Dealer Daily Terms of Use  and I specifically agree and acknowledge that:
a.I am authorized to use Dealer Daily and will use it solely to perform my valid job duties.
b.I understand that all Dealer Daily Information is confidential and proprietary and I shall not disclose it to any person or entity, unless approved by Toyota.
c.I will not use any Dealer Daily information for "Data Mining".
d.I shall protect and will not share my Dealer Daily access credentials with anyone.
e.I will not access or use Dealer Daily for unauthorized, fraudulent or malicious purposes, or in a manner that could damage, disable, overburden or impair the Dealer Daily systems.
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DEALER DAILY
TERMS OF USE

 

Last Updated Date: 02-20-2016.

 

     You agree to comply with these Terms of Use and the obligations enumerated in the Dealer Daily Services Agreement which provides for Your access to Dealer Daily.

 

     These Terms of Use set forth the legally binding terms governing Your access to and use of this electronic dealer communications exchange network, applications and their respective content (collectively “Dealer Daily”). Toyota Motor Sales, USA, Inc., (“TMS”, "We", "Us", or "Our") owns and operates Dealer Daily and provides third parties (“YouandYour”) with access to and use of Dealer Daily. By accessing and using Dealer Daily, you agree to these Terms of Use.

 

     Toyota Motor Sales, USA, Inc. (“TMS”) may, at any time, revise these Terms of Use by updating them. The “Last Updated Date” at the top of these Terms of Use will indicate when the latest modifications were made. To the fullest extent permitted under applicable law, Your continued use of Dealer Daily constitutes Your agreement to any modified terms, and You should therefore visit the applicable terms to review the current terms from time to time. Furthermore, unless explicitly stated otherwise, any new features or services that augment or enhance Dealer Daily in the future shall be considered part of the Dealer Daily and subject to these Terms of Use.

 

     Certain applications and functionality accessed through Dealer Daily may require You to agree to additional terms and conditions, policies and disclaimers (collectively, “Additional Terms”), which are hereby incorporated by reference into these Dealer Daily Terms unless expressly set forth otherwise in such Additional Terms. If there is a conflict between these Terms and any Additional Terms, the Additional Terms will control with respect to the applications. This excludes third party websites which are described more fully in Section 4 below.

 

     Certain applications and functionality accessed through Dealer Daily may require You to agree to additional terms and conditions, policies and disclaimers (collectively, “Additional Terms”), which are hereby incorporated by reference into these Dealer Daily Terms unless expressly set forth otherwise in such Additional Terms. If there is a conflict between these Terms and any Additional Terms, the Additional Terms will control with respect to the applications. This excludes third party websites which are described more fully in Section 4 below.

 

     1.OWNERSHIP AND USE OF DEALER DAILY.

 

     You acknowledge that TMS owns all right, title, and interest, and/or have a valid right to use and sublicense Dealer Daily and all its content, including, without limitation, all trademarks, service marks, logos and trade names used on Dealer Daily. You acknowledge that Dealer Daily constitutes valuable trade secrets to TMS. You will use Your best efforts to protect Dealer Daily and maintain its confidentiality. You shall make no attempt to, nor permit others to, examine, copy or alter Dealer Daily, except as provided for by the Dealer Daily Terms of Use or as otherwise agreed to by TMS in writing.

 

     TMS grants You a limited, non-exclusive, non-transferable, revocable right and license to access and use Dealer Daily (including the content and Mobile Services (as defined below)) only as required perform Your valid job duties. TMS retains all rights not expressly granted herein. TMS may, in its sole discretion, suspend, discontinue or terminate this license to You at any time for any reason. When making use of mobile enabled functionality, this license is limited to a non-transferable license to use certain Dealer Daily functionality on an applicable mobile device that you own or control. This license is between TMS and You (and not Apple or Google) and is effective until terminated by TMS or by You. As between TMS and Apple, TMS is responsible for Dealer Daily and the content therein, not Apple. This license does not allow You to use Dealer Daily on a device that You do not own or control, and You may not distribute or make Dealer Daily available over a network where it could be used by multiple devices at the same time.

 

     You may not rent, lease, lend, sell, redistribute or sublicense Dealer Daily or part of Dealer Daily. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of Dealer Daily, any updates, or any part thereof.

