PLEASE CAREFULLY READ THIS APPLICATION END USER LICENSE AGREEMENT ("AGREEMENT") BEFORE DOWNLOADING, ACCESSING, ACTIVATING, REGISTERING FOR, OR OTHERWISE USING THE TOYOTA "ENTUNE" APPLICATION OR ITS RELATED SERVICES OR CONTENT (THE "APPLICATION"). IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, INCLUDING THE INFORMATION COLLECTED, USED, TRANSMITTED OR RETAINED BY THIS APPLICATION, DO NOT DOWNLOAD, ACCESS, ACTIVATE OR REGISTER FOR THE APPLICATION. BY CLICKING ON THE "DOWNLOAD" BUTTON OR USING THE APPLICATION, YOU AGREE TO BE BOUND BY THIS AGREEMENT, AND REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. THE APPLICATION IS OWNED OR LICENSED AND OPERATED BY TOYOTA MOTOR SALES, U.S.A., INC. ("TOYOTA," "US," "WE," OR "OUR"), WITH A BUSINESS ADDRESS AT 19001 SOUTH WESTERN AVENUE, TORRANCE CALIFORNIA 90501, AND/OR ITS THIRD-PARTY PROVIDERS. REFERENCE TO "TOYOTA" IN THIS AGREEMENT INCLUDES TOYOTA MOTOR SALES, U.S.A., INC. PARENT COMPANY AND ITS AFFILIATES. YOUR ACCESS TO AND USE OF THE APPLICATION IS SUBJECT TO THIS AGREEMENT AND ALL APPLICABLE LAWS.
A. Description of the Application. This Application allows you to access and use a variety of third party applications with various information and infotainment services (the "Services") all within one application via the compatible multi-media system in your Toyota Vehicle through the available Bluetooth connection to your mobile device.
B. Scope of License. You understand and agree that the Application is licensed, not sold, to you for use only as outlined in this Agreement. We reserve all rights not expressly granted to you. Toyota and/or its licensors own, or have the right to license, the Application and all underlying content, information, applications, and intellectual property. This license is limited to a non-transferable license to use the Application on the applicable mobile device that you own or control (e.g., iDevice, iPod touch, Android device), in accordance with this Agreement, and, as applicable, Google Inc.'s ("Google") "Android Market Terms of Service" (http://www.google.com/mobile/android/market-tos.html) or the Usage Rules set forth in the Apple Inc. ("Apple") "App Store Terms of Service" (http://www.apple.com/legal/itunes/us/terms.html#APPS). This license is between Toyota and you (and not Apple or Google) and is effective until terminated by Toyota or by you. As between Toyota and Apple, Toyota is responsible for the Application and the content therein, not Apple. This license does not allow you to use the Application on a device that you do not own or control, and you may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense 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, any updates, or any part thereof. As between Toyota and Apple, Toyota is solely responsible for providing any maintenance and support services with respect to the Application; you acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Application.
C. Eligibility/Installation/Registration/Activation. The Application is intended for and available to individuals (i) who are of legal age of majority in their jurisdiction of residence (and at least 18 years of age); (ii) who own or have a compatible mobile device; and (iii) who own or have a compatible Toyota Vehicle. We do not knowingly collect any information, including personal information, from children under 13. If we learn that we have collected the personal information of a child under 13 we will take steps to delete the information as soon as possible.
1. Installation. You may install the Application on your compatible mobile device by following the installation instructions available from the App Store, or Google Play.
2. Registration. In order to use the Application, you will need to register using your mobile application or at www.myentune.com. You cannot use the Application on your mobile device without registering first. Once you register, you will be able to use the Application. There is no activation fee or monthly recurring fee required. If you do not desire to continue using the Application, you have the right to cancel your registration at any time.
3. Electric Vehicle/Plug-in Hybrid (EVPH) and Fuel Cell Vehicle (FCV) Application Activation. You must register as described in C (2) above. To activate the EVPH or FCV Application, you will be required to have an active Safety Connect subscription and enter, when prompted, your Safety Connect Contract ID found in the Safety Connect Subscription Service Agreement.
5. Unauthorized Use. You are responsible for your (and any authorized third parties) use of the Application in compliance with this Agreement. You acknowledge and agree that any use of the Application occurring through your installed Application shall be deemed to be your actions and that the Toyota Parties (as defined below) may rely upon such actions. You are solely responsible for protecting the security of the installed Application.
