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TERMS OF USE

By accessing the Dealer Daily Applications, you the user (“You”) agree to the following:

1)     Definitions.

a)     Authorized User” means a person authorized to access the Dealer Daily Applications by an Authorizing Party in accord with these Terms and Conditions and/or the Dealer Daily Agreements.

b)    Authorizing Party” means a party that has an existing Dealer Agreement with TMS/USA, and that authorizes You as an Authorized User.

c)     “Dealer Daily Agreement(s)” means the “Dealer Daily Services Agreement” and/or the Toyota Dealer Agreement.

d)    “Dealer Daily Applications” means (i) Dealer Daily, and (ii) the Dealer Daily Data contained therein.

e)     Dealer Daily Data” means the data accessed through the Dealer Daily Applications.

f)     Dealer Daily Policies and Procedures” means all policies and procedures, manuals, marketing letters, financial services bulletins, dealer letters, and other instructions regarding access to and/or the use of the Dealer Daily Applications delivered or made available to You or Your Authorizing Party.

g)    Dealer System(s)” means all equipment, hardware, wiring facilities and software necessary to access and use the Dealer Daily Applications.

h)     “Losses” means as any costs, expenses, damages, liabilities, losses and judgments, including attorneys’ fees and legal expenses,

i)      Malicious Code” means any code that would have the effect of disabling or otherwise shutting down all or any portion of the Dealer Daily Application or TMS/USA computer systems or networks. Malicious Code includes, without limitation, any undocumented or hidden functionality or performance capability contained within electronic files or software, which is contrary to the business purpose of the Delaer Daily Applications.

j)      Safeguards” means safeguards designed to protect the confidentiality, integrity and security of the data accessed through or pertaining to the Dealer Daily Applications.

k)     TMS/USA” means Toyota Motor Sales, USA, Inc.

l)      Unauthorized Users” means those who are not Authorized Users

 

2)     Dealer Agreements, Policy and Procedure.

a)     You have an existing Dealer Agreement with TMS/USA or are an Authorized User of an Authorizing Party.

b)    The terms of all existing Dealer Agreements between You, or Your Authorizing Party, and TMS/USA apply to Your access to and use of the Dealer Daily Applications.

c)     You have agreed, in writing, to comply with all applicable terms and conditions governing your access and use of the Dealer Daily Applications prior accessing the Dealer Daily Applications.

d)    You will comply with all Dealer Daily Policies and Procedures.

e)     You are responsible for the accuracy of any data You introduce into the Dealer Daily Applications.

 

3)     Access Restrictions.

a)     You will limit Your access to and use of the Dealer Daily Applications to Your needs, as required within the scope of Your business duties.

b)    Access to and/or use of the Dealer Daily Applications will be strictly limited to the extent You have the legal right to such access and use under, and You have otherwise complied with, all applicable federal, state and local laws and regulations directly or indirectly governing the access to or use of the Dealer Daily Applications. Those laws and regulations, include, without limitation, all laws and regulations related to privacy, security, and customer identification.

c)     You must, personally, implement and continue to maintain appropriate Safeguards to protect Dealer Daily Data. The Safeguards will: (i) ensure the security and confidentiality of the Dealer Daily Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the Dealer Daily Data; and (iii) protect against unauthorized access to or use of the Dealer Daily Data.

d)    Unless otherwise agreed to in writing by TMS/USA, as appropriate, You agree to safeguard and refrain from disclosing the Dealer Daily Applications access codes or passwords to any person, firm, entity, affiliate or governmental entity.If You become aware that an Unauthorized User gains access to or use of the Dealer Daily Applications, You will promptly notify TMS/USA. You will also take any actions reasonably requested by TMS/USA and otherwise reasonably cooperate with TMS/USA to minimize the effect of that access or use and to mitigate any loss or damage associated with that access or use.

e)     Unless otherwise agreed to in writing by TMS/USA, the Dealer Daily Applications may only be accessed and used (i) by You at locations authorized by TMS/USA and (ii) by using the access methods authorized by TMS/USA.

f)     You will not access or use, or allow any parties to access or use the Dealer Applications in a manner as to interfere unreasonably with the use of Dealer Daily Applications by TMS/USA, one or more other third parties or the respective Authorized Users of any of Authorizing Parties. In addition, You shall not implement or use, or allow any parties to implement or use any data extraction methods without the expressed written consent of TMS/USA

 

4)     Equipment.

a)     You expressly acknowledge that TMS/USA is not responsible for selecting, purchasing, installing, maintaining, supporting, updating and upgrading all the Dealer System.

b)    You expressly acknowledge that TMS/USA is not responsible for any cost or expense associated with the selection, acquisition, installation, maintenance, support, updating and upgrading of the Dealer System.