 

     TMS reserves the right at any time and from time to time to modify, suspend, discontinue or permanently cancel any or all of Dealer Daily’s operation, or portions thereof, with or without notice to You. You acknowledge and agree that TMS will not be liable to You or any third party for any such modification, suspension, discontinuation or cancellation of any or all of Dealer Daily’s operation.

 

     2.RESTRICTIONS ON ACCESSING AND USING DEALER DAILY.

 

     As a condition to accessing and using Dealer Daily in accordance with the license granted to You under these Terms, You agree to comply with the following rules:

 

(a)   General Obligations to Safeguard Personal Information in Dealer Daily.

 

   You shall not use, reproduce, disclose, share, transfer, or retain Personal Information (as defined below) except, in each case, as specifically authorized by these Terms of Use and (i) in accordance with both (a) applicable federal, foreign, international, provincial, state and local laws, rules and regulations; and (b) the standards, policies, procedures, guidelines and recommendation as set forth by TMS.

 

   Personal Information” is defined as any information that can be used to identify or locate a natural person, including but not limited to: financial information, health care information, name, address, telephone number, e-mail address, social security number, or driver’s license number. Personal Information also includes any other data, such as, identifiers, demographic or behavioral data, when such data is linked or has the capacity to be linked to a specific person. Personal Information shall also include the Personal Information of employees and representatives. Personal Information also includes “non-public personal information” which shall have the meanings set forth in the Gramm-Leach-Bliley Act, 15 U.S.C. § 6809 and 16 C.F.R. § 313.3, and variants thereof as defined in the FTC Red Flag Rules; the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. and any other data privacy or security legal regime, including the term as modified or added by subsequent amendments enacted or regulations promulgated following the execution of this Agreement, as though fully set forth herein.

 

   You shall limit Your access to records and files containing Personal Information to Your need to access such Personal Information for performing Your job duties.

   You shall not share, transfer or permit access to Personal Information in violation of any applicable website privacy policy disclosures.

 

   You expressly acknowledge that all information in Dealer Daily, including Personal Information, is confidential and proprietary and that You (i) shall not disclose such information in any form to any person or entity, unless approved by TMS, and (ii) shall not use such information for “data mining”.

 

(b)   General Obligations to Safeguard Dealer Daily and Information in Dealer Daily.

 

   You shall assign and select passwords in accordance with the requirements set forth by TMS.

 

   You shall assign Yourself passwords that are reasonably designed to maintain the security of the access controls to the system.

 

   You shall not share, obtain or use, or attempt to share, obtain or use, any third party Dealer Daily related access codes or passwords.

 

   You shall not share your access to the system with any other person. You shall not enable access to any data in Dealer Daily on behalf of any individual or third party in violation of these Terms of Use.

 

   You shall not access or use, or attempt to access or use, data owned by any third party other than the party authorizing Your access for valid business purposes, except as specifically authorized in writing by TMS.

 

   You shall immediately notify TMS of any known or potential breach of the Terms of Use, as soon as You become aware of such.

 

   To the best of Your knowledge, all information and data provided by You with regard to Dealer Daily or entered into the Dealer Daily systems shall be complete and accurate.

 

(c)   General Obligations Concerning Use of Dealer Daily.

 

   You agree to comply with all policies and procedures, manuals, marketing letters, financial services bulletins, dealer letters, and other instructions from TMS with regard to Your access to and/or use of Dealer Daily.

 

   You are authorized to access Dealer Daily and Your use of Dealer Daily in accord with the valid authorization.

 

   You shall not integrate or automate use of Dealer Daily using any integration methods that are not expressly approved by TMS.

 

   You shall not access or use Dealer Daily for any unauthorized, fraudulent or malicious purpose.

 

   You shall not access or use Dealer Daily in a manner that could damage, disable, overburden or impair the Dealer Daily systems.

 

   You shall not use or attempt to use Dealer Daily in such a manner as to interfere unreasonably with the use of Dealer Daily by one or more of the authorized users of Dealer Daily.

 

   You shall not use or attempt to use any methods to access or make use of Dealer Daily that are not authorized by TMS, including, but not limited to, screen scraping and scripting or any other process that could result in the unauthorized access to Dealer Daily or negatively impact the performance of the Dealer Daily System.

 

   You shall not enable or permit (i) any additional third party integration of; (ii) third party modification of; (iii) creation of derivative use functionality for; or (iv) creation of third party solutions for any of the Dealer Daily systems and applications.

