eCertification Terms and Conditions

ARTICLE 1—TERM

1.1. Term. The "Initial Term" of this Agreement (defined below) shall begin on the acceptance date of these terms and conditions.

2.1. Generally. GS Marketing offers Toyota Internet-based marketing and web site services. Dealer’s selection of a service will be referred to herein as the "Services". Dealer’s online selection of Services and the fees for such Services will be as set forth by GS Marketing and confirmed in an electronic mail ("e-mail") from time to time from the GS Marketing to the Dealer (the "Confirmation Notice"). The description of Services as provided during the online registration process, the fees set forth for the Services, these terms and conditions, Dealer’s online acceptance of all of the preceding, and the Confirmation Notice set forth the agreement (the "Agreement") between the parties as relates to the provision of the Services hereunder.

 
2.2. GS Marketing’s Use of Third Party Service Providers. Dealer acknowledges and agrees that GS Marketing may use, directly or indirectly, one or more third party service providers (hereinafter referred to as "Service Providers"), including, but not limited to an Internet Service Provider ("ISP") which maintains the Web Site on the World Wide Web, to provide and perform the Services hereunder. GS Marketing, in its sole discretion, may change any Service Provider, at any time and for any reason.
 
2.3. Service Availability. The Toyota Dealer Web Site will be available to users twenty-four (24) hours per day, three hundred, sixty-five (365) days per year, except for routine maintenance, communication interruptions beyond the control of GS Marketing or Service Providers and any unscheduled downtime. GS Marketing will take commercially reasonable efforts to prevent and/or correct any failure of Dealer Web Site. GS Marketing will notify Dealer of any problems that cannot be repaired in a reasonably short period of time.
 
2.4. Modifications to Services. GS Marketing reserves the right to modify or change the Services provided hereunder, by modifying current features, deleting features and/or adding features, upon sixty (60) days written (including electronic) notice to Dealer. Some modifications or changes may result in a fee increase or decrease for such Services. Dealer’s continued use of the Services hereunder after the sixty (60) day notice period will constitute Dealer’s acceptance of the change in the Services and Dealer’s agreement to pay the fees associated with such change in Services.

 
3.1. Dealer will pay to GS Marketing for the Services hereunder the fees in the amounts set forth with the package descriptions during the online registration process and in the Confirmation Notice. Except as otherwise specifically provided for elsewhere in this Agreement, each party shall be solely responsible for any expenses incurred by it in the performance of its obligations pursuant to this Agreement. GS Marketing will invoice Dealer for the fees set forth for the Services provided hereunder by adding an itemized charge for such amounts on Dealer’s monthly Dealer Statement. If the first month of the Initial Term is not a full calendar month, GS Marketing will invoice Dealer on a pro-rata basis for that calendar month. All charges under this Agreement will be due and payable as specified on and consistent with the payment terms on the Dealer Statement. GS Marketing will invoice Dealer for any miscellaneous fees or charges (Dealer primary or additional URL registrations, etc.) as required to support these services. All such payment terms, including any applicable late fees or interest, are incorporated herein by reference. GS Marketing may increase fees (I) at its option, upon any annual renewal of this Agreement pursuant to Article 1.1 hereunder, by giving at least sixty (60) days written (including electronic) notice to Dealer prior to the start of the Renewal Term and, (II) as provided for in Article 2.4 hereunder. All fees stated hereunder are subject to applicable sales, use, excise or similar taxes and such taxes will be invoiced monthly at the time the fees are invoiced. Dealer assumes exclusive liability for, and shall pay before delinquency, all sales, use, excise and other taxes, charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the Services except for franchise taxes and taxes based on the net income of GS Marketing. See Attachment 1.

4.1 Generally and Related to all Services. Regardless of Dealer’s selection of Services hereunder, Dealer agrees to (I) abide by the obligations of Dealer in the standard Dealer Web Site Terms and Conditions and the Dealer Web Site Privacy Policy, including but not limited to the standard policies as provided therein regarding the collection and use of data collected from users of the Dealer Web Site; (II) use such Dealer Web Site in a manner consistent with the Toyota Dealer Web Site Standards; and (III) use GS Marketing approved and provided e-mail formats for factory communications and web site matters.

4.2. Additional eCertified Responsibilities. Dealer agrees to (I) Fully train a Dealer employee as a customer contact person for business generated through the Dealer Web Site; (II) Respond to e-mails from Dealer Web Site users within four (4) business operating hours of receipt.
 
4.3. Network Usage Policy. Upon request by GS Marketing, Dealer agrees to follow any applicable usage policy of GS Marketing or Service Provider related to the Services.
 
