Effective Date or Date Last Updated: June 16th, 2010
Welcome to the Scion Battle of the Builds (“Site”). This Site is operated by or for the benefit of Scion, a marquee of Toyota Motor Sales, U.S.A., Inc. (which for the purposes of these terms and conditions shall be referred to as “Toyota”, “us”, “we”, or “our”). Unless otherwise stated on any pages or features of the Site, this Site is open to all permanent, legal residents of the fifty (50) United States and the District of Columbia only; however, you must be at least 18 years old (or 19 years old if a resident of Alabama or Nebraska, or 21 years old if a resident of Mississippi) to register for the services offered on this Site, download any content from this Site, upload any content to this Site, or otherwise use any portion of the Site (collectively, “Service”). If you are not an intended viewer, please do not use or view the Site and/or the Service.
These terms and conditions of Service, including without limitation, any guidelines, codes of conduct, instruction and/or additional terms and conditions contained in this Site, constitute a legal agreement (collectively, the “Terms” or “Agreement”, which included any and all modifications hereof) between you and Toyota, and if the Site has a mobile element, between the subscriber of a participating mobile communications carrier (“Subscriber”) and Toyota. Even if you do not complete a registration process or otherwise use or access the Service, you will be bound by these Terms (to the extent applicable to you) when you visit the Site. In this Agreement, “you” and “your” refer to each viewer or user (including the Subscriber on whose behalf you are entering into this Agreement), and his or her agents (unless the context requires otherwise), and “we”, “us” and “our” refer collectively to Toyota. This Agreement explains our obligations to you, and your obligations to us, in relation to the Site and the Service.
IMPORTANT NOTE: THESE TERMS AND CONDITIONS MAY REFERENCE FEATURES, SERVICES, APPLICATIONS AND FUNCTIONALITY THAT ARE NOT PRESENTLY AVAILABLE ON THE SITE AND MAY OR MAY NOT BECOME AVAILABLE IN FUTURE. THEREFORE, IT IS IMPORTANT TO REGULARLY REVIEW THESE TERMS AND CONDITIONS TO UNDERSTAND THE TERMS THAT APPLY TO ANY FEATURES, SERVICES, APPLICATIONS AND FUNCTIONALITY TO THE EXTENT THEY BECOME AVAILABLE ON THE SITE.
We may at any time revise these Terms by updating this posting. Modifications become effective immediately upon posting. If you object to the Terms (including without limitation, any guideline, code of conduct, instruction and/or subsequent modification hereof), are otherwise unhappy with this Service, your only recourse is to discontinue use of the Site and Service (unless specifically set forth otherwise in these Terms).
ADDITIONAL NOTE: THESE TERMS ONLY APPLY TO THE USE OF THIS SITE, AND OTHER WEBSITES PROVIDED BY TOYOTA, SUCH AS SCION.COM HAVE DIFFERENT TERMS AND CONDITIONS THAT APPLY TO THE USE OF THOSE WEBSITES.
To use the Site, you must (1) be at least 18 years of age (or 19 years old if a resident of Alabama or Nebraska, or 21 years old if a resident of Mississippi); (2) be a Subscriber, or have the consent of a Subscriber of a participating mobile communications carrier to sign-up for and use the Service on behalf of the Subscriber; and (3) agree on behalf of the Subscriber and yourself to be bound by the terms and conditions of this Agreement. You shall be deemed to have agreed to the Terms by:
3.1. completing the registration process on this Site, if any, or
3.2. downloading content to a mobile device, if available, including without limitation, downloading any wallpaper or ringtones, from this Site, or
3.3. downloading content to any other device or equipment, including without limitation, downloading any wallpapers, screen savers and/or audio to any computer, from this Site, or
3.4. uploading any content (including without limitation, any text, comment, question, suggestion, element, photograph, audio recording and/or video) to this Site and/or uploading any content to third parties pursuant to information provided through use of the Site (each an “Upload”); and/or
3.5. viewing or otherwise using this Site and/or Service.
The Service may consist of one or more of the following features permitting you to: (a) upload text and/or other items to the Site (including without limitation, content for profiles and forums, comments, questions, suggestions, chat, photographs, videos and/or audio recordings) (collectively, “Submissions”), (b) down load text, video, photographs and/or other content onto a computer (either a pc or Mac) and/or on MSN Instant Messenger version 6.1 or above (collectively, “PC Download”), (c) down load mobile entertainment or other content, such as ringtones, games, graphics, news, audio, video, photograph and other information data via the Internet, SMS, MMS, WAP, BREW and other means of mobile content delivery to certain compatible mobile devices (collectively “Mobile Download”), and/or (d) view the Site. You acknowledge and agree that the Service is for your personal use only, and that you may not transmit, broadcast, upload to any computer, mobile or other device, create derivative works of, or make commercial use of the Service or any material provided or obtained through the Service, including, but not limited to, the names, images and other information used in any Submissions, PC Download, and/or Mobile Download (the foregoing materials shall be deemed “content” for the purpose of this Agreement), except as specifically permitted in this Agreement. Unless otherwise specifically permitted herein, any PC Download shall only be on your own computer (or a computer controlled by you), and any Mobile Download will only be on your own mobile device (or a device controlled by you). You may not, or attempt to (or otherwise authorize, encourage or support others’ attempts to), circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Service or the content, or any technology used to support the Service.