6. Uninstalling the Application. To uninstall the Application from your mobile device, follow the directions within the instruction guide for your mobile device. If you uninstall the Application from your mobile device, you will not be able to use the Application via your Toyota Vehicle's multimedia system. You may also de-register via the www.myentune.com website; if you de-register, you will not be able to use the Application via your Toyota Vehicle's multimedia system.
7. Updates to the Application. The Application may be updated by your dealer when your Vehicle is being serviced, or it may be updated remotely by Toyota from time to time. The Application may be updated for certain reasons, including, without limitation, to increase Application functionality, to patch or improve Application stability, new versions, and the like (collectively, "Updates"). By installing and registering for the Application, you agree to such automatically requested and received remote Updates, and that such Updates are subject to this Agreement.
D. Information Collection, Use, Transmission and Storage of Data.
1. Information Collected via the Application. When you register for use of the Application via www.myentune.com, you will need to provide your name, email address, and vehicle identification number ("VIN"). You may also provide your mobile telephone number,but this is not required. This information is collected to complete the Application registration process, to create your account, and to ensure that your Vehicle is compatible for use of the Application via the Toyota Vehicle's multimedia system. Further details regarding collection and use of your personal information and vehicle data are provided at http://www.toyota.com/privacyvts. The Vehicle's multimedia system operates as a display monitor only, and the data you see is obtained from your mobile device. Please see section 5 for Vehicle Travel Information.
2. Information Storage. Depending on the type of multimedia system you have in your Toyota Vehicle, certain information may be stored for ease of use of the Application via the Toyota Vehicle's multimedia system (e.g., search history, location history in certain applications, previous and saved destinations (entered via your use of the GPS functionality of the Toyota Vehicle's multimedia system), map locations within certain applications, and device numbers that are called via the Toyota Vehicle's multimedia's Bluetooth connection).
5. Vehicle Travel Information. You acknowledge that your Vehicle is equipped with a traffic feature. The traffic feature will automatically collect and transmit, through GPS technology, your Vehicle's current location (longitude and latitude), travel direction and speed ("Vehicle Travel Information") to Toyota, including its Third Party Service Providers, in five minute increments. The Vehicle Travel Information is used by Toyota's Third Party Service Provider to provide real time traffic information to you. The Vehicle Travel Information contains no personally identifiable information and cannot be tracked to you or your Vehicle Identification Number ("VIN").
6. User Voice Commands. You acknowledge and understand that Toyota, including its Third Party Service Providers, may record and retain user voice commands once you've initiated contact with your Entune Application. Your personally identifiable information will not be associated with such voice command recordings. Therefore, for yourself, your Vehicle's occupants and anyone using the Entune application in your Vehicle, you consent to all such recording and retention of voice commands and release Toyota and third-party beneficiaries from claims, liabilities and losses that may result from any such recorded voice commands.
E. EVPH and FCV Applications Collection, Use, Transmission and Storage of Data.
If you opt-in for any EVPH or FCV Applications, your Vehicle will automatically transmit information about your Vehicle to Toyota and the Services will be enabled.
1. Vehicle Health Information. Your Vehicle remotely transmits Vehicle Health Information from your Vehicle to Toyota without notification to you. Vehicle Health Information contains Vehicle maintenance and malfunction status that is derived from the diagnostic data and includes, but is not limited to, status of powered doors and windows, battery life data, battery charging data, Vehicle speed, FC stack coolant temperature, air compressor revolution, and FC output power, warning codes, Diagnostic Trouble Codes (DTC) and Freeze Frame Data (FFD) from the Vehicle's on-board diagnostic (OBD) system. FFD includes but is not limited to Vehicle speed, engine coolant temperature, fuel injection volume, and engine rotation per minute (RPM). FFD discloses the status of the Vehicle's operating systems (for examples: brake, emissions, engine and transmission systems) when a malfunction code is triggered and a Vehicle alert is generated. Vehicle Health Information, may be used by Toyota for research and development, to deliver Services and information to you and to contact you and is retained only for a period of time necessary to fulfill these goals.
