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PLEASE READ THE FOLLOWING CENTRAL MEDIA HUB (CMH) SITE USE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SERVICES PROVIDED ON THIS SITE. BY CLICKING ON THE "AGREE" BUTTON BELOW, YOU (ON BEHALF OF YOURSELF ("YOU") AND THE COMPANY YOU REPRESENT ("YOUR COMPANY")), AGREE TO BECOME BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "DISAGREE" BUTTON AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES. THE ACCEPTANCE OF TOYOTA MOTOR CORPORATION ("TOYOTA") IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU HAVE ENTERED INTO A PRIOR CENTRAL MEDIA HUB WEB SITE USE AGREEMENT WITH TOYOTA, THEN THIS AGREEMENT WILL AMEND AND RESTATE SUCH PRIOR AGREEMENT IN ITS ENTIRETY.
CENTRAL MEDIA HUB SITE USE AGREEMENT
TOYOTA has established this site ("Central Media Hub") for the purposes of facilitating the sale and purchases or sharing of product information, marketing and promotional items between TOYOTA and TOYOTA's distributors. YOUR right to access the Central Media Hub is subject to the following items and conditions:
Article 1: Definitions When used in this Agreement, each of the following terms shall have the meaning set forth below:
(1) "Authorized Users" means the persons appointed by YOUR COMPANY who have entered into their own respective Central Media Hub Site use agreement and registered with TOYOTA pursuant to Article 4(1) hereof.
(2) "Distributor Agreement[s]" means the distributor agreement or agreements between YOUR COMPANY and TOYOTA and/or TOYOTA's designated third party ("Designated Party") wherein TOYOTA or Designated Party granted YOUR COMPANY the right to distribute Toyota brand vehicles, parts, and accessories. In the event YOUR COMPANY does not have any Distributor Agreement with TOYOTA nor any Designated Party and YOU are granted permission by TOYOTA to access Central Media Hub at the full understanding of the purpose as written in the recital and subject to the terms hereof, the term 'Distributor Agreement[s]' when used herein shall be replaced by (and read as if it were a reference to) the certain name(s) of any and all agreement(s) which is executed between YOUR COMPANY and TOYOTA or any Designated Party, including but not limited to, a trader agreement or an agreement for appointing and the operation of a Toyota authorized service station. (3) "Central Media Hub Information" means all assets, materials or information displayed or made available to YOU through the Central Media Hub network.
(4) "Participating Companies" means TOYOTA's distributors and certain other parties (including YOUR COMPANY) who have been granted the right to access the Central Media Hub by TOYOTA.
(5) "Services" shall have the meaning ascribed to such term in Article 3.
(6) "YOUR COMPANY's Information" means any information which has been provided by YOUR COMPANY to TOYOTA pursuant to the Distributor Agreement[s] and a part of or all of which will be included in the Central Media Hub Information by TOYOTA pursuant to Article 9 hereof.
Article 2: Grant of Right to Access Subject to the terms and conditions provided herein, TOYOTA hereby grants YOU a non-exclusive right to access the Central Media Hub through internet, as may be separately agreed between TOYOTA and YOU, during the term of this Agreement.
Article 3: Services (1) Subject to all of the terms and conditions of this Agreement, TOYOTA, through its internet website, will provide YOU with access to the Central Media Hub Information and the various other Central Media Hub resources and services which are selected by YOU through the process provided on this site (collectively, the "Services"). All Services are provided in the English language solely for YOUR and other Authorized Users' use and not for the use or benefit of any third party.
(2) YOU hereby acknowledge and agree that the Services available to other Authorized Users may be different from one another depending upon the title, job responsibility and options selected by such other Authorized Users in the Central Media Hub.
(3) TOYOTA may change, suspend or discontinue some or all of the Services at any time, including the availability of any feature, database, or content. TOYOTA may also impose limits on certain features and services or restrict YOUR access to parts or all of the Services without notice or liability.
(4) All Central Media Hub Information is protected by copyright. YOU agree to abide by all copyright notices, information, and restrictions contained in any Central Media Hub Information or other content accessed through on the Central Media Hub or the Services.