4.4. Suitability of Information. DEALER HEREBY REPRESENTS AND WARRANTS THAT ANY AND ALL DEALER CONTENT SUBMITTED FOR PUBLICATION THROUGH DEALER’S WEB SITE WILL NOT VIOLATE OR OTHERWISE INFRINGE UPON ANY COPYRIGHT, TRADEMARK, PATENT, STATUTORY, COMMON LAW OR PROPRIETARY RIGHTS OF OTHERS, OR CONTAIN ANYTHING CONSIDERED OBSCENE OR LIBELOUS. GS Marketing does not exercise editorial control over Dealer Content posted on a Dealer's Web Site. GS Marketing does, however, retain the right (but not the obligation) to remove any information on Dealer’s Web Site, at will and for any reason.
 
4.5. State and Federal Laws. Dealer acknowledges that both state and federal laws and regulations apply to Internet commerce, including but not limited to laws regarding advertising and on-line sales. DEALER HEREBY AGREES THAT DEALER CONTENT WILL COMPLY WITH ALL STATE AND FEDERAL LAWS AND REGULATIONS.

5.1. Termination By GS Marketing. GS Marketing may, at any time and for any reason, terminate this Agreement upon sixty (60) days written notice to Dealer; provided, however, that if Dealer materially defaults in its performance under this Agreement, including the nonpayment of amounts due to GS Marketing, and fails to cure such default within thirty (30) days after receiving written notice specifying the default or within thirty (30) days after the invoice date in the event of a nonpayment default, then GS Marketing, in its sole discretion, may (I) terminate this Agreement by written notice to Dealer, or (II) whether or not GS Marketing has exercised its right to terminate, render all or part of the Web Site or ISP network inaccessible to Dealer until such time as Dealer has cured such default. For the purposes of this Agreement, a material default by an eCertified Dealer includes, but is not limited to, failure to perform any or all of the eCertified Dealer Responsibilities as stated in Articles 4.1.and 4.2. Furthermore, GS Marketing may terminate this agreement immediately upon written notice to Dealer in any event of Dealer’s suspension of the transaction of its business or Dealer’s financial insolvency, evidenced by Dealer’s inability to pay any indebtedness, any commencement of a bankruptcy action, whether voluntary or involuntary, or an assignment for the benefit of creditors.
 
5.2. Loss of Service Provider(s). GS Marketing, at its option, may terminate this Agreement, without prejudice, in the event that (I) any agreement between GS Marketing and any Service Provider necessary to provide the Services hereunder terminates, or (II) any Service Provider fails to provide services to GS Marketing as agreed pursuant to the agreement between such Service Provider and GS Marketing. In either event, GS Marketing will use all commercially reasonable efforts to provide Dealer with thirty (30) days written notice of such termination; however, GS Marketing’s only obligation hereunder is to provide as much notice as is commercially reasonable under the circumstances.
 
5.3. Termination by Dealer. Dealer may, at any time and for any reason, terminate this Agreement upon sixty (60) days written notice to GS Marketing. Notwithstanding the foregoing, if GS Marketing materially defaults in its performance under this Agreement and fails either substantially to cure such default within thirty (30) days after receiving written notice specifying the default or, for those defaults that cannot reasonably be cured within thirty (30) days, promptly to commence curing such default and thereafter proceed with all due diligence substantially to cure the default, then Dealer may terminate this Agreement by written notice to GS Marketing. Furthermore, Dealer may terminate this Agreement immediately upon written notice to GS Marketing in any event of GS Marketing’s suspension of the transaction of its business or GS Marketing’s financial insolvency, evidenced by GS Marketing’s inability to pay any indebtedness, any commencement of a bankruptcy action, whether voluntary or involuntary, or an assignment for the benefit of creditors.
 
5.4. Expiration or Termination of Dealer Agreement. This Agreement will automatically terminate without requirement of notice by either party effective on the date of the expiration or termination of the Toyota Dealer Agreement.
 
5.5. Effect of Termination. In the event either party terminates this Agreement, both parties shall continue their obligations through the date of termination, and both parties shall use commercially reasonable efforts to return any property provided by the other party exclusively for the purposes of providing and receiving the Services hereunder.
 
5.6. Loss of Service Provider(s). GS Marketing, at its option, may terminate this Agreement, without prejudice, in the event that (I) any agreement between GS Marketing and any Service Provider necessary to provide the Services hereunder terminates, or (II) any Service Provider fails to provide services to GS Marketing pursuant to the agreement between such Service Provider and GS Marketing. In either event, GS Marketing will use all commercially reasonable efforts to provide Dealer with thirty (30) days written notice of such termination; however, GS Marketing’s only obligation hereunder is to provide as much notice as is commercially reasonable under the circumstances.

