MOTORSPORT.COM MEMBERSHIP AGREEMENT
This is an agreement between Motorsport.com ("Motorsport.com") and You. What we will refer to after this as the "Agreement" includes this document headed "Motorsport.com Member Agreement" and also any policies, guidelines and amendments that may be incorporated into this Motorsport.com Member Agreement or presented to You from time to time. This Agreement describes the terms and conditions on which Motorsport.com offers You participation in Motorsport.com's video uploading and membership services (the "Motorsport.com Membership Program" as further described below). "You" (and "Your", as applicable) means the person or entity identified in the registration form submitted.
PLEASE READ THIS AGREEMENT CAREFULLY.This Agreement sets forth the legally binding terms and conditions for Your participation in the Motorsport.com Membership Program. By registering, clicking "I Agree" or otherwise participating in the Motorsport.com Membership Program, You represent to Motorsport.com that You are at least eighteen (18) years of age or otherwise capable of entering into and performing legal agreements, and that You agree to be bound by the following terms and conditions. If You register on behalf of a business, You represent to Motorsport.com that You have the authority to bind that business and Your acceptance of this Agreement will be treated as acceptance by that business. In that event, "You" and "Your" will refer to that business in this Agreement. If You do not accept this Agreement in full, please do not register for or participate in the Motorsport.com Membership Program.
With this in mind, You agree to and acknowledge the following:
Motorsport.com develops and maintains a network of including, but not limited to, video content creators, photos, articles and commentaries in the motorsport, automotive and related fields.
2. The Motorsport.com Membership Program
The Motorsport.com Membership Program permits You to participate in, use and/or obtain access to the Motorsport.com Products with a Free Account.
The Free Account allows You to the following: Participation as a content creator, by creating and submitting video and other content on Motorsport.com. After this, we refer to anyone who participates in this way as a "Content Provider"; Participation as a member of Motorsport.com, by submitting reviews, communicating with other Motorsport.com Membership Program members and sharing or submitting other information (we refer to anyone who participates in this way as a "Community Member"); Access to certain Motorsport.com applications, software and related services; and; Access to trial features, products and services ("Trial Features").
Anyone who provides content to Motorsport.com is a "Content Provider" and Your use of or access to certain features of the Motorsport.com Membership Program may require You to agree with and accept additional terms and conditions. If there is a conflict between this Agreement and any additional terms and conditions of use posted for a specific feature, those additional terms and conditions shall have precedence with respect to Your use of or access to that feature.
To Participate, You must register online with Motorsport.com at the Motorsport.com Site and create a unique, password-protected account ("Account"). You will be responsible for safeguarding Your password. You also take full responsibility for any actions under Your password and Account, whether authorized by You or not. You are responsible for keeping Your Account information current. You acknowledge and agree that Motorsport.com will have no responsibility or liability, directly or indirectly, for failure to deliver notices that result from inaccurate Account information.
Motorsport.com, at any time and from time to time, may modify this Agreement and the Policies, or may modify, suspend or discontinue, temporarily or permanently, the Motorsport.com Membership Program (or any parts thereof). Modifications to this Agreement and Policies will be posted on the Motorsport.com Site or made in compliance with any notice requirements set forth in this Agreement. Modifications to the Motorsport.com Membership Program will be effective upon posting to the Motorsport.com Site. You agree that Motorsport.com shall not be liable to You or to any third party for any modification, suspension or discontinuance of this Agreement, the Policies, or the Motorsport.com Membership Program. By continuing to Participate after Motorsport.com has posted any such modifications or provided any required notices, You agree to be bound by the modifications. Please review this Agreement and the Policies regularly so that You will be apprised of any modifications. If any modification is not acceptable to You, Your only recourse is to cease Participation.
To remain eligible for Participation, You must at all times comply with the terms and conditions of this Agreement and all Policies. Motorsport.com reserves the right to refuse Participation to any applicant or participant at any time in its sole discretion.
If You register to Participate, You may communicate with Motorsport.com and other Account holders, post or publish comments or rating features regarding video and photography content, Motorsport.com products or the Motorsport.com Membership Program in, as may be made available at Motorsport.com's complete discretion, a discussion group, webcam chat area, bulletin board, feedback area, news group, email functionality or other communication feature "Member Comments". You are solely responsible for all Member Comments You transmit or submit to Motorsport.com or through the Motorsport.com Membership Program, whether created by or for You, including but not limited to websites and content proximately reachable from such Member Comments. Motorsport.com disclaims all liability relating to Your Member Comments. As more fully set forth in Section 15 ("Representations and Warranties"), You may not submit any Member Comments that contain any sexually suggestive, pornographic, infringing, hate-related, violent or illegal content.
