By accepting this end user license agreement, you agree to all of the terms and conditions set forth below.

1. Master Terms and Conditions of Use and End User License Agreement
2. Toyota Dealer Data Access Agreement
3. Toyota Certified Digital Program Terms
4. Additional Service Terms: Call Tracking; Trade-in Valet; Podium; Edmunds.com, Inc.

IMPORTANT – READ CAREFULLY: Toyota Motor Sales, U.S.A., Inc. (“Toyota”) makes the Services, as defined below, available as part of the digital program identified in the Toyota Certified Digital Program Terms. This “Agreement” includes these Master Terms and Conditions of Use and End User License Agreement, the Toyota Dealer Data Access Agreement, the Toyota Certified Digital Program Terms, and the Additional Service Terms. This Agreement is a legal contract between you, the automotive dealer (“Dealer”) subscribing to the Services, and Toyota. The Services are subject to the terms set forth in this Agreement.

Dealer’s enrollment for any Services authorizes Toyota to begin providing Services and billing Dealer immediately. Dealer agrees to pay the applicable fees for Services as set forth in the electronic enrollment portal or order form, incorporated herein by reference.

IN ORDER TO USE THE SERVICES, DEALER MUST FIRST AGREE TO THE TERMS SET FORTH IN THIS AGREEMENT BY COMPLETING ENROLLMENT ON THE ENROLLMENT PORTAL OR BY SELECTING SERVICES AND SIGNING A SERVICES ENROLLMENT FORM. DEALER MAY NOT USE THE SERVICES IF DEALER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT. DEALER CAN ACCEPT THE TERMS OF THIS AGREEMENT BY ENROLLING FOR AND/OR BY USING THE SERVICES, IN WHICH CASE, DEALER UNDERSTANDS AND AGREES THAT TOYOTA WILL TREAT DEALER’S USE OF THE SERVICES AS ACCEPTANCE OF THE TERMS OF THIS AGREEMENT.

Dealer acknowledges and agrees that:

• If it is an authorized dealer of Toyota, Dealer is deemed to have entered into this Agreement directly with Toyota,
• If it is an authorized dealer of Gulf States Toyota, Inc. (“GST”), Dealer is deemed to have entered into this Agreement with GST (and Toyota is deemed to provide the Services to Dealer through GST), and
• If it is an authorized dealer of Southeast Toyota Distributors, LLC (“SET”), Dealer is deemed to have entered into this Agreement with SET (and Toyota is deemed to provide the Services to Dealer through SET).

1. Services.

The “Services” are the products and services, including, without limitation, the websites, software, tools, digital advertising, and related content and services, the electronic enrollment portal, informational web pages, and/or online reporting service provided by Toyota and/or the Service Providers (defined below).

Toyota agrees to provide the Services to Dealer in accordance with the terms and conditions of this Agreement and the Toyota Dealer Digital Solutions Dealer Participation Agreement that has been separately signed by Dealer. Toyota may provide all or part of the Services through one or more third party service providers (“Service Providers”) that Dealer or Toyota selects, and may engage one or more program administrators to administer the program and the Services (including enrollment, billing support, and reporting) on Toyota’s behalf. Toyota, in its sole discretion, may change any Service Provider or program administrator, at any time and for any reason.

2. Use of the Services.

In order to access certain Services, Dealer may be required to provide information about Dealer and Dealer’s business (such as identification, billing or contact details). Dealer agrees that any information Dealer provides will be accurate, complete, and up to date. Dealer agrees to maintain the confidentiality of passwords associated with any account Dealer uses to access the Services and is responsible for any unauthorized activity that occurs under Dealer’s account as a result of a compromised or lost password. Dealer acknowledges that the Services may allow Dealer to designate administrators for the Services, thereby granting certain rights and authorizations relating to, among other things, selection of, and preferences for, Services and billing. Dealer agrees that Dealer is solely responsible for all fees, costs or other expenses charged related to any selections made by Dealer or Dealer’s designees.

Certain Services may be subject to certain Additional Service Terms. Dealer agrees to the applicable Additional Service Terms, and Dealer understands that it may not use such Services unless it agrees to the applicable Additional Service Terms.

DEALER SHALL, AS REQUIRED BY APPLICABLE LAW OR REGULATION, PROVIDE NOTICE TO DEALER’S CUSTOMERS AND OBTAIN CONSENT FROM DEALER’S CUSTOMERS FOR USE OF THE SERVICES. DEALER WILL MAINTAIN AND MAKE AVAILABLE TO ITS CUSTOMERS A PRIVACY POLICY AS REQUIRED BY LAW OR REGULATION.

Dealer will ensure that all websites or other Services provided to Dealer during the term of the Agreement that are accessible to consumers contain privacy statements complying with all applicable laws governing the use, collection, protection, or other processing of Personal Information. “Personal Information” generally means information that identifies, relates to, describes, is reasonably capable of being associated with, or could or reasonably be linked, directly or indirectly, with identifiable individuals or households. Without limiting the generality of the foregoing, Dealer’s privacy policy will state how the consumer’s Personal Information will be used, collected, stored, protected, and otherwise processed including in connection with the Services. Dealer does not provide and during the term of the Agreement will not provide Personal Information to Toyota, except in a manner consistent with its published privacy policies, in full compliance with all laws pertaining to such information, and in a manner that provides safe and secure storage and protection of such Personal Information.

