This Earnhardt Toyota Mobile Application End User License Agreement (“Agreement”) sets forth a legally binding agreement between you and Earnhardt Toyota (“Company”). The Application is operated by Epsilon Data Management, LLC (“Epsilon”), on behalf of Company and its franchise dealerships.
Please read this Agreement carefully before using the Application. Your download, installation, and use of the Application constitute your acknowledgement that you have the legal authority to bind yourself or any party you represent to, and your acceptance of, this Agreement. WITHOUT LIMITATION OF THE FOREGOING, DOWNLOADING, INSTALLING, AND USING THIS APPLICATION INDICATES THAT YOU AGREE BY ELECTRONIC MEANS TO THE TERMS OF THIS AGREEMENT AND ACCEPT THE DISCLAIMER OF WARRANTIES, DAMAGE AND REMEDY EXCLUSIONS AND LIMITATIONS, BINDING ARBITRATION, A WAIVER OF THE RIGHT TO CLASS ACTION, AND A CHOICE OF TEXAS LAW AS SET FORTH HEREIN. You acknowledge that you have read and agree to be bound by this Agreement and to comply with all applicable laws, regulations, and/or rules with regard to your use of the Application. If you do not agree to the terms contained in this Agreement, then you may not use the Application.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
By using the Application, you represent and warrant that (i) you are either more than 18 years of age, an emancipated minor, or possess legal parental or guardian consent and have the power and authority to enter into and perform the obligations under this Agreement, (ii) you own the vehicles for which you are using the Application, and (iii) all information provided by you through the Application is truthful, accurate, and complete.
From time to time, we may update this Application and this Agreement. Your use of this Application after we notify you of any changes to this Agreement constitutes your agreement to those changes. You agree to review this Agreement periodically to ensure that you are familiar with the most recent version. Company may, in its sole discretion, and at any time, discontinue this Application or any part thereof, with or without notice, or may prevent your use of this Application with or without notice to you. You agree that you do not have any rights in this Application and Company will have no liability to you if this Application is discontinued or your ability to access the Application is terminated.
YOU MAY NOT USE THE APPLICATION FOR ANY PURPOSE THAT IS UNLAWFUL OR PROHIBITED BY THIS AGREEMENT. YOUR ACCESS TO THE APPLICATION MAY BE TERMINATED IMMEDIATELY IN COMPANY’S SOLE DISCRETION, WITH OR WITHOUT NOTICE, IF YOU FAIL TO COMPLY WITH ANY PROVISIONS OF THIS AGREEMENT AND/OR ADDITIONAL TERMS, OR FOR ANY OTHER REASON, OR NO REASON.
To the extent permissible by applicable law, your use of this Application after we post any changes to this Agreement constitutes your agreement to those changes prospectively from the date of such changes.
Information About The Application
The Application lets you manage many aspects of your Toyota vehicle anywhere, anytime from your mobile device. The Application lets you schedule service, access service records, receive newsfeeds, service alerts, and special offers, and additionally includes other convenient tools to improve your vehicle experience. This Application is intended to help you organize and manage information about your vehicle; it is not intended to provide advice of any kind nor replace the owner’s manual or any vehicle documentation. We strongly recommend that you use the Application as one important tool, along with your independent research and investigation, to make decisions about your vehicles. You assume full responsibility with respect to your decisions and transactions using the Application.
The Application, including the software (including, without limitation, firmware, code, files, and images contained in or generated by the software, accompanying data, Boot ROM code, and other embedded software), Application Updates (as defined below), documentation, and any accompanying fonts, whether in read-only memory, on any other media, or in any other form are licensed to you by Company subject to the terms of this Agreement for your personal, non-commercial use subject to the terms of this Agreement in connection with the operation of the Application. Neither title nor any intellectual property rights are transferred to you, but rather remain with Company, which owns full and complete title, and Company reserves all rights not expressly granted to you. The rights granted herein are non-transferable and are limited to Company’s intellectual property rights in the Application and do not include any other patents or intellectual property rights.
The Agreement herein grants you permission to use the Application on one device that you own or control – including iPhone or iPad devices – at a time. You may not make the Application available over a network where it could be used on multiple devices at the same time.