2. Ignition-Off Data for EVPH Applications only. When you turn off your Vehicle, remaining battery charge, plug connection status, scheduled time for next charge, and number of miles remaining until next charge, will automatically be sent from your Vehicle to Toyota to support the EVPH Applications. If you opt-in to using ECO Dashboard, you will be able to view your Vehicle's efficiency in terms of fuel consumption (miles driven and gallons consumed), battery usage, and ECO Driving Score on your mobile device. Ignition Off Data is used by Toyota to create the ECO Driving Score for your ECO Dashboard. At each ignition off, the data collected will be retained only for the period of time necessary to support the EVPH Applications and deliver Services to you. Toyota may also share anonymized and aggregated Ignition-Off Data in the form of analytic reporting with federal and state regulatory agencies and non-profit organizations for the purpose of education and research related to environment and energy issues, advanced technology and usage analysis and retained only for the period of time necessary to fulfill these goals.
3. Ignition-On Data for EVPH Applications only. Once every 30 days, when you turn on your Vehicle, the battery data and vehicle location (latitude and longitude) data ("Location Data") will be automatically sent from your Vehicle to Toyota solely for data analysis of battery behavior. Such data is retained for 20 (twenty) years for comparative analysis.
4. Ignition-Off Data for FCV Applications only. At each ignition off, the data collected such as trip A/B which can calculate fuel economy or measure the distance on each trip, hydrogen fuel level, odometer and range to empty will be retained only for the period of time necessary to support delivering Services to you.
5. Location Data. If you opt-in to location based Services, your Vehicle Location (latitude and longitude) Data will be automatically sent from your Vehicle to Toyota when you turn your Vehicle off. Location Data is used by Toyota only to support station map and Vehicle finder applications operated by Toyota and to assist you in locating an appropriate station or your Vehicle. At each ignition off, the Location Data overwrites the previous Location Data; the old data is purged.
6. Remote Access Data for EVPH Applications only. When you remotely activate your Vehicle's charging system or request an update of your battery's condition, your Vehicle will automatically send the battery's condition to the EVPH Applications. When you remotely activate your Vehicle's climate system, your Vehicle will automatically send the status of powered doors and windows, estimated cabin temperature and time remaining for climate activation to complete to the Applications. Each time you remotely activate a system within your Vehicle, the data collected will overwrite the previous data; the old data is purged.
1. Account Activation and Information. You will be required to register and activate an account on either your mobile application or www.myentune.com in order to use the Application via your mobile device and/or Toyota Vehicle multimedia system. If you register on the mobile application or www.myentune.com website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the mobile application or www.myentune.com website, and (b) as permitted, maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information to Toyota that is false, inaccurate, outdated or incomplete, or if Toyota has reasonable grounds to suspect that such information is false, inaccurate, outdated or incomplete, Toyota has the right to suspend or terminate your account and to prohibit any and all current or future use of the Application (or any portion thereof) by you.
2. Account Password. If you register an account for use of the Application, you will create a password while completing the registration process. You are responsible for maintaining the confidentiality of the password and account and other account or service codes issued to you, and are fully responsible for all activities that occur under your password or account. You agree not to use the account or password of another registered user without permission or to disclose your password to any third party. You agree to immediately notify Toyota of any unauthorized use of your password or account or any other breach of security. The Toyota Parties (defined below) cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
3. Account Management. You may access, review and revise your information, add secondary users (except that for EVPHV and FCV Vehicles, secondary users are prohibited), see account status, and otherwise update your account at any time using the mobile application or by logging into your account via the www.myentune.com website.
a. EVPH and FCV Vehicle Nickname. You have a choice to enter a nickname for your EVPH or FCV Vehicle which is viewable on your mobile device and, if opted-in, the ECO Dashboard. If you enter a nickname that is deemed inappropriate, Toyota has the right to change your Vehicle nickname without notice. For repeated offenses, Toyota has the right to restrict your ability to change the Vehicle nickname.
G. Restrictions on Use of this Application. As a condition of using this Application, you agree that you may not and will not:
1. copy, download, distribute, modify, publish, sell, license, use, reuse, or create derivative works of the Application or any of the content or other material within the Application, including without limitation, the Toyota name, logos, and any other trademark of the Toyota Parties (as defined below), or those of any of the applications within the Application, except solely to use the Application in accordance with its instructions;
2. access or use this Application in any way that could or is intended to damage or impair the operation of this Application, or any content of or material displayed in this Application, or any server or network underlying this Application, or interferes with anyone else's use and enjoyment of this Application;
3. access or attempt to access any data, information, system, or servers on which this Application is hosted or modify or alter this Application in any way;
4. use the Application for any commercial or unlawful purpose, or in violation of any third party rights;
5. use the Application in violation of any applicable traffic regulations and driver distraction laws, rules and regulations; or
Toyota reserves the right to suspend or terminate your participation in the Application if you are found to be in violation of this Agreement.