3. Restrictions on Use of Services.

Dealer agrees to not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Without limiting the foregoing, Dealer agrees not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of any Service or other program associated with the Services.

4. Compliance with Applicable Laws.

Toyota shall provide the Services and perform its obligations under this Agreement, and Dealer shall use the Services and perform its obligations under this Agreement, in compliance with all applicable laws and regulations. Dealer may use the Services only for purposes that are permitted hereunder and in accordance with applicable laws and regulations. Dealer shall at all times comply with all applicable laws, legislation, rules, regulations, governmental requirements and industry standards with respect to Dealer’s use of the Services and the performance by Dealer of Dealer’s obligations hereunder, including, but not limited to, any applicable provisions of Title V of the Gramm-Leach-Bliley Financial Services Modernization Act of 1999 and regulations promulgated under that Act or other federal, state, and local laws, rules, regulations, and ordinances governing the privacy and security of customer information that apply to Dealer. Dealer agrees to protect, use, and maintain the privacy of such information accordingly.

5. Ownership of Content and Services.

Dealer acknowledges and agrees that all materials and information (such as data files, written text, computer software, music, audio files or other sounds, photographs, manuals, documents, illustrations, pricing information, videos or other images) which are provided by Toyota or its Service Providers in connection with the Services, or which Dealer may have access to as part of, or through Dealer’s use of, the Services (the “Provided Content”), together with the Services, including any copyright and/or other intellectual property rights in the Services and the Provided Content, are owned by Toyota, the Service Providers and/or their licensors. Dealer may not reproduce, adapt, publish, perform, or publicly display the Provided Content or the Services or create derivative works based on the Provided Content or the Services (either in whole or in part), except as provided in this Agreement. Dealer further acknowledges that the Services may contain information which is designated by Toyota as confidential. Dealer agrees not to use such confidential information for any purpose not expressly authorized by this Agreement or to disclose such confidential information without Toyota’s prior written consent.

6. Dealer Content.

Dealer agrees that it is solely responsible for all content, materials and information provided by Dealer or that Dealer (or any third party, excepting Toyota and the Service Providers, in each case acting on behalf of Dealer) creates, approves, transmits, or displays while using the Services (“Dealer Content”) and for the consequences of these actions (including any loss, liability, fine or damage). Toyota reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse, or remove any or all Dealer Content from any Service in Toyota’s sole discretion. Dealer represents, warrants, and covenants that the Dealer Content shall not contain anything that infringes copyrights, trademarks, publicity, or any other rights of others; violates any law or regulation, is defamatory or libelous; is abusive, harassing, or threatening; is obscene, vulgar, or profane; is fraudulent or deceptive; is discriminatory; or violates someone’s privacy.

7. Licenses.

Provided Dealer is not in default of any obligation under this Agreement, and provided Dealer has paid all applicable fees, subject to the terms and conditions of this Agreement, Toyota grants Dealer a limited, restricted, revocable, personal, royalty-free, non-assignable, nontransferable, non-sublicensable and non-exclusive license to use the Services and the Provided Content provided to Dealer in the United States. This license is for the sole purpose of enabling Dealer to use and enjoy the benefit of the Services in the manner permitted by this Agreement. Dealer retains any copyright and/or other intellectual property rights Dealer already holds in Dealer Content. The products and services of the Service Providers may contain license terms specific to such products or services, and Dealer agrees to comply with all such license terms included in any click through or shrink wrap license or of which Toyota otherwise makes Dealer aware. Dealer may not (and Dealer may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of the software used to provide the Services (the “Software”) or any part thereof, or any of the other proprietary elements of the Service, or allow any third parties to use the Services, or any portion thereof, in any way. Dealer may not assign (or grant a sublicense of) any rights to use the Software, or any of the other proprietary elements of the Service, grant a security interest in or over Dealer’s rights to use the Software or any other proprietary elements of the Service, or otherwise transfer any part of Dealer’s rights to use the Software or any other proprietary elements of the Service. Dealer agrees not to remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.

By submitting, posting, or displaying the Dealer Content, Dealer grants Toyota, and each Service Provider to which Toyota provides the Dealer Content for the purposes of providing the Services, a worldwide, royalty-free, and non-exclusive license, during the term of this Agreement and for such reasonable period thereafter as is necessary to wind down and transition the Services, to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, and distribute the Dealer Content in order to provide the Services as contemplated in this Agreement. This license is for the sole purpose of enabling Toyota and the Service Providers to provide the Services as contemplated in this Agreement. In addition, Dealer understands that Toyota and the Service Providers, in performing the Services, may (a) transmit or distribute the Dealer Content over various public networks and in various media; and (b) make such changes to the Dealer Content as are necessary to conform and adapt the Dealer Content to the technical requirements of connecting networks, devices, services, or media. Dealer agrees that this license shall permit Toyota and the Service Providers to take these actions. Dealer represents and warrants that it has all the rights, power, and authority necessary to grant the above license. Toyota and the Service Providers shall use the Dealer Content in accordance with the license and rights granted by Dealer herein for the purpose of providing the Services to Dealer.

