· Section 9H. Clarifying how User Content may be used by NDM.
· Section 10. Clarifying responsibility for user interactions with advertisers on NASCAR.COM.
· Section 11D. Updating the Limitation of Liability provision.
1. Definitions. NASCAR.COM is operated by NASCAR Digital Media, LLC on behalf of the National Association for Stock Car Auto Racing, Inc. As used in this document, "NDM" refers to NASCAR Digital Media, LLC. As used in this document, "NASCAR" refers to the National Association for Stock Car Auto Racing, Inc. As used in this document, "NDM Parties" means NDM and its parent and affiliates and the officers, directors, members, employees, advisors and agents of the foregoing. As used in this document, (i) "Visitor" means a NASCAR.COM user that accesses the NASCAR.COM web pages and associated applications without registering and/or logging-in, (ii) "Member" means a NASCAR.COM user that is registered with and has an account (an "Account") with NASCAR.COM , and (iii) "User" and/or "you(r)" means and includes Members and Visitors.
4. Equipment. You shall be responsible for obtaining and maintaining all telecommunication devices, computer hardware and other services and equipment needed for access to and use of NASCAR.COM and all charges related thereto. In addition, certain features that make up NASCAR.COM (e.g., NASCAR.COM device applications) may operate on or in connection with various products and services provided by various third parties, such as third party handsets, tablet devices, televisions, set top devices and other devices, and third party-provided Internet access services. Without limiting the generality of the disclaimers and limitations of liability stated elsewhere in this document, you acknowledge that NDM does not control such third parties or their products or services and that NDM shall not be responsible for such third parties or their products or services.
5. Intellectual Property Rights of NDM. NASCAR.COM contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound. The entire contents of NASCAR.COM are copyrighted as a collective work under the United States copyright laws. NDM (and/or its parent and/or affiliates) own copyrights in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works of, or in any way similarly exploit, any of the content, in whole or in part. To the extent expressly permitted at certain parts of NASCAR.COM (if any), you may download copyrighted material for your personal non-commercial use only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of NDM and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by viewing or downloading copyrighted material. NDM and its parent, affiliates and content suppliers expressly reserve all ownership and other rights (including, but not limited to, intellectual property rights) in their respective materials and no such rights are transferred to you. NDM, NASCAR and NASCAR.COM, and each of their logos, are trademarks of NASCAR. All rights reserved. All other trademarks appearing on NASCAR.COM are the property of their respective owners.
Any opinions, views, advice, statements, services, offers or other information or content expressed or made available by you or any third parties (e.g., other Users, professional information providers, etc.) are those of the respective author(s) or submitter(s) and not of the NDM Parties. THE NDM PARTIES DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY CONTENT, NOR ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Users are solely responsible for anything contained in their submissions, message board and/or chat sessions. The NDM Parties do not verify, endorse or otherwise vouch for the contents of any submission, message board or chat room. Users may be held legally liable for the contents of their submissions, message board and chat sessions, and may be held legally liable if their submissions or chat sessions include, for example, material protected by copyright, trademark, patent or trade secret law or other proprietary right without permission of the author or owner, or defamatory comments. NDM reserves the right, in its sole discretion, to reject, to refuse to post and/or to remove any posting (including private messages) by you, for any or no reason, with or without prior notice, and without liability on the part of NDM.
NDM does not accept or consider business and/or programming proposals and/or similar suggestions and/or materials ("Proposals") other than those they have specifically requested. This is to avoid the possibility of future misunderstandings when projects independently developed by NDM might seem to others to be similar to their own proposals or suggestions. If you do send or post any Proposals, including related ideas, notes, drawings, concepts or other information, or if you transmit them through NASCAR.COM by electronic mail or otherwise, the Proposals shall be deemed, and shall remain, the property of NDM. None of the Proposals shall be subject to any obligation on the part of NDM to use the Proposals or keep them confidential and none of the NDM Parties shall be liable for any use or disclosure of any Proposals. NDM shall exclusively own any now known or hereafter existing rights to the Proposals of every kind and nature throughout the universe and shall be entitled to unrestricted use of the Proposals for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Proposals.