5.1 Data You Provide. If you decide, or if at any time you are asked, to register for or complete an application available through any part of the Service, you agree to: (i) provide true, accurate and complete information about yourself as prompted by the registration or application form and (ii) maintain and promptly update the data to keep it true, accurate, current and complete. The information required may include, without limitation, the following: (i) first and last name; (ii) age; (iii) address; (iv) U.S. based email address; (v) gender; (vi) mobile phone number; (vii) occupation; (viii) ethnicity; (ix) entertainment and life style activities in which you like to engage; (x) geographic area in which your live, and (xi) your personal website, if you have one, and 2) answering other questions as prompted by the registration or application form. Any data you provide about yourself or your interests shall be referred to in these Terms as “Data You Provide”.
5.2 Suspension; Termination; Communication to You. If we have reasonable grounds to suspect that the Data You Provide is untrue, inaccurate or incomplete or otherwise violates these Terms, we have the right to suspend or terminate any and all current or future use of the Service (or any portion thereof). You acknowledge and agree that we may send you important information and notices regarding the Service by email and internal mail systems available through the Service (referred to herein as “inmail”), text message or through other means that may become available. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate Data You Provide, including, but not limited to, your failure to receive critical information about the Service. You agree that we may access, preserve, and disclose any Data You Provide or other Submission, and/or any other records of your access to and/or use of the Site or any Service if required to do so by law or in a good faith belief that such access, preservation and/or disclosure is reasonably necessary to: (a) comply with legal process, or reasonable requests of governmental agencies and/or law enforcement; (b) enforce this Agreement; (c) respond to claims of a violation of the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Toyota, the Site, its users, any of the Toyota Entities (as defined below) and/or the public.
5.3 Mobile Subscriber. If you are using any mobile elements of the Service which may be available, and you are not a Subscriber, and we have reasonable grounds to suspect the Subscriber has not consented to your registration for, or use of the Service on behalf of the Subscriber, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
5.4 User Name and Password. You may also be asked to create a user name and a password. Please note that your user name may be viewable by others visiting the Site. You do not need to use your actual name as your user name. In certain instances, once Toyota or the operator of the Site has received and reviewed the Data You Provide, particularly as part of an application process, it may notify you through one or more of the means of contact you provided in registration or application process.
5.5 Responsibility for Account. You are entirely responsible for maintaining the confidentiality of your user name, password, special code, if any, and other account or Service codes issued to you through the Service. You agree not to use the account, user name, special code (if any) or password or any other account or Service code of another Person, entity or association (“Person”) at any time, or to disclose your password or special code (if any) to any third party. You agree to notify Toyota immediately if you suspect any unauthorized use of your account, user name, special code (if any) or access to your password or any other account or Service codes issued to you or any other breach of security at info@battleofthebuilds.com. You are solely responsible for any and all use of your account, user name, special code (if any), other account or Service codes, and/or password. If you believe someone has accessed the Service using your user name and password without your authorization, it is your responsibility to set up a new password. Toyota shall not be responsible for any losses arising out of the unauthorized use of your account, user name, special code (if any), other account or Service codes, and/or password.
You acknowledge and agree that the content made available as part of the Service is owned by Toyota, and/or third parties who have licensed it for use on the Service, and is protected by intellectual property laws. Toyota hereby grants, and you hereby accept, a limited, non-exclusive, non-transferable, revocable right to access content as necessary to view and/or download and use the content only on personal computers and/or devices permitted hereunder that are owned or controlled by you, and only for your own personal non-commercial use, and any such use shall be as restricted as set forth in the Terms. Any such right that is not expressly granted herein is reserved by us. You agree that you may not reproduce, duplicate, modify, perform, transfer, post, distribute, sell, create derivative works of or otherwise use or make available any of the of the content other than as specifically permitted in these Terms. If you are permitted to download or print a copy of the content, you must retain all copyright and other proprietary notices contained therein. The Toyota Entities neither warrant nor represent that your use of any content or the Service will not infringe the rights of third parties. Your unauthorized use of any content or Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and other applicable regulations and statutes and may subject you to civil and criminal penalties, including possible monetary damages, for copyright and other infringement.
7.1. General Terms: Any of your Submissions to the Site, electronically or otherwise, including, but not limited to, comments, questions, suggestions, text in any e-mail or inmail transmission, video, images, photographs, links, or any other submissions, is and will be treated as non-confidential and non-proprietary as to you, unless specifically stated in our Privacy Statement. Any Submissions you provide to the Site may be used by us and our designees for any purpose, including, but not limited to, reproduction, transmission, disclosure, publication, broadcast, and posting.