In addition to the above, Dealer agrees that Dealer Content is deemed to be “Dealer Daily Data” as defined in the Dealer Daily Services Agreement that has been separately signed by Dealer (the “DDSA”). Accordingly, Dealer hereby grants to TMS/USA, TMS/USA Entities and North America Distributors (each as defined in the DDSA) the right to collect, receive, process, manipulate, reprocess, distribute, transfer, edit, combine with other information, publish, and use the Dealer Content to the same extent such rights are granted to TMS/USA, TMS/USA Entities and North America Distributors in the DDSA.

8. Modification to Services; Termination of the Services.

Toyota reserves the right to modify or change the Services provided hereunder by modifying current features, deleting features, and/or adding features, upon prior notice to Dealer. Some modifications or changes may result in a fee increase or decrease for such Services. Dealer’s continued use of the Services hereunder after notice will constitute Dealer’s acceptance of the change in the Services and Dealer’s agreement to pay the fees associated with such change in Services. Dealer acknowledges and agrees that Toyota may stop (permanently or temporarily) providing the Services, or any part thereof, to Dealer if: (a) Dealer has breached any provision of this Agreement (or has acted in manner which reasonably shows that Dealer does not intend to, or is unable to comply with the provisions of this Agreement); or (b) Toyota is required to do so by law (for example, where the provision of the Services to Dealer is, or becomes, unlawful); or (c) the Service Provider selected by Dealer or Toyota to provide the Services has terminated its relationship with Toyota or ceases to offer the Services, or any part thereof, to Dealer; or (d) the provision of the Services to Dealer by Toyota is, in Toyota’s sole opinion, no longer commercially viable; or (e) Toyota provides Dealer with thirty (30) days prior written notice of its intent to terminate the Services, or any part thereof, with or without cause. If Dealer wishes to stop using the Services at any time, Dealer agrees to provide Toyota with prior written notice of its intent to cancel receiving the Services in accordance with the provisions of Section 12, below. In addition, Toyota may disable access to Dealer’s account for nonpayment of Services. Dealer acknowledges and agrees that if Toyota disables access to Dealer’s account, Dealer may be prevented from accessing the Services, Dealer’s account details, or any files or other content contained in Dealer’s account. Dealer acknowledges and agrees that Toyota and the Service Providers will not be liable in any way for any inconvenience, delay, damages, losses, or other claims related to disabling Dealer’s access to the account.

9. Payment of Fees and Billing.

Dealer agrees to pay the fees for the Services in the amounts set forth in the online registration process or, if an order form was used, on the order form. The fees for the Services shall be billed to and Dealer agrees to pay the fees for the Services through, and in accordance with the terms of, Dealer’s Toyota parts statement; provided, that Toyota may invoice Dealer directly for the Services, and Dealer agrees to pay such invoice within 45 days of receipt. The billing effect of any cancellation of Services is governed by Section 12 (Termination). Any changes in advertising packages (e.g., to increase or reduce the amount of the package) will take effect as of the first day of the month following the month in which Dealer requests the change so long as Dealer makes the request not less than five (5) business days prior to the end of the month. Except as set forth otherwise herein, all charges under this Agreement will be due and payable as specified on and consistent with the payment terms of Dealer’s Toyota parts statement. Toyota may increase fees by giving Dealer not less than sixty (60) days written notice prior to the effective date of the price increase. If Dealer fails to pay for the Services timely through its Toyota parts account or, if invoiced directly, within the payment period specified above, Dealer agrees to pay to Toyota, in addition to the fees for the Services: (i) a finance charge equal to the lower of 1.5% per month or the maximum amount permitted by law, and (ii) all costs incurred in connection with collection of past due amounts (including collection agency fees and reasonable attorney fees). In addition to the other rights reserved hereunder, Toyota expressly reserves the right to terminate the Services and disable Dealer’s access to the Services for non-payment.

10. Taxes.

All fees stated hereunder are subject to applicable sales, use, excise, or similar taxes, whether or not included at the time the fees are billed. Dealer assumes exclusive liability for, and shall pay before delinquency, all sales, use, excise, and other taxes, charges, or contributions of any kind now or hereafter imposed on, with respect to, or measured by the Services except for taxes based on the net income of Toyota or Service Providers. The Dealer’s Toyota parts statement may include any such taxes that Toyota determines it is obligated to collect from Dealer with respect to the Services, and Dealer agrees to timely remit the same.

11. Dealer Warranties.

DEALER HEREBY REPRESENTS AND WARRANTS THAT ANY AND ALL DEALER CONTENT SUBMITTED FOR PUBLICATION OR DISPLAYED ON DEALER’S WEBSITE OR IN DIGITAL ADVERTISING, OR IN ANY SOCIAL MEDIA, WILL NOT VIOLATE OR OTHERWISE INFRINGE UPON ANY COPYRIGHT, TRADEMARK, PATENT, STATUTORY, COMMON LAW, OR PROPRIETARY RIGHT OF OTHERS, OR CONTAIN ANYTHING CONSIDERED OBSCENE OR LIBELOUS.