6.1. Warranty. EXCEPT AS EXPRESSLY PROVIDED HEREIN, GS MARKETING DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW OR OTHERWISE, CONTAINED IN OR DERIVED FROM THIS AGREEMENT, ANY OF THE EXHIBITS ATTACHED HERETO OR IN ANY OTHER MATERIALS, BROCHURES, PRESENTATIONS OR OTHER DOCUMENTS OR COMMUNICATIONS WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
 
6.2 Indemnification. DEALER WILL DEFEND, INDEMNIFY AND HOLD GS MARKETING HARMLESS FROM AND AGAINST ALL LOSS, CLAIMS, DEMANDS, CAUSES OF ACTIONS, AND ADMINISTRATIVE OR REGULATORY ACTIONS OF WHATEVER KIND OR CHARACTER, WHETHER BROUGHT BY DEALER OR ANY THIRD PARTY, AND INCLUDING COSTS, ATTORNEYS' FEES AND EXPENSES RELATING TO THIS AGREEMENT AND/OR THE SERVICES PROVIDED BY GS MARKETING UNDER THIS AGREEMENT, INCLUDING CLAIMS, DEMANDS AND CAUSES OF ACTIONS ARISING OUT OF THE JOINT, SOLE OR CONTRIBUTORY NEGLIGENCE OF GS MARKETING BUT EXCLUDING CLAIMS, DEMANDS AND CAUSES OF ACTIONS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF GS MARKETING. Under no circumstances will GS Marketing be liable to Dealer under this Agreement for (I) any indirect, special, consequential or punitive damages of any party, including third parties, even if GS Marketing has been advised of the possibility of such damages; and or (II) damages for all events in excess of the aggregate of one (1) year's fees paid to GS Marketing hereunder. The obligations of Dealer under this Article 6 shall survive the termination of this Agreement.

7.1. GS Marketing’s Proprietary Property. Dealer acknowledges and agrees that all trademarks, trade names, service marks, copyrights, all graphics and designs not in the public domain, all Web Site Content including Dealer’s Web Site domain name and Web Site address which are registered by GS Marketing but excluding Dealer Content, programs, software (including but not limited to Java code and applets, ActiveX code, APIs, HTML code, and cgi and perl scripts), specifications, systems designs, applications, routines, subroutines, techniques, enhancements, documentation, manuals, ideas or formulas utilized or developed and provided by GS Marketing or utilized or developed and provided in connection with this Agreement, and all Web Site user data received, including the data related to the configuration of vehicles as a result of users use of the GS Marketing-provided vehicle configurator (collectively, the "GS Marketing Proprietary Property"), are proprietary to GS Marketing and/or Service Providers, as applicable, and shall remain the sole property of GS Marketing and/or Service Providers, as applicable. Dealer shall have no ownership interest in the GS Marketing Proprietary Property or other rights therewith. Dealer agrees to keep the GS Marketing Proprietary Property confidential at all times. Upon termination of this Agreement, Dealer will return all copies of all items relating to GS Marketing Proprietary Property which are in possession of Dealer and certify to GS Marketing in writing that Dealer has retained no materials relating to GS Marketing Proprietary Property. Except for any Dealer Content, all right, title and interest in the GS Marketing Proprietary Property, including all Intellectual Property Rights inherent therein or appurtenant thereto, is hereby irrevocably assigned by Dealer to GS Marketing or applicable Service Provider and GS Marketing, or such Service Provider, shall have all authorship rights therein. "Intellectual Property Rights" means, with respect to any GS Marketing Proprietary Property or other asset of any kind, all copyright, patent, trade-or-service mark, trade secret, moral, termination, authorship and other proprietary rights relating to any such GS Marketing Proprietary Property or other asset including, without limitation, all rights necessary for the worldwide development, manufacture, modification, enhancement, sale, licensing, use, reproduction, publishing and display of such GS Marketing Proprietary Property or other asset.
 
7.2. Dealer Proprietary Information. The Parties acknowledge that the Dealer Content, including all trademarks, trade names, service marks, text, photographs and images provided by Dealer in connection with this Agreement shall remain the sole and exclusive property of Dealer and may not be used by GS Marketing or its employees offer any other purpose except for the benefit of Dealer. GS Marketing shall not sell, transfer, publish, disclose, display, license, or otherwise make available to others any part of such Dealer Content except as approved in writing by Dealer or as reasonably required by this Agreement.
 
7.3. License. GS Marketing may incorporate or embed into the Web Site Content certain GS Marketing Proprietary Property to which GS Marketing holds Intellectual Property Rights. GS Marketing hereby grants to Dealer a limited, nontransferable, non-exclusive, license to use, execute, reproduce, display, perform, distribute copies, or prepare derivative works of all such GS Marketing Proprietary Property used to make the Web Site Content available on the Web Site, solely for the benefit of Dealer in Dealer’s use of Dealer’s Web Site hereunder. GS Marketing expressly reserves all other rights, including any implied rights, to the GS Marketing Proprietary Property.
 
