TERMS OF SERVICE
Effective date February 17, 2017
NASCAR TrackPass is a Subscriber Video on Demand mobile and tablet application, and related website, services, products, and software (collectively, the "Service"), which is offered and operated by NBC Sports Ventures, LLC d/b/a Playmaker Media ("Playmaker", "we", "our" or "us") as principal. These Terms of Service apply whenever you access the Service, regardless of platform or device used. For users who choose to subscribe to NASCAR TrackPass, the Subscription Agreement shall also apply.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY; THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS INCLUDING MANDATORY ARBITRATION IN YOUR INDIVIDUAL CAPACITY ONLY AND WAIVER OF YOUR RIGHT TO A JURY TRIAL.
TABLE OF CONTENTS
This table of contents provides a summary overview of these Terms of Service. This table of contents is intended to help guide you through the Terms of Service, but should not be read as a complete presentation of all of the terms and conditions contained in these Terms of Service. When you agree to the Terms of Service, you accept all of the terms and conditions included and referenced in these Terms of Service, not just those set out in this table of contents.
1. Introductions
These Terms of Service are a binding agreement with Playmaker and you should not accept these Terms of the Service unless you are the age of majority in your jurisdiction and able to do so. When we make material changes to these Terms of Service, we'll notify you through the Service.
2. Registration and Account Security
You must provide accurate and up-to-date information when you create a NASCAR TrackPass account. Your NASCAR TrackPass account is for individual use only and you are responsible for maintaining the confidentiality of your account credentials.
3. Our Intellectual Property Rights & Limited License to You
We grant you a limited revocable license to use the Service for your own non-commercial use only, subject to certain rules and limitations. You may use your account to access a maximum of one (1) stream of Content at any time across all of your Devices.
4. You Agree to Our Privacy Policy
You agree that you have read and consent to the terms of our Privacy Policy,which details our privacy practices, including our use of cookies and other tracking technologies.
5. Wireless and Location-Based Features
Wireless carrier charges may apply to your use of the Service via wireless networks or devices. If you sign-up to receive SMS messages from us, you agree to notify us of any changes to your wireless contact information. If you have enabled one of our location-based features on a Device, you acknowledge that your Device location will be tracked and may be shared with others.
6. Your Conduct and Acceptable Use
Your use of the Service is subject to our rules regarding acceptable conduct and practices.
7. Monitoring
We may, but unless required by law, have no obligation to, monitor your use of the Service.
8. User Content; Grant of Limited License
You grant us a broad license to use any content that you post on the Service and you bear all responsibility for all such content. No confidential or fiduciary relationship is created by your posting on the Service
9. Disclaimer of Warranties
We disclaim all warranties and provide the Service "As- Is."
10. Exclusion of Damages
You agree that you are entitled to no damages for any claims related to your use of the Service, except as set out below.
11. Limitation of Liability; Applicability of Disclaimers; Exclusions and Limits
To the maximum extent permitted by law, our liability to you is limited.
12. We are Not Responsible For Third-Party Websites and Content
Except as required by law, we are not responsible for third parties or their content, advertisement(s), apps or sites, even if they are linked from or included within the Service.
13. Indemnification
You agree to indemnify us for material posted by you or through your account.
14. Reservation of Rights
We reserve the right to modify or discontinue the Service at any time subject to the Subscription Agreement.
15. Termination
To the maximum extent permitted by law, we may terminate your account, password or access to the Service in our sole discretion at any time and without prior notice subject to the Subscription Agreement.
16. Infringement Policy
You may not post content you do not own or control or otherwise have the right to post, and we encourage you to report any infringing activity you identify on the Service.
17. Export Control
NASCAR TrackPass is provided to you from within the U.S., and there are additional legal restrictions on accessing the Service for those countries subject to U.S. export controls.
18. Binding Arbitration of All Disputes; No Class Relief
To the extent permitted by applicable law, you agree to arbitrate and waive jury trial and class actions.
19. Dispute Resolution for Non-U.S. Residents Only if a Tribunal Has Ruled That Arbitration is Prohibited by Law
Non-U.S. citizens agree to an alternative procedure for dispute resolution if a tribunal rules that arbitration is prohibited by law.
