I have read and accepted the  Dealer Daily Terms of Use  and I specifically agree and acknowledge that:
A.I will access and use the Dealer Daily and its data solely to perform my valid job duties and for no other purpose.
B.Dealer Daily and its data are CONFIDENTIAL AND PROPRIETARY , and I will not disclose it to any person or entity, unless approved by Toyota.
C.I will not use any data in Dealer Daily for Data Mining.
D.I will not share my Dealer Daily access credentials (user name, password and any other security-related information) with anyone.
E.I will not access or use Dealer Daily for unauthorized, fraudulent or malicious purposes or in a manner that could damage, disable, overburden or impair Dealer Daily.
F.I will not reproduce, retain, share, disclose, release, or transfer Data, unless expressly approved by Toyota.
G.I will immediately notify Toyota of any known or potential violation of the Dealer Daily Terms of Use, as soon as I become aware of such.
H.Failure to comply with these Dealer Daily Terms of Use may result in access termination.
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Dealer Daily is a secure site, limited to authorized Toyota and Lexus dealers only. If you already have credentials, then please login. Otherwise, you may contact your system administrator or (877) 353-2459, (877) DL-DAILY (US) or (800) 276-9633, (800) APOYO-DD (Mexico), (866) 333-2459 (Puerto Rico).
Please read the following Dealer Daily Terms of Use in its entirety. You must accept the terms of this agreement before continuing.

DEALER DAILY
TERMS OF USE

 

Last Updated Date: 11-09-2020.

 

     1. INTRODUCTION.

 

     These Terms of Use set forth the legally binding terms governing Your access to and use of this Dealer Daily system ("Dealer Daily"), a dealer communication exchange network owned and/or operated by TMS (as defined below) and whereby various information, transmissions, communications and software applications are made available to authorized Toyota and Lexus dealers (each a "Dealer") and other Authorized Users in the continental United States, Mexico, Puerto Rico and the U.S. Virgin Islands. By clicking "I agree" below and accessing Dealer Daily, you agree to comply with these Terms of Use.

 

     Toyota Motor Sales, USA, Inc., ("TMS", "We", "Us", or "Our") owns and operates Dealer Daily and provides Dealers and third parties authorized by Dealers or directly by TMS ("Authorized Users") ("You" and "Your") with access to and use of Dealer Daily. As a user of Dealer Daily and, if applicable, a duly-authorized representative of Your Dealer or other Authorized User, You understand that by clicking ‘Agree and Continue' below and accessing and using Dealer Daily, You hereby accept, agree and acknowledge that You and, if applicable, the Dealer or other Authorized User on whose behalf You are acting, are bound by all of the following terms and conditions of these Terms of Use.

 

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

 

  Certain applications and functionality accessed through Dealer Daily may require You to agree to additional terms and conditions, policies and disclaimers (collectively, "Additional Terms"), which are hereby incorporated by reference into these Terms of Use, unless expressly stated otherwise in such Additional Terms. If there is a conflict between these Terms of Use and any Additional Terms, the Additional Terms will control with respect to such applications and functionality. This excludes Third Party Sites which are described more fully in Section 8 below.

 

     Immediately notify TMS of any known or potential violation of these Terms of Use, as soon as You become aware of such.

 

     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.

 

     You acknowledge that Dealer Daily constitutes valuable trade secrets to TMS. You expressly acknowledge that all information and data in Dealer Daily is confidential and proprietary and that You (i) shall not disclose such information or data in any form to any person or entity unless expressly approved by TMS in writing, (ii) shall not use such information or data for Data Mining (Data Mining means the use of any processes, software or techniques to aggregate, collect, search through, or analyze the information or data to discover patterns, correlations or relationships, including to predict outcomes), (iii) shall make no attempt to, nor permit others to, examine, copy or alter Dealer Daily, except as provided for by these Terms of Use or as otherwise agreed to by TMS in writing, and (iv) shall use Your best efforts to protect Dealer Daily and maintain its confidentiality.

 

     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.  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.

 

     4. MODIFICATIONS.

 

     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.

 

     5. REMEDIES.

 

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

 

     6.RESTRICTIONS ON ACCESSING AND USING DEALER DAILY.

 

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

 

(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.

 

   Do not enable access to any data in Dealer Daily on behalf of any individual or third party in violation of these Terms of Use.