 

   You shall not enable or permit (i) any additional third party integration of (ii) third party modification of; (iii) creation of derivative use functionality for; or (iv) creation of third party solutions for purposes of enabling or permitting extraction or transmission of data stored in Dealer Daily.

 

   You shall not modify, copy, create derivative works of, or alter Dealer Daily without the express prior written consent of TMS.

 

   You shall not frame or use framing techniques to enclose any part of Dealer Daily without TMS’ prior written consent.

 

   You shall not link or “deeplink” to, frame, or otherwise, reproduce any of Dealer Daily without our prior consent.

 

   In addition to the other cumulative remedies set forth in these Terms of Use, You agree that TMS, may, without prior notice, immediately take any action deemed necessary or appropriate, up to and including, denial, disabling, deactivation Your access to Dealer Daily.

 

   In addition, You agree to comply with all applicable laws, regulations and other legal requirements relating to Your access to and use of Dealer Daily.

 

     3.MOBILE SERVICES/APPLICATIONS AVAILABLE THROUGH THE SITES.

 

     If permitted or available through any feature or service of Dealer Daily, You (a) upload content to any of the Dealer Daily or download content from Dealer Daily via a mobile device, (b) receive and reply to messages from or within any of Dealer Daily, or to access or make posts using text messaging, (c) browse any of Dealer Daily from your mobile device and/or (d) access certain features through a mobile application You have downloaded and installed on your mobile phone (collectively the “Mobile Services”), You must have a mobile communications subscription (or have the consent of the subscriber of such mobile device) for the necessary carrier services with a participating carrier or otherwise have access to a mobile communications network through which TMS makes the Mobile Services available. You are responsible for any and all service fees associated with any such mobile access, including text messaging charges for each text message you send and receive on your mobile device, and all applicable data fees.

 

     Your use of certain of the Mobile Services may incur charges and be subject to other terms from TMS, which charges and other terms will be provided to you via separate terms and conditions for the applicable Mobile Services. Additionally, please check your wireless plan because your carrier’s per-minute, text messaging, and data or other charges may apply. You must provide at Your own expense the equipment and wireless connections needed for you to use the Mobile Services, and You are solely responsible for any costs you incur to access the Mobile Services. You should keep in mind that the use of the Mobile Services to send content to another person via e-mail or SMS (Short Message Service, or “text messaging”) may result in wireless charges to both the sender and the receiver.

 

     4.THIRD-PARTY PRODUCTS AND SERVICES AND LINKS.

 

     Dealer Daily may contain links to other Web sites ("Third-Party Sites"). Such Third-Party Sites are not necessarily investigated, monitored or checked for accuracy, appropriateness, legality, timeliness, authenticity, reliability, or completeness by TMS, and none of the Toyota Entities (as defined below) are responsible for any Third-Party Sites accessed through TMS or any applications, software or content posted on, available through or installed from the Third-Party Sites, including without limitation, the content, accuracy, offensiveness, opinions, reliability, legality, privacy practices or other policies of or contained in the Third-Party Sites. Inclusion of, linking to or permitting the use or installation of any Third-Party Site does not imply approval or endorsement thereof by TMS (or any of the other Toyota Entities).

 

     If You decide to leave any of the Sites and access the Third-Party Sites, You do so at Your own risk and You should be aware that, unless otherwise indicated, these Dealer Daily Terms of Use and any other TMS terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site to which You navigate from Dealer Daily.

 

     NO TOYOTA ENTITY SHALL BE RESPONSIBLE FOR THE CONTENTS OF ANY WEB SITE LINKED TO DEALER DAILY, AND THE FACT SUCH LINKS ARE PROVIDED ON THE SITES DOES NOT INDICATE OUR APPROVAL OR ENDORSEMENT OF ANY MATERIAL CONTAINED ON ANY LINKED WEB SITE. YOUR CONNECTION TO AND USE OF ANY SUCH LINKED WEB SITE OR IS AT YOUR OWN RISK.

 

     5.INDEMNITY AND HOLD HARMLESS.