You acknowledge that any reliance on the Application will be at your own risk. Company also makes no representations regarding the amount of time that the Application will be preserved. The Application is intended only for the lawful use by users of the Application. You represent and warrant that you will use the Company Property only for the purposes permitted herein, that all information you submit is accurate and otherwise complies with this Agreement, and that you will promptly notify Company if any of your information changes. Company makes no representation that the Company Property is appropriate or available for use in particular locations.
This Agreement does not grant you any rights to use Company proprietary interfaces and other intellectual property in the design, development, manufacture, licensing, or distribution of third-party devices and accessories for use with the Application. Any use of the Application in any manner not allowed under this Agreement or the LAEULA, including, without limitation, resale, transfer, modification, or distribution of the Application or copying or distribution of text, pictures, music, video, data, hyperlinks, displays, and other content provided by the Application is prohibited without express prior written approval from Company. This Agreement does not entitle you to receive and does not obligate Company to provide hard-copy documentation, support, telephone assistance, or enhancements or updates to the Application. You may not modify, alter, copy, publicly display or perform, distribute, or create derivative works of the Application. This Agreement is effective until terminated.
Your rights under this Agreement will terminate automatically without notice from Company if you fail to comply with any term(s) of this Agreement. Upon the termination of this Agreement, you shall cease all use of the Application.
Users of the Apple Application
If you download and/or use our iPhone or iPad Application: You, the end-user of this Application, acknowledge that this agreement is entered into by and between Company and you and not with Apple, Inc., and Apple, Inc., is not responsible for the Application and/or its content. Notwithstanding the foregoing, you acknowledge that Apple, Inc., and its subsidiaries are third-party beneficiaries of this agreement and that Apple, Inc., has the right (and is deemed to have accepted the right) to enforce this agreement. You acknowledge that Apple, Inc., has no obligation whatsoever to maintain or support the Application. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). This agreement incorporates by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of this Agreement, the Application is considered the “Licensed Application” as defined in the LAEULA and Company is considered the “Application Provider” as defined in the LAEULA. If any terms of this Agreement conflict with the terms of the LAEULA, the terms of this agreement shall control.
You further acknowledge and agree that in no event will Apple, Inc., be responsible for any claims relating to the Application (including, without limitation, a third-party claim that the Application infringes that third party’s intellectual property rights) or your use or possession of the Application, including but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge and agree that, to the maximum extent permitted by applicable law, Apple, Inc., will have no warranty obligation whatsoever with respect to the Application.
Company provides the Application to you, subject to this Agreement. The Application, and any services performed, provided, or enabled by or through the Application and all the information, communications, scripting, photos, text, video, graphics, music, sounds, images, and other materials provided to you via the Application (collectively, “Content”), are intended for the lawful use by registered users of the Application. You represent and warrant that you will use the Application and Content only for the purposes permitted herein, that all information you submit is accurate and otherwise complies with this Agreement, and that you will promptly notify Company if any of your information changes. Company makes no representation that the Application or Content are appropriate or available for use in particular locations.
You agree not to download, display, or use any Content for use in any publications, in public performances, on websites for any other commercial purpose, in connection with products or services that are not those of Company, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Company and/or its licensors, that dilutes the strength of Company or its licensors’ property, or that otherwise infringes Company or its licensors’ intellectual property rights. You further agree to in no other way misuse any Content or third-party content.
If you are a trademark or copyright owner and you believe that your trademark or copyright rights have been violated, please follow the complaint process referenced in our website terms and conditions.
Accounts, Security, Passwords
Certain areas of the Application may require registration or may otherwise ask you to provide information to participate in certain features or access certain content, such as your name and vehicle identification number. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Application.
If the Application requires you to open an account or otherwise submit information, you must complete the specified process by providing us with current, complete, and accurate information as requested by the applicable online registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data and any loss caused by your failure to do so is your responsibility. After you have fully completed the registration form, you may be asked to choose a password and a user name. It is entirely your responsibility to maintain the confidentiality of your password and account. Additionally, you are entirely responsible for any and all activities that occur under your account. You agree to notify Company immediately of any unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Application. Company is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge.