Article 4: Registration; Authorized Users (1) As a condition to using the Services, YOU were required to register with TOYOTA and select one user Email as account.("User ID"). YOU represent that YOU have provided and will continue to provide TOYOTA with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of YOUR account (and, in such case, shall result in termination of this Agreement pursuant to Article 11 hereof). YOU may not (i) select or use as a User ID a name of another person with the intent to impersonate that person; or, (ii) use as a User ID a name subject to any rights of a person other than YOU without appropriate authorization. TOYOTA reserves the right to refuse registration of, or cancel a User ID in its discretion.
(2) During the registration process to use the Central Media Hub, YOUR COMPANY has appointed from among its employees, Authorized Users, as persons to be permitted by TOYOTA to access and use the Central Media Hub. YOU hereby represent and warrant that YOUR COMPANY has appointed YOU as an Authorized User and acknowledge and agree that Authorized Users shall be the only persons permitted to access the Central Media Hub on behalf of YOUR COMPANY. YOU agree to cause YOUR COMPANY to take all measures, including but not limited to setting password to access the Central Media Hub and managing the password properly, to prevent unauthorized access to the Central Media Hub by any person other than Authorized Users. YOU further agree to manage YOUR password properly in order to prevent unauthorized access to the Central Media Hub by any person other than Authorized Users and to comply with all confidentiality obligations hereunder.
(3) In the event YOUR COMPANY wishes to change any Authorized User(s), YOUR COMPANY must obtain TOYOTA's prior consent by submitting to TOYOTA, with the User ID of the Authorized User(s) to be changed with the reasons for such change and the identity of the substitute person(s). In case any Authorized User has violated any terms of their Central Media Hub Site Use Agreement (including, without limitation, any of their confidentiality obligations), TOYOTA shall have the right to demand YOUR COMPANY change (and disallow any further access by) such Authorized User(s). Upon any such change of Authorized User(s), TOYOTA will cancel the old User ID for access to the Central Media Hub and assign new ones to the new Authorized User(s).
(4) In case YOU do not access Central Media Hub for a period which is deemed too long in TOYOTA's sole and reasonable discretion, TOYOTA may immediately terminate the account. YOU have to re-activate the account by yourself with valid and appropriate email address if the account terminated. In the case that TOYOTA receives an error message from YOUR registered email address in reply to an email notice sent by TOYOTA, then TOYOTA may immediately terminate this Agreement (and all the rights granted to YOU hereunder shall automatically be revoked as further provided in Article 11(5) of this Agreement).
Article 5: Fees YOU shall be charged two percent of total amount by TOYOTA in case you order paid assets or materials because of its promotional use. TOYOTA may change this rate at any time.
Article 6: Use of Central Media Hub Information; Restrictions (1) YOU may, subject to all of the terms and conditions of this Agreement, use any Central Media Hub Information for any purpose to improve YOUR COMPANY's sales operations of Toyota brand products and/or Lexus brand products. Use for any other purpose requires TOYOTA's prior written consent.
(2) YOU shall not modify or process any Central Media Hub Information without the prior written approval of TOYOTA
(3) YOU are responsible for YOUR activity in connection with the Services and accessing the Central Media Hub network. Any fraudulent, abusive, or otherwise illegal activities are particular grounds for termination of this Agreement (and of YOUR right to use the Services and/or access the Central Media Hub.)
(4) Use of the Central Media Hub or the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material, or engage in any kind of legal activity is expressly prohibited.
(5) YOU agree not to run any form of auto-responder, or "spam" on the Central Media Hub network, or any processes that run or are activated while YOU are not logged in.
Article 7: Ownership of Copyrights and Other Rights YOU acknowledge that the copyrights and all other proprietary rights in and to the Central Media Hub and Central Media Hub Information, including but not limited to the texts, graphics, data, script, code and application software contained in the Central Media Hub and the Central Media Hub Information, belong to TOYOTA.
Article 8: Indemnification and Disclaimer of Liability (1) YOU understand that the Central Media Hub Information may include (a) technical information, trade secret or other information belonging to a Participating Company or other third party that is protected by laws related to intellectual property rights and/or unfair competition law and (b) personal information of a third party that is protected by laws related to privacy, rights of publicity, libel and/or defamation. Accordingly, when YOU use any Central Media Hub Information, YOU shall take all necessary precautions not to infringe upon any right of a third party by, for example, obtaining, through TOYOTA, prior consent from the party that is the source of the particular Central Media Hub Information.