You are solely responsible for all video content You transmit or submit to Motorsport.com, whether created by or for You, including but not limited to graphics, music, sound, images, files, photos, animation, artwork, text, data, information, messages, hypertext links, scripts or other material (collectively, "Video Content"). Motorsport.com disclaims all liability relating to Your Video Content. As more fully set forth in Section 15 ("Representations and Warranties"), You may not submit Video Content that contains any pornographic, infringing, hate-related, violent or illegal content.
You agree and accept that Motorsport.com may, in its sole discretion, and without liability:
- reject, suspend access to or remove any of Your Video Content from Motorsport.com at any time that Motorsport.com deems it, in its sole discretion, unsuitable for the Motorsport.com;
- modify any metadata You submit with Your Video Content, including without limitation meta tags, age rating, descriptive language, search terms, category and keyword modifiers.
In connection with Motorsport.com's marketing, distribution and provision of the Motorsport.com Membership Program as contemplated herein, You permit Motorsport.com, as further described in Section 10, to:
- host, index and cache Your Video Content;
- tag Your Video Content with information that will be used by Motorsport.com to identity it as Your Video Content; and
- engage in such further actions regarding Your Video Content as may be necessary or appropriate in order to effect the purposes of the Motorsport.com Membership Program.
During the term of this Agreement You may request that Motorsport.com remove any or all of Your Video Content from Motorsport.com. However, You acknowledge and agree that Motorsport.com shall have no obligation to attempt to remove from distribution any of Your Video Content that is otherwise publicly available through the Internet or other publicly accessible medium.
In the event that Motorsport.com fails to promptly remove such requested Video Content from Motorsport.com after Your request for removal, Motorsport.com shall not be liable to You for damages or charges of any kind in an amount greater than ten dollars ($10). For the avoidance of doubt, the Creative Commons BY-NC-ND License (defined below) that You have granted in Section 9(g) ("Content Providers: Your Irrevocable Non-Commercial Distribution License") herein shall remain in effect for this purpose only.
You agree and accept that Motorsport.com, upon request of the applicable Content Providers or in its sole discretion, may add or remove from Motorsport.com any or all Video Content at any time.
You agree that You will not:
- use or launch any automated system, including without limitation, "robots", "spiders" or "offline readers" to generate artificial views of Video Content, or to otherwise access the Motorsport.com Site in a manner that sends more request messages to the Motorsport.com servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser;
- modify any specifications, technology or application codes, unless expressly authorized in writing by Motorsport.com.
Some Trial Features may be made available on an as-is basis only, which will be marked as such. Your use of the Trial Features is at Your own risk. All information relating to the Trial Features will be treated as "confidential" in accordance with Section 14 ("Confidential Information").
7. Participation at Your Own Risk
Your Participation is at Your own risk. Although the Motorsport.com Membership Program enables users to connect and share Video Content and Member Comments with one another and with end users or viewers, Motorsport.com has no responsibility to control or monitor any information or exchanges between or among users. Motorsport.com does not control the Video Content and Member Comments made available through the Motorsport.com. Some people may find Video Content and Member Comments objectionable, inappropriate or offensive. Motorsport.com does not control or guarantee, nor is Motorsport.com responsible for, the truth, accuracy, ownership, completeness, integrity, safety, timeliness, quality, appropriateness, legality or applicability of any Video Content and Member Comments. Motorsport.com assumes no responsibility for monitoring any Video Content and Member Comments or conduct during Participation. If Motorsport.com chooses, at any time in its sole discretion, to monitor (in whole or in part) Video Content and Member Comments or conduct during Participation, Motorsport.com nonetheless assumes no responsibility for Video Content and Member Comments, no obligation to modify or remove any Video Content and Member Comments and no responsibility for conduct during Participation. You agree that Motorsport.com has no responsibility or liability for the deletion or failure to store, maintain or transmit any Video Content and Member Comments.
9. Proprietary Rights & Licenses
(a) Motorsport.com's Ownership Rights. Motorsport.com and its licensors own all rights, title and interest, including without limitation all worldwide intellectual property rights in Motorsport.com and the Motorsport.com Membership Program, and all such rights to all derivative works or enhancements of, in and to, or relating to, Motorsport.com and the Motorsport.com Membership Program. By entering into this Agreement or by Your Participation, You will not acquire any intellectual property or similar rights in Motorsport.com, the Motorsport.com Membership Program or related products and services. You agree You will not (i) remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Motorsport.com, the Motorsport.com Membership Program or related products and services; or (ii) use Motorsport.com's name, logo, trademark, trade names or service marks except as expressly permitted in this Agreement without Motorsport.com's prior written consent.