(i) You understand that in making any Submission, you are giving us and our designees an exclusive (unless specifically stated otherwise in this Site), worldwide, perpetual, irrevocable, royalty-free, sub-licensable right and license to exploit the Submissions and any Person’s property (physical, personal, and indicia) contained therein, in any media now or hereafter known, without any payment or other consideration of any kind, or permission or notification, to you or any third party. Our rights shall include, without limitation, the right to reproduce, record, alter, amend, edit, publish, publicly perform, use, merchandise, license, sublicense (through multiple tiers), adapt, and stream the Submissions in any and all media now or hereafter known, including but not limited to, the Internet and outdoor billboards, throughout the world, related to the Toyota Entities, their respective distributors, dealers and dealer associations, sales of their respective products or services (for example, sales of Toyota automobiles) and any other promotions sponsored by us. You acknowledge and agree that neither Toyota nor any of the other Toyota Entities has now, nor shall any of them have in the future, any duty or liability, direct or indirect, vicarious, contributory, or otherwise, with respect to the infringement or protection of any copyright or any other intellectual property or confidentiality, privacy and/or publicity interest in and to any Submission made by you. In addition, the Toyota Entities and their designees are free to use, without obligation of any kind to you or any third parties, any ideas, concepts, techniques, or know-how contained in any communication (including without limitation, any Submissions) you send through the Service or to the Site for any purpose whatsoever, without any further consent, notice and/or compensation to you or any third parties. You also acknowledge and agree that Toyota may obtain many Submissions on this Site, or otherwise develop on its own, or through third party vendors it engages, ideas and materials that may be similar or identical in theme, idea, format or other respects to ideas and other Submissions you make to the Site, and you waive any and all claims you may have had, may have, and/or may have in the future, that any ideas, composition, video and/or other works used by the Toyota Entities based on any similarity with any Submissions made by you on this Site.
NOTE: Communication to Toyota with respect to any product complaint should be directed to Toyota’s Customer Relations Services at 800-331-4331, and not through this Site. Please do not submit suggestions regarding Toyota products, promotions or advertising. For legal reasons, we are not permitted to accept such suggestions.
7.2. Requirements for Text, Visual and/or Audio Submissions: Any Submissions (including without limitation, text, video, podcast, photograph and/or audio recording) must comply with the requirements set forth below. In addition, you agree that you will not use any Submissions, including without limitation, any text, photograph, video and/or audio recordings, to post or communicate any item which:
7.2.1. is false, deceptive (e.g., bait and switch) and/or defamatory, inaccurate, libelous, abusive, vulgar, hateful, harassing or threatening, makes misrepresentations (including, without limitation, is misleading or deceitful, or otherwise fails to contain all material facts); is obscene, offensive, or contains disparaging remarks about other people or companies; endorses any form of hate or hate group; or is profane or pornographic; contains any nudity;
7.2.2. is sexually oriented, explicit or suggestive;
7.2.3. is unnecessarily violent or derogatory of any ethnic, racial, gender, religious, professional or age group;
7.2.4. promotes alcohol, illegal drugs, tobacco, firearms/weapons (or the use of any of the foregoing); promotes any activities that may be construed as unsafe or dangerous; or promotes any particular political agenda or message;
7.2.5. promotes any brand or product of any kind other than Lexus, Toyota or Scion brand vehicles;
7.2.6. contains any personal identification, such as license plate numbers, personal names, e-mail or inmail addresses or street addresses, or other indicia (such as names, likenesses, or voices) identifying any Person, including, without limitation, celebrities and/or other public or private figures, living or dead, or is invasive of a Person’s privacy; contains look-alikes of celebrities or other public or private figures, living or dead, unless you have obtained their written consent;
7.2.7. contains copyrighted materials owned by others (including without limitation, photographs, sculptures, paintings, and other works of art or images published on or in websites, television, movies or other media); contains Trademarks (as defined below) or trade dress (such as distinctive packaging or building exteriors/interiors) owned by others, unless you have obtained their written consent;
7.2.8. appears to duplicate any other submitted materials and/or recordings;
7.2.9. communicates messages inconsistent with the positive images and/or good will to which we wish to associate for Toyota; and/or
7.2.10. discusses, recommends or endorses any activities or actions that are unsafe, hazardous or dangerous, or which make a vehicle non-compliant with applicable federal, state or local laws and regulations, or otherwise advocates the violation of any such laws and regulations;
7.2.11. impersonates any Person, including without limitation, a representative of any of the Toyota Entities, or falsely states or otherwise misrepresents any affiliation with any other Person, or uses misleading e-mail or inmail addresses or forged headers, or otherwise manipulates the identifiers and/or identity of the sender or the content;
7.2.12. solicits personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;
7.2.13. uses or suggests the use of any Toyota products other than for their intended purposes;
7.2.14. constitutes “spam”, junk mail, chain letters, or pyramid schemes, or any other activities that would constitute unwelcome or unsolicited communication to any user of this Site;
7.2.15. solicits others to join or become members of any other commercial service or other organization;
7.2.16. is an advertisement for, or contains advertising of, any product, service or item or is a solicitation of business;
7.2.17. promotes or encourages the use of items which are prohibited or restricted by applicable law, or the engagement in any illegal activities;
7.2.18. discloses trade secrets, confidential, or privileged information of others, or private facts about others;
7.2.19. contains software viruses or any other computer or other code, file or programs designed to interrupt, destroy or limit the functionality of any software, hardware and/or other equipment;
7.2.20. disrupts the normal flow of dialogue and/or negatively impacts other users' use of the Service, including without limitation, interfering with the content and/or undermining any ratings or voting systems; and/or
7.2.21. is otherwise violative of any law.