(2) YOU agree to indemnify TOYOTA, its affiliates, directors, officers, employees and/or agents from any and all loss, damage and costs (including, but not limited to, reasonable attorney's fees) arising from any claim, demand and/or legal action asserted or instituted by any third party due to, arising out of or based on (a) YOUR access to the Central Media Hub network and use of the Services and/or Central Media Hub Information; or (b) YOUR breach of any term or condition of this Agreement.
(3) TOYOTA does not guarantee (and provides no representations or warranties with respect to): (a) the accuracy of any Central Media Hub Information, or (b) the safety of the Central Media Hub network or the Central Media Hub Information against disruption or suspension of its function, error or infiltration of computer virus or any other trouble of similar or dissimilar nature that may arise from the use of the Central Media Hub network and the Central Media Hub Information, and shall not be held responsible for any loss, damage or costs that may be suffered by YOU as a result of the use of the Central Media Hub network and Central Media Hub Information.
(4) TOYOTA has no special relationship with or fiduciary duty to YOU. YOU acknowledge that TOYOTA has no control over what content YOU (or any other Authorized Users) access via the Central Media Hub network; what effect the Central Media Hub Information may have on YOU; how YOU may interpret or use the Central Media Hub Information; or what actions YOU may take as a result of having been exposed to the Central Media Hub Information. YOU HEREBY RELEASE TOYOTA FROM ALL LIABILITY FOR YOUR HAVING ACQUIRED OR NOT ACQUIRED CENTRAL MEDIA HUB INFORMATION THROUGH THE CENTRAL MEDIA HUB NETWORK. UNLESS EXPRESSLY AGREED IN WRITING, TOYOTA MAKES NO REPRESENTATIONS CONCERNING (I) CENTRAL MEDIA HUB, THE CENTRAL MEDIA HUB INFORMATION OR ANY OTHER CONTENT CONTAINED IN OR ACCESSED THROUGH THE CENTRAL MEDIA HUB NETWORK, (II) THE SUITABILITY OF THE SERVICES FOR ANY PURPOSE, OR (III) FUNCTIONALITY, MAINTENANCE, USE AND/OR OPERATION OF CENTRAL MEDIA HUB. TOYOTA WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE CENTRAL MEDIA HUB NETWORK. THE SERVICES, CONTENT, SITE AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT SHALL TOYOTA BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE CENTRAL MEDIA HUB NETWORK, THE SERVICES AND/OR THE CENTRAL MEDIA HUB INFORMATION. IN NO EVENT SHALL TOYOTA BE LIABLE WITH RESPECT TO THIS SITE OR THE SERVICES FOR ANY INDIRECT, INCIDENTIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.
Article 9: Use of YOUR and YOUR COMPANY's Information (1) YOU hereby confirm that YOU have the obligation to provide TOYOTA with certain information under its Distributor Agreement[s] and registration process to use this site. YOU agree that TOYOTA may, in its sole discretion, include all or a part of YOUR COMPANY's Information in the Central Media Hub and, when necessary for such inclusion, modify and/or process YOUR COMPANY's Information, and make YOUR COMPANY's Information (with or without such modification and/or processing) available to the other Participating Companies through the Central Media Hub network as Central Media Hub Information under the same terms and conditions as those provided in this Agreement, without making any payment of consideration therefor to YOU or YOUR COMPANY.
(2) YOU agree to ensure that YOUR COMPANY's Information will not include any information that violates the laws related to intellectual property rights, unfair competition, privacy, rights of publicity, libel and/or defamation.
(3) By providing any personal information to us, YOU consent to the collection and use of such personal information in accordance with the purposes described in TOYOTA's privacy statement [See Supplementary Notes]. .
Article 10: Confidentiality (1) YOU agree that YOU shall not disclose, release, publish or use to any third party other than Authorized Users, without a prior written approval of TOYOTA, any Central Media Hub Information with or without any modification and/or processing thereof, or (b) User ID or any other information provided by TOYOTA to YOU for accessing the Central Media Hub, and that YOU shall not use the same for any purpose other than the purpose of this Agreement or beyond the extent specifically permitted in writing by TOYOTA or Participating Company that has initially offered the particular Central Media Hub Information. YOU recognize that a breach of this Article 10 would irreparably harm TOYOTA and that TOYOTA is entitled to seek a court order (including, without limitations, injunctions) in any court of competent jurisdiction with respect to any such breach or potential breach in addition to any other remedies.
(2) YOU agree that YOU shall observe copyright, copyright expiration or authorized media strictly when you utilize the assets.