(b) Your Ownership Rights. Subject to the licenses You are granting in this Agreement, You retain all right, title and interest, including without limitation all worldwide intellectual property rights, in and to Your Video Content that is submitted, posted or displayed by You on or through Motorsport.com and the Motorsport.com Membership Program. Motorsport.com shall not acquire any right, title or interest in or to such Video Content, except as provided herein. Any rights not granted by You herein are deemed retained by You. As more fully described in Section 12 ("Term and Termination"), You have the right to terminate this Agreement and revoke certain licenses You are granting in this Agreement, with respect to all Video Content You provide or with respect to particular works You provide. If You choose to revoke any of Your revocable licenses, Motorsport.com will use commercially reasonable efforts to remove Your Video Content from the Motorsport.com Site reasonably promptly upon receipt of Your notice of revocation. You acknowledge that You are aware that Motorsport.com has limited practical ability to control or monitor possible infringement of Your intellectual property rights by other parties and that Motorsport.com assumes no responsibility for controlling or monitoring such intellectual property rights. In addition, Motorsport.com is not responsible for enforcing Your intellectual property or for suing or taking other legal action against infringers who fail to cease using Your Video Content upon revocation. You or a third party licensor, as appropriate, are responsible for protecting Your intellectual property rights. Motorsport.com may, at its discretion, choose to assist You in connection with protecting or enforcing Your intellectual property rights in a particular instance; in such event, this does not mean that Motorsport.com has an obligation to do so in any other instance and this does not mean that Motorsport.com has an obligation to effectively protect or enforce Your intellectual property rights.
(c) Motorsport.com's Trademark License to You. During the term of this Agreement, and subject to Your compliance with the terms and conditions of this Agreement, You will have the right to use the trade names, trademarks, logos and designations in or associated with the Motorsport.com Network (the "Motorsport.com Marks") solely for purposes of identifying Motorsport.com and solely in connection with Your permitted activities under this Agreement. You agree that the Motorsport.com Marks and all associated goodwill are and will remain the sole property of Motorsport.com, that any goodwill generated as a result of Your licensed use of Motorsport.com Marks belongs exclusively to Motorsport.com and inures solely to the benefit of Motorsport.com, and that Your use of Motorsport.com Marks is subject to Motorsport.com's control of the quality of any products or services with respect to which You may be authorized to use Motorsport.com Marks.
(d) Your Member Comments License to Motorsport.com. By uploading, submitting, emailing, posting, publishing or otherwise transmitting any Member Comments, You hereby grant (or warrant that the owner of such rights has expressly granted) Motorsport.com a worldwide, royalty-free, non-exclusive, sublicensable, transferable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, create derivative works of, perform, display, distribute, publish and transmit such Member Comments in any form, medium or technology now known or later developed. You warrant that any Member Comments You submit do not infringe upon any rights, including intellectual property rights, of any other parties. In addition, You warrant that all so-called moral rights in the Member Comments have been waived.
(e) Your Revocable Limited License to Motorsport.com. In order to allow Motorsport.com to post Your Video Content on Motorsport.com, You hereby grant (or warrant that the owner of such rights has expressly granted) to Motorsport.com a worldwide, revocable, non-exclusive, sublicensable and transferable, limited right and license to use, reproduce, modify and adapt, excerpt, publish, transmit, publicly perform, display, reference, store, host, index and cache, in any form, medium or technology now known or later developed, any Video Content, Member Comments, or materials You submit to Motorsport.com, in whole or in part, whether created by or for You, by any method, in any and all media and through any media distribution channels, whether currently existing or hereafter developed. You understand that Your revocable limited license to Motorsport.com includes Your grant to Motorsport.com of the right to create, display and distribute (as set forth more fully in the previous sentence) a derivative work based on Your Video Content, which derivative work is comprised either solely of Your Video Content as adapted to include Motorsport.com's computer software, to identity Your submission as Your Video Content, and to effect related functions or to include Your Video Content as part of a compilation project for broadcast on Motorsport.com or through an affiliate. (After this we refer to the aforementioned derivative work as "Your Motorsport.com Modified Video Content"). Motorsport.com's rights, with respect to Your Motorsport.com Modified Video Content, are limited to its rights set forth in this Agreement, and Motorsport.com expressly waives and disclaims, with respect to You, any other rights it might otherwise hold to Your Motorsport.com Modified Video Content under copyright law. As more fully described in Section 12 ("Term and Termination"), this license will terminate: (i) with respect to any Video Content that You have requested be removed in accordance with Section 6 ("Participation"); and (ii) upon termination of the Agreement in accordance with Section 12 ("Term and Termination").