You are solely responsible for (a) any Submission you post on or through the Service, (b) any material or information that you transmit to other members (or other that view this Site and/or use this Service), and (c) for your interaction with other members. Neither Toyota nor any of the other Toyota Entities endorses or has control over the Submissions on the Site. Submissions do not reflect the opinions or policies of Toyota or any other Toyota Entities. NEITHER TOYOTA NOR ANY OF THE OTHER TOYOTA ENTITIES MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO (X) ANY SUBMISSIONS, OR (Y) THE ACCURACY, APPROPRIATENESS, AUTHENTICITY, TIMELINESS, COMPLETENESS, LEGALITY AND/OR RELIABILITY OF ANY SUBMISSIONS, AND/OR (Z) ANY MATERIAL OR INFORMATION THAT YOU TRANSMIT TO OTHER MEMBERS (OR OTHERS THAT VIEW THIS SITE AND/OR USE THE SERVICE) AND/OR THAT OTHER MEMBERS (OR OTHERS THAT VIEW THIS SITE AND/OR USE THE SERVICE) SEND TO YOU. You waive any claim of alteration, optical illusion, or faulty mechanical or electronic reproduction of any Submissions (for example, any video or photograph(s)), including without limitation, any claim due to any variation of the color, tone, clarity, cropping, or other appearance of any Submissions.
8.3 No Obligation To Review Submissions. We reserve the right to monitor (or have our designees monitor) any posting and/or uploading, or not post or upload, or remove, delete, move or edit any posting and/or Uploads, for any reason or no reason, including, without limitation, posting and Submissions that we determine are spam, off-topic, or violate this Agreement (including without limitation, any other code of conduct, guidelines and/or instruction posted on this Site or is otherwise inappropriate as we determine in our sole discretion. Toyota and the other Toyota Entities specifically disclaim any liability for exercising such rights. Note, however, that neither Toyota nor any of the other Toyota Entities has no obligation to review Submissions (including, without limitation, any other submitted content and the Toyota Entities specifically disclaim any responsibility or liability for any and all Submissions.
Without in any way waiving any of the requirements under this Agreement (and/or releasing you from your obligations, representations, or warranties herein), we may elect, in our sole discretion, to post and/or upload Submissions that we believe do not violate the intent or purpose of this Agreement.
If you desire any Submissions and/or user name to be removed from this Site, please contact us at info@battleofthebuilds.com. Photograph, text, audio and/or video uploads and removals shall NOT occur more often than once per day.
We may but are not obligated to advise you via your identified e-mail or inmail address whether any of your Submissions have been accepted. We reserve the right not to advise you as to the reason why any of your Submissions have NOT been accepted.
All Submissions become our physical property and will not be returned.
8.4 Representations and Covenants: You warrant, represent and covenant that:
8.4.1 your Submission or any other personally identifiable information you provide to us as part of the Submission, as well as any Data You Provide, is accurate, complete, authentic, timely, legal and valid, and otherwise complies with any requirements and/or restrictions set forth in the Agreement;
8.4.2 you are the sole and exclusive owner of the Submissions (including without limitation, any text, audio, photograph, image and/or video), or have secured permission in writing from any Person or entity that may own any works incorporated into your Submission consistent with (F) below;
8.4.3 you have the full and exclusive right, power, and authority to provide the Submissions (including without limitation, any text, blogs, messages, comments, videos, photographs and/or audio recordings), and to grant us the rights to the Submissions herein granted upon the terms and conditions set forth herein;
8.4.4 your Submissions do not defame or invade publicity rights or privacy of any Person, living or deceased, or otherwise infringe upon any Person’s personal or property rights or any other third party rights consistent with Section 8.4.6 below;
8.4.5 if your Submissions appear to endorse Lexus, Toyota, or Scion brand vehicles or any Toyota Entities (as defined below), and/or imply any association with any Toyota Entities or our business, you consent to such appearance of endorsement and/or association, and if a third party appears to endorse, or be associated with, Lexus, Toyota or Scion brand vehicles, Toyota Entities or our business, you have obtained the express written consent of such third party to such endorsement and/or association (and, if requested to do so, can produce such written consent in a form and manner acceptable to us); and
8.4.6 if any Submission contains Persons other than yourself or third party elements not owned by you, you have obtained express written consent to provide such Submission and allow it to be used in the manner contemplated by these terms and conditions from each and every Person depicted in the Submission and each and every owner of any third party element, and, if requested to do so, can produce such written consent in a form and manner acceptable to us (and in particular, if any minor is depicted in any photograph, information and/or video, you have obtained the express written consent of the minor’s parent or legal guardian to submit such photograph, information and/or video and allow it to be used in the manner contemplated in this Agreement).