8. Publicly Available Participation.
A. By participating in an Interactive Area, you acknowledge that the fact and elements of your participation will be publicly available on NASCAR.COM to other NASCAR.COM Users and may be included in the search results of Internet search engines (e.g., Google and Bing, etc.). For example, if you comment on a story, play a fantasy game, enter a public chat or interact with NASCAR.COM in any other way, unless otherwise noted, your interactions will be published live on the NASCAR.COM newsfeed and maintained in your public profile. If you do not want your participation listed on the news feed or included in the search results of Internet search engines, do not interact with NASCAR.COM.
B. In addition, and without limiting 8.A above, upon checking in to any experience on or related to NASCAR.COM, such as, but not limited to Race Buddy or RaceView, your “Check In” will appear in the newsfeed on NASCAR.COM. If you do not want the record of your “Check In” to be publicly available, do not “Check In” and instead view the content without checking in.
9. User Conduct. By viewing NASCAR.COM or participating in the Interactive Areas, you agree to the following:
A. Lawful Use. You shall use NASCAR.COM for lawful purposes only. You shall not post or transmit through NASCAR.COM any material that violates or infringes in any way the rights of others, that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or that, without NDM's express prior approval, contains advertising or any solicitation with respect to products or services. Any conduct by a User that, as determined by NDM in NDM's discretion, restricts or inhibits any other User from using or enjoying NASCAR.COM will not be permitted. User shall not use NASCAR.COM to advertise or perform any commercial solicitation, including, but not limited to, the solicitation of Users to become subscribers of other on-line information services competitive with NASCAR.COM.
B. Naming Policy. When selecting a display name for use on NASCAR.COM web sites, you must abide by the following Naming Policy set forth below (and if NASCAR.COM changes it, you will abide by all changes after it is posted here.)
§ Names may not be offensive, sexually explicit, vulgar, racist, hateful, obscene, defamatory, or any other language that is offensive in nature (including common swear words, names concerned with anatomical references, and intentional misspellings, anagrams, combinations, and homonyms of these words).
§ Names may not be used that harass or damage the reputation of another user, NDM or NASCAR employees or agents.
§ Names may not be a name or handle of any NDM or NASCAR employees or agents.
§ Names may not include any unlawful reference to trademarked names, materials or products.
§ Names may not incorporate names of other people, including drivers, crew chiefs, broadcast talent, actors, celebrities, or other personalities or individuals in a manner that creates confusion or false affiliation.
§ Names may not be religiously or historically sensitive.
§ Names may not have a title or rank within them suggesting affiliation with NDM, NASCAR or NASCAR.COM.
§ Names may not contain a phrase, sentence, or any fragment of a sentence.
§ Names may not include any telephone numbers, credit card numbers, social security numbers, street addresses, or email/instant message addresses other than your own (and NASCAR.COM strongly recommends that you not use your own either).
§ Names may not use misspellings or alternative spellings of names that violate any of the rules above.
C. User Content. You shall not upload, post or otherwise make available on NASCAR.COM any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, intellectual property or proprietary rights, or any other harm resulting from such a submission.
D. User Rules of Conduct. Without limiting any other term herein, if you submit any User Content (including, but not limited to, any screen name) or participate in an Interactive Area within or in connection with NASCAR.COM, you agree to abide by the following Rules of Conduct:
§ You agree not to upload, post or otherwise transmit any User Content that violates or infringes in any way the rights of others, including any statements that may defame, harass, stalk or threaten others.
§ You agree not to upload, post or otherwise transmit any User Content that is offensive to the online community, including blatant expressions of bigotry, racism, abusiveness, vulgarity or profanity.
§ You agree not to upload, post or otherwise transmit any material that contains or advocates profane or obscene material as determined in NDM’s discretion.
§ You agree not to upload, post or otherwise transmit any User Content that violates any law or engage in activity that would constitute a criminal offense or give rise to a civil liability.
§ You agree not to upload, post or otherwise transmit any User Content that advocates or provides instruction on illegal activity or discuss illegal activities with the intent to commit them.
§ You agree not to upload, post or otherwise transmit User Content that does not generally pertain to the designated topic or theme of any Interactive Area.
§ You agree not to impersonate any person or entity, including, but not limited to, any NASCAR, NDM, NASCAR.COM, racing teams, racing or NASCAR.COM sponsors, employee or associated persons, or falsely state or otherwise misrepresent your affiliation with any person or entity.
§ You agree not to interfere with any other User's right to privacy, including by harvesting or collecting personally-identifiable information about NASCAR.COM Users or posting private information about a third party.
§ You agree not to upload, post or otherwise transmit any User Content, software or other materials that contain a virus or other harmful or disruptive component.