(f) Your Revocable Commercial Distribution License to Motorsport.com. In order to allow Motorsport.com to distribute Your Motorsport.com Modified Video Content on Motorsport.com or its affliates, You hereby grant (or warrant that the owner of such rights has expressly granted) to Motorsport.com a limited, revocable right to use, reproduce, publicly perform, distribute, adapt, and display Your Motorsport.com Modified Video Content for purposes contemplated by this Agreement and to engage in such further actions relating to and in connection with Your Video Content as may be necessary or appropriate in order to effect the purposes of Motorsport.com.
(g) Your Irrevocable Non-Commercial Distribution License. You hereby grant (or warrant that the owner of such rights has expressly granted) to any persons or entities who want to use Your Motorsport.com Modified Video Content in a manner not intended for commercial advantage or private monetary compensation, a right to use, reproduce, publicly perform, distribute and display Your Motorsport.com Modified Video Content for non-commercial purposes pursuant to the terms and conditions of the Creative Commons "Attribution-NonCommercial-NoDerivs 2.5" license located at http://creativecommons.org/licenses/by-nc-nd/2.5/legalcode (the "Creative Commons BY-NC-ND License"). Insofar as Motorsport.com holds any rights to Your Motorsport.com Modified Video Content pursuant to Section 9(e) of this Agreement, Motorsport.com also grants the rights stated in this paragraph to such persons or entities pursuant to the Creative Commons BY-NC-ND License.
(h) Your Information. You authorize Motorsport.com to use, as applicable to Your Participation, Your Video Content, name, likeness, trademarks, service marks, trade names, proprietary logos, domain names, usage statistics and any other source or business identifiers (collectively, "Your Information") in presentations, as a feature on Motorsport.com, advertising and marketing materials, press releases, customer lists and financial reports, in connection with Motorsport.com's marketing, publicity, distribution and provision of the Motorsport.com Membership Program. You also grant Motorsport.com a non-exclusive license to index and cache Your Information and any portion thereof, by manual or automated means (including with web spiders and crawlers), for purposes of promoting, providing and improving Motorsport.com and the Motorsport.com Membership Program and for soliciting other distributors, publishers, creators and advertisers to use Motorsport.com and Participate. You acknowledge and agree: (i) that You understand that You may provide, and Motorsport.com may collect, Your Information during Your Participation; and (ii) that Your Information may be shared with Motorsport.com's affiliates, business partners, sponsors, advertisers, employees, customers and distribution partners.
(i) No Endorsement; No Publicity. Motorsport.com does not endorse, verify, evaluate or guarantee any information or Video Content or Member Comments provided by users, including You, and nothing shall be considered as an endorsement, verification or guarantee of any information or Video Content or photographs or Member Comments. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which offer such information, (i) containing or suggesting an endorsement by Motorsport.com of You or Your Video Content or Member Comments; or (ii) relating to this Agreement, without the prior review and written approval of Motorsport.com. Notwithstanding the foregoing, You may accurately disclose and describe Your Participation and Your Video Content or Member Comments (for example, describing and promoting Your Video Content on Your blog or in emails).
(j) Reserved Rights. You will not attempt to modify, prepare derivative works from, translate, adapt, edit, decompile, disassemble or reverse engineer any specifications, technology, applications or software programs provided or made accessible to You or used by Motorsport.com in connection with the Motorsport.com Membership Program in any way, unless expressly authorized in writing by Motorsport.com. Motorsport.com may modify the format and look and feel of Motorsport.com Membership Program from time to time. Excluding Your Video Content, You agree to assign and hereby do assign to Motorsport.com and its licensors (as applicable) all right, title and interest in and to any part of Motorsport.com Membership Program that You may have or acquire during Your Participation. You warrant that all so-called moral rights You may have in Motorsport.com or Motorsport.com Membership Program are hereby waived. You will not delete, remove, obscure or in any manner alter the copyright, trademark, license or other proprietary rights notices affixed to or contained in Motorsport.com or Motorsport.com Membership Program. Any rights not expressly granted herein are deemed withheld.