This Site may contain photographs of Toyota vehicles submitted by individuals who visit and/or use the Site (“Third Party Vehicle Images”). Neither Toyota nor any of the other Toyota Entities makes any representation or warranty as to any Third Party Vehicle Images whatsoever, including any material included therein. IMPORTANT: THE THIRD PARTY VEHICLE IMAGES DEPICTED ON THE SITE MAY INCLUDE MODIFICATIONS OR ALTERATIONS THAT HAVE NOT BEEN EVALUATED OR APPROVED BY TOYOTA. Some Third Party Vehicles depicted on this Site may also include parts and accessories that are not genuine Toyota parts and accessories. Toyota does not endorse the alteration or modification of or the installation of non-genuine Toyota parts and accessories on Toyota vehicles. Toyota sold a fully certified vehicle and the modification of or the installation of aftermarket parts and accessories on that vehicle by the vehicle owner or by others acting at the request of the vehicle owner may impact the vehicle's original design performance, durability, safety, and compliance with FMVSS and other federal and state laws and standards. Aftermarket equipment manufacturers and owners installing non-genuine Toyota parts and accessories on Toyota vehicles are responsible for designing, fabricating and installing products that conform to all local, state, and federal laws, regulations and standards, including safety and emissions standards, and for ensuring that the after market products they install and any alteration or modification they make do not adversely impact vehicle safety, performance, and durability. THE TOYOTA ENTITIES DO NO MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE COMPATIBILITY, PERFORMANCE, SUITABILITY OR SAFETY OF NON-GENUINE TOYOTA PARTS AND ACCESSORIES FOR USE ON TOYOTA VEHICLES. USE OF NON-GENUINE TOYOTA PARTS OR ACCESSORIES ON A TOYOTA VEHICLE WILL VOID THE TOYOTA WARRANTY, MAY NEGATIVELY IMPACT PERFORMANCE, DURABILITY AND SAFETY AND MAY RENDER THE VEHICLE ILLEGAL FOR OPERATION ON PUBLIC ROADWAYS.
The Site may include various forums, blogs and chat rooms where you can post your observations and comments on designated topics. None of the Toyota Entities can guarantee that other members (or third parties) will not use the ideas that you share. So, if you have an idea that you would like to keep confidential and/or don’t want others to use, do not post it to the Site. THE TOYOTA ENTITIES ARE NOT RESPONSIBLE FOR ANY OTHER MEMBER’S (OR THIRD PARTY’S) MISUSE OR MISAPPROPRIATION OF ANY CONTENT YOU POST TO THE SITE. THE TOYOTA ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY COMMUNICATION BETWEEN MEMBERS AND/OR BETWEEN MEMBERS AND THIRD PARTIES, AND/OR BETWEEN THIRD PARTIES ARISING FROM USE OF THE SITE AND/OR OTHERWISE.
For any voting/rating features that are available on this Site, you must follow instructions on the Site to submit your votes/ratings, including, without limitation, any restrictions set forth with respect to limitations on voting/rating. Votes/ratings received from you in excess or violation of any stated limitation will be disqualified. Payment or other consideration in exchange for votes/ratings is prohibited. Votes/ratings generated by script, macro or other automated means or any other means intended to impact the integrity of the voting/rating process as determined by us may be void. The Toyota Entities assume no responsibility or liability for incorrect/inaccurate voting/rating information or for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, votes/ratings. We may, at our discretion, modify, terminate, or suspend the voting/rating or void any vote/rating should a virus, bug, non-authorized human intervention, action of voter/rater, or other cause corrupt or impair the administration, security, or fairness of the voting/rating. We reserve the right, in our sole discretion, to disqualify any Persons we find to be violating these Terms, tampering with the voting/rating process, or acting in an unsportsmanlike or improper manner and void all associated votes/ratings. Our decisions with respect to all aspects of any voting/rating element are final and binding, but not limited to, with respect to the tallying of votes and the invalidation or disqualification of any suspected votes/ratings or voters/raters.
Any sweepstakes, contests, games and/or promotional offers accessible on the Site are governed by specific rules and/or terms and conditions (which are hereby incorporated into this Agreement by this reference). By entering such sweepstakes or contests or participating in such games or promotional offers, you will become subject to those rules and/or terms and conditions. We urge you to read the applicable rules and/or or terms and conditions, which are linked from the particular activity. You are not permitted to post or provide links to any sweepstakes, contests or other promotions to the Site.
We may from time to time add additional features to the Service and may be subject to additional terms and conditions which shall be posted (either on the Site or in a separate section) at the time such programs become available and shall be deemed incorporated into, and subject to, these Terms.