12. Termination.

Dealer may cancel the Services online through its account, if online cancellation functionality is available, or, if not available, by providing written notice to Toyota delivered by email to the email set forth in the Toyota Certified Digital Program Terms. Except as otherwise set forth on the enrollment form for a particular Service, Dealer’s notice of cancellation received on or before the 10th day of the month will be effective as of the end of that month and Dealer will be billed for the Services, and be responsible for payment of the Services, through the end of that month. Except as otherwise set forth on the enrollment form for a particular Service, Dealer’s notice of cancellation received after the 10th day of the month will be effective at the end of the following month and Dealer will be billed for the Services, and be responsible for payment of the Services, for the remainder of that month and the following month. The cancellation may be subject to promotional terms set forth on the enrollment form, Policies or the ability to re-schedule reserved inventory or cancel Advertisements already in production. Cancelled Advertisements may be published despite cancellation if cancellation of the Advertisements occurs after any applicable commitment date as set forth in advance by Toyota or the Service Provider, in which case Dealer must pay for those Advertisements. Upon cancellation or expiration of this Agreement, Dealer will be responsible for any Advertisements already run. If Toyota materially defaults in its performance under this Agreement and fails either substantially to cure such default within thirty (30) days after receiving written notice specifying the default or, for those defaults that cannot reasonably be cured within thirty (30) days, promptly to commence curing such default and thereafter proceed with all due diligence substantially to cure the default, then Dealer may terminate this Agreement by written notice to Toyota. Toyota may, at any time and for any reason, terminate this Agreement upon thirty (30) days prior written notice to Dealer. This Agreement will automatically terminate without requirement of notice by either party effective on the date of the expiration or termination of Dealer’s franchise agreement with Toyota for any reason.

13. NO WARRANTIES.

DEALER EXPRESSLY UNDERSTANDS AND AGREES THAT DEALER’S USE OF THE SERVICES AND THE PROVIDED CONTENT IS AT DEALER’S SOLE RISK AND THE SERVICES AND THE PROVIDED CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”. IN PARTICULAR, TOYOTA, THE SERVICE PROVIDERS AND THEIR AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT TO DEALER THAT: (A) DEALER’S USE OF THE SERVICES OR THE PROVIDED CONTENT WILL MEET DEALER’S REQUIREMENTS, OR (B) DEALER’S USE OF THE SERVICES OR PROVIDED CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES, INCLUDING ANY PROVIDED CONTENT, IS DONE AT DEALER’S OWN DISCRETION AND RISK AND THAT DEALER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO DEALER’S COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DEALER DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY DEALER FROM TOYOTA OR ANY SERVICE PROVIDER, OR THROUGH OR FROM THE USE OF THE SERVICES SHALL CREATE ANY WARRANTY. TOYOTA AND EACH SERVICE PROVIDER EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND THE PROVIDED CONTENT INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

14. LIMITATION OF LIABILITY.

SUBJECT TO APPLICABLE LAW, DEALER UNDERSTANDS AND AGREES THAT NEITHER TOYOTA, NOR THE SERVICE PROVIDERS, NOR ANY OF THEIR AFFILIATES OR LICENSORS SHALL BE LIABLE TO DEALER FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY DEALER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; (B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY DEALER, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF: (I) ANY CHANGES WHICH TOYOTA OR ANY SERVICE PROVIDER MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (II) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY DEALER CONTENT, DEALER DATA, AND/OR OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH DEALER’S USE OF THE SERVICES; (III) DEALER’S FAILURE TO PROVIDE TOYOTA OR ANY SERVICE PROVIDER WITH ACCURATE ACCOUNT INFORMATION; OR (IV) DEALER’S FAILURE TO KEEP DEALER’S PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL. DEALER AGREES THAT THE AGGREGATE MAXIMUM LIABILITY OF TOYOTA UNDER THIS AGREEMENT FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY DEALER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE LAST EVENT GIVING RISE TO LIABILITY. THE ABOVE LIMITATIONS ON LIABILITY SHALL APPLY REGARDLESS OF WHETHER A PARTY IS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

15. INDEMNIFICATION.

DEALER WILL DEFEND, INDEMNIFY AND HOLD TOYOTA, THE SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, AGENTS, REPRESENTATIVES, AND AFFILIATES (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ALL THIRD PARTY CLAIMS, DEMANDS, SUITS, CAUSES OF ACTION, AND ADMINISTRATIVE OR REGULATORY ACTIONS OF WHATEVER KIND OR CHARACTER, AND INCLUDING ANY RELATED LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, FINES, JUDGMENTS, SETTLEMENTS, CHARGES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND ACCOUNTANTS’ FEES AND DISBURSEMENTS (COLLECTIVELY, “CLAIMS”) TO THE EXTENT THAT SUCH CLAIMS RELATE TO, ARISE OUT OF OR RESULT FROM: (I) ANY INTENTIONAL OR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY DEALER OR OF ANY OF DEALER’S EMPLOYEES, AGENTS, OR SUBCONTRACTORS; (II) A BREACH OF THIS AGREEMENT BY DEALER, INCLUDING A BREACH OF ANY OF DEALER’S REPRESENTATIONS, WARRANTIES, OR COVENANTS UNDER THIS AGREEMENT; (III) DEALER’S USE OF THE SERVICES; (IV) DEALER’S FAILURE TO COMPLY WITH DEALER’S PRIVACY POLICY; OR (V) DEALER’S VIOLATION OF APPLICABLE LAW, BUT EXCLUDING, IN EACH CASE, CLAIMS, DEMANDS AND CAUSES OF ACTIONS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PERSON OR ENTITY SEEKING INDEMNIFICATION.