10. Adult Content
You will not use Motorsport.com or Motorsport.com Membership Program for any purpose or in any manner to display, post or make available any explicit, graphic sexual, pornographic or erotic material nor upload, email, post, publish, distribute, transmit, submit or otherwise make available through Motorsport.com or Motorsport.com Membership Program any Video Content or Member Comments, that is of an explicit, graphic sexual, pornographic or erotic nature ("Adult Content"). Examples of content that Motorsport.com, in its sole discretion, considers to be Adult Content include, but are not limited to material that is pornographic, obscene, indecent or profane in its use of sexual language or description or depictions of sexual acts. If Motorsport.com finds Video Content that it determines, in its sole discretion, contains Adult Content, Motorsport.com may, without notice, remove or block access to such Video Content. Motorsport.com reserves the right to suspend or cancel at any time and without notice Your Account, that Motorsport.com, in its sole discretion, determines to be in violation of this Section. Motorsport.com will take all appropriate steps with Video Content that Motorsport.com believes violates applicable laws, including cooperation with any law enforcement investigation. If You see content that You believe is Adult Content or is in violation of law or this Section, You should contact Motorsport.com immediately.
11. Copyright Infringement
You will not use Motorsport.com or Motorsport.com Membership Program for any purpose or in any manner that infringes the copyrights of any third party, nor will You upload, email, post, publish, distribute, transmit, submit or otherwise make available through Motorsport.com or Motorsport.com Membership Program any content, that infringes the copyrighted works or violates the intellectual property rights of any third party. In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA") (the text of which may be found on the U.S. Copyright Office website at "http://lcweb.loc.gov/copyright/"), it is Motorsport.com's policy to respond to notices of any actual or alleged infringement that are reported to Motorsport.com's "Designated Copyright Agent" and that comply with the DMCA. It is Motorsport.com's policy to terminate the Accounts of users of repeat infringers or of users repeatedly charged with infringement, in appropriate circumstances. If You believe that a work has been copied in a way that constitutes copyright infringement, You should send a notice of infringement to Motorsport.com's Designated Copyright Agent in accordance with Motorsport.com's Copyright Policy (http://www.Motorsport.com/info/copyright/), incorporated herein, at the address indicated in Motorsport.com's Copyright Policy.
12. Term and Termination
(a) Termination. Motorsport.com may immediately terminate this Agreement, or cancel the Motorsport.com Membership Program, for any reason at any time. You may terminate this Agreement at any time by disabling Your Account or providing notice to Motorsport.com as set forth in Section 13 ("Notifications").
(b) Effect of Termination.
General. Upon termination or expiration of this Agreement, Your right to Participate will automatically terminate. In the event of termination, Your Account will be disabled and You may not be granted access to Your Account or any files or other content contained in Your Account although residual copies of information may remain in the Motorsport.com Membership Program system. Upon termination: (i) all licenses granted to You hereunder will immediately terminate; and (ii) You will promptly destroy all copies of Motorsport.com products in Your possession or control. Upon termination, Motorsport.com may continue to use any user analytics collected hereunder for solely internal (including archival) purposes, and all related licenses You have granted Motorsport.com shall remain in effect for this purpose only. In the event that this Agreement or the Motorsport.com Membership Program expires or is terminated, Motorsport.com shall not be obligated to return any materials to You.
Content Providers. Although Motorsport.com will use commercially reasonable efforts to ensure Your Video Content is removed from the Motorsport.com Site reasonably promptly following termination, Motorsport.com shall have no obligation to remove any of Your Video Content that is otherwise publicly available through the Internet or other publicly accessible medium. In the event that Motorsport.com does not promptly remove Your Video Content from Motorsport.com through inadvertence or other error, Motorsport.com shall not be liable to You for damages or charges of any kind.
(c) Survival. The rights and obligations contained in Section 9(a) ("Motorsport.com's Ownership Rights") and 9(b) ("Your Ownership Rights"), Section 9(f) ("Content Providers: Your Irrevocable Non-Commercial Distribution License"), Section 12(b) ("Effect of Termination"), Section 12(c) ("Survival"), Section 14 ("Confidential Information"), Section 17 ("Indemnity"), Section 18 ("Warranty Disclaimers"), Section 19 ("Limitation of Liability") and Section 20 ("General") of this Agreement will survive termination or expiration of this Agreement for any reason.