20. Member Disputes
You are solely responsible for your communications with members or visitors to the Service.
21. General
By clicking to indicate your agreement and accessing and using the Service, you agree to certain terms regarding (a) the applicable law and venue; (b) no waiver; (c) the enforcement and interpretation of these Terms of Service; (d) your limited time to file claims; (e) the manner in which you communicate with us; and (f) NASCAR Media Ventures, LLC as an intended third party beneficiary. You also agree not to assign or delegate your rights and obligations under these Terms of Service.
22. Terms Applicable for Apple iOS
There are some other things you should know if you are accessing or using the Service through an Apple device.
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1. Introductions and Updates to these Terms of Service
Thanks for choosing NASCAR TrackPass! We have to cover a few legal matters and then you can get started using the Service.
BY ACCEPTING THESE TERMS OF SERVICE, AND USING THE SERVICE, YOU ARE: (1) ENTERING INTO A BINDING AGREEMENT WITH PLAYMAKER, A UNITED STATES COMPANY LOCATED AT 1 BLACHLEY ROAD, STAMFORD, CT 06902 (2) ACKNOWLEDGING THAT YOU UNDERSTAND AND AGREE TO ALL OF THE TERMS IN THIS TERMS OF SERVICE; AND (3) CERTIFYING THAT YOU ARE OVER THE AGE OF MAJORITY IN YOUR JURISDICTION. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE DO NOT USE THE SERVICE.
Throughout these Terms of Service, you will see capitalized words or phrases. These capitalized words and phrases are defined terms and the definitions for such terms are found either in these Terms of Service, the Subscription Agreement or in our Privacy Policy (the, Terms of Service, Subscription Agreement, and Privacy Policy are referred to together as the "Agreements").
Occasionally we may make changes to the Service and Agreements. When we make material changes to the Agreements, we'll notify you through the Service. By continuing to use the Service after those changes are made, you are expressing and acknowledging your acceptance of the changes
You agree that the Convention on Contracts for the International Sale of Goods does not apply to your use of the Service or these Terms of Service.
2. Registration and Account Security
If you register and create a NASCAR TrackPass account, you agree to provide true, accurate and current information in connection with that account. Your NASCAR TrackPass account is for your individual use only. You are solely responsible for maintaining the security and confidentiality of the username and password you use to access your account. You agree to immediately notify Playmaker of any unauthorized use of your password or account or any other breach of security.
3. Our Intellectual Property Rights & Limited License to You
The Service contains material that is derived in whole or in part from material supplied and owned by Playmaker as well as third parties (collectively, "Content"). As between Playmaker and you, Playmaker owns all right, title and interest in and to the copyrights, trademarks, service marks, trade names, and all other intellectual and proprietary rights throughout the world associated with the Service and Content.
Your use of the Service shall be limited solely to your personal and non-commercial use. You acknowledge Playmaker's valid intellectual and proprietary property rights in the Service and Content and agree that your use of the Service is limited to the online access, viewing, streaming and (where expressly permitted by Playmaker) temporary offline access of Content, all solely as authorized by Playmaker. Nothing in these Terms of Service shall be deemed to convey to you any right, title or interest in or to the Service or Content or to any portion thereof except for the limited rights expressly granted herein.
Limitations
You may use your account to access a maximum of one (1) stream of Content at any time across all of your Devices. Simultaneous access to multiple streams of Content by a single account holder is strictly prohibited. You may not either directly or through the use of any personal computer, browser, laptop, tablet, mobile phone or other device (each a "Device") or other means remove, alter, bypass, avoid, interfere with, or circumvent (i) any copyright, trademark, or other proprietary notices marked on the Service or Content, (ii) any digital rights management mechanism or other content protection or access control measure associated with the Service or Content, or (iii) any advertisement on the Service and/or within Content. You may not either directly or through the use of any Device or other means copy, download, stream, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Service or Content unless expressly permitted by Playmaker in advance in writing. You may not incorporate Content into, or stream or retransmit the Content via, any hardware or software application or make the Service or any Content available via frames or in-line links, and you may not otherwise surround or obfuscate the Content or Service with any third party content, materials or branding. You may not use any software robot, spider, crawler, or other data gathering or extraction tool, whether automated or manual, to access, acquire, copy, monitor, scrape or aggregate Content or any portion of the Service. You may not build a business on, in whole or in part, resell, redistribute or recirculate or make any other commercial use of, or create derivative works or materials utilizing, any portion of the Service or Content, whether or not for profit.