16. AUTHORIZED THIRD PARTY BENEFICIARIES.

EACH SERVICE PROVIDER SHALL BE DEEMED A THIRD PARTY BENEFICIARY OF THE INDEMNIFICATION AND LIMITATION OF LIABILITY PROVISIONS OF THIS AGREEMENT.

17. Force Majeure.

Each party hereto shall be excused from performance hereunder, except for payment obligations, and to the extent that it is prevented from performing any obligation hereunder, in whole or in part, as a result of delays caused by the other party or an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance, or other cause beyond its reasonable control, including failures, fluctuations, or non-availability of electrical power, heat, light, air conditioning, computing, or information systems, or telecommunications equipment, or the inability of hardware or software leased or acquired by sale or license from third parties to process without error or malfunction any data. Such nonperformance shall not be a default or ground for termination as long as reasonable means are taken to remedy expeditiously the problem causing such nonperformance.

18. Relationship of Parties.

Dealer, Toyota, and the Service Providers are independent contractors, and no agency, partnership, joint venture, employer-employee or other similar relationship is intended or created between or among Dealer, Toyota, or any Service Provider under this Agreement.

19. Waiver.

Any failure or delay by Toyota in exercising or enforcing any rights or remedies that are available under this Agreement (or that Toyota has the benefit of under any applicable law or otherwise) shall not be deemed to be a waiver of any other rights or remedies, and all such rights and remedies will remain available.

20. Notices.

Any notice to be provided under this Agreement shall be in writing and shall be delivered to the last known address of the party to receive the notice, which shall be considered delivered three days after mailing if sent certified mail, return receipt requested, or when received, if sent by e-mail, prepaid courier, express mail, or personal delivery.

21. Entire Agreement.

This Agreement constitutes the entire agreement and understanding of the parties in respect of the subject matter contained herein and supersedes all prior agreements, consents and understandings relating to such subject matter. The parties agree that there is no oral or other agreement relating to such subject matter between the parties which has not been incorporated into this agreement.

22. Survival.

The provisions of Sections 5, 7, 9, 10, 13, 14, 15, 16, 22, 26, and 27 of this Agreement, and any right or obligation of the parties in this Agreement which, by its express terms or nature and context, is intended to survive termination, will survive the termination of this Agreement and the Services.

23. Changes to this Agreement.

Toyota may make changes to this Agreement or put into place Additional Service Terms from time to time at its discretion. When these changes are made, Toyota will notify Dealer and make a new copy of this Agreement available on the maintenance tool point of entry for the Services. Dealer understands and agrees that its use of the Services after the date on which this Agreement or any Additional Service Terms have changed shall constitute Dealer’s agreement to and, acceptance of the updated Agreement or Additional Service Terms. Except as set forth herein, this Agreement may be modified or amended only by a duly authorized written instrument executed by the parties hereto.

24. Severability.

If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. Headings used in this Agreement are for reference purposes only and are not a part of this Agreement.

25. Assignment.

Dealer may not assign this Agreement without the prior written approval of Toyota, except that no approval shall be required to assign this agreement to any person or entity which is, directly or indirectly, controlled by, controlling, or under common control with Dealer and is a licensed dealer authorized to sell and service automobiles under a franchise agreement with Toyota. This Agreement and all rights of Toyota hereunder may be assigned by Toyota to any of its affiliates or to any successor to all or substantially all of the relevant business or assets of Toyota, without consent, payment, or other condition (excepting reasonable notice to Dealer). This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.

26. Choice of Law; Venue.

This Agreement shall be construed in accordance with the substantive laws of the State of Texas without reference to its conflicts of law principles. The parties expressly disclaim any application to this Agreement of the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods. Any action to enforce any arbitration proceeding, and any other legal action, suit or proceeding that is not otherwise subject to mandatory arbitration pursuant to Section 27 and arises under or relates to this Agreement or the use of the Services shall be heard exclusively in either the state courts located in Collin County, Texas, U.S.A. or the United States District Court for the Eastern District of Texas, and the parties hereby submit to the jurisdiction thereof and venue therein. Notwithstanding the foregoing, a party may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any appropriate jurisdiction.

27. Arbitration and Class Waiver.

27.1 Arbitration. Dealer agrees to arbitrate any dispute or claim that it may have with Toyota or its affiliates that arises out of or relates in any way to this Agreement or Dealer’s use of or access to any Services. Such arbitration will be final and binding. If Toyota elects in its discretion to submit to arbitration any dispute or claim that it may have against Dealer, any such arbitration will be governed by the provisions of this Section 27.

