1. Definitions. JAYSKI.com is operated by Gerard “Jay” Adamczyk and hosted by NASCAR Digital Media, LLC (“NDM”) on the NASCAR Digital Media Network. As used in this document, "JAYSKI.com Parties" means Gerard “Jay” Adamczyk, Jr., Amanda Brooks, Scott Page, Jayski.com, NDM, and each of their respective parent and affiliates and the officers, directors, members, employees, advisors, subcontractors and agents of the foregoing. As used in this document, (i) "User" means a JAYSKI.com user that accesses the JAYSKI.com web pages and associated applications.
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 JAYSKI.com and all charges related thereto. In addition, certain features that make up JAYSKI.com (e.g., JAYSKI.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 the JAYSKI.com Parties do not control such third parties or their products or services and that the JAYSKI.com Parties shall not be responsible for such third parties or their products or services.
5. Intellectual Property Rights of the JAYSKI.com Parties. JAYSKI.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 JAYSKI.com are copyrighted as a collective work under the United States copyright laws. The JAYSKI.com Parties (and/or each of their 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 JAYSKI.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 the applicable JAYSKI.com Party 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. The JAYSKI.com Parties and each of their 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. JAYSKI.com and its logos, are trademarks of Gerard Adamczyk. All rights reserved. All other trademarks appearing on JAYSKI.com are the property of their respective owners.
Please choose carefully the Materials you post or otherwise submit to JAYSKI.com and/or that you provide to other Users. Except with respect to any personal information (e.g., name, email address) that you submit as part of submitting a comment or request to JAYSKI.com (which shall be maintained in accordance with the JAYSKI.com Privacy Statement), your submissions are non-confidential and the JAYSKI.com Parties have no obligation to maintain the confidentiality of any Materials you submit. Without limiting the generality of the foregoing, Materials you choose to post and/or upload to JAYSKI.com may be viewed by other Users, so please do not post information, content or other Materials to which you do not wish other Users to have access.
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 JAYSKI.com Parties. The JAYSKI.com 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 JAYSKI.com Parties do not verify, endorse or otherwise vouch for the contents of any submission. Users may be held legally liable for the contents of their submissions, and may be held legally liable if their submissions 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. The JAYSKI.com Parties reserve the right, in each of their sole discretion, to reject, to refuse to post and/or to remove any posting by you, for any or no reason, with or without prior notice, and without liability on the part of the JAYSKI.com Parties.
The JAYSKI.com Parties do 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 the JAYSKI.com Parties 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 JAYSKI.com by electronic mail or otherwise, the Proposals shall be deemed, and shall remain, the property of the JAYSKI.com Parties. None of the Proposals shall be subject to any obligation on the part of the JAYSKI.com Parties to use the Proposals or keep them confidential and none of the JAYSKI.com Parties shall be liable for any use or disclosure of any Proposals. the JAYSKI.com Parties 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.
7. Advertisements and Promotions.
The JAYSKI.com Parties may run advertisements and promotions from third parties on JAYSKI.com. Your business dealings or correspondence with, or participation in promotions of, advertisers other than the JAYSKI.com Parties, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. The JAYSKI.com Parties are 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 JAYSKI.com.
8. Disclaimer of Warranty; Limitation of Liability.
A. YOU EXPRESSLY AGREE THAT YOUR USE OF JAYSKI.COM IS AT YOUR SOLE RISK. NEITHER THE JAYSKI.COM PARTIES NOR ANY OF THEIR RESPECTIVE THIRD-PARTY CONTENT PROVIDERS, VENDORS, ADVERTISERS OR LICENSORS WARRANT THAT JAYSKI.COM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF JAYSKI.COM, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED BY OR THROUGH JAYSKI.COM.
C. USER SPECIFICALLY ACKNOWLEDGES THAT THE JAYSKI.COM PARTIES AND THEIR RESPECTIVE THIRD-PARTY CONTENT PROVIDERS, VENDORS, ADVERTISERS 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 THE USER.
D. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL ANY JAYSKI.COM PARTY, OR ITS PRESENT OR FUTURE PARENTS OR AFFILIATED COMPANIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING JAYSKI.COM, INCLUDING, WITHOUT LIMITATION, THIRD-PARTY CONTENT PROVIDERS, VENDORS, ADVERTISERS 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 JAYSKI.COM OR ANY ALLEGED FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, OR DELAY IN SERVICE, OPERATION, OR TRANSMISSION OF JAYSKI.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 JAYSKI.COM. USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION APPLY TO ALL CONTENT AND FEATURES COMPRISING JAYSKI.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 A JAYSKI.COM PARTY, OR ITS PRESENT OR FUTURE PARENTS OR AFFILIATED COMPANIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING JAYSKI.COM, INCLUDING, WITHOUT LIMITATION, THIRD-PARTY CONTENT PROVIDERS, VENDORS, ADVERTISERS 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 JAYSKI.COM PARTY, OR ITS PRESENT OR FUTURE PARENTS OR AFFILIATED COMPANIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING JAYSKI.COM, INCLUDING, WITHOUT LIMITATION, THIRD-PARTY CONTENT PROVIDERS, VENDORS, ADVERTISERS AND LICENSORS ARE NOT LIABLE FOR ANY ACTUAL OR ALLEGED DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OF JAYSKI.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.
9. Indemnification. You shall defend, indemnify and hold harmless the JAYSKI.com 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 JAYSKI.com by You, and/or arising out of Your other acts or omissions. The JAYSKI.com Parties reserve the right to take over the exclusive defense of any claim for which the JAYSKI.com Parties are entitled to indemnification under this Section. In such event, you shall provide the JAYSKI.com Parties with such cooperation as is reasonably requested by the JAYSKI.com Parties.
11. Governing Law.
The content, data, video, and all other material and features on JAYSKI.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 JAYSKI.com, and/or the provision of content, services, and/or technology on or through JAYSKI.com shall be governed by and construed exclusively in accordance with the laws and decisions of the State of North Carolina 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 North Carolina shall be the exclusive forum for any disputes.
12. 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 JAYSKI.com, and/or the provision of content, services, and/or technology on or through JAYSKI.com, the JAYSKI.com Parties 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 JAYSKI.com by email to [email protected]. To the extent that JAYSKI.com has your contact information, it will send any such notice to you by U.S. Mail, or otherwise to your email address. The JAYSKI.com Parties 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. The JAYSKI.com Parties and you shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After 30 days, the JAYSKI.com Parties 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 JAYSKI.com.
For residents outside the United States, arbitration shall be initiated in Mecklenburg County, North Carolina, and the JAYSKI.com Parties and you agree to submit to the personal jurisdiction of any state or federal court in or for Mecklenburg County, North Carolina, 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, the JAYSKI.com Parties 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 JAYSKI.com Party, present or future parent or affiliated company of the JAYSKI.com Parties, or any person or entity involved in creating, producing or distributing JAYSKI.com, including, without limitation, third-party content providers, vendors, advertisers and licensors, to the extent that any such claims arise out of your access to, and/or use of JAYSKI.com, and/or the provision of content, services, and/or technology on or through JAYSKI.com.
13. 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 or near Mecklenburg County, North Carolina.
The terms of this provision will also apply to any claims asserted by you against any JAYSKI.com Party, present or future parent or affiliated company of any JAYSKI.com Party, or any person or entity involved in creating, producing or distributing JAYSKI.com, including, without limitation, third-party content providers, vendors, advertisers and licensors, to the extent that any such claims arise out of your access to, and/or use of JAYSKI.com, and/or the provision of content, services, and/or technology on or through JAYSKI.com.
Neither the JAYSKI.com Parties 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.