Motorsport.com may provide notices to You by email to the email address specified in Your Account, by posting a message to Your Account interface or by posting a message to Motorsport.com, and is deemed received when sent (for email) or no more than fifteen (15) days after having been posted (for messages to Your Account interface or on Motorsport.com). Any notices to Motorsport.com must be sent either: (i) via first class or air mail or overnight courier to Motorsport.com, Inc., Motorsport.com Membership Program, 1450 South Miami Avenue, Miami, FL 33130; or (ii) via first class or air mail or overnight courier, and are deemed given upon receipt.
14. Confidential Information
During the term of this Agreement, You may receive confidential information from Motorsport.com related to Your Participation. Except as expressly authorized by this Agreement or necessary for performance under this Agreement, You will use reasonable efforts to maintain the confidentiality of all such information and You will not disclose such information without the prior written consent of Motorsport.com. In no event will You use less effort to maintain the confidentiality of such information than You ordinarily use with respect to Your own confidential information. The foregoing will not restrict You from disclosing confidential information of Motorsport.com: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that if You are required to make such a disclosure, You give reasonable and timely notice to Motorsport.com to contest such order or requirement; and (b) on a confidential basis to Your legal or financial advisors, or prospective acquirers or investors. Examples of Motorsport.com confidential information include without limitation: (i) all software, technology, services, algorithms, search engines and search indices, programming, specifications, materials, guidelines and documentation relating to the Motorsport.com Products and the Motorsport.com Membership Program; and (iii) any other information designated in writing by Motorsport.com as "Confidential" or an equivalent designation. Confidential information does not include information that: (w) is or becomes generally known to the public through no fault of or breach of this Agreement by You; (x) is rightfully known by You at the time of disclosure without a confidentiality obligation; (y) is independently developed by You without use of Motorsport.com's confidential information; or (z) You rightfully obtain from a third party without disclosure restrictions.
15. Representation & Warranties
(a) Your Authority. You represent and warrant to Motorsport.com that: (i) You have all requisite power and authority, corporate or otherwise, to enter into this Agreement, to conduct Yourself and Your business and to execute, deliver, and perform all of Your obligations under this Agreement; (ii) You have provided, and will continue to provide, information that is correct and current; (iii) You are the owner or the authorized agent of the owner of Your Video Content and Your Member Comments (if You are a Community Member) and have full technical and editorial control of the same; (iv) You have the right to grant the licenses granted under this Agreement; (v) Your performance under this Agreement and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which You are currently bound or will become bound in the future; (vi)Your performance under this Agreement will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign; and (vii) You will Participate solely for the purposes intended and expressly permitted.
(b) Your Materials. You represent and warrant that Your Video Content, Member Comments or any other information or material You submit or make available to others during Your Participation, and Motorsport.com's use thereof pursuant to this Agreement, (i) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right; (ii) do not contain Adult Content; (iii) are not fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene; (iv) do not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age, or otherwise interfere with another party's use of Motorsport.com Products or Participation in the Motorsport.com Membership Program; (v) do not promote illegal or harmful activities or substances (including without limitation activities that promote or provide instructional information about activities such as making or buying illegal weapons or substances); (vi) are not illegal, unlawful or contrary to the laws or regulations in any state or country where, as applicable, Your Video Content are created, displayed or accessed; (vii) do not contain any computer programming routines or viruses (including without limitation time bombs, Trojan Horses, worms, Easter Eggs, drop dead devices or cancelbots) that are intended to damage, interfere with, intercept or expropriate any system data or personal information, permit unauthorized access to or Participation in the Motorsport.com Membership Program or disable, damage or erase any portion of the Video Content or Membership Comments processed or stored therein; or (viii) do not constitute unsolicited bulk email, junk mail, spam or chain letters.
(c) Your Actions. You represent and warrant that You will not, and will not authorize or encourage any third party to, directly or indirectly: (i) obtain any information or materials relating to Motorsport.com or the Motorsport.com Membership Program through any means not intentionally made available by Motorsport.com to You, or attempt to gain unauthorized access to Motorsport.com's database, technology, computer systems or networks associated with Motorsport.com Products or the Motorsport.com Membership Program; or (ii) engage in any activity that disrupts, diminishes the quality of, interferes with the performance of or impairs the functionality of Motorsport.com and the Motorsport.com Membership Program.