Article 11: Term and Termination (1) This Agreement shall become effective upon YOUR acceptance hereof and shall continue for an indefinite period unless terminated in accordance with the provisions of this Article.
(2) This Agreement shall automatically terminate upon termination of any Distributor Agreement[s] for any reason.
(3) TOYOTA may terminate this Agreement:
(i). immediately upon TOYOTA's written notice to YOU in the event that YOU breach the provisions of Articles 4(1), 6(2), 6(3), 6(4), 6(5) or 10 hereof,
(ii). by serving a written notice to YOU if YOU breach any other provisions of this Agreement and do not rectify the breach within thirty(30) days from the date on which TOYOTA sends YOU a written notice complaining of such breach, or
(iii). immediately upon TOYOTA's written notice to YOU in the event as provided in Article 4(4) hereof.
(4) YOU may terminate this Agreement forthwith by serving a written notice to TOYOTA in case TOYOTA shall be in breach of this Agreement and shall not rectify the breach within thirty (30) days from the date on which YOU send to TOYOTA a written notice complaining of such breach.
(5) Upon termination of this Agreement for any reason, the rights granted by TOYOTA to YOU hereunder, including YOUR registration and rights to access and use Central Media Hub and any Services, shall automatically be revoked and YOU shall immediately cease and desist from accessing the Central Media Hub and using any Central Media Hub Information that has been available to YOU prior to the termination. Except in case this Agreement is terminated by YOU in accordance with Paragraph (4) above, TOYOTA and Participating Companies shall have the right to continue to use YOUR COMPANY's Information which has been included in the Central Media Hub prior to the termination. Termination of this Agreement for any reason shall not affect survival of YOUR obligations provided in Articles 7,8,9,10,11 and 14 of this Agreement.
Article 12: Amendment; Prior Agreement(s) (1) TOYOTA reserves the right, at its discretion, to modify this Agreement at any time by posting a notice on the internet, or by sending YOU a notice via email or postal mail. YOU shall be responsible for reviewing and becoming familiar with any such modifications. YOUR Use of the Services following such notification constitutes YOUR acceptance of the terms and conditions of this Agreement as modified.
(2) This Agreement constitutes amendment and restatement to all former Central Media Hub / Marketing Portal Site Use Agreement(s) entered into by and between TOYOTA and YOU ("Prior Agreements"), whether by way of execution of a written agreement or otherwise, and any and all terms and conditions contained in the Prior Agreements shall be superseded to the extent restated, added, deleted, modified or otherwise changed by this Agreement.
Article 13: Force Majeure Neither party hereto shall be responsible to the other party for non-performance, delay or deficiency in the performance of its respective obligations as a result of strikes, wars, riots, natural calamities, disruption of communication, prohibition by law or any other causes beyond its reasonable control. If there occurs any such event of force majeure, the party concerned shall inform the other party hereto of the occurrence and details of such event as soon as practicable, and after cessation of such event, the parties hereto shall immediately confer and settle matters regarding the performance of this Agreement.
Article 14: Miscellaneous (1) The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
(2) TOYOTA shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond TOYOTA's reasonable control.
(3) If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
(4) This Agreement is not assignable, transferable or sublicensable by YOU except with TOYOTA's prior written consent. YOU hereby acknowledge and agree that TOYOTA may assign this Agreement (wholly or partially) to any other TOYOTA group company (without the need to obtain any further consent from YOU or YOUR COMPANY).
The Site is owned or licensed and operated by Toyota Motor Sales, USA, Inc. ("Toyota, "TMS," "us," "we," or "our"), with a business address at 19001 South Western Avenue, Torrance California 90501. Your access to and use of the Site is subject to this Agreement and all applicable laws.
Description of the Site. This Site contains information and images confidential and proprietary to Toyota Motor Sales, U.S.A., Inc. and certain affiliates and/or entities as designated by TMS are collectively referred herein as "Toyota." Such information and images may include, but are not limited to, Toyota National marketing information, Toyota Dealer Association support materials, product information and advertising elements.