27.2 Class Waiver. Any arbitration proceeding under this Section 27 will take place on an individual basis. Class arbitrations and class or representative proceedings of any kind are not permitted and Dealer expressly waives its ability to participate in a class or representative proceeding against Toyota or its affiliates. If the arbitration clause is found inapplicable to Dealer’s dispute with Toyota, this class waiver will continue to apply in litigation. Dealer agrees that this class waiver is an essential element of the agreement between Dealer and Toyota and that this class waiver may not be severed. In the event that this class waiver is deemed invalid or unenforceable, then the entire agreement to arbitrate in this Section 27 will be null and void.

27.3 Arbitrator Authority. Any dispute or claim subject to arbitration pursuant to this Section 27 must be submitted to binding arbitration before a single arbitrator administered by JAMS pursuant to JAMS Streamlined Rules. The arbitrator will be bound by and will strictly enforce this Agreement and any other applicable Additional Service Terms between Dealer and Toyota, including any limitations of liability contained therein, and may not limit, expand or otherwise modify any of the provisions of the foregoing. Any arbitration will be held in Plano, Texas, unless otherwise agreed upon by the Parties in writing. Each Party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator will award the applicable Party any costs and fees to which it may be entitled under Section 14 in connection with any indemnification claim.

27.4 Mass Arbitrations. If twenty-five (25) or more arbitration demands raising similar claims are filed against Toyota or its affiliates by or with the assistance of the same or coordinated counsel or organizations, the parties agree that such demands shall be resolved in staged proceedings. Ten (10) demands shall be selected by the parties (five by each side) to proceed first as bellwether arbitrations, and all remaining demands shall be held in abeyance, with associated filing and administrative fees deferred, pending resolution of the bellwether arbitrations. Following resolution of the bellwether arbitrations, the parties shall participate in a global mediation of the remaining demands before any further demands may proceed. All applicable statutes of limitations shall be tolled for demands held in abeyance pursuant to this Section 27.4.

1. Access to Dealer’s Web Sites, Systems and Data.

Dealer hereby authorizes Toyota and the Service Providers that produce, collect or receive data pertaining to the Dealer’s website(s), advertising activity, sales leads, lead generation activity, Dealer’s use of the Services, or any of Dealer’s other business activities (the “Dealer Data”), to transfer, provide or otherwise make available the Dealer Data to Toyota and the Service Providers, including sharing Dealer Data among Service Providers as necessary to provide the Services. In the event the performance of the Services requires Toyota and/or the Service Providers to access Dealer’s computer systems to collect Dealer Data or perform the Services, Dealer specifically requests and authorizes such access and will provide, and has all rights and authorizations required to provide, such access. Toyota and/or the Service Providers may access Dealer Data in accounts created and managed by Toyota and/or the Service Providers on the third party sites or, if Dealer provides its account information and authorizes access to accounts managed by Dealer, Toyota and/or the Service Providers may access Dealer’s accounts directly on those third party sites.

2. Dealer Data Ownership.

The Dealer Data shall continue to be owned by the Dealer. Neither Toyota nor the Service Provider will use the Dealer Data for any other purposes than those intended with the Services or as otherwise provided herein. Nothing in this Agreement shall obligate Toyota or any Service Provider to retain any Dealer Data.

3. Dealer License.

Dealer hereby grants to Toyota and the Service Providers a royalty-free, non-exclusive, nontransferable, non-cancelable, perpetual license to use the Dealer Data, including without limitation any sales and inventory data (to the extent available) obtained from Dealer’s computer systems, or use of the Services for the purposes of (i) performing the Services; (ii) consumer, vehicle, and industry research and reference; (iii) evaluation of sales lead performance; (iv) combining with other data to create proprietary market price and incentive guides; (v) the generation of market analysis data and related products, (vi) development of reports for Toyota, which may include, but is not limited to, sending Dealer Data collected from one Service Provider to another Service Provider for purposes of combining the Dealer Data from the Service Providers to create and develop reports for the Dealer and Toyota regarding the products and services in the Program and the Services generally; (vii) in promotional materials of Toyota and/or the Service Providers but only for such purpose when Dealer Data is aggregated, anonymized, or otherwise de-identified; and (viii) Toyota’s and/or Service Provider’s business operations, which may include (1) analyzing and reporting such aggregated and de-identified data in connection with the conduct of Dealer’s business and operations; (2) creation of operational statistics for internal use only; (3) creation and inclusion in financial reporting of aggregate statistics regarding services performed; (4) creation and inclusion in marketing materials of aggregate statistics highlighting the capabilities of Toyota’s and/or the Service Provider’s products and services; and (5) advancing and improving existing products and services, creating new and enhanced product and services, and development and publication of market and industry intelligence and expertise by Toyota and/or the Service Provider.

In addition to the above, Dealer agrees that Dealer Data is deemed to be “Dealer Daily Data” as defined in the DDSA. Accordingly, Dealer hereby grants to TMS/USA, TMS/USA Entities and North America Distributors (each as defined in the DDSA) the right to collect, receive, process, manipulate, reprocess, distribute, transfer, edit, combine with other information, publish, and use the Dealer Data to the same extent such rights are granted to TMS/USA, TMS/USA Entities and North America Distributors in the DDSA.