H. Fees and Data/Message Costs. Toyota does not charge for use of the Application, however, standard data (and text, if applicable) rates apply for data (and messages, if applicable) sent from and received by your mobile device as determined by your wireless provider and you are solely responsible for such charges and any other charges from your wireless provider. Please contact your wireless provider for complete pricing details. You have the right to cancel your registration at any time.
I. No Warranty. You understand and agree that your use of the application is solely at your own risk and that you will be solely responsible for any damage to your mobile device, your Toyota Vehicle's multimedia system, or any other equipment or loss of data that may result from your use of the application. THE APPLICATION AND ITS CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY OF ANY KIND, EXPRESSED, IMPLIED OR STATUTORY. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Toyota makes no warranties that the application or any material obtained through it, as described herein, will meet your requirements, or that the application will be uninterrupted, timely, secure, non-infringing or error free. You understand and agree that you are responsible for any and all charges, costs and/or expenses for use of the application. No advice or information, whether oral or written, obtained by you from us or through the application shall create any warranty not expressly made herein. You may not rely on any such information or advice. We assume no liability or responsibility for any errors or omissions in the content of the application. We do not make any warranty or representation that your use of the material displayed on, or obtained through, the application is non-infringing of any rights of any third party. Any decision or action taken by you on the basis of information or content provided via the application is at your sole discretion and risk. The Toyota parties (as defined below) are not responsible or liable for any such decision, or for the accuracy, completeness, usefulness, or availability of any content or information displayed, transmitted, or otherwise made available via the application.
In the event of any failure of the application to conform to any applicable warranty, if downloaded from the apple app store, the end-user may notify apple, and apple will refund the purchase price (if any) for the application to that end-user, and to the maximum extent permitted by applicable law, apple will have no other warranty obligation whatsoever with respect to the application, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be Toyota's responsibility (if not effectively disclaimed).
To the extent jurisdictions do not allow the exclusion of certain warranties, some of the above exclusions may not apply to you.
You and Toyota are each waiving important rights.Limitations of Liability by Toyota.
Toyota cannot recover from you (1) punitive damages, (2) treble, consequential, indirect, or special damages, or (3) attorney's fees.
Neither Toyota nor any Third Party Service Provider or beneficiary will be liable to you or any other party for consequential, indirect, incidental, special, or punitive damages (including without limitation lost profits) in connection with the Services, even if Toyota or Third Party Service Provider or Beneficiary is aware of the possibility of such damages. These limitations apply to all claims, including, without limitation, claims in contract and tort (such as negligence, product liability and strict liability). To the extent that a state does not permit the exclusion or limitation of liability as set forth herein our liability is limited to the maximum extent permitted by law in such states.
If Toyota or its Third Party Service Provider or beneficiary are found liable to you for any reason you agree that the aggregate liability of all these parties to you for any claim is limited to amount fifty cents ($.50). Neither Toyota nor any Third Party Service Provider or beneficiary would have agreed to provide the Services to you if you did not agree to this limitation. This amount is the sole and exclusive liability of Toyota and the Third Party Service Provider or beneficiary to you, and is payable as liquidated damages and not as a penalty. Except where prohibited by law, you may not bring any claim against Toyota or any third-party beneficiary more than two (2) years after the claim arises. We do not have any liability for application interruptions of any length.
For yourself and for anyone else claiming under you, you agree to release and discharge Toyota Motor Sales, USA, Inc. and its Third Party Service Providers, their parents, affiliates, and subsidiaries, and the respective officers, directors, and employees, and each third-party beneficiary from all claims, liabilities and losses in connection with the Application, including, but not limited to claims for personal injury or property damage arising from the total or partial failure of performance of the Services, even if caused by or based upon the negligence, gross negligence, strict products liability, Deceptive Trade Practices Act violations, bad faith, or breach of warranty of us or the malfunction of the System. YOU AGREE TO INDEMNIFY TOYOTA AND EACH THIRD-PARTY BENEFICIARY AGAINST ALL SUCH CLAIMS, LIABILITIES AND LOSSES BROUGHT BY THIRD PARTIES. You further agree that this release extends to any party claiming under you and that no insurance company will have any right of subrogation.