 

5)     Intellectual Property.

a)     Title to all Dealer Daily Applications shall remain with TMS/USA. You have no proprietary rights in the Dealer Daily Applications. Your right to use the Dealer Daily Applications is personal to you, non-assignable, non-exclusive and non-transferable.

b)    You shall not modify, copy, create derivative works of, alter, repair, attempt to repair, disclose or in any way tamper with the Dealer Daily Applications without the express prior written consent of TMS/USA. You will not decompile, reverse engineer, disassemble, or otherwise reduce any of the Dealer Daily software in whole or in part, to a human-perceivable form.

c)     You recognize that the Dealer Daily Applications constitute valuable trade secrets of TMS/USA. You will use your best efforts to protect and keep confidential, the Dealer Daily Applications and any information relating thereto, and shall make no attempt to, nor permit others to, examine, copy or alter the Dealer Daily Applications except as provided in these Terms of Use, Dealer Daily Agreements or otherwise agreed to by TMS/USA in writing. All intellectual property rights in the Dealer Daily Applications and their documentation are owned by TMS/USA, and are protected by United States copyright laws and international treaty provisions. TMS/USA retains all rights not expressly granted. All rights to derivative works shall be owned solely by TMS/USA, unless otherwise specifically agreed to in writing by TMS/USA.

6)     Damages. You will pay all charges for maintenance and other service activities and for loss or damage to any Dealer Daily Applications or hardware or software caused or necessitated by: (a) any use by You of the Dealer Daily Applications for purposes other than those for which they are designed or otherwise in breach of these Terms of Use, the Dealer Daily Agreements or the Dealer Daily Policies and Procedures; (b) any alteration by You of the Dealer Daily Applications; (c) any relocation of the Dealer System; (d) Your failure to maintain a Dealer System; (e) any tampering with or attempt to adjust or repair the Dealer Daily Applications conducted by You; (f) Your introduction of Malicious Code into the Dealer Daily Applications; (g) Your introduction of inaccurate data into the Dealer Daily Applications; or (h) Your negligence or willful misconduct; or (i) Your failure to comply with the Access Restrictions enumerated in Section 3 above..

7)     Warranty and Limitations of Liability.

a)     TMS/USA reserves the right to modify, terminate or withdraw any or all of the Dealer Daily Applications or data or information or reports contained in the Dealer Daily Applications at any time, without notice to You.

b)    While TMS/USA will take all reasonable efforts to ensure that the Dealer Daily Applications function appropriately and that all data, information and reports contained in the Dealer Daily Applications are correct and accurate, the availability and functionality of the Dealer Daily Applications and the accuracy of the information and reports delivered through the Dealer Daily Applications, including but not limited to the Dealer Daily Data, are not guaranteed.

c)     TMS/USA provides all of the Dealer Daily Applications and all information and reports, contained in the Dealer Daily Applications to you “as is” without warranty of any kind. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THERE ARE NO EXPRESS WARRANTIES AND THERE ARE NO IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OWNERSHIP PROVIDED WITH RESPECT TO THE DEALER DAILY APPLICATIONS OR THE INFORMATION OR REPORTS CONTAINED IN THE DEALER DAILY APPLICATIONS. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.

    d) In no event, whether in contract or tort, or otherwise shall TMS/USA be liable for any direct or indirect, special, incidental, consequential, exemplary or punitive damages of any kind, including, but not limited to, loss of use, lost profits, interruption of business, cost of substituted facilities, equipment or service, down-time costs, or claims by you or your customers or third parties for damages or claims arising from or relating to the Dealer Daily Applications, regardless of how such damages or claims may be caused, whether or not because of negligence, strict liability, fault or delay of TMS/USA even if TMS/USA has been advised of the possibility of such damages in advance. Because some jurisdictions do not allow exclusions or limitation of incidental or consequential damages, liability in such jurisdictions shall be limited to the extent permitted by law.

 

8)     Indemnification. You will defend, indemnify and hold TMS/USA and its affiliates and their respective officers, directors, employees, agents, successors and assigns, from any and all Losses and threatened Losses arising from or in connection with a breach of these Terms of Use by You or Your failure to abide by the terms and conditions of the applicable Dealer Daily Agreement(s)..

 

9)     Compliance with Terms and Conditions.If You breach any of these Terms of Use or any term or condition of the Dealer Agreements or Dealer Daily Policies and Procedures, TMS/USA may suspend or terminate Your access to the Dealer Daily Applications without prior notice to you.

 

10)  Federal and State Investigation.TMS/USA reserves the right to leverage the Dealer Daily Data in support of any State or Federal investigation, as well a in accordance with any applicable state and federal regulations. In the event criminal activity is suspected, TMS/USA will comply with State and Federal authorities and may be involved in providing evidence in support of litigation against You or third parties. Any illegal acts performed through the use of the Dealer Daily Applications will be punishable in accordance with applicable State and Federal laws.

 

11)  Governing Law. These Terms and Conditions shall be governed by and interpreted pursuant to the substantive laws, but not the conflict of law rules, of the State of California . Any claim, controversy or dispute shall be brought exclusively in the courts of California , with venue in Los Angeles County .

 

12)  Conflict. In the event of a conflict between Your obligations as enumerated in these Terms of Use and any obligations You may have pursuant to the terms and conditions of a Dealer Daily Agreement, the obligations contained in the of the Dealer Daily Agreement shall control.

 

 

A.    BY CHECKING THE “I have read and accept Terms of Use” CHECKBOX , YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.