4. Disclosure to Toyota.

In connection with the Services, Dealer instructs each Service Provider to disclose all Dealer Data to which such Service Provider has access, including without limitation Personal Information, to Toyota on Dealer’s behalf. Toyota’s use of Dealer Data received under this Agreement is subject to this Agreement and to any other applicable agreements between Dealer and Toyota.

5. Google AdWords and Analytics.

Dealer expressly authorizes Toyota and the Service Providers to access Dealer Data maintained by third parties, including Google in such services as Google AdWords and Google Analytics, on Dealer’s behalf as Dealer’s agent in order to provide the Services. DEALER ACKNOWLEDGES AND AGREES THAT (A) DEALER IS RESPONSIBLE FOR COMPLIANCE WITH GOOGLE ADWORDS AND GOOGLE ANALYTICS POLICIES, TERMS OF USE, AND APPLICABLE LAWS AND REGULATIONS, AND (B) WHEN TOYOTA AND/OR THE SERVICE PROVIDERS ARE ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, TOYOTA AND/OR SERVICE PROVIDERS ARE ACTING AS DEALER’S AGENT, AND NOT AS THE AGENT OF GOOGLE OR ANY OTHER THIRD PARTY. NEITHER TOYOTA, THE SERVICE PROVIDERS, GOOGLE NOR ANY OTHER THIRD PARTY PROVIDES ANY WARRANTY OR GUARANTY (EXPRESS OR IMPLIED) OF ANY RESULTS OR OTHERWISE WITH RESPECT TO ACCESS OR USE OF DEALER DATA IN THE SERVICES.

6. Publisher Policies and Terms.

Use of the Services is also subject to the applicable policies and terms of the search engine, website, or network publishers (“Publishers”) on which display ads, videos, or other advertising media (“Advertisements”) are posted or displayed in connection with the Services, including without limitation any Publisher’s terms and conditions, editorial guidelines, privacy policies, trademark guidelines, and ad specification requirements (“Policies”). Dealer agrees to comply with the Policies during the term of this Agreement and agrees that it has or will enter into a contractual relationship directly with such Publishers for the publication of Advertisements and associated data collection and use that will permit Toyota and the Service Providers to provide the related Services in compliance with all applicable laws and regulations. Dealer understands and agrees that Advertisements may be placed on any website or property provided by a Publisher selected by Toyota or in connection with the Service that the Dealer requests. Dealer authorizes and consents to such placements. Toyota or the Service Provider may modify Advertisements to comply with any Policies in its sole discretion. Dealer agrees not to access (or attempt to access) any of the Services by any means other than through the interfaces that are made accessible by Toyota or the Service Provider.

7. Artificial Intelligence Features.

Dealer acknowledges that certain Services may incorporate artificial intelligence or machine-learning features, including without limitation automated chat, lead scoring, appraisal, and content generation tools. Toyota and the Service Providers may use Dealer Data in connection with such features solely as necessary to provide the Services. Neither Toyota nor any Service Provider will use Personal Information processed on behalf of Dealer to train generalized artificial intelligence or machine-learning models made available to other customers, except with respect to Dealer Data that has been aggregated, anonymized, or otherwise de-identified. Dealer is responsible for making any disclosures to consumers regarding the use of automated, artificial-intelligence-assisted, or bot-driven communications that are required by applicable law.

For the Toyota Certified Digital Program

Dealer represents and warrants that it is a licensed automotive dealer authorized to sell and service vehicles under a franchise agreement with Toyota.

Call Tracking

Dealer acknowledges that, as part of the Services, Dealer may receive use of and access to certain toll-free and local tracking phone numbers, as well as other Services relating to such numbers (collectively, with the services, the “Number(s)”). Dealer acknowledges and understands that when a person (the “Caller”) calls a Number, the Caller will be automatically advised that each call is subject to recording and monitoring prior to the connection of the telephone call to Dealer through the Number (the “Recorded Call Message”). Dealer represents, warrants, and agrees in connection with Dealer’s use of the Services, that Dealer has reviewed the legality of recording, monitoring, storing, and divulging telephone calls, that Dealer is permitted to engage in such activities, and that Dealer shall use the Number(s) in full compliance with all applicable laws and regulations. Dealer represents and warrants that Dealer has had the opportunity to review the proposed usage of the Numbers with Dealer’s legal counsel, and that Dealer has established proper procedures to protect the privacy of, and otherwise comply with all applicable laws and regulations with respect to, Callers and the Call Receivers (defined below). In the event the Recorded Call Message requires a revision in order to comply with applicable laws, then Dealer shall promptly notify Toyota in writing of that fact, advising Toyota as to the exact language necessary to comply with the applicable laws. Dealer agrees and acknowledges that neither Toyota, nor any Service Providers accept any responsibility for (a) the legality of recording, monitoring, storing and/or divulging telephone calls and (b) the legality of the language used in the Recorded Call Message.