 

     You agree to defend, indemnify and hold harmless TMS and its parent, subsidiaries and affiliates, and their respective distributors, dealers, dealer associations, licensors and contractors, together with each of their respective employees, agents, directors, officers and shareholders (collectively, "Toyota Entities", each a “Toyota Entity”), from and against all the liabilities, claims, damages and expenses (including reasonable attorneys' fees and costs) arising out of Your use of Dealer Daily, Your breach or alleged breach of any of these Terms of Use, or Your breach or alleged violation of the patent, copyright, trademark, proprietary or other rights of third parties.

 

     6.DISCLAIMER OF WARRANTIES.

 

     Dealer Daily s and its content are provided on an "AS IS" and "AS AVAILABLE" basis without any warranty of any kind, expressed, implied or statutory. TMS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

 

     TMS makes no warranties that Dealer Daily or its content or other material obtained through herein will meet Your requirements, or that the Dealer Daily will be uninterrupted, timely, secure, non-infringing or error-free. No advice or information, whether oral or written, obtained by You from TMS or through Dealer Daily shall create any warranty not expressly made herein. You may not rely on any such information or advice. To the extent jurisdictions do not allow the exclusion of certain warranties, some of the above exclusions may not apply to You. TMS assumes no liability or responsibility for any performance degradation, interruption or delays of any of Dealer Daily, or errors or omissions in any of its content or other materials on or through Dealer Daily. TMS does not make any warranty or representation that Your use of the material displayed on, or obtained through, Dealer Daily is non-infringing of any rights of any third party.

 

     Any decision or action taken by You on the basis of information or content provided on Dealer Daily is at Your sole discretion and risk. TMS is not responsible or liable for any such decision, or for the accuracy, completeness, usefulness, or availability of any content displayed, transmitted, or otherwise made available on Dealer Daily.

 

     YOU UNDERSTAND AND AGREE THAT YOUR USE OF DEALER DAILY, ANY PAGE(S) THEREIN, AND/OR ANY SERVICE(S) OF THE SITES IS SOLELY AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, ANY OTHER EQUIPMENT, OR LOSS OF DATA THAT MAY RESULT FROM SUCH USE.

 

     7.LIMITATION OF LIABILITIES AND RELEASE OF LIABILITY.

 

     EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, NO TOYOTA ENTITY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH STATES.

 

     YOU HEREBY RELEAS, DISCHARGE AND HOLD HARMLESS EACH TOYOTA ENTITY FROM AND AGAINST ANY CLAIMS, DAMAGES, EXPENSES AND LIABILITY ARISING FROM OR RELATED TO ANY INJURIES, DAMAGES OR LOSSES TO ANY PERSON (INCLUDING DEATH) OR PROPERTY OF ANY KIND RESULTING IN WHOLE OR PART, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF ANY OF DEALER DAILY.

 

     8.DISPUTES/ARBITRATION.

 

     PLEASE READ THIS PROVISION CAREFULLY. IT INCLUDES AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF DEALER DAILY TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT, UNLESS SUCH BINDING INDIVIDUAL ARBITRATION IS PROHIBITED BY LAW.

 

(a)   If You and We have a disagreement related to Services, we'll try to resolve it by talking with each other. If we can't resolve it that way, WE BOTH AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO USE ARBITRATION, NOT LAWSUITS (except for small claims court cases as described below) TO RESOLVE THE DISPUTE. Of course, either of us can always contact a government agency or regulatory authority for help, too. Here's how private arbitration will work:

 

(b)   You agree that, apart from any claim You may bring in small claims court, the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of your use of the Services or relating to this Agreement or any prior agreement for service with us or any of our affiliates, predecessors in interest, or Third Party Service Providers or any product or service provided under or in connection with this Agreement or such a prior agreement, or any advertising for such products or services, shall be final and binding arbitration, except to the extent that you have in any manner infringed upon or violated or threatened to infringe upon or violate any patent, copyright, trademark, trade secret, privacy or publicity rights, in which case You acknowledge that there is no adequate remedy at law and that injunctive or other appropriate relief may be sought by Us and/or an applicable third party either in court or from an arbitrator. You and We acknowledge that this Agreement affects interstate commerce and that the Federal Arbitration Act and other federal arbitration law apply to arbitrations under this Agreement (despite any other choice of law provision). To the extent that the Federal Arbitration Act and federal arbitration law do not supply substantive law necessary for the resolution of any disputes or claims, the laws of the State of Texas shall apply, except that Texas laws concerning choice of law or conflicts shall not apply if they would cause the substantive law of another jurisdiction to apply. To the extent that the parties litigate any part of any dispute or claim in court, including, without limitation, obtaining provisional remedies in aid or arbitration, confirmation of an award, and judgment enforcement, the laws of the State of Texas shall apply, except that Texas laws concerning choice of law or conflict of laws shall not apply if they would cause the substantive law of another jurisdiction to apply.