Creating an account or opting in to receive notifications or offers does not guarantee the receipt of any such messages or the availability to you of any promotional offer.
You agree that Company and Company’s third-party vendors may collect and use technical and usage data and related information, including but not limited to technical information about your device, date and time of Application access, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Application. You grant Company the permission to use this information to improve its products or to provide services or technologies to you, as well as to provide advertising content in which Company believes you may be interested, including working with third parties which provide targeted advertising content.
Company may make available for download certain Application updates or upgrades to the Application to update, enhance, or further develop the Application (“Application Updates”). The license granted herein allows you to download and use the Application Updates to update the Application on any device that you own or control. This Agreement does not allow you to update devices that you do not own or control, and you may not make the Application Updates available over a network where it could be used by multiple devices or multiple computers at the same time. You may not make any copies of the Application Updates, unless such copies are authorized in writing by Company.
Except as and only to the extent permitted by applicable law, or by licensing terms governing use of open-sourced components included with the Application, you may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, Application Updates, or any part thereof. Any attempt to do so is a violation of the rights of Company and its licensors of the Application and Application Updates. If you breach this restriction, you may be subject to prosecution and damages. By storing content on your device, you are making a digital copy. In some jurisdictions, it is unlawful to make digital copies without prior permission from the rights holder. The Application and Application Updates may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce.
Company may, at its discretion, automatically download Application Updates to your device. You agree to accept these Application Updates, and to pay for any costs associated with receiving them. The Application and Application Updates are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Application and Application Updates. These laws include restrictions on destinations, end users, and end use.
Use of the Application
The following requirements apply to your use of the Application:
Any attempt to use the Application in a manner prohibited by this Agreement is a violation of the rights of Company and its licensors of the Application. If you breach this restriction, you may be subject to prosecution and damages.
Communicating with Company
By using the Application, you acknowledge and agree that any materials, ideas, or other communications you transmit to us in any manner and for any reason will not be treated as confidential or proprietary. Furthermore, you acknowledge and agree that any ideas, concepts, techniques, procedures, methods, systems, designs, plans, charts, or other materials you transmit to Company may be used by Company anywhere, anytime, and for any reason whatsoever.
Reliance on Information Posted
The information presented on or through the Application is made available solely for general information purposes. The Company does its best to warrant the accuracy, completeness, and usefulness of the information on the Application, but Company appreciates that errors or omissions may occur. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Application, or by anyone who may be informed of any of its contents.
You understand and agree
that any alerts provided to you through the Application may be delayed or
prevented by a variety of factors. None of the parties guarantee the delivery
or accuracy of the content of any alert. You also agree that none of the
parties shall be liable for any delays, failure to deliver or misdirected
delivery of any alert, for any errors in the content of an alert, or for any
actions taken or not taken by you or any third party in reliance on an alert.
You acknowledge that the Application utilizes data from Company records and other sources and that this data may contain errors and omissions. You also understand there may be a period of time between receipt of certain information by Company or Company franchise dealerships and its inclusion of such information into the Application. You recognize that Company’s obligation in the case of erroneous data, when notified in writing by you of such erroneous data, is correction of the record in question.
This Application may include content provided by third parties, including but not limited to, materials provided by third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Epsilon and/or Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Epsilon and/or Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
We will update the content on this Application from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Application may be out of date at any given time, and we are under no obligation to update such material.
Transactions and Product Availability
Company or its franchise dealers may provide information about Company’s products or services (collectively, “Products or Services”). All descriptions, images, features, specifications, products, and prices of Products or Services are subject to change at any time without notice. The inclusion of any Products or Services on the Application does not imply or warrant that these Products or Services will be available. Company reserves the right, with or without prior notice, to do any one or more of the following for any reason: (i) limit the available quantity of or discontinue any Product or Service; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar you from making or completing any or all transactions; and (iv) refuse to provide you with any Product or Service.
ANY PRODUCTS OR SERVICES DESCRIBED ON THE PLATFORM ARE OFFERED ONLY IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED FOR SALE. THE INFORMATION ON THE PLATFORM IS NOT AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.