 

     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 use, reproduce, disclose, share, transfer, or retain data sourced from TMS/USA except, in each case, as specifically authorized by these Terms of Use and (i) in accordance with both (a) applicable laws, rules and regulations; and (b) TMS's standards, policies, procedures, guidelines and recommendations.

 

    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).

 

     IF YOU DECIDE TO LEAVE DEALER DAILY AND ACCESS THE THIRD-PARTY SITES, YOU DO SO AT YOUR OWN RISK AND YOU SHOULD BE AWARE THAT, UNLESS OTHERWISE INDIACTED, THESE TERMS OF USE AND OTHER TMS TERMS AND POLICIES NO LONGER GOVERN. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site to which You navigate from Dealer Daily.

 

     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;

 

     (b) any breach or alleged breach of any of these Terms of Use 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.

 

     For purposes of these Terms of Use, "Representatives" means Your affiliates, directors, officers, employees, representatives, agents, third party contractors, service providers, successors and assigns, including their respective directors, officers, employees and authorized users;

 

     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.

 

     In all situations involving performance or non-performance of Dealer Daily under these Terms of Use, Your sole remedy is adjustment or repair of Dealer Daily. WITH RESPECT TO ANY OTHER CLAIMS UNDER OR PURSUANT TO THESE TERMS OF USE, IN NO EVENT WILL TMS, OR ANY OF ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, AND PRIVATE DISTRIBUTORS (EXCEPT TO THE EXTENT SUCH CLAIMS ARE BY ANY TOYOTA ENTITY) BE RESPONSIBLE FOR (A) ANY DAMAGES CAUSED BY YOUR FAILURE TO PERFORM YOUR RESPONSIBILITIES UNDER THESE TERMS OF USE, THE TOYOTA DEALER AGREEMENT, THE LEXUS DEALER AGREEMENT, ANY OTHER APPLICABLE AGREEMENTS BETWEEN YOU AND TMS OR ANY DEALER SYSTEM PROVIDER AGREEMENT(S) OR (B) ANY INCIDENTAL, COLLATERAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOST PROFITS, INTERRUPTION OF BUSINESS, COST OF SUBSTITUTED FACILITIES, EQUIPMENT OR SERVICE, DOWN-TIME COSTS, OR CLAIMS OF YOUR CUSTOMERS OR THIRD PARTY PROVIDERS FOR DAMAGES ARISING UNDER THESE TERMS OF USE, THE TOYOTA DEALER AGREEMENT, LEXUS DEALER AGREEMENT OR ANY OTHER APPLICABLE AGREEMENTS BETWEEN YOU AND TMS OR ANY DEALER SYSTEM PROVIDER AGREEMENT(S), IRRESPECTIVE OF HOW SUCH DAMAGES MAY BE CAUSED, WHETHER OR NOT BECAUSE OF NEGLIGENCE, STRICT LIABILITY, FAULT OR DELAY OF TMS, OR ITS BREACH OR FAILURE OF PERFORMANCE HEREUNDER, EVEN IF TMS (OR ANY OF ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM AGAINST YOU BY ANY OTHER PARTY.

 

     12.NEGOTIATION; COMPULSORY MEDIATION.

 