Access to the Site. You understand that only the employees of TMS, authorized Toyota dealerships, authorized Dealer Association agencies, authorized associated Toyota vendors and such other persons as TMS may designate in their sole discretion from time to time ("Authorized Users") are authorized to access and/or use the Confidential Information contained in this Site. Accessing, using, copying, distributing, disseminating and changing any information on this Site is subject to Toyota policies, restrictions and procedures, including the policies set forth below. You understand that any violation of these terms could result in disciplinary, legal or other action against you. This Agreement supplements rather than supersedes the terms of any confidentiality agreement(s) you may have with Toyota and/or your employer. If you have accessed this private Site without authorization, then you are unlawfully and wrongfully doing so and should cease access and use immediately.
Confidentiality of the Site. All of the information contained in and/or accessed through this Site (collectively, "Confidential Information") is confidential and proprietary to Toyota. You have been given access to the Confidential Information based upon your representation that you have a business need for such access and that you will only use such Confidential Information for authorized Toyota business purposes, as identified by TMS from time to time, and including, but not limited to, the creation of communication plans, presentations, reporting and analysis, advertising campaigns and on-going vehicle sales and service efforts.
You understand that the Confidential Information accessible by you is not accessible by, nor should it be disclosed to, any other persons except as specifically authorized by Toyota. You will not allow any unauthorized person access to this Site or the Confidential Information under your email address and/or security password.
If disclosure of any of the Confidential Information is requested pursuant to any subpoena or as part of any legal proceeding, deposition or cause of action, you will assert the privilege applicable to confidential business and proprietary information and will refuse to respond (to the fullest extent allowed by law). You will promptly advise your employer and Toyota in writing of any such request for disclosure.
Restrictions on Use of this Site and its Content. You understand that you may download content from the Site and when you download any content from this Site, you understand that it is owned by Toyota, its affiliate and/or licensors, as applicable, and protected by intellectual property laws. Toyota 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 that is compatible solely to support ongoing sales efforts. You understand that it is your responsibility to ensure that your use of the Confidential Information must be in compliance with all applicable federal, state and local laws, including without limitation, laws governing price advertising. None of the images or other Confidential Information contained on this Site may be modified without the prior written consent of Toyota, and all advertising generated from the Confidential Information contained on this Site must include all necessary disclaimers.
Copyright/Trademark Ownership. Copyright and intellectual property laws protect information provided on and/or that support this Site. All rights are reserved. All Toyota marks, logos and designs are registered trademarks of Toyota Motor Corporation of Japan and may only be used, downloaded, copied or distributed in accordance with these terms and conditions and the guidelines contained on this Site.
Changes to this Agreement. You understand that Toyota reserves the right at any time and from time to time to modify, suspend, discontinue or permanently cancel the Site's operation, its content, or portions thereof, or restrict your access to the Site, with or without notice to you.
Disclaimer of Warranties. You understand and agree that your use of the Site is solely at your own risk and that you will be solely responsible for any damage to your mobile device or computer or any other equipment or loss of data that may result from your use of this Site. You understand and agree that Toyota shall not be liable for any interruption of access to the contents of the Site or any other aspect of this Site. Any decision or action taken by you on the basis of information or content provided on this Site is at your sole discretion and risk. You understand and agree that Toyota is not responsible or liable for any such decision, or for the usefulness, or availability of any content displayed, transmitted, or otherwise made available on this Site.
You hereby release, discharge, indemnify and hold harmless each of the Toyota Parties 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 this Site.
Indemnity and Hold Harmless. You agree to defend, indemnify and hold harmless Toyota and its parent, subsidiaries and affiliates, their respective distributors, dealers, dealer associations and advertising and promotions agencies, together with their respective employees, agents, directors, officers and shareholders (collectively, "Toyota Parties"), from and against all the liabilities, claims, damages and expenses (including reasonable attorneys' fees and costs) arising out of your use of this Site, your breach or alleged breach of this Agreement, or your breach or alleged violation of the patent, copyright, trademark, proprietary or other rights of third parties.
(a) Notices and Announcements: Except as expressly provided otherwise herein, all notices to Toyota shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:
TDA Ad Planner Administrator
Mailstop HQ 21
Toyota Motor Sales USA, Inc.
19001 S. Western Ave.
Torrance, CA 90501
(c) Entire Agreement: This Agreement constitutes the entire, complete and exclusive agreement between you and us regarding this Site and supersedes all prior agreements and understandings with respect to the subject matter of this Agreement, except as provided in this Agreement.
(d) Waiver: The remedies of Toyota set forth in this Agreement 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 us, at any time or from time to time, to enforce any of our rights under this Agreement shall not constitute a waiver of such right.
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