Mobile Service, Internet and Service Fees
The use of the Application requires use of a mobile device and wireless mobile data service, which must be obtained from your wireless carrier, and may require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation, all usage charges related thereto. You may be required to send and receive, at your cost, electronic communications related to the Application, including without limitation, administrative messages, service announcements, diagnostic data reports, and Application Updates, from Company, your mobile carrier or third-party service providers. IF YOU DO NOT HAVE AN UNLIMITED WIRELESS MOBILE DATA PLAN, YOU MAY INCUR ADDITIONAL CHARGES FROM YOUR WIRELESS SERVICE PROVIDER IN CONNECTION WITH YOUR USE OF THE APPLICATION. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING ANY ADDITIONAL SUBSCRIPTION OR CONNECTIVITY SERVICES OR EQUIPMENT NECESSARY TO ACCESS THE APPLICATION, INCLUDING BUT NOT LIMITED TO PAYMENT OF ALL THIRD-PARTY FEES ASSOCIATED THEREWITH, INCLUDING FEES FOR INFORMATION SENT TO OR THROUGH THE APPLICATION.
The Application may not work with all devices or all mobile carriers. Company makes no representations that the Application will be compatible with or provided by all mobile carriers. In the event that fees are charged for the Application, or other third-party service providers charge a fee for the products or services they provide, you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.
Intellectual Property Ownership
There are a number of trademarks, logos, service marks, slogans, product names and designations, and other proprietary indicia (collectively, “Trademarks”) used in the Application and in the Content. By making these Trademarks available through the Application and in the Content, Company is not granting you a license to use them in any fashion, and you are not granted any license under any of Company’s or any third party's Trademarks or other intellectual property rights, except as specifically set forth in this Agreement. No Company Trademarks may be used as a username, icon, identifier, hyperlink, or in any other manner without Company’s prior written permission.
The Application, Content, and the selection, coordination, and arrangement thereof, is owned either by Company, or its respective licensors. The unauthorized copying, displaying, selling, distributing, or other use of any Content or Application is a violation of the law. You acknowledge having been advised by Company that the Content and Application is protected in the U.S. and internationally by a variety of laws, including but not limited to, copyright laws and treaty provisions, trademark laws, patent laws, and other intellectual property and proprietary rights laws.
Representations, Disclaimer of Warranties, and Limitations of Liability
Company, Apple, Inc., and each company’s respective parents, subsidiaries, officers, employees, and website contractors and each of their officers, employees, and agents (collectively, “Company Affiliates”) make no representation or warranty whatsoever regarding the completeness, accuracy, timeliness, or adequacy of any information, facts, views, opinions, statements or recommendations contained on the Application. Reference to any product, process, publication, or service of any third party by trade name, domain name, trademark, service mark, logo, manufacturer, or otherwise does not constitute or imply its endorsement or recommendation by Company or the Company Affiliates.
The Internet may be subject to breaches of security. Company and the Company Affiliates are not responsible for any resulting damage to any user’s device or computer from any such security breach, or from any virus, bugs, tampering, unauthorized intervention, fraud, error, omission, interruption, deletion, defect, delay in operation or transmission, computer line failure, or any other technical or other malfunction. You should also be aware that e-mail and other submissions over the Internet may not be secure, and you should consider this before e-mailing Company or the Company Affiliates any information or posting information to the Application. Company and the Company Affiliates make no representation or warranty whatsoever regarding the suitability, functionality, performance, availability, or operation of the Application. This Application may be temporarily unavailable due to maintenance or malfunction of computer equipment.
THE APPLICATION (INCLUDING ALL APPLICATION UPDATES) AND THE CONTENT ARE MADE AVAILABLE ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. COMPANY AND THE COMPANY AFFILIATES SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH RESPECT TO THE APPLICATION AND THE CONTENT. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED, PROVIDED, OR ENABLED BY OR THROUGH THE APPLICATION (INCLUDING ANY APPLICATION UPDATES) WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION (INCLUDING ANY APPLICATION UPDATES) WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION (INCLUDING ANY APPLICATION UPDATES) WILL BE CORRECTED. No oral or written information or advice given by Company or an authorized representative shall be deemed to alter this disclaimer of warranty, or to create any warranty. Should the Application prove defective, you assume the entire cost of all necessary servicing, repair, or correction. You acknowledge and agree that, to the maximum extent permitted by applicable law, Apple, Inc., will have no warranty obligation whatsoever with respect to the Application.