To the extent that Playmaker makes Content available to you via a widget, embedded player or other technology that allows you to embed or stream Content on or to another site, you may not modify, enhance, remove, interfere with, or otherwise alter in any way any portion of such technology, any digital rights management mechanism or other content protection or access control measure associated with Content, or any advertisement delivered with Content.
You are prohibited from disabling, modifying, interfering with or otherwise circumventing any technology to allow users to view Content without: (i) displaying visibly both Content and all surrounding elements (including the graphical user interface, any advertising, copyright notices, and trademarks); and (ii) having full access to all functionality permitting viewing of Content, including, without limitation, all video quality and display functionality and all interactive, elective or click-through advertising functionality.
4. You Agree to Our Privacy Policy
Your privacy is important to us. To better protect your privacy, we provide a notice explaining our online information practices and the choices you can make about the way your information is collected and used on the Service. Click hereto view the notice, which forms part of these Terms of Service.
5. Wireless and Location-Based Features
The ability to access the Service - including to upload content and receive messages from the Service (collectively, "Wireless Features") - may be prohibited or restricted by your carrier and certain Wireless Features may be incompatible with your carrier or wireless Device. In addition, your carrier may charge you for standard messaging, data, and other fees to participate in Wireless Features. We have no responsibility or liability for any fees or charges you incur when using Wireless Features. You should also contact your carrier with any questions regarding your wireless service.
If you sign-up to receive SMS messages from us, you agree to notify us of any changes to your wireless contact information and to update your accounts on the Service to reflect any changes.
Location-Based Features. When you use one of our location-enabled services, we may collect and process information about your actual location. Some features of the Service require your location information for the feature to work. If you have enabled GPS, geo-location or other location-based features on a Device, you acknowledge that your Device location will be tracked and may be shared with others consistent with the Privacy Policy.
6. Your Conduct and Acceptable Use
The following rules are a condition of your use of and access to the Service. You are responsible for the content of your communications (including User Content (as defined in Section 8) via the Service.
We may require, at any time, proof that you are following these rules. To the maximum extent permitted by law, we reserve the right to take, or refrain from taking, any and all steps available to us, including suspending or terminating your access to the Service or seeking other legal or equitable remedies, once we become aware of any violation of these provisions.
Playmaker may, but unless required by law has no obligation to, monitor the use by you and other end users of the Service. During monitoring, any information relating to any user or their respective activities on the Service may be examined, recorded, copied, and used for authorized purposes in accordance with our Privacy Policy. Furthermore, Playmaker reserves the right at all times to disclose any information posted on any portion of the Service as necessary to satisfy any law, regulation or governmental request, or to refuse to post, or to remove, any information or materials, in whole or in part, that in Playmaker's sole and absolute discretion are objectionable or in violation of these Terms of Service.
8. User Content; Grant of Limited License
You may post, upload and/or contribute content to the Service ("User Content"). You are solely responsible for any User Content you provide and for any consequences thereof. You represent that you have the right to post any User Content which you post to the Service, and that such User Content, or its use by us as contemplated by this Agreement, does not violate these Agreements, applicable law, or the intellectual property or publicity rights of others.
You grant us a worldwide, royalty-free, sub-licensable, non-exclusive right and license to use, reproduce, publicly display, publicly perform, modify, sublicense, and distribute such User Content. This license lasts until you terminate your account, except in the case of User Content that you have published, made public and/or share with others. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content that you post to the Service, except that, where applicable under the laws your jurisdiction, you agree to waive your right to be identified as the author of any User Content.
Playmaker is not responsible for User Content nor does it endorse any opinion contained in User Content.