14.1. Modifications, Interruptions or Discontinuation of Service: Toyota reserves the right at any time and from time to time to modify, suspend, discontinue or permanently cancel the Service, or portions thereof, with or without notice to you. Toyota may also impose limits on certain features and services or restrict your access to parts or all of the Service or the Site without notice or liability to you. Without limiting the generality of the foregoing, Toyota reserves the right to delete, add to or modify the Content for any reason at any time, and to delete (or block your access to) any portion of the Service in the event we reasonably determine that the Service, your use of the Service or any element used to create the Service, infringes on or violates, or could infringe on or violate, any third party right or any applicable laws or government regulations.
14.2. Transfer of Data through Service and Functionality: You understand and agree that in order for the Service to function properly, from time to time, the Service may automatically connect to and transfer data from servers through the Internet and/or communication systems to provide content updates through the Service and to populate the Service with new information. In addition, the Service may cause icons and data to be displayed on and through your mobile device, which data may be updated on a periodic basis. By installing the Service on your mobile device, you hereby explicitly agree to the foregoing Service functionality.
14.3. Support and Updates: Toyota may elect, in its sole discretion, to provide you with customer support and/or software upgrades, enhancements, or modifications for the Service, and may, in its sole discretion, terminate such support at any time without notice to you.
14.4. Restrictions on Use: Notwithstanding anything to the contrary contained herein, you may not:
14.4.1 decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, reproduce, duplicate, or create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) from or of the Service or any portion thereof;
14.4.2 incorporate the Service into any computer chip or the firmware of a computing device manufactured by or for you;
14.4.3 use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement (including without limitation, in any manner that interferes with anyone else’s use and enjoyment of the Service and/or that could or is intended to damage or impair the operation of the Service and/or any content thereof);
14.4.4 use or export the Service in violation of applicable U.S. laws or regulations;
14.4.5 sell, lease, loan, distribute, sublicense, assign or otherwise transfer or transmit the Service or access thereto to any third party, or derive income from the use or provision of the Service, whether for direct commercial or monetary gain or otherwise, without Toyota’s prior, express, written permission; or
14.4.6 provide material support or resources (or concealing or disguising the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
The Site may contain (or, if available, you may be sent through the Site or the Service) links to other web sites (“Third Party Sites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”). Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, legality, timeliness, authenticity, reliability, or completeness by us, and none of the Toyota Entities are responsible for any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including, without limitation, the content, accuracy, offensiveness, opinions, reliability, legality, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by us (or any of the other Toyota Entities). If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Site or relating to any applications you use or install from the Site. We may also make available or provide access to products and services of Third Parties. Such products or services shall be purchased and/or obtained directly from such Third Party. YOU ACKNOWLEDGE AND AGREE THAT THE TOYOTA ENTITIES SHALL NOT BE A PARTY TO, OR IN ANY WAY RESPONSIBLE FOR, ANY TRANSACTION CONCERNING PRODUCTS OR SERVICES MADE AVAILABLE FROM SUCH THIRD PARTIES OR FOR ANY CONTENT OR INFORMATION PRESENTED IN CONNECTION WITH ANY PRODUCTS OR SERVICES OF THIRD PARTIES OR ON SUCH LINKED THIRD PARTY SITES.
You understand and agree that no fiduciary relationship is established between you and us (or any of the Toyota Entities) by your use of the Service. Your use of the Service shall not be deemed to create the relationship of employer and employee, or principal and agent, joint venturer or partner between you and Toyota (or any of the other Toyota Entities). Further, you recognize that you are not entitled to any compensation or to participate in or receive any fringe benefits normally granted to Toyota’s employees under such programs including, but not limited to, workers’ compensation, voluntary disability, travel accident insurance, medical/dental insurance, life insurance, long-term disability, holiday pay, sick pay, salary continuation pay, leaves of absence (paid or unpaid), pension plan and savings plan or lease vehicle program.
You understand and agree that though no fiduciary relationship is established between you and us (or with any of the other Toyota Entities) by your use of the Service. If you receive private or confidential information from Toyota or any of the other Toyota Entities, or respective designees (“Confidential Information”), you acknowledge and agree that you have no proprietary interest in the Confidential Information and will not disclose, communicate nor publish the nature or content of such information to any Person, nor use, except as authorized in writing by Toyota, any of the Confidential Information your produce, receive, acquire or obtain from Toyota or any of the other Toyota Entities, or their respective designees, including without limitation, their respective advertising and promotions agencies. You will take all necessary steps to insure that the Confidential Information is securely maintained. In the event you becomes legally compelled to disclose any of the Confidential Information, you will provide Toyota with prompt notice thereof and shall not divulge any information until Toyota (or other Toyota Entities, or their respective designees, including their respective advertising and promotions agencies, as applicable), has had the opportunity to seek a protective order or other appropriate remedy to curtail such disclosure. If such actions by Toyota (or other Toyota Entities, or their respective designees, including their respective advertising and promotion agencies, as applicable) are unsuccessful, or Toyota (or other Toyota Entities, or their respective designees, including their respective advertising and promotions agencies, as applicable) otherwise waives its/their right to seek such remedies, you shall disclose only that portion of the Confidential Information which you are legally required to disclose.