 

(c)   For claims over $10,000, the American Arbitration Association's Wireless Industry Arbitration ("WIA") rules shall apply. In large/complex cases under the WIA rules, the arbitrators must apply the Federal Rules of Evidence and the losing party may have the award reviewed by a panel of three new arbitrators.

 

(d)   For claims of $10,000 or less, arbitration will be conducted by the American Arbitration Association ("AAA"), the Better Business Bureau ("BBB") or the National Arbitration Forum ("NAF"). You can choose the AAA's supplementary procedures for consumer related disputes, the NAF rules for Consumer Common Claims, or the BBB's rules for binding arbitration. We will waive our right to arbitrate any individual (as opposed to class) claim you bring or maintain in small claims court for so long as the matter remains an individual claim and remains in small claims court.

 

(e)   You can get rules and fee information from the AAA (www.adr.org), the NAF (www.adrforum.com) or the BBB (www.bbb.org). You expressly waive the right to request or maintain any class arbitrations even if AAA, NAF or BBB procedures or rules would permit them (this is referred to below as the "Class Action Waiver.In exchange for this, we'll pay (if you ask us in advance) for any filing fee charged you by the AAA, NAF or BBB for one arbitration of any disputes between us, so long as you tried in good faith to resolve the disputes with us before filing for arbitration. If the arbitration proceeds past the filing, we'll also pay (if you ask us at the time) any further administrative and arbitrator fees you are later charged. An arbitrator can decide later whether to allocate the fees differently if there's an award. The arbitrator may award you any fees and charges that are necessary to ensure the enforceability of this arbitration provision.

 

(f)   There's no judge or jury in arbitration, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations in this Agreement as a court would. You and We agree to pay our own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. You agree that any claim for or award of attorneys’ fees, including any such claim or award pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code, is waived.

 

(g)   Any arbitration award made after completion of an arbitration is final and binding and may be confirmed in any court of competent jurisdiction, except that in the event the arbitrator's award for a party is $0 or against a party is in excess of $100,000, or includes an award of injunctive relief against a party, that party may request a new arbitration to be conducted by the selected arbitration organization by a three-arbitrator panel. An award and any judgment confirming it only applies to the arbitration in which it was awarded and can't be used in any other case except to enforce the award itself.

 

(h)   If a court or arbitrator determines that any part of this arbitration agreement other than the Class Action Waiver is not enforceable, the rest of this arbitration agreement shall be enforceable.

 

(i)   If for some reason these arbitration requirements don't apply, or a claim proceeds in small claims court, each of you and we waive to the fullest extent permitted by law any trial by jury. In no event shall any claim, action or proceeding by you related in any way to the Services, this Agreement, or any prior agreement, as described above, be instituted more than two (2) years after the claim or cause of action arose. This Agreement to arbitrate survives the end of the contractual relationship between us.

 

     9.MISCELLANEOUS.

 

(a)   Federal and State Investigation.If for some reason these arbitration requirements don't apply, or a claim proceeds in small claims court, each of you and we waive to the fullest extent permitted by law any trial by jury. In no event shall any claim, action or proceeding by you related in any way to the Services, this Agreement, or any prior agreement, as described above, be instituted more than two (2) years after the claim or cause of action arose. This Agreement to arbitrate survives the end of the contractual relationship between us.

 

(b)   Severability.If any provision of these Terms of Use are unlawful, void or unenforceable, that provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions.

 

(c)   Applicable Law.These Terms of Use and any disputes arising under or related to these Dealer Daily Terms of Use will be governed by the laws of the State of Texas, without reference to its conflict of law principles.

     Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.

 

(d)   Entire Agreement:  These Terms of Use constitute the entire, complete and exclusive agreement between You and TMS regarding Dealer Daily and supersedes all prior agreements and understandings with respect to the subject matter of these Terms of Use.

 

(e)   Waiver: The remedies of TMS set forth in these Terms of Use shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. Any failure by TMS, at any time or from time to time, to enforce any of its rights under these Terms of Use shall not constitute a waiver of such right.