For some features of the Service, other members may be able to request e-mail notifications of your new public content or publish their own comments to your comments. We may use the public content to develop aggregate ratings, personalize site views, market products or identify or feature popular members. You acknowledge that you have no expectation of privacy with regard to any User Content.
To the maximum extent permitted by law, you are solely responsible for your own User Content. This means that you, and not Playmaker, are entirely responsible and liable for any claims, loss or damages relating to all User Content that you upload, post, e-mail or otherwise transmit via the Service. You understand that by using the Service, you may be exposed to User Content that is offensive, indecent, or objectionable.
While Provider uses reasonable efforts to include current information on the Service, Provider makes no warranties or representations as to its accuracy, timeliness, reliability, completeness or otherwise.
WE PROVIDE THE SERVICE ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER, ITS PARENT, SUBSIDIARIES, AFFILIATES, AGENTS AND LICENSORS (COLLECTIVELY, THE "PROVIDER PARTIES") DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE PROVIDER PARTIES DO NOT WARRANT THAT THE SERVICE, OR YOUR ACCESS TO OR USE OF THE SERVICE WILL (1) BE UNINTERRUPTED; (2) BE FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS; (3) MEET YOUR REQUIREMENTS; OR (4) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. THE PROVIDER PARTIES DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PROVIDER PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THE SERVICE OR ANY WEB SITES LINKED THERETO IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE PROVIDER PARTIES MAKE NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT ON THE SERVICE OR ANY WEB SITE WILL NOT INFRINGE THE RIGHTS OF OTHERS AND THE PROVIDER PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT OF THE SERVICE OR ANY OTHER SERVICES.
THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NONE OF THE PROVIDER PARTIES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THIS SITE OR THE SERVICE. THIS LIMITATION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND EVEN IF PROVIDER OR ANOTHER PROVIDER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EACH OF THE PROVIDER PARTIES SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THIS SITE OR THE SERVICE. WITHOUT LIMITING THE FOREGOING, THE PROVIDER PARTIES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF (1) YOUR FAILURE TO COMPLY WITH SECTION 2 ABOVE (REGISTRATION AND ACCOUNT SECURITY) OR (2) CONTENT POSTED TO THIS SITE OR THE SERVICE BY YOU OR ANY THIRD PARTY.
11. Limitation of Liability; Applicability of Disclaimers, Exclusions and Limits
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PROVIDER PARTIES' AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE SERVICE OR THESE TERMS OF SERVICE EXCEED (A) THE AMOUNT (IF ANY) PAID BY YOU TO PROVIDER IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE LIABILITY; OR (B) ONE HUNDRED DOLLARS ($100), WHICHEVER IS LESS.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF DAMAGES, PROVIDER PARTIES' LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION. IN ADDITION, BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN WARRANTIES, THE DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOU. THIS PARAGRAPH WILL ONLY APPLY IF AN ARBITRATOR WITH APPLICABLE JURISDICTION FINDS EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY TO BE UNCONSCIONABLE.
12. We Are Not Responsible for Third-Party Websites and Content
For your convenience, the Service may provide links to websites of other persons or entities ("Third-Party Websites"). HOWEVER, SUCH THIRD-PARTY WEBSITES ARE NOT CONTROLLED BY PROVIDER. ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER (i) MAKES NO WARRANTIES OR OTHER AGREEMENTS REGARDING SUCH THIRD-PARTY WEBSITES, (ii) HAS NO RESPONSIBILITY FOR THE CONTENTS OF SUCH THIRD-PARTY WEBSITES, AND (iii) WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR USE OF OR RELIANCE ON SUCH THIRD-PARTY WEBSITES. YOUR USE OF THIRD-PARTY WEBSITES IS AT YOUR OWN RISK. THE INCLUSION OF A LINK TO A THIRD-PARTY WEBSITE IN THE SERVICE DOES NOT IMPLY AN ENDORSEMENT BY PROVIDER. PLEASE UNDERSTAND THAT IF YOU VISIT THIRD-PARTY WEBSITES THEN YOUR RIGHTS AND OBLIGATIONS WHILE ACCESSING AND USING THOSE SITES WILL BE GOVERNED BY THE AGREEMENTS AND POLICIES RELATING TO THE USE OF THOSE SITES.