To the extent the Site permits communication among members or participants, you understand and agree that you are solely responsible for your interactions with other members or other third parties. Toyota reserves the right, but has no obligation, to monitor disputes between you and other members (and other third parties) and to terminate your membership and access to the Site if Toyota determines, in its sole discretion, that doing so is prudent.
See Scion Privacy Statement, available here, for an explanation of our collection and use of personal information under this Agreement, but see also Section 3 hereof.
You agree to defend, indemnify and hold harmless Toyota and its parent, subsidiaries and affiliates, and their respective distributors, dealers, dealer associations and advertising and promotions agencies, together with their respective employees, agents, directors, officers, representatives, agents, contractors and shareholders, successors and assigns (Toyota together with all of the foregoing entities and persons shall sometimes collectively be referred to as the “Toyota Entities”), from and against all the liabilities, claims, damages, costs and expenses (including without limitation, reasonable attorneys’ fees and costs) arising out of your use of the Site, the Service or any content (including without limitation, any of your Submissions), your breach or alleged breach of this Agreement, or your breach or alleged violation of the copyright, trademark, proprietary or other rights of third parties.
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE, THE SERVICE OR ANY CONTENT IS SOLELY AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF THIS SITE AND/OR THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE TO YOUR MOBILE DEVICE OR COMPUTER OR LOSS OF DATA THAT MAY RESULT FROM SUCH USE AND/OR PARTICIPATION. YOU AGREE THAT THE SERVICE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. THE TOYOTA ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE SITE.
YOU ACKNOWLEDGE AND AGREE THAT TOYOTA ENTITIES SHALL HAVE NO LIABILITY TO YOU, OR TO ANY THIRD PARTY, FOR ANY MODIFICATION, SUSPENSION, DISCONTINUANCE OR TERMINATION OF THE SITE, THE SERVICE OR ANY FEATURE OR CONTENT OF THE SITE OR THE SERVICE. THE TOYOTA ENTITIES MAKE NO WARRANTIES THAT THE SITE, THE SERVICE OR THE CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE, THE SERVICE (OR ANY DOWNLOADS OR OTHER FEATURES THEREOF) OR THE CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, NONINFRINGING OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US (OR ANY OF THE OTHER TOYOTA ENTITIES) OR THROUGH THE SITE OR THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. THE TOYOTA ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE SITE OR THE SERVICE OR ANY PRODUCT OR SERVICE PROVIDED BY A THIRD PARTY IN CONNECTION WITH THE SERVICE. IN PARTICULAR, IF THERE ARE ANY CONTESTS ON THIS SITE, ANY PRIZES FOR THE CONTEST ARE PROVIDED BY OUR PRIZE SUPPLIER AND MAY NOT BE INDEPENDENTLY VERIFIED BY US. ANY DECISION OR ACTION TAKEN BY YOU ON THE BASIS OF INFORMATION OR CONTENT IS AT YOUR SOLE DISCRETION AND RISK. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, TOYOTA ENTITIES AND THEIR LICENSORS AND CONTRACTORS (INCLUDING ANY THIRD PARTIES PROVIDING ALL OR PART OF THE SERVICE OR CONTENT, INCLUDING WITHOUT LIMITATION THE SUPPLIERS OF ANY CONTEST PRIZES) (COLLECTIVELY, “RELEASED PARTIES”) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, THE RELEASED PARTIES ASSUME NO RESPONSIBILITY, AND SPECIFICALLY DISCLAIM LIABILITY, FOR ANY DAMAGES RELATING TO OR CAUSED BY ANY VIRUSES WHICH MAY AFFECT YOUR COMPUTER EQUIPMENT, MOBILE DEVICE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE SITE, THE SERVICE OR ANY CONTENT. THE RELEASED PARTIES CANNOT AND DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITE OR THE SERVICE. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN, THE LIABILITY OF THE RELEASED PARTIES IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH STATES.
YOU HEREBY RELEASE AND DISCHARGE EACH OF THE RELEASED PARTIES FROM AND AGAINST ANY CLAIMS, DAMAGES, EXPENSES AND LIABILITY ARISING FROM OR RELATED TO ANY INJURIES, DAMAGES OR LOSSES TO ANY PERSON (INCLUDING DEATH) OR PROPERTY OF ANY KIND RESULTING IN WHOLE OR PART, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE SITE, THE SERVICE OR ANY CONTENT, OR THE USE BY TOYOTA OR ITS DESIGNEES OF ANY RIGHTS GRANTED BY YOU.