§ You agree not to interfere with or disrupt NASCAR.COM or the servers or networks connected to NASCAR.COM, or disobey any requirements, procedures, policies or regulations of networks connected to NASCAR.COM.
§ You agree not to upload, post, e-mail or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation.
§ You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose, any portion of NASCAR.COM, use of NASCAR.COM, or access to NASCAR.COM.
Any conduct that NDM determines, in NDM’s sole discretion, restricts or inhibits anyone else from using or enjoying NASCAR.COM will not be permitted. NDM reserves the right in its sole discretion to remove or edit User Content by you and to terminate your Account for any reason. NDM is not responsible for User Content submitted to NASCAR.COM or posted in comments sections, chat rooms, on bulletin boards or on other Interactive Areas by users of NASCAR.COM.
F. Moral Rights. If it is determined that you retain moral rights (including rights of attribution or integrity) in the User Content, you hereby declare that: (a) you do not require that any personally identifying information be used in connection with the User Content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the User Content by NDM, NASCAR, or its licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the User Content; and (d) you forever release the NDM Parties and their respective licensees, successors and assigns, from any claims that you could otherwise assert against any of them by virtue of any such moral rights. You also permit any other user to access, view, store or reproduce the User Content for that user's personal use.
10. Advertisements and Promotions.
NDM may run advertisements and promotions from third parties on NASCAR.COM. Your business dealings or correspondence with, or participation in promotions of, advertisers other than NDM, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. NDM is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on NASCAR.COM.
11. Disclaimer of Warranty; Limitation of Liability.
A. YOU EXPRESSLY AGREE THAT YOUR USE OF NASCAR.COM IS AT YOUR SOLE RISK. NEITHER THE NDM PARTIES NOR ANY OF THEIR RESPECTIVE THIRD-PARTY CONTENT PROVIDERS, VENDORS OR LICENSORS WARRANT THAT NASCAR.COM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF NASCAR.COM, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED BY OR THROUGH NASCAR.COM.
C. USER SPECIFICALLY ACKNOWLEDGES THAT THE NDM PARTIES AND THEIR RESPECTIVE THIRD-PARTY CONTENT PROVIDERS, VENDORS AND LICENSORS SHALL NOT IN ANY EVENT BE LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH USER.
D. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL ANY NDM PARTY, OR ITS PRESENT OR FUTURE PARENTS OR AFFILIATED COMPANIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING NASCAR.COM, INCLUDING, WITHOUT LIMITATION, THIRD-PARTY CONTENT PROVIDERS, VENDORS AND LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION OR FOR ANY FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION ARISING OUT OF USE OF NASCAR.COM OR ANY ALLEGED FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, OR DELAY IN SERVICE, OPERATION, OR TRANSMISSION OF NASCAR.COM, OR ANY ALLEGED COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF PROPERTY, AND/OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF OR POSTING OF ANY RECORD, CONTENT, OR TECHNOLOGY, PERTAINING TO OR ON NASCAR.COM. USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION APPLY TO ALL CONTENT AND FEATURES COMPRISING NASCAR.COM. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF THE NDM PARTY, OR ITS PRESENT OR FUTURE PARENTS OR AFFILIATED COMPANIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING NASCAR.COM, INCLUDING, WITHOUT LIMITATION, THIRD-PARTY CONTENT PROVIDERS, VENDORS AND LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT ANY NDM PARTY, OR ITS PRESENT OR FUTURE PARENTS OR AFFILIATED COMPANIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING NASCAR.COM, INCLUDING, WITHOUT LIMITATION, THIRD-PARTY CONTENT PROVIDERS, VENDORS AND LICENSORS ARE NOT LIABLE FOR ANY ACTUAL OR ALLEGED DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OF NASCAR.COM OR ANY OTHER THIRD PARTIES.
IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
E. UNLESS AND EXCEPT AS OTHERWISE SPECIFICALLY STATED WITHIN NASCAR.COM, AWARDS, SUCH AS BADGES, AND SIMILAR ITEMS PROVIDED BY NASCAR.COM, ARE PROVIDED FOR ENTERTAINMENT PURPOSES ONLY AND DO NOT HAVE MONETARY OR SIMILAR VALUE.