You agree to defend, indemnify and hold harmless the Provider Parties and their respective directors, officers, employees, contractors and agents from and against any and all claims, demands, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable legal fees and costs) arising out of or accruing from (a) any breach of these Terms of Service, including any of the foregoing provisions, representations or warranties, and/or from your placement or transmission of any content onto Provider's servers, and/or from any and all use of your account; (b) any material posted or otherwise provided by you (including without limitation User Content), or any other subscriber or user of your account that infringes any intellectual property right of any person or entity or defames any person or violates their rights of publicity or privacy; (c) any misrepresentation made by you in connection with your use of the Service; and (d) any breach of any representation, warranty or other terms or conditions relating to use of your User Content or the Service.
Provider reserves the right to modify or discontinue, temporarily or permanently, all or any part of the Service and/or any software, facility or service, with or without notice, and/or to establish general guidelines and limitations on their use.
To the maximum extent permitted by law, Playmaker may, in its sole discretion, terminate your password, account (or any part thereof) or use of the Service, or remove and discard any User Content or information stored, sent, or received via the Service without prior notice and for any reason or no reason, including, but not limited to: (i) permitting another person or entity to use your identification to access or use the Service, (ii) any unauthorized access or use of the Service, (iii) any violation of these Terms of Service, or (iv) tampering with or altering any of the software, data files, and/or Content contained in or accessed through, the Service. You may terminate your account for any reason or no reason. Termination, suspension, or cancellation of these Terms of Service or your access rights to the Service shall not affect any right or relief to which Playmaker may be entitled, at law or in equity. Upon such termination, suspension, or cancellation, all rights granted to you will automatically terminate and immediately revert to Playmaker and its licensors and all rights granted by you to Playmaker shall survive in perpetuity.
Playmaker respects the intellectual property of others, and we ask our users to do the same. The Service and materials incorporated by Playmaker therein are protected by copyrights, patents, trade secrets or other proprietary rights. Some of the characters, logos or other images incorporated by Playmaker in the Service are also protected as registered or unregistered trademarks, trade names and/or service marks owned by Playmaker or others.
To the fullest extent permitted by law, Playmaker, pursuant to applicable law, reserves the right, but not the obligation, to terminate your license to use the Service if it determines in its sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing.
Playmaker accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. Therefore, if you believe that any such third party materials infringe your intellectual property please send a written notice to the agent identified below to request a review of the alleged infringement:
By mail:
Gillian M. Lusins
NBC Universal Law Department
620 Fifth Avenue, Fifth Floor, Room 574
New York, New York 10112
Attn: NASCAR TrackPass
By e-mail:dmca.agent@nbcuni.com
The Service is controlled and operated by Playmaker from its offices within the State of New York. Software from the Service is further subject to U.S. export controls. No software may be downloaded or otherwise exported or re-exported (A) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods, or (B) to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. You must not access or use the Service if you are located in, under the control of, or a national or resident of any such country or on any such list.
You agree to comply with all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, you agree that you shall not - directly or indirectly - sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Playmaker under these Agreements to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause shall survive termination or cancellation of these Agreements.
18. Binding Arbitration of All Disputes; No Class Relief
This Section 18 is deemed to be a "written agreement to arbitrate" pursuant to the U.S. Federal Arbitration Act. You and Playmaker agree that we intend that this Section 18 satisfies the "writing" requirement of the Federal Arbitration Act. This Section 18 can only be amended by mutual agreement. For non-U.S. residents, if binding arbitration is adjudged by a tribunal to be unenforceable, the provisions of Section 19 below shall apply to all relevant disputes between you and us.