7.4. Injunctive Relief. The parties acknowledge that a breach by either party of this Article 7 will give rise to irreparable injury to the other, inadequately compensable in damages. Accordingly, the parties hereby consent to the obtaining by the other party of injunctive relief against the breach or threatened breach of the undertakings of the parties contained in this Article 7. The parties further agree that such an order so enjoining a party may be issued pending final determination thereof, without the requirement to post bond. The obligation of the parties under this Article 7 shall survive the termination of this Agreement.

8.1. Force Majeure. Each party hereto shall be excused from performance hereunder, except for payment obligations for any month and to the extent that it is prevented from performing any obligation hereunder, in whole or in part, as a result of delays caused by the other party or an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance or other cause beyond its reasonable control, including failures, fluctuations or non-availability of electrical power, heat, light, air conditioning, computing or information systems or telecommunications equipment or the inability of hardware or software leased or acquired by sale or license from third parties to process without error or malfunction any date data, including century date changes. Such nonperformance shall not be a default or ground for termination as long as reasonable means are taken to remedy expeditiously the problem causing such nonperformance.
 
8.2. Relationship of Parties. GS Marketing, in providing the Services hereunder, is acting as an independent contractor and not as an agent or employee of Dealer, and does not undertake by this Agreement or otherwise to perform any regulatory or contractual obligation of the Dealer, or to assume any liability for the Dealer's business or operations. In providing the Services under this Agreement, GS Marketing has no fiduciary duty or other similar relationship to Dealer, and this Agreement does not create a joint venture or partnership between the parties. GS Marketing has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed, all work to be conducted by GS Marketing hereunder.
 
8.3. Right of GS Marketing to Perform Services for Others. Dealer understands and agrees that GS Marketing may perform the same or similar Services as provided to Dealer under this Agreement for itself or for third parties, some of whom may be competitors of the Dealer.
 
8.4. Advertising. Dealer agrees that GS Marketing may list Dealer and the address of its Web Site in GS Marketing’s advertising materials and may display Dealer’s Web Site to others.
 
8.5. Notice. Any notice necessary under this Agreement shall be in writing and shall be considered delivered three days after mailing if sent certified mail, return receipt requested, or when received, if sent by e-mail, facsimile, prepaid courier, express mail or personal delivery, to the addresses provided at the beginning of this Agreement.
 
8.6. Entire Agreement. THIS AGREEMENT AND ANY SCHEDULES, EXHIBITS OR ATTACHMENTS HERETO CONSTITUTE THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES IN RESPECT OF THE SUBJECT MATTER CONTAINED HEREIN AND SUPERSEDES ALL PRIOR AGREEMENTS, CONSENTS AND UNDERSTANDINGS RELATING TO SUCH SUBJECT MATTER. THE PARTIES AGREE THAT THERE IS NO ORAL OR OTHER AGREEMENT RELATING TO SUCH SUBJECT MATTER BETWEEN THE PARTIES, WHICH HAS NOT BEEN INCORPORATED INTO THIS AGREEMENT. Notwithstanding the foregoing, this Agreement is for Internet-based marketing services and related activities only and nothing herein is intended to affect the rights and obligations of the parties with regard to the Toyota Dealer Agreement, specifically Dealer’s rights under the Toyota Dealer Agreement to receive, sell and service Toyota vehicles and parts, and Dealer’s use of the Toyota trademark, trade name and commercial symbols as provided for hereunder. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any schedule, exhibit or attachment, the term and conditions of the Agreement shall control. This Agreement may be modified or amended only by a duly authorized written instrument executed by the parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any principles of conflicts of law. Harris County, Texas shall be the proper place of venue for all suits to enforce this Agreement, and any legal proceedings to enforce the provisions hereof shall be brought EXCLUSIVELY in the District Courts of Harris County, Texas, or in the United States District Court for the Southern District of Texas. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. The Dealer may not assert any cause of action against GS Marketing arising under or in connection with this Agreement of which the Dealer knew or should have known more than two (2) years prior to such assertion. This Agreement is for the benefit of the parties hereto only and is not intended to confer any legal rights or benefits on any third party, and there are no third party beneficiaries to this Agreement or any part or specific provision of this Agreement. Neither party may assign this Agreement without the prior written approval of the other, except that no approval shall be required for GS Marketing to assign this agreement to any person or entity which is, directly or indirectly, controlled by, controlling, or under common control with GS Marketing. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and assigns.

Attachment 1
                                                  Installation Fee         Monthly Fee
Toyota eCertification Program             $599.00                  $999.00
Scion Website                                    $599.00                  $599.00