Terms of Service
RACINGAMERICA.TV TERMS OF SERVICE
Last updated: April 2025
This Terms of Service Agreement (“Agreement”) is between you and RTA Media Holdings, LLC (for the purposes hereof, “Producer,” “we” or “us”). The Agreement governs your use of the racingamerica.tv channel (the “Service”), an online platform that allows consumers like you to view content and video programs (“Programs”) from Producer and third parties through branded websites and applications.
PLEASE READ CAREFULLY: SECTION 10 OF THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND PRODUCER, INCLUDING, AMONG OTHER THINGS, AN AGREEMENT TO INDIVIDUALLY ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT CERTAIN DISPUTES BETWEEN YOU AND PRODUCER BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 10.4 ALSO CONTAINS CLASS ACTION AND JURY TRIAL WAIVERS. PLEASE READ SECTION 10 CAREFULLY. BY PURCHASING, ENGAGING WITH, OR OTHERWISE USING THE SERVICE, YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND PRODUCER WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PLEASE IMMEDIATELY CEASE USE OF THE SERVICE.
1. Acceptance
By creating an account, viewing videos, making a purchase, downloading our branded applications, or otherwise visiting or using the Service, you accept this Agreement and consent to contract with us electronically.
If you are an entity other than a natural person, the person who registers the account or otherwise uses the Service must have the authority to bind the entity. In this context, “you” means both the entity and each person who is authorized to access the account.
We may update this Agreement by posting a revised version on our website. By continuing to use the Service, you accept any revised Agreement.
You may terminate the Agreement at any time by deleting your account. We reserve the right to suspend or terminate your account for your breach of the terms hereof. If we delete your account for breach, you may not re-register. In the event of any termination or expiration of the Agreement, the following sections will survive: Section 7 (Disclaimers), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Disputes, Individual Arbitration of Privacy Claims, Class Action and Jury Trial Waiver, and Choice of Law).
2. Accounts
A. Registration: You must create an account to use certain features we offer (e.g., to view a Program). To do so, you must provide an email address. By creating an account, you agree to receive notices from us at this email address.
B. Age Requirements: You may not create an account if you are younger than 16 years of age. By creating an account, you represent that you are at least 16 years of age, and, to the extent required by law, you have the permission of a parent or guardian to create an account and use the Service.
C. Parents and Guardians: By granting your child permission to use the Service through your account, you agree and understand that you are responsible for monitoring and supervising your child’s usage. If you believe your child is using your account and does not have your permission, please contact us immediately so that we can disable access.
D. Account Security: You are responsible for all activity that occurs under your account, including unauthorized activity. You must safeguard the confidentiality of your account credentials. If you are using a computer that others have access to, you must log out of your account after each session. If you become aware of unauthorized access to your account, you must change your password and notify us immediately.
3. Privacy
Please review our Privacy Policy to learn about the information we collect from you when you use the Service, how we use it, and with whom we share it.
By creating an account, you agree that our third-party suppliers will have access to your account information and account activities, such as the viewing and purchase of the Programs, and your contact information. By accessing and using the Services or any Program you agree to the Privacy Policy, which shall be incorporated herein.
4. Program Viewing and Purchase Options
A. Subscriptions and Paid Programs: Unless otherwise stated on our website as part of the Services, we may offer the following purchase options through our branded websites and applications:
Rental: After paying the stated fee, you may stream the Program an unlimited number of times during the stated rental period.
Purchase: After paying the stated fee, you may stream the Program an unlimited number of times; if offered, you may download the Program.
Subscription: For a recurring fee, you may stream the Programs offered within our subscription channel an unlimited number of times during your subscription period. We may add or remove Programs from the channel at any time.
Free: We may make certain Programs and features of the Services free to use.
To make a purchase, you must provide a valid payment method. We may apply taxes, including VAT (value-added tax), to any charges. Prices and other terms of purchase are subject to change. If we provide you access to a Program on a free basis, such access will be deemed a “purchase” for the purpose of this Agreement.