Dealer agrees and acknowledges that applicable laws and regulations may require that Dealer provide notice to and/or receive express consent and permission from, in writing or otherwise, all agents (including employees), independent contractors, and/or other persons who receive telephone calls (the “Call Receivers”). Dealer agrees, acknowledges, represents, and warrants that Dealer will provide and/or obtain all notices, consents, and permissions relating to Call Receivers, as required by applicable laws and regulations.

Dealer will not use these Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted SMS or text messages. Dealer will not improperly engage in activity which the United States Federal Communications Commission or other government authority has prohibited. Dealer is personally responsible for all SMS messages originated and sent via the chat Services provided to Dealer. Actions taken using Dealer’s credentials shall be deemed to be actions taken by the Dealer.

Dealer represents and warrants that it will obtain and maintain all consents required under the Telephone Consumer Protection Act (TCPA), the Telemarketing Sales Rule, and applicable state telemarketing and text-messaging laws prior to placing calls or sending SMS/MMS messages using the Services, and that it will comply with applicable carrier requirements and the CTIA Messaging Principles and Best Practices, including A2P 10DLC campaign registration requirements where applicable.

Trade-in Valet

If Dealer enrolls in Trade-in Valet (“TIV Services”), then the additional terms in the sub-provisions of this section shall apply:

a. Dealer will only use customer and vehicle information obtained through the TIV Services for the sole purpose of communicating with customers about the purchase of their vehicle, and Dealer’s potential sale of a vehicle to the customer. Dealer will not sell or transfer any customer information derived from the TIV Services to a third party for marketing or any other purpose.

b. Dealer is solely responsible for accurately disclosing the vehicle condition into the TIV Services in accordance with the National Auto Auction Association Arbitration Policy located at www.NAAA.com, as may be amended from time to time (“NAAA Requirements”), including without limitation, disclosure of any structural damage, structural repairs/replacements, and structural alterations, to include disclosure of drivability, paintwork, body damage, tire condition, non-working components, missing equipment, and/or aftermarket equipment, also disclosure of issues as may be legally required, and disclosure of conditions which a reasonable person would deem a safety or integrity concern.

c. As part of the TIV Services, Dealer may elect to have Service Provider purchase a vehicle from Dealer for the appraised amount issued by the TIV Services (“Buy-Back Option”), if all of the following conditions are satisfied:

i. Appraisals issued to a potential consumer by the TIV Services are valid for the Buy-Back Option for ten (10) calendar days, with such 10-day period commencing on the date of appraisal;

ii. Upon consumer presenting their appraised vehicle to Dealer within the 10-day period, or upon Dealer requesting a Dealer vehicle appraisal (“Dealer Request”), Dealer is solely responsible for ensuring that the vehicle condition provided into the TIV Services is a true representation of the actual vehicle condition;

iii. Dealer may exercise the Buy-Back Option by providing notice to Service Provider, with acknowledgement of receipt, for three (3) calendar days of either (i) the date the consumer presents their vehicle to Dealer for trade-in at the TIV Services generated appraisal amount, or (ii) the date the Dealer receives a TIV Services generated re-appraised amount following disclosure of additional vehicle conditions initially undisclosed by the consumer, or (iii) the date the Dealer receives an appraisal from a Dealer Request. Such 3-day period will commence on the date specified above in either (i), (ii), or (iii);

iv. Following Dealer’s notice to Service Provider to exercise Buy-Back Option within such 3-day notice period, Dealer must deliver the vehicle to a Manheim or ADESA facility for a third-party Condition Report, at Dealer’s cost, within three (3) calendar days, with such 3-day period including the date of notice, and where Dealer will remain responsible for transit and ownership of the vehicle; and

v. If the third-party Condition Report confirms the vehicle condition as provided by Dealer to the TIV Services to generate the appraisal, then following Service Provider receipt of vehicle title, Service Provider will pay Dealer the final appraised amount generated by the TIV Services.

d. Service Provider reserves the right to modify or amend the Buy-Back Option as outlined herein at its sole discretion by providing Dealer with notice via email to the point of contact provided in the Enrollment Portal or Enrollment Form, or via monthly invoice in the normal course of business. Dealer’s continued use of the TIV Services for a 10-day period following Service Provider’s notice of Buy-Back Option modifications or amendments will constitute Dealer’s acceptance of such modifications or amendments.

e. Service Provider’s receipt of Dealer’s request to cancel the TIV Services terminates the Buy-Back Option for the remainder of the Term. The Buy-Back Option only applies to vehicles located within the continental United States and excludes Alaska and Hawaii.

Podium Corporation, Inc.

If Dealer subscribes to one or more services provided by Podium Corporation, Inc. (“Podium”), Dealer understands and agrees that Dealer’s use of such services shall be subject to, and Dealer agrees to the additional terms and conditions set forth at, https://legal.podium.com/#termsofservice-us, as may be updated by Podium from time to time, which are incorporated herein by reference and made a part of the Agreement.

Edmunds.com, Inc.

If Dealer subscribes to one or more services provided by Edmunds.com, Inc., Dealer understands that Dealer’s use of such services shall be subject to, and Dealer agrees to the additional terms and conditions set forth at https://www.edmunds.com/dealers/advertising-agreement, as may be updated by Edmunds.com, Inc. from time to time, which are incorporated herein by reference and made a part of the Agreement.