERWISE SET FORTH HEREIN. YOU AND WE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE ON ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS POLICY, IN THE COURTS OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO OR THE UNITED STATES OF AMERICA LOCATED IN SAN FRANCISCO, CALIFORNIA, AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTWITHSTANDING THE FOREGOING, YOU AND WE EACH ACKNOWLEDGE AND AGREE THAT, PRIOR TO THE COMMENCEMENT OF ANY LEGAL ACTION IN A COURT OF LAW, YOU AND WE SHALL FIRST PARTICIPATE IN A MEDIATION OF ANY SUCH DISPUTE BETWEEN YOU AND US ARISING OUT OF THIS POLICY AND THE TRANSACTION DOCUMENTS. THE MEDIATOR SHALL BE A RETIRED JUDGE OR PRACTICING ATTORNEY AGREED UPON BY YOU AND US. MEDIATION SHALL BE HELD IN SAN MATEO COUNTY CALIFORNIA. THE COST OF THE MEDIATION SHALL BE BORNE BY YOU AND US EQUALLY. AT LEAST TEN (10) BUSINESS DAYS BEFORE THE DATE OF THE MEDIATION, EACH SIDE SHALL PROVIDE THE MEDIATOR WITH A STATEMENT OF ITS POSITION AND COPIES OF ALL SUPPORTING DOCUMENTS. EACH PARTY TO THE MEDIATION SHALL SEND TO THE MEDIATION A PERSON WHO HAS AUTHORITY TO BIND THE PARTY. IF THE SUBJECT DISPUTE WILL INVOLVE THIRD PARTIES, SUCH AS INSURER, SUBCONSULTANTS, AGENTS, CONTRACTORS OR SUBCONTRACTORS, THEY SHALL ALSO BE ASKED TO PARTICIPATE IN THE MEDIATION. IF A PARTY WHO HAS PARTICIPATED IN THE MEDIATION IS DISSATISFIED WITH THE OUTCOME, THAT PARTY MAY THEREAFTER INITIATE A LEGAL ACTION IN A COURT OF LAW IN ACCORDANCE WITH THIS SECTION 3(C). IF YOU AND WE COMMENCE A LEGAL ACTION BASED ON A DISPUTE OR CLAIM TO WHICH THIS SECTION 3(C) APPLIES WITHOUT FIRST ATTEMPTING TO RESOLVE THE MATTER THROUGH MEDIATION, THEN IN THE DISCRETION OF THE JUDGE, THAT PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES EVEN IF THEY WOULD OTHERWISE BE AVAILABLE TO THAT PARTY IN SUCH COURT ACTION.

            (D)       In case any one or more of the provisions contained in this Policy shall for any reason be held to be invalid, illegal or unenforceable in any respect, that invalidity, illegality or unenforceability shall not affect any other provision of this Policy and this Policy shall be construed as if the invalid, illegal or unenforceable provision had never been part of the Policy.

            (E)       This Policy shall be binding upon and enure to the benefit of the Parties hereto, their respective heirs, legal representatives, administrators, successors-in-interest and assigns.

            (F)       You acknowledge that you have read, and understand this Policy and agree to be bound by its terms.

Copyright 2010. Kelly-Moore Paint Company, Inc. All rights reserved.