(d) Cooperation. You agree to cooperate fully with Motorsport.com to investigate any suspected or actual activity that is in breach of this Agreement. You acknowledge that any violation of this Section 15 ("Representations and Warranties") is a material breach of this Agreement and that Motorsport.com may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your Account or termination of this Agreement, and the pursuit of all available civil or criminal remedies. Motorsport.com reserves the right to investigate, at its own discretion, any activity that Motorsport.com suspects may violate this Agreement. Motorsport.com may, as applicable, notify the authorities, suspend or cancel Your Account and/or take appropriate actions at any time without notice to You if Motorsport.com, in its sole discretion, (i) suspects that You have breached or failed to comply (in full or in part) with any provision of this Agreement or any Policies or rules established by Motorsport.com; or (ii) suspects that Your actions may be illegal or cause liability.
Motorsport.com and the Motorsport.com Membership Program may provide, or third parties may provide, links to other websites or resources. Because Motorsport.com has no control over such sites and resources, You acknowledge and agree that Motorsport.com is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that Motorsport.com shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
You will indemnify, defend and hold Motorsport.com and its officers, directors, employees, shareholders, successors, agents, affiliates, subsidiaries and applicable third parties (e.g., relevant content creators, advertisers, syndication partners, referral partners, service providers, licensors, licensees, consultants and contractors) (collectively, the "Motorsport.com Entities") harmless from and against any claims, liabilities, losses, costs, damages or expenses (including reasonable attorneys' fees and costs) directly or indirectly arising out of or in any way relating to: (i) Your gross negligence or willful misconduct; (ii) Your Video Content, Your Member Comments or any other information or material You submit during Participation; (iii) Your conduct, including Your use of Motorsport.com or any other actions related to Your Participation; (iv) any actual violation or breach of this Agreement, or allegation of such violation or breach by a third party, including breach of any representation made by You hereunder; or (v) the alleged or actual violation or infringement of any intellectual property, privacy, publicity, confidentiality or proprietary rights of any third-party as a result of any action or Participation by You (collectively, the "Claims"). You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the Motorsport.com Entities. Motorsport.com shall have the right to withhold any payments due to You, if any, to offset liabilities and expenses covered hereunder. Motorsport.com shall have the right, in its sole discretion, to select its own legal counsel to defend Motorsport.com from any Claims (but by doing so shall not excuse Your indemnity obligations) and You shall be solely responsible for the payment of all Motorsport.com's reasonable attorneys' fees incurred in connection therewith. You shall notify Motorsport.com immediately if You become aware of any actual or potential claims, suits, actions, allegations or charges that could affect Your or Motorsport.com's ability to fully perform their respective duties or to exercise its rights under this Agreement. You shall not, without the prior written approval of Motorsport.com, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against You, if such settlement or resolution results in any obligation or liability for Motorsport.com.
18. Warranty Disclaimer
Your use of the Motorsport.com Products and Participation in the Motorsport.com Membership Program are at Your sole discretion and risk. Motorsport.com and the Motorsport.com Membership Program, and all materials, information, products and services included therein, are provide on an "AS IS" and "AS AVAILABLE" basis without warranties of any kind.
THE MOTORSPORT.COM ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE MOTORSPORT.COM PRODUCTS AND THE MOTORSPORT.COM MEMBERSHIP PROGRAM, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE.
The Motorsport.com Entities disclaim any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of Motorsport.com or the Motorsport.com Membership Program; (ii) regarding the goods, services, advise, information or links provided by any third party services providers, sponsors, syndicators or Community Members; (iii) that Motorsport.com or the Motorsport.com Membership Program will meet Your requirements; or (iv) that Motorsport.com or the Motorsport.com Membership Program will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by You from Motorsport.com or from Your Participation, shall create any warranty not expressly stated in this Agreement.
Motorsport.com assumes no responsibility for: (i) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication; and (ii) any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on Motorsport.com or the Motorsport.com Membership Program or combination thereof, including any injury or damage to You or to any person's computer related to or resulting from Participation.
Under no circumstances shall Motorsport.com be responsible for any loss or damage, including personal injury or death, resulting from Participation, from any Video Content or Member Comments posted on or through Motorsport.com or the Motorsport.com Membership Program, or from the conduct of any users of Motorsport.com Products or Participation in the Motorsport.com Membership Program, whether online or offline.
Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to You.