Limitation on and Exclusion of Remedies and Damages
YOU AGREE THAT COMPANY AND THE COMPANY AFFILIATES ARE NOT LIABLE TO YOU FOR DAMAGES OF ANY KIND, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES RESULTING IN ANY WAY FROM OR IN CONNECTION WITH: (I) THE APPLICATION OR THE CONTENT OR ANY SERVICES MADE AVAILABLE THROUGH THE APPLICATION; (II) ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OR CONTENT OF THE APPLICATION; (III) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY COMPANY, LAW ENFORCEMENT, OR OTHER AUTHORITIES REGARDING YOUR USE OF THE APPLICATION OR THE CONTENT; (IV) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; OR (V) THE CONDUCT, ACTIONS, OR INACTIONS OF APPLICATION USERS OR YOUR INTERACTIONS OR RELATIONSHIPS WITH APPLICATION USERS, EVEN IF COMPANY OR THE COMPANY AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO, THE APPLICATION OR ITS RELATED INFORMATION OR PROGRAMS. THESE LIMITATIONS APPLY EVEN IF REPAIR, REPLACEMENT, OR A REFUND FOR THE APPLICATION DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES; OR COMPANY KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES.
IF YOU USE OUR APPLE APPLICATION, APPLE WILL REFUND THE PURCHASE PRICE TO YOU (IF ANY) IN THE EVENT OF ANY FAILURE OF THE APPLICATION TO CONFORM TO ANY APPLICABLE WARRANTY.
THE APPLICATION MAY CONTAIN FACTS, OPINIONS, VIEWS, STATEMENTS, AND RECOMMENDATIONS OF THIRD PARTY INDIVIDUALS AND ORGANIZATIONS. COMPANY DOES NOT REPRESENT OR ENDORSE THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY FACTS, OPINIONS, VIEWS, STATEMENTS OR RECOMMENDATIONS OR OTHER INFORMATION DISPLAYED, UPLOADED, OR DISTRIBUTED THROUGH THE APPLICATION. YOU ACKNOWLEDGE THAT ANY RELIANCE UPON ANY SUCH FACTS, OPINIONS, VIEWS, STATEMENTS, OR RECOMMENDATIONS IS AT YOUR SOLE RISK. IN NO EVENT WILL COMPANY OR THE COMPANY AFFILIATES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, OR THE DISCLAIMER OF SOME TYPES OF DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU.
BY ACCESSING THIS APPLICATION, REGISTERING WITH THE APPLICATION AND/OR ACCEPTING ANY INFORMATION FROM THIS APPLICATION, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD COMPANY AND THE COMPANY AFFILIATES HARMLESS FROM AND AGAINST ANY ACTUAL OR ALLEGED CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, DAMAGES, LOSSES, LIABILITIES, AND ALL COSTS AND EXPENSES OF DEFENSE (INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS) ARISING OUT OF OR RELATING TO: (A) YOUR BREACH OF THIS AGREEMENT; (B) YOUR VIOLATION OF ANY LOCAL, STATE, FEDERAL, OR INTERNATIONAL LAW, RULE, OR REGULATION; (C) A CLAIM BY A THIRD PARTY THAT IS BASED ON YOUR USE OF THE APPLICATION OR THE CONTENT;(D) INFORMATION OR MATERIAL POSTED OR TRANSMITTED THROUGH YOUR COMPUTER OR ACCOUNT, EVEN IF NOT SUBMITTED BY YOU; (E) ANY MISREPRESENTATION MADE BY YOU; (F) ANY DISPUTE BETWEEN YOU AND ANOTHER USER OF THE APPLICATION; (G) THE THEFT, MISAPPROPRIATION, OR DISCLOSURE OF YOUR PASSWORD; OR (H) YOUR AUTHORIZATION OF ANYONE ELSE TO USE YOUR PASSWORD. YOU WILL COOPERATE AS FULLY AND AS REASONABLY REQUIRED IN COMPANY’S DEFENSE OF ANY CLAIM. COMPANY RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND YOU SHALL NOT, IN ANY EVENT, SETTLE ANY MATTER WITHOUT THE WRITTEN CONSENT OF COMPANY.