     You and TMS shall attempt to resolve any controversy or claim arising out of or relating to these Terms of Use or the breach thereof by good faith negotiation between appropriate representatives of each of You and TMS. In the event that such negotiations do not satisfactorily resolve in a reasonable period of time any such controversy or claim, and other than with respect to matters requiring the application of temporary or preliminary equitable relief in order to preserve the status quo ante or to prevent a breach or anticipated breach of these Terms of Use, neither You nor TMS shall initiate arbitration in respect of any such controversy or claim unless and until You and TMS shall first have submitted such controversy or claim to compulsory mediation for a period of not less than two (2) days pursuant to the commercial mediation rules of the mediation division of the American Arbitration Association ("AAA") and utilizing a mediator mutually agreed to by You and TMS or, if no such mediator can be agreed to within ten (10) days after either You or TMS has called for compulsory mediation, a mediator shall be selected by the AAA in accordance with its rules and procedures regarding the appointment of mediators. Each of You and TMS shall bear its own fees and expenses in connection with such compulsory mediation, and each of You and TMS shall bear fifty percent (50%) of the fees and disbursements of the mediation service and mediator. The mediation shall be held in Collin County or the Dallas, Texas metropolitan region. The mediator may not issue a binding order but merely shall assist You and TMS in seeking mutual agreement on a resolution of such controversy or claim. Both the fact of such mediation and any statements or information made or provided to the mediator or made or provided by You or TMS or its representative to the other or its representative in the context of such mediation shall be held in confidence by You and TMS, and neither the fact of such mediation nor any of such information or statements may be introduced by the receiving party or its representative in any subsequent arbitration, or other proceeding, whether or not such proceeding relates to the same subject matter as the mediation. If such controversy or claim is not resolved through compulsory mediation, the Parties shall proceed to binding arbitration. Unless the You and TMS otherwise agree, the arbitration shall be conducted by and under the commercial arbitration rules of the same organization that conducted the mediation. The arbitration shall be held in Collin County or the Dallas, Texas metropolitan region For the avoidance of doubt, the requirements of this Section do not in any way limit the right of TMS to suspend, discontinue or terminate Your access to and use of Dealer Daily at any time for any reason

 

     13.MISCELLANEOUS.

 

(a)   Severability. If any of the provisions or any portion of these Terms of Use shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Terms of Use, but rather the entire Terms of Use shall be construed as if not containing the particular invalid or unenforceable provisions or portion thereof.

 

(b)   Applicable Law. These Terms of Use and any disputes arising under or related to these Terms of Use will be governed by and construed in accordance with the laws of the State of Texas, without regard to conflicts of law principles thereunder. Notwithstanding the governing law provisions hereof, the application of the Uniform Computer Information Transactions Act in whatever form it may be adopted and/or enacted, is specifically excluded hereunder. These Terms of Use shall be construed according to their fair meaning. Whenever used herein, the term "including" shall be deemed to be followed by the words "without limitation."

 

     You and TMS agree that all actions or proceedings arising in connection with these Terms of Use that are not settled in accord with Section 12 above, shall be tried and litigated exclusively in either the state courts of Texas in the County of Collin or in the federal courts of the Northern District of Texas, Dallas Division, Dallas County. The aforementioned choice of venue is intended by You and TMS to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between You and TMS with respect to or arising out of these Terms of Use in any jurisdiction other than that specified in this paragraph. You and TMS each hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the state courts of Texas in the County of Collin County, and federal courts of the Northern District of Texas, Dallas Divisions, Dallas County shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to these Terms of Use. You and TMS each hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against You or Us as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address. Any final judgment rendered against You or TMS in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.

 

(c)   Entire Agreement  These Terms of Use and, if You are a Dealer, Your obligations set forth in the Dealer Daily Services Agreement, constitute the entire understanding of You and TMS with respect to the subject matter of these Terms of Use and supersedes and replaces any and all prior agreements, understandings or arrangements, oral or written, heretofore made between You and TMS or made applicable by You and TMS's respective predecessors and assignors and relating to the subject matter of these Terms of Use.

 

(d)   Waiver Except as expressly set forth herein, all remedies provided for in these Terms of Use shall be cumulative and in addition to and not in lieu of any other remedies available to either You or TMS at law, in equity or otherwise. The election by You or TMS of any remedy provided for in these Terms of Use or otherwise available to such party shall not preclude such party from pursuing any other remedies available to such party at law, in equity, by contract or otherwise. A delay or omission by either You or TMS to exercise any right or power under these Terms of Use shall not be construed to be a waiver thereof. A waiver by either of You or TMS of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant herein contained. All waivers must be in writing and signed by the party waiving its rights.

 

     I UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE. I HEREBY REPRESENT THAT I HAVE ALL NECESSARY AUTHORITY TO LEGALLY BIND MYSELF AND, IF APPLICABLE, THE DEALER OR OTHER AUTHORIZED USER ON WHOSE BEHALF I AM ACTING, TO ALL OF THE FOREGOING TERMS AND CONDITIONS OF THESE TERMS OF USE, AND BY CLICKING ‘AGREE AND CONTINUE', I HEREBY DO LEGALLY BIND MYSELF AND, IF APPLICABLE, SUCH DEALER OR OTHER AUTHORIZED USER TO THESE TERMS OF USE.