ALL PURCHASES, INCLUDING RECURRING CHARGES, ARE FINAL AND NON-REFUNDABLE.
For the avoidance of doubt, Producer reserves the right to modify the content and Programs and Services available under the various viewing and purchase options or under none of the options listed and for a different price, no price, and/or pursuant to separate terms and conditions.
B. Free trials and Discounts: We may offer free-trial or discounted subscriptions. When a free-trial period ends, your paid subscription begins (unless you have canceled before the end of the free-trial period) and you must pay the full monthly or annual fee. If we provide a discount for the first subscription period, you must pay the discounted fee; in any renewal, you must pay the full fee.
C. Automatic Renewal: To the extent permitted by applicable law, subscriptions automatically renew for the subscription period unless canceled at least thirty (30) days before the renewal date listed in your Billing Settings. Your payment method will be charged at the beginning of each subscription period. Monthly plans renew for 30-day periods. Annual plans renew for one-year periods. You must pay the annual or monthly fee (plus any taxes) when each renewal period starts.
D. How to Cancel Renewal: To pause or cancel a subscription renewal, visit your Billing Settings. Your changes will be applied to your next subscription period. Any cancellation or notice of non-renewal will not affect the current subscription period. We may decline renewals.
E. In-App Purchase: We may allow you to purchase subscriptions within apps you download. When you make such “in-app” purchases, you will be billed by the app platform, not us. To turn off automatic renewal for subscriptions, access your platform’s account settings. Any billing inquiries should be directed to the app platform.
5. Licenses and Intellectual Property
A. License to Programs: Subject to the terms hereof, you have the right to stream and/or (if offered) download for your personal entertainment purposes: (i) Programs that you have rented during the stated rental period; (ii) Programs that you have purchased; (iii) Programs made available within a channel that you have subscribed to during your subscription period; and (iv) Programs that are made available without purchase or subject to other terms and conditions set forth by Producer.
B. Restrictions: You may not resell the Service, any Program, streams or downloads, use any Program for any commercial purpose, redistribute or retransmit any Program, publicly perform or display any Program, or make derivative works from any Program. All rights not expressly granted herein are reserved by Producer.
C. Service: Subject to the terms hereof, we grant you permission to use the Service for the sole purpose of viewing Programs for your personal entertainment. All rights not expressly granted by Producer are reserved.
D. Apps: If you download our branded applications (an “app”) that operates on a third-party platform (e.g., iOS, Roku): (i) you have the right to use such app for your personal, non-commercial use on devices permitted by the platform operator; (ii) as between Producer and you, Producer shall be responsible for the apps and their content and providing any warranty, support, or indemnification with respect to such apps as required by law other than any warranty, support, indemnifications or other obligations provided by platform operator to end users of an app.
E. Your Content; Feedback: To the extent that you submit any content to Producer (i.e. in your profile, a comment, or forum), you grant Producer and our suppliers an irrevocable, worldwide, non-exclusive, royalty-free, perpetual right and license to use, copy, adapt, transmit, distribute, license, and publicly perform and display such content in all media for any purpose whatsoever. Any content submitted must comply with the Acceptable Use Policy set forth in Section 6. If you make suggestions to us or our suppliers on improving our products or services, we may use your suggestions without any compensation to you.
6. Acceptable Use Policy
We may allow you to upload, submit, or publish (collectively, to "submit") content such as videos, recordings, images and text (collectively, "content"). You must ensure that your content, and your conduct, complies with the Acceptable Use Policy set forth in this Section 6. We may (but are not obligated to) monitor your account, content, and conduct, regardless of your privacy settings. We may remove or limit access or availability to any content or account that it considers in good faith to violate this Acceptable Use Policy. If you see any content you believe does not comply with this Agreement, including by violating this Section 6 or the law, you can report it to us.