Disputes, Binding Arbitration, and Governing Law
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THE APPLICATION SHALL BE SETTLED BY BINDING ARBITRATION. THE BINDING ARBITRATION WILL TAKE PLACE IN A LOCATION DETERMINED BY THE ARBITRATOR AS SET FORTH HEREIN (PROVIDED THAT SUCH LOCATION IS REASONABLY CONVENIENT FOR CLAIMANT), OR AT SUCH OTHER LOCATION AS MAY BE MUTUALLY AGREED UPON BY THE PARTIES, IN ACCORDANCE WITH THE PROCEDURAL RULES FOR COMMERCIAL DISPUTES SET FORTH IN THE COMPREHENSIVE ARBITRATION RULES AND PROCEDURES OF JAMS (“JAMS RULES AND PROCEDURES”) THEN PREVAILING, AND JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATOR SHALL BE SELECTED PURSUANT TO THE JAMS RULES AND PROCEDURES. THE ARBITRATOR SHALL APPLY TEXAS LAW CONSISTENT WITH THE FEDERAL ARBITRATION ACT AND APPLICABLE STATUTES OF LIMITATIONS, AND SHALL HONOR CLAIMS OF PRIVILEGE RECOGNIZED AT LAW. IF ANY PART OF THIS ARBITRATION PROVISION IS DEEMED TO BE INVALID, UNENFORCEABLE, OR ILLEGAL (OTHER THAN THAT CLAIMS WILL NOT BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS), OR OTHERWISE CONFLICTS WITH THE RULES AND PROCEDURES ESTABLISHED BY JAMS, THEN THE BALANCE OF THIS ARBITRATION PROVISION SHALL REMAIN IN EFFECT AND SHALL BE CONSTRUED IN ACCORDANCE WITH ITS TERMS AS IF THE INVALID, UNENFORCEABLE, ILLEGAL, OR CONFLICTING PROVISION WERE NOT CONTAINED HEREIN. IF, HOWEVER, THE PORTION THAT IS DEEMED INVALID, UNENFORCEABLE OR ILLEGAL IS THAT CLAIMS WILL NOT BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS, THEN THE ENTIRETY OF THIS ARBITRATION PROVISION SHALL BE NULL AND VOID, AND NEITHER CLAIMANT NOR EPSILON SHALL BE ENTITLED TO ARBITRATE THEIR DISPUTE. UPON FILING A DEMAND FOR ARBITRATION, ALL PARTIES TO SUCH ARBITRATION SHALL HAVE THE RIGHT OF DISCOVERY, WHICH DISCOVERY SHALL BE COMPLETED WITHIN SIXTY DAYS AFTER THE DEMAND FOR ARBITRATION IS MADE, UNLESS FURTHER EXTENDED BY MUTUAL AGREEMENT OF THE PARTIES. THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. DO NOT USE THIS APPLICATION IF YOU DO NOT AGREE TO HAVE ANY CLAIM OR CONTROVERSY ARBITRATED IN ACCORDANCE WITH THIS APPLICATION. BY USING THE APPLICATION, YOU AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW: (1) ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE APPLICATION WILL BE RESOLVED INDIVIDUALLY THROUGH BINDING ARBITRATION AS SET FORTH ABOVE, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; (2) ANY AND ALL CLAIMS, JUDGMENTS, AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS' FEES BE AWARDED OR RECOVERABLE; (3) UNDER NO CIRCUMSTANCES WILL YOU BE PERMITTED TO OBTAIN ANY AWARD FOR, AND YOU HEREBY KNOWINGLY AND EXPRESSLY WAIVE ALL RIGHTS TO SEEK, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, LOST PROFITS, AND/OR ANY OTHER DAMAGES, OTHER THAN ACTUAL OUT-OF-POCKET EXPENSES), AND/OR ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED; AND (4) YOUR REMEDIES ARE LIMITED TO A CLAIM FOR MONEY DAMAGES (IF ANY) AND YOU IRREVOCABLY WAIVE ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE ABOVE MAY NOT APPLY TO YOU.