Except as otherwise set forth herein, all right, title and interest in and to any intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in or practiced in connection with the Site, the Service and the content (collectively, “Toyota Intellectual Property Rights”) are owned by the Toyota Entities or its licensors, and you agree to make no claim of interest in or ownership of any such Toyota Intellectual Property Rights. You acknowledge that no title to the Toyota Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Service or the content other than the rights expressly granted in this Agreement. Without limiting the generality of the foregoing, you acknowledge and agree that the trademarks, logos and service marks, whether registered or unregistered (collectively, the “Trademarks”) used on the Site, including “Toyota”, “Scion, and “Lexus” are Trademarks of Toyota Entities or third parties. Nothing contained on the Site or obtained through the Service (including any content) should be construed as granting by implication, estoppel or otherwise, any license or right to use any such Trademarks without our written consent and/or the consent of such third party that owns the Trademarks. Any use of the Trademarks on the Site is prohibited.
We respect the intellectual property of others, and we ask our users to do the same. If you are the owner of a United States copyright and you believe that your work has been copied on this Site in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent the following information:
26.1 a physical signature of the Person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
26.2 a description of the copyrighted work or other intellectual property that you claim has been infringed;
26.3 a description of where the material that you claim is infringing is located on this Site;
26.4 your address, telephone number, and e-mail address;
26.5 a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
26.6 a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Our agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
By mail:
Copyright Agent
c/o Toyota Customer Experience-Mailstop WC11
Toyota Motor Sales, U.S.A., Inc.
Torrance, California 90501
By phone: 1-800-331-4331
By facsimile: 310-468-7814
By e-mail: http://toyota.custhelp.com/cgi-bin/toyota.cfg/php/enduser/ask.php
You agree that (a) any and all disputes, claims and causes of action arising out of, or connected with, the Site or the Service (including without limitation, any alleged violation of this Agreement, any controversy relating to the arbitrability of any dispute, or any claim that this Agreement (or any part thereof) is invalid, illegal or otherwise voidable (or void)) shall be resolved individually, without resort to any form of class action, and exclusively by arbitration to be held solely in Los Angeles, California under the auspices of the American Arbitration Association and pursuant to its Commercial Dispute Resolution Rules and Procedures; (b) any and all claims, judgments, liabilities and/or awards shall be limited to actual out-of-pocket costs incurred, including costs associated with your use of the Site or the Service, or otherwise accessing the Site or the Service, but in no event attorneys’ fees; and (c) under no circumstances will you be permitted to obtain awards for, and you hereby waive, all rights to claim, punitive, special, incidental and/or consequential damages and any other damages, other than out-of-pocket expenses, and any and all rights to have damages multiplied or otherwise increased. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE MAY NOT APPLY TO YOU. Judgment upon the arbitration award may be entered in any court having jurisdiction thereof. This arbitration provision shall be deemed to be self-executing, and in the event that either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party notwithstanding said failure to appear. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Site or the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Site, the Service or any content or other material used or displayed on the Site or the Service.
All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement, your rights and obligations, or our rights and obligations in connection with the Site or the Service, shall be governed by, and construed in accordance with, the laws of the State of New York, U.S.A., without giving effect to any choice of law or conflict of law rules (whether of the State of New York or any other jurisdiction), which would cause the application of the laws of any jurisdiction other than the State of New York.
25.1. Notices And Announcements: Except as expressly provided otherwise herein, all notices to Toyota shall be in writing and delivered via overnight courier or certified mail, return receipt requested, postage pre-paid to:
Toyota Customer Relations - Mailstop WC11
19001 S. Western Ave.
Torrance, CA 90501
We may, if we elect, send any and all notices to you to the last known address that you provided via the Data You Provide. You agree that notice to you shall be deemed given 24 hours after an e-mail or inmail is sent (unless we receive notice that the e-mail or inmail address is invalid), and may be sent to you by certified mail, postage pre-paid (in which case, notice shall be deemed received three (3) days after the date of mailing).
25.2. Severability: This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
25.3. Entire Agreement: You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Site and the Service and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement; PROVIDED, HOWEVER, THAT THE TERMS OF THIS AGREEMENT SUPPLEMENT, AND DO NOT SUPERSEDE, THE TERMS OF ANY OFFICIAL CONTEST RULES ON THIS SITE. To the extent there is any conflict between the terms of this Agreement and the Official Contest Rules of any contest on this Site, the terms of the Official Contest Rules control.
25.4. Assignment And Resale: Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. You agree not to resell the Service or any portion thereof.
25.5. Waiver: No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Toyota. The remedies of Toyota under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. Any failure by us, at any time or from time to time, to enforce any of our rights under this Agreement shall not constitute a waiver of such right.
25.6. No Third Party Beneficiaries: This Agreement is solely for your and our benefit. It is not for the benefit of any other Person, except for permitted successors and assigns under this Agreement.
25.7. Headings: The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
25.8. Survival: In the event this Agreement terminates as provided herein, Sections 20, 21, 22, 24, 25 of this Agreement, and those provisions which by their nature should survive, shall survive such expiration or termination.
Any questions or comments regarding, or problems with, the Site should be sent to the Site Administrator at info@battleofthebuilds.com.
I ACCEPT THE TERMS AND CONDITIONS
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