Last Updated Date: 11-09-2020.
You represent, warrant and covenant that all information and data provided to Dealer Daily by You or entered into the Dealer Daily systems by You shall be complete and accurate.
2. CONFIDENTIALITY OF DEALER DAILY.
3. LICENSE TO ACCESS AND USE OF DEALER DAILY
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 (i) if You are an employee of a Dealer, as required to perform Your valid job duties solely for such Dealer's Own Internal Benefit, (ii) if You are an employee of an Authorized User of a Dealer, solely as necessary for such Authorized User to provide services to the Dealer for such Dealer's Own Internal Benefit, (iii) or if You are an employee of an Authorized User for TMS, solely as necessary pursuant to such Authorized User's written agreement with TMS, (iv) if You are an employee of TMS or a private distributor, as authorized by TMS, and as required to perform Your valid job duties, or (v) any other Authorized User, as approved directly by TMS. 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. "Own Internal Benefit" shall mean the use of information by Dealer only to the extent necessary for its commercial operations as an authorized Toyota or Lexus dealer, (but not any ancillary or affiliated business) and consistent with the terms of this Agreement, the Toyota Dealer Agreement or the Lexus Dealer Agreement, as applicable, including but not limited to, the provisions governing the confidentiality, use, and misuse of information. When making use of mobile enabled functionality whether through an Apple, Inc., Amazon.com, Inc., Google, Inc., Microsoft Corporation, Samsung Electronics America, Inc. or any other third party device, app store or platform (each a "Third Party Platform Provider"), 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 the Third Party Platform Provider) and is effective until terminated by TMS or by You. As between TMS and the Third Party Platform Provider, TMS is responsible for Dealer Daily and the content therein, not the Third Party Platform Provider. 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
When You download any Content from any of Dealer Daily (a "Download"), You understand that it is owned by TMS, its affiliates and/or licensors, as applicable, and is protected by intellectual property laws. TMS hereby grants, and You hereby accept, a limited, non-exclusive, non-transferable, revocable right and license to download and use the object code version of the Download(s) on Your own computer and/or mobile device that is compatible solely for Your Own Internal Benefit as a Dealer or an Authorized User of a Dealer, or to perform Your valid job duties if you are an employee of TMS, a private distributor or an Authorized User of TMS. You acknowledge and agree that the Download(s) You use or make available to Your customers are solely for the purpose of educating and informing Your end customer.Â You may not modify, sell, or create derivative works of the Download(s). No license is granted to You in the human readable code, known as the source code, of the content downloaded, and no rights are granted to You in any patents, copyrights, trade secrets, trademarks or any other rights in respect of the content of any Download(s). You may not depict any Downloads on any merchandise or products of any kind. You must provide all equipment and software necessary to connect to Dealer Daily, including, but not limited to, a computer (with internet access) that is in working order and suitable for use in connection with Dealer Daily. You are responsible for ensuring that Your equipment and/or software does not disturb or interfere with TMS's operations or Dealer Daily.
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.
6.RESTRICTIONS ON ACCESSING AND USING DEALER DAILY.
(a) General Obligations to Safeguard Dealer Daily
When setting up and using Your Dealer Daily account:
• Assign and select passwords in accordance with the requirements set forth by TMS.
• Choose passwords that are reasonably designed to maintain the security of the access controls to the Dealer Daily system.
• Do not share, obtain or use, or attempt to share, obtain or use, another person's Dealer Daily related access credentials or passwords.
• Do not share Your access credentials to the Dealer Daily system with any other person.
When accessing or using data in Dealer Daily:
• You agree to comply with (i) all policies and procedures, manuals, marketing letters, financial services bulletins, dealer letters, and other instructions from TMS and (ii) all applicable laws, regulations and other legal requirements relating to Your access to and use of Dealer Daily;
• Do not Data Mine (Data Mining as defined in Section 2, Confidentiality of Dealer).
• Do 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.
• Do not rent, lease, lend, sell, redistribute or sublicense Dealer Daily or any part of Dealer Daily.
• Do 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.
• Do not integrate or automate use of Dealer Daily using any integration methods that are not expressly approved by TMS.
• Do not access or use (or attempt to use) Dealer Daily:
o For any unauthorized, fraudulent or malicious purpose.
o In a manner that could damage, disable, overburden or impair the Dealer Daily systems
o 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.
• Do 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 unauthorized access to Dealer Daily or negatively impact the performance of the Dealer Daily system.
• Do 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 or for purposes of enabling or permitting extraction or transmission of data stored in Dealer Daily.
• Do not (I) frame or use framing techniques to enclose any part of Dealer Daily, or (ii) link or "deeplink" to, or otherwise reproduce, any of Dealer Daily, without TMS's prior written consent.
• Do not use any personal information available through Dealer Daily for any purpose other than to fulfill your valid job duties.
7.MOBILE SERVICES/APPLICATIONS AVAILABLE THROUGH THE SITES.
If, as permitted or available through any feature or service of Dealer Daily, You (a) upload content to 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 access or make posts using text messaging, (c) browse any of Dealer Daily from your mobile device 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.
8.THIRD-PARTY PRODUCTS AND SERVICES AND LINKS.
Dealer Daily may contain links to other Web sites ("Third-Party Sites"). 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. NONE OF THE TOYOTA ENTITIES (AS DEFINED BELOW) ARE RESPONSIBLE FOR ANY THIRD -PARTY SITES ACCESSSED THROUGH DEALER DAILY 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 PRACTISES 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 OR OF ANY MATERIAL CONTAINED ON ANY LINKED THIRD PARTY SITES BY TMS (OR ANY OF THE OTHER TOYOATA ENTITIES).
9.INDEMNITY AND HOLD HARMLESS.
You agree to defend, indemnify and hold harmless TMS and its parents, subsidiaries and affiliated corporations, and their respective directors, officers, employees, representatives and agents and their successors and assigns (collectively, "Toyota Entities", each a "Toyota Entity"), from any and all charges, suits, costs, expenses (including reasonable attorneys' fees), judgments, penalties, claims, liabilities or losses of any kind or nature whatsoever ("Damages") arising out of or relating to
(a) the use of Dealer Daily by You or Your Representatives;
(c) any Damages for libel, slander, invasion of privacy or infringement of United States patent, trademark, copyright or trade secret, and invasion and/or alteration of private records or data arising from any information, data or message transmitted over Dealer Daily by You or Your Representative;
(d) claims of damage to or loss of property or injury or death of persons, arising out of Your act or omission, or that of your Representatives;
(e) if You are a Dealer, any breach by You or Your Authorized User of the agreement(s) between You and Your Authorized User relating to access and use of Dealer Daily (including information and data in Dealer Daily) or Your Authorized User's provisioning of services for or on Your behalf; or (e) if You are an Authorized User, any breach by You of your agreement(s) with a Dealer permitting your access and use of Dealer Daily (including information and data in Dealer Daily) or your provisioning of services for or on behalf of such Dealer.
10.DISCLAIMER OF WARRANTIES.
Dealer Daily 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 DISCLAIMS 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, ANY DOWNLOADS, AND/OR ANY SERVICE(S) OF DEALER DAILY 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.
11.LIMITATION OF LIABILITIES AND RELEASE OF LIABILITY.
12.NEGOTIATION; COMPULSORY MEDIATION.