We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms of Service and to the fullest extent permitted by applicable law, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the Service (including this Site), (ii) any purchases or other transactions or relationships with Playmaker made through the Service, or (iii) any data or information you may provide to Playmaker or that Playmaker may gather in connection with such use, interaction or transaction conducted through the Service (collectively, "Playmaker Transactions or Relationships"), YOU WILL NOT HAVE THE RIGHT TO PURSUE A CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM AND YOU WILL NOT HAVE THE RIGHT TO BRING OR PARTICIPATE IN ANY CLASS ACTION OR SIMILAR PROCEEDING IN COURT OR IN ARBITRATION. To the extent permitted by applicable law, by clicking to indicate your agreement to these Terms of Service and by using or interacting with the Site or the Service, or engaging in any other Playmaker Transactions or Relationships with us, you agree to binding arbitration as provided below. In the event that this CLASS ACTION WAIVER is deemed unenforceable, then any putative class action may only proceed in a court of competent jurisdiction and not in arbitration.
We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. To the extent permitted by applicable law, by agreeing to these Terms of Service and by using the Service, you agree that, if those efforts fail, any complaint, dispute, or disagreement you may have against Playmaker, and any claim that Playmaker may have against you, arising out of, relating to, or connected in any way with these Terms of Service, our Privacy Policy, or any Playmaker Transactions or Relationships, shall be resolved exclusively by final and binding arbitration ("Arbitration") administered by JAMS or its successor ("JAMS") and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the "Applicable Rules"). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the "AAA") instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the "Applicable Rules" in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness or successor or analogous policies in effect which would be applicable to the matter in dispute ("Minimum Standards"), Playmaker agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Section 18, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below. Furthermore, this Section 18 shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. You further agree that:
A. Single Arbitrator. The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and Playmaker (the "Arbitrator");
B. Arbitrator Will Interpret This Agreement. The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms of Service and/or the arbitration provisions in this Section 18, including, but not limited to, any claim that all or any part of these Terms of Service is void or voidable;
C. Governing Law. The Arbitrator shall (i) apply internal laws of the State of New York consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles, unless the laws of your jurisdiction require the application of your local laws; (ii) entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with New York or federal rules of procedure, as applicable, or, to the extent required by applicable law, your local jurisdiction's rules of procedure; (iii) honor claims of privilege recognized at law; and (iv) have authority to award any form of legal or equitable relief;
D. No Class Relief. The Arbitration can resolve only your and/or Playmaker's individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
E. Written Award. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator's complete determination of the dispute and the factual findings and legal conclusions relevant to it (an "Award"). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
F. Arbitration Costs. In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, Playmaker will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;
G. Reasonable Attorney's Fees. In the event you recover an Award greater than Playmaker's last written settlement offer, the Arbitrator shall also have the right to include in the Award Playmaker's reimbursement of your reasonable and actual out-of-pocket attorneys' fees associated with the Arbitration, but Playmaker shall in all events bear its own attorneys' fees; and
I. Interpretation and Enforcement of Arbitration Clause. With the exception of subpart E above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart E is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Playmaker shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
Modification of Arbitration Clause with Notice Playmaker may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after Playmaker has given notice of such modifications and only on a prospective basis for claims arising from Playmaker Transactions and Relationships occurring after the effective date of such notification.
Small Claims Matters are Excluded; No Class Relief or Joinder of Claims. Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against Playmaker in small claims court in New York (or your local equivalent) if your claim is within such court's jurisdictional limit; provided, that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
19. Dispute Resolution for Non-U.S. Residents Only if a Tribunal has Ruled that Arbitration is Prohibited by Law
This Section 19 applies to non-U.S. residents only, where applicable law prohibits arbitration of disputes in accordance with Section 20 above.
A. Section 19 disputes. If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the Service, Content, these Terms of Service, whether heretofore or hereafter arising, or to any of Provider's actual or alleged intellectual property rights (collectively, a "Section 19 Dispute"), then you and we agree to send a written notice to the other providing a reasonable description of the Section 19 Dispute along with a proposed resolution. Our notice to you will be sent to you based on the most recent contact information that you provide us, but if no such information exists or if such information is not current then we have no obligation under this Section 19(A). Your notice to us must be sent to:
By mail:
Gillian M. Lusins
NBC Universal Law Department
620 Fifth Avenue, Fifth Floor, Room 574
New York, New York 10112
By e-mail: dmca.agent@nbcuni.com
For a period of sixty (60) days from the date of receipt of notice from the other party, Provider and you will engage in a dialogue in order to attempt to resolve the Section 19 Dispute, though nothing will require either you or Provider to resolve the Section 19 Dispute on terms with respect to which you and Provider, in each of our sole discretion, are not comfortable.