6.1 Copyright Policy
You may only upload content that you have the right to upload and share. Copyright owners may send us a takedown notice to Legal Notices or support@racingamerica.com if they believe we are hosting infringing materials. We will, in appropriate circumstances, terminate the accounts of persons who repeatedly infringe. You hereby represent and warrant that you have obtained all rights and licenses to the content you upload in order for us to use, display, modify, copy, distribute, license, sublicense, and access such content as contemplated herein and consistent with the license rights granted to Producer.
6.2 Content Restrictions
You may not submit any content that:
Infringes any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.);
Is sexually explicit or promotes a sexual service;
Is defamatory;
Is harassing or abusive;
Contains hateful or discriminatory speech;
Promotes or supports terror or hate groups;
Contains instructions on how to assemble explosive/incendiary devices or homemade/improvised firearms;
Exploits or endangers minors;
Depicts or encourages self-harm or suicide;
Depicts (1) unlawful real-world acts of extreme violence, (2) vivid, realistic, or particularly graphic acts of violence and brutality, (3) sexualized violence, including rape, torture, abuse, and humiliation, or (4) animal cruelty or extreme violence towards animals;
Promotes fraudulent or dubious money-making schemes, proposes an unlawful transaction, or uses deceptive marketing practices;
Contains false or misleading claims about (1) vaccination safety, or (2) health-related information that has a serious potential to cause public harm;
Contains false or misleading information about voting or other areas of importance;
Contains (1) claims that a real-world tragedy did not occur; (2) false claims that a violent crime or catastrophe has occurred; or (3) false or misleading information (including fake news, deepfakes, propaganda, or unproven or debunked conspiracy theories) that creates a serious risk of material harm to a person, group, or the general public; or
Violates any applicable law.
6.3 Code of Conduct
In using the Service, you may not:
Use an offensive screen name (e.g., explicit language) or avatar (e.g., containing nudity);
Act in a deceptive manner or impersonate any person or organization;
Harass or stalk any person;
Harm or exploit minors;
Distribute “spam” in any form or use misleading metadata;
Collect personal information about others without their authorization;
Access another’s account except as permitted herein;
Use or export any of our Services in violation of any U.S. law;
Act in a manner that would subject Producer to industry-specific privacy regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Gramm-Leach-Bliley Act (GLBA);
Engage in any unlawful or unauthorized activity;
Misuse any reporting, flagging, complaint, dispute, or appeals process, including by making groundless, vexatious, or frivolous submissions; or
Cause or encourage others to do any of the above.
6.4 Prohibited Technical Measures
You will not:
Access, scrape, circumvent, download, reproduce, redistribute, frame, mirror, create derivative works from, decompile, reverse engineer, alter, archive, or disassemble any part of the Service or any content except as expressly authorized by Producer or attempt to do any of the foregoing;
Access the Service using any automated means (such as robots, botnets, or scrapers);
Attempt to circumvent any of our security, rate-limiting, filtering, digital rights management measures, or other access restrictions;
Remove or modify any logo, watermark, or notice of proprietary rights embedded on or in the Service or any output thereof without our permission;
Submit any malicious program, script, or code;
Submit an unreasonable number of requests to our servers; or
Take any other actions to manipulate, interfere with, or damage the Service.
6.5 Restricted Users
You may not use the Service if you:
violate this Agreement or any other terms and conditions in connection with the Service or Programs;
are a terror or hate group or a member thereof;
have been designated by a U.S. agency as an entity that we may not contract with (e.g., a Specially Designated National);
are subject to sanctions by a non-U.S. government such that we would be required to block your videos in a substantial number of countries in which we provide service; or
are otherwise prohibited by Producer from accessing or using the Services or Programs.
You may not purchase goods or software services from us if doing so would violate any U.S. sanctions. You hereby make a continuing representation that you are in compliance with the foregoing restrictions.
7. Disclaimers
YOUR USE OF THE SERVICE AND ANY PROGRAM IS AT YOUR OWN RISK. PRODUCER PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. PRODUCER PROVIDES PROGRAMS ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. PRODUCER DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Without limiting the above, Producer makes no representations or warranties concerning:
The availability of the Service in a particular jurisdiction.
The availability of the Service