You understand that the uploading of information to your mobile device and/or your Toyota Vehicle's multimedia system in connection with this application is at your own risk and that Toyota is not responsible for unauthorized access to or use of any personal or other information. All information uploaded to the application may be stored on your mobile device (and/or your Toyota Vehicle's multimedia system as described herein) and you understand that the security and safety of your mobile device and your Toyota Vehicle's multimedia system is your sole responsibility.
You agree that, apart from any claim you may bring in small claims court, the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of your use of the Services or relating to this Agreement or any prior agreement for service with us or any of our affiliates, predecessors in interest, or Third Party Service Providers or any product or service provided under or in connection with this Agreement or such a prior agreement, or any advertising for such products or Services, shall be final and binding arbitration, except to the extent that you have in any manner infringed upon or violated or threatened to infringe upon or violate any patent, copyright, trademark, trade secret, privacy or publicity rights, in which case you acknowledge that there is no adequate remedy at law and that injunctive or other appropriate relief may be sought by us and/or an applicable third party either in court or from an arbitrator. You and we acknowledge that this Agreement affects interstate commerce and that the Federal Arbitration Act and other federal arbitration law apply to arbitrations under this Agreement (despite any other choice of law provision). To the extent that the Federal Arbitration Act and federal arbitration law do not supply substantive law necessary for the resolution of any disputes or claims, the laws of the State of Texas shall apply, except that Texas laws concerning choice of law or conflicts shall not apply if they would cause the substantive law of another jurisdiction to apply. To the extent that the parties litigate any part of any dispute or claim in court, including, without limitation, obtaining provisional remedies in aid or arbitration, confirmation of an award, and judgment enforcement, the laws of the State of Texas shall apply, except that Texas laws concerning choice of law or conflict of laws shall not apply if they would cause the substantive law of another jurisdiction to apply.
For claims over $10,000, the American Arbitration Association's Wireless Industry Arbitration ("WIA") rules shall apply. In large/complex cases under the WIA rules, the arbitrators must apply the Federal Rules of Evidence and the losing party may have the award reviewed by a panel of three new arbitrators.
For claims of $10,000 or less, arbitration will be conducted by the American Arbitration Association ("AAA"), the Better Business Bureau ("BBB") or the National Arbitration Forum ("NAF"). You can choose the AAA's supplementary procedures for consumer related disputes, the NAF rules for Consumer Common Claims, or the BBB's rules for binding arbitration. We will waive our right to arbitrate any individual (as opposed to class) claim you bring or maintain in small claims court for so long as the matter remains an individual claim and remains in small claims court.
You can get rules and fee information from the AAA (www.adr.org), the NAF (www.adrforum.com) or the BBB (www.bbb.org). You expressly waive the right to request or maintain any class arbitrations even if AAA, NAF or BBB procedures or rules would permit them (this is referred to below as the "Class Action Waiver"). In exchange for this, we'll pay (if you ask us in advance) for any filing fee charged you by the AAA, NAF or BBB for one arbitration of any disputes between us, so long as you tried in good faith to resolve the disputes with us before filing for arbitration. If the arbitration proceeds past the filing, we'll also pay (if you ask us at the time) any further administrative and arbitrator fees you are later charged. An arbitrator can decide later whether to allocate the fees differently if there's an award. The arbitrator may award you any fees and charges that are necessary to ensure the enforceability of this arbitration provision.
There's no judge or jury in arbitration, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations in this Agreement as a court would. You and we agree to pay our own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. You agree that any claim for or award of attorneys' fees, including any such claim or award pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code, is waived.
Any arbitration award made after completion of an arbitration is final and binding and may be confirmed in any court of competent jurisdiction, except that in the event the arbitrator's award for a party is $0 or against a party is in excess of $100,000, or includes an award of injunctive relief against a party, that party may request a new arbitration to be conducted by the selected arbitration organization by a three-arbitrator panel. An award and any judgment confirming it only applies to the arbitration in which it was awarded and can't be used in any other case except to enforce the award itself.
If a court or arbitrator determines that any part of this arbitration agreement other than the Class Action Waiver is not enforceable, the rest of this arbitration agreement shall be enforceable.
If for some reason these arbitration requirements don't apply, or a claim proceeds in small claims court, each of you and we waive to the fullest extent permitted by law any trial by jury. In no event shall any claim, action or proceeding by you related in any way to the Services, this Agreement, or any prior agreement, as described above, be instituted more than two (2) years after the claim or cause of action arose. This Agreement to arbitrate survives the end of the contractual relationship between us.