THIS APPLICATION IS GOVERNED BY U.S. LAW AND IS SUBJECT TO ALL APPLICABLE FEDERAL, STATE, AND LOCAL LAWS AND REGULATIONS. ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, INTERPRETATION, AND ENFORCEABILITY OF THE AGREEMENT, OR YOUR RIGHTS AND OBLIGATIONS IN CONNECTION WITH THE APPLICATION, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES THEREOF, AND YOU AGREE THAT ANY MATTERS OR PROCEEDINGS WHICH ARE NOT SUBJECT TO ARBITRATION AS SET FORTH ABOVE AND/OR FOR ENTERING ANY JUDGMENT ON AN ARBITRATION AWARD, SHALL BE SUBJECT TO THE STATE OR FEDERAL COURTS WHOSE JURISDICTION AND VENUE INCLUDE DALLAS COUNTY, TEXAS. However, we retain the right to bring any suit, action, or proceeding against you for breach of this Agreement in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Links to Third-Party Applications and Services
The Application may provide connectivity or links to other third-party services, websites, applications, software, and other content from third-party providers such as social media partners, wireless carriers, and third-party software application developers (“Third-Party Services”). The Application may allow you to add/configure certain Third-Party Services to your device. Company has no control over, makes no representations or warranties whatsoever about any of the Third-Party Services that you may access, is not responsible for the availability of such Third-Party Services, and does not endorse nor is responsible or liable for any content or other materials on or available from such Third-Party Services. Your use of the Third-Party Services may be subject to additional terms, including software license terms, of those third parties.
Users who utilize the Third-Party Services should be aware that account and other personal information held by those third parties may be transmitted through and stored on Company servers and/or applications located in the United States and elsewhere. You understand and agree that the companies that provide the Third-Party Services may access, use, and share certain information about you, if you use the Third-Party Services. You understand and agree Company is not responsible for these companies, or their use of any other of your information. Your use of the Third-Party Services is at your own risk.
Company may assign this contract, in whole or in part, at any time with or without notice to you. You may not assign this contract, or any part of it, to any other person. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use all or any part of the Application. To the extent that you allow a third party to use your device, you shall remain solely responsible for the use of the Application by others using the device.
This Agreement constitutes the entire agreement between you and Company governing your use of the Application, superseding any prior agreements between you and Company relating to your use of the foregoing. You may also be subject to additional terms and conditions (including, but not limited to, terms and conditions from your wireless carrier or operator) that may apply to your use of the Application. If any provision of this Agreement is held to be invalid by any law, rule, order, or regulation of any government or by the final determination of any state or federal court, such invalidity shall not affect the enforceability of any other provision of this Agreement. The failure of Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Application or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. You further agree that any disputes, claims, and causes of action arising out of or connected with the Application and/or this Agreement will be resolved individually, without resort to any form of class action. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
You acknowledge and agree that your use of the Application may involve you providing an “electronic signature” indicating your desire to use the Application. Your “electronic signature” indicates your acceptance of this Agreement, and your consent to receive communications about this Agreement electronically. If you wish to receive communications in another manner, you may contact us at http://www.earnhardttoyota.com/contact.htm to change your communication preferences.
The Application is subject to U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Application. These laws include restrictions on destinations, end users and end use. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S. embargoed countries, or that has been designated by the U.S. Government as a “terrorist supporting country” or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You also agree that you will not use the Application for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear missiles or chemical or biological weapons.
The Application is provided pursuant to this Agreement. In the event of a complaint or concern regarding this Agreement or the Application, or for more information, please contact Company at the following address:
6136 E Auto Loop Ave
Mesa, AZ 85206-4322
Both you and Company acknowledge and agree that no partnership is formed and neither of you nor Company has the power or the authority to obligate or bind the other.
The failure of Company to comply with this Agreement because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state, or local governmental authorities or for any other reason beyond the reasonable control of Company, shall not be deemed a breach of this Agreement.
This Agreement constitutes a binding agreement between you and Company, and is accepted by you upon your use of the Application. This Agreement constitutes the entire agreement between you and Company regarding the use of the Application.