12. Indemnification. You shall defend, indemnify and hold harmless the NDM Parties and their respective directors, officers, shareholders, members, employees, agents, third-party content providers, vendors and licensors from and against all claims, damages, losses and expenses, including attorneys' fees, arising out of the use of NASCAR.COM by You, and/or arising out of use of Your Account (whether or not by You), and/or arising out of Your other acts or omissions. NDM reserves the right to take over the exclusive defense of any claim for which the NDM Parties entitled to indemnification under this Section. In such event, you shall provide NDM with such cooperation as is reasonably requested by NDM.
14. Governing Law.
The content, data, video, and all other material and features on NASCAR.COM are presented for the purpose of providing entertainment, news and/or information and/or promoting programs, films, music, games, and other products and/or services that are or may become available in the United States, its territories, possessions, and protectorates.
Any and all disputes, claims and controversies arising out of or in connection with your access to, and/or use of NASCAR.COM, and/or the provision of content, services, and/or technology on or through NASCAR.COM shall be governed by and construed exclusively in accordance with the laws and decisions of the State of Florida applicable to contracts made, entered into and performed entirely therein, without giving effect to its conflict of laws provisions, and the courts in the State of Florida shall be the exclusive forum for any disputes.
15. Disputes/Arbitration. PLEASE READ THIS SECTION CAREFULLY -- IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
In the event of a dispute, claim, or controversy arising out of or in connection with your access to, and/or use of NASCAR.COM, and/or the provision of content, services, and/or technology on or through NASCAR.COM, NDM or you must give the other notice of the dispute, claim, or controversy which notice will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, claim, or controversy and the relief requested. You must send any such notice to NDM by email to NDMcopyrightagent@nascar.com AND by U.S. Mail to Copyright Agent - Legal Department, One Daytona Boulevard, Daytona Beach, Florida. To the extent that NDM has your contact information, it will send any such notice to you by U.S. Mail, or otherwise to your email address. NDM and you will attempt to resolve any dispute, claim, or controversy through informal negotiation within thirty (30) days from the date that any notice of dispute, claim, or controversy is sent. NDM and you shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After 30 days, NDM or you may resort to the other alternatives described in this Section. Notwithstanding the foregoing, the notice and 30 day negotiation period required by this paragraph shall not apply, however, to disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of NASCAR.COM.
For residents outside the United States, arbitration shall be initiated in Volusia County, Florida, and NDM and you agree to submit to the personal jurisdiction of any state or federal court in Volusia County, Florida, to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. In the event some or all of these arbitration provisions are determined to be unenforceable for any reason, or if a claim, dispute or controversy is brought that is found by a court to be excluded from the scope of these arbitration provisions, NDM and you agree to waive, to the fullest extent allowed by law, any trial by jury.
The terms of these arbitration provisions will also apply to any claims asserted by you against any NDM Party, present or future parent or affiliated company of NDM, or any person or entity involved in creating, producing or distributing NASCAR.COM, including, without limitation, third-party content providers, vendors and licensors, to the extent that any such claims arise out of your access to, and/or use of NASCAR.COM, and/or the provision of content, services, and/or technology on or through NASCAR.COM.
16. Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY -- IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court located in Volusia County, Florida.
The terms of this provision will also apply to any claims asserted by you against any NDM Party, present or future parent or affiliated company of NDM, or any person or entity involved in creating, producing or distributing NASCAR.COM, including, without limitation, third-party content providers, vendors and licensors, to the extent that any such claims arise out of your access to, and/or use of NASCAR.COM, and/or the provision of content, services, and/or technology on or through NASCAR.COM.
Neither NDM nor you shall be liable for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, terrorism, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
18. Notice of Infringement of Copyright.
NDM respects the rights of all copyright holders and in this regard, NDM has adopted and implemented a policy that provides for the termination in appropriate circumstances of Users and account holders who infringe the rights of copyright holders. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide NDM's Copyright Agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. Section 512:
A. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
B. Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
C. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
D. Information reasonably sufficient to permit us to contact the complaining party;
E. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
F. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
For copyright inquiries under the Digital Millennium Copyright Act please contact:
NASCAR Digital Media, LLC
Copyright Agent – Legal Department
One Daytona Boulevard
Daytona Beach, Florida
For web posting, reprint, transcript or licensing requests for NDM or NASCAR material, please contact email@example.com.
For any questions or requests other than copyright issues or licensing requests, please contact firstname.lastname@example.org.
© 2015 NASCAR Digital Media, LLC