19. Limitation of Liability
THE MOTORSPORT.COM ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA OR PROFITS, COST OF PROCURING SUBSTITUTE PRODUCTS OR BUSINESS INTERRUPTION), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE MOTORSPORT.COM PRODUCTS, YOUR PARTICIPATION IN THE MOTORSPORT.COM MEMBERSHIP PROGRAM OR USE OF ANY MATERIALS AVAILABLE TO YOU FROM OR THROUGH THE MOTORSPORT.COM MEMBERSHIP PROGRAM (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT MOTORSPORT.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOTORSPORT.COM'S LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO MOTORSPORT.COM FOR THE MOTORSPORT.COM PRODUCTS OR PARTICIPATION IN THE MOTORSPORT.COM MEMBERSHIP PROGRAM.
You acknowledge that Motorsport.com permits Your Participation relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain and of the allocation of risks between the parties. Motorsport.com shall have no liability for any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to Motorsport.com's infrastructure or connectivity to the Internet, or failure of any third party distribution partner, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, Motorsport.com will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.
Some states or jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to You.
(a) Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The United Nations Convention on Contracts for the International Sale of Goods is excluded and does not apply to this Agreement. Except as expressly set forth in subsection (b) below ("Injunctive Relief"), any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be submitted to the American Arbitration Association or its successor ("AAA") and decided by binding arbitration, in accordance with the AAA's rules and procedures in effect on the date of submission to arbitration, by one arbitrator reasonably familiar with the business pertaining to the products and services covered by this Agreement, appointed in accordance with such Rules and Procedures. The arbitrator shall apply Florida law to the merits of any dispute or claim. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Miami-Dade County, Florida, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. In the event any action is brought by either party in connection with this Agreement, the substantially prevailing party will be entitled to recover from the other party all the costs, attorneys' fees and other expenses reasonably incurred by such party. All offers, promises, conduct and statements, whether oral or written, made in the course of the arbitration by any of the parties, their agents, employees, experts and attorneys, and by the arbitrator and any AAA employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the arbitration.
(b) Injunctive Relief. Notwithstanding the "Governing Law; Arbitration" section above, You agree that certain breaches by You would cause irreparable injury to Motorsport.com, for which there are no adequate remedies at law, and nothing in this Section shall be deemed to prevent or delay Motorsport.com's attempt to seek a temporary restraining order, preliminary injunction, specific performance or other interim or conservatory relief from any court having jurisdiction, without any abridgment of the power of the arbitrator, for Your breach of: (i) Section 9(a) ("Motorsport.com's Ownership Rights"); (ii) Section 11 ("Copyright Infringement"); and (iii) Section 14 ("Confidential Information").
(c) Assignment. You may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Motorsport.com. Any attempted assignment in violation of this Section will be null and void and of no force or effect. Motorsport.com may assign this Agreement freely at any time without notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's permitted successors and assigns.
(d) Waiver; Severability. The failure to require performance of any provision shall not affect Motorsport.com's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of this Agreement is found to be unenforceable, such portion will be modified to reflect the parties' intention and only to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will remain in full force and effect.
(e) Export Restrictions/Legal Compliance. You agree to comply with all United States and other applicable export laws and related restrictions and regulations, and not to directly or indirectly export, provide or otherwise make available the services and products of Motorsport.com in violation of any such export laws, unless any required prior authorizations or necessary approvals are obtained by You, at Your expense, from the applicable United States or foreign authority.
(f) Entire Agreement. This Agreement constitutes the entire and exclusive understanding and agreement between You and Motorsport.com regarding this subject matter, and supersedes any and all prior or contemporaneous agreements or understandings, written and oral, between You and Motorsport.com relating to this subject matter. You may be subject to additional terms and conditions that may apply when You use or access certain features of the Motorsport.com Membership Program.
(g) Relationship. You and Motorsport.com are independent contractors, and this Agreement, including but not limited to submission of any Video Content or Member Comments, will not, in whole or in part, establish any relationship of partnership, joint venture, employment, franchise or agency between the You and Motorsport.com. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. Neither party is authorized to act as an agent or representative of the other or for or on behalf of the other party in any capacity other than as expressly set forth in this Agreement. Neither party shall in any manner advertise, represent or hold itself (or any of its agents) out as so acting or being authorized so to act, or incur any liabilities or obligations on behalf of, or in the name of, the other party, unless specifically provided for in this Agreement. Moreover, each party shall be solely responsible for the payment of all of its own taxes, assessments and all other similar withholdings from or assessments on any monies paid hereunder or in connection with the transactions contemplated hereby.
(h) Reserved Rights. Motorsport.com reserves the right to change, in whole or in part, the names, logos, presentation and display of the Motorsport.com Member Agreement and the Motorsport.com Membership Program at any time in its sole discretion.