B. Jurisdiction. The parties agree that the state or federal courts in the State of New York (or, if required by applicable law, the courts in your local jurisdiction) shall have non-exclusive jurisdiction of any Section 19 Dispute.
C. Governing Law. To the maximum extent permitted by the mandatory laws in your country of residence, these Terms of Service and any Section 19 Dispute arising out of or in connection with it or its subject matter or formation (including non-contractual disputes) will be governed by, and construed in accordance with, the laws of the U.S. and the State of New York (or, if required by applicable law, the laws of your local jurisdiction) without regard to its conflicts of law provisions.
D. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A SECTION 19 DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 19(A) ABOVE) WITHIN ONE (1) YEAR AFTER THE SECTION 19 DISPUTE ARISES, OR IT WILL BE FOREVER BARRED.
E. Injunctive Relief. The foregoing provisions of this Section 19 will not apply to any legal action taken by Provider to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User Content and/or Provider's intellectual property rights, Provider's operations, and/or Provider's products or services.
You are solely responsible for any interaction with other members or visitors to the Service, and Playmaker reserves the right, but shall have no obligation, to monitor disputes between you and any other user of the Service.
A. No Waiver. No failure or delay by Playmaker in exercising any right, power or privilege under these Terms of Service will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms of Service.
B. Severability Unless otherwise expressly provided herein, the invalidity or unenforceability of any provision of these Terms of Service will not affect the validity or enforceability of any other provision, all of which will remain in full force and effect.
C. Paragraph and Section Titles are For Your Convenience. The paragraph or section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
D. This Is the Entire Agreement. TThese Terms of Service represent the entire understanding of the parties regarding its subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding its subject matter, and may not be amended, altered or waived except in writing by the party to be charged.
E. Assignment. These Terms of Service are binding upon and shall inure to the benefit of the parties and their respective successors, heirs, executor, administrators, personal representatives and permitted assigns. You shall not assign your rights or obligations hereunder without Playmaker's prior written consent.
F. Third Party Beneficiary. You acknowledge and agree that NASCAR Media Ventures, LLC ("NMV") is a third party beneficiary of these Terms of Service, and that, upon your acceptance of these Terms of Service, NASCAR will have the right (and will be deemed to have accepted the right) to enforce the terms of these Terms of Service against you as a third party beneficiary hereof.
22. Terms Applicable For Apple iOS
If you are accessing or using the Service through an Apple Device, the following additional terms and conditions are applicable to you and are incorporated into these Terms of Service by this reference:
A. To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms of Service are entered into between you and Playmaker and, that Apple, Inc. ("Apple") is not a party to these Terms of Service other than as a third-party beneficiary as contemplated below.
B. The license granted to you in Section 3 of these Terms of Service is subject to the permitted Usage Rules set forth in the App Store Terms (see: http://www.apple.com/legal/itunes/us/terms.html ) and any third party terms of agreement applicable to the Service.
C. You acknowledge that Playmaker, and not Apple, is responsible for providing the Service and any Content therein.
D. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to the Service.
E. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
F. Notwithstanding anything to the contrary herein, and subject to the terms in these Terms of Service, you acknowledge that, solely as between Apple and Playmaker, Playmaker and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Service fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. As set forth in Section 9, Section 10 and Section 11 above, Playmaker's liability to you for use of the Service is greatly limited.
G. Further, you agree that if the Service, or your possession and use of the Service, infringes a third party's intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claims.
H. You acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms of Service, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third-party beneficiary thereof.
I. When using the Service, you must comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
J. If you have any questions, comments, or claims, or you would like to correct any errors before entering into this agreement, please contact Playmaker at:
E-mail: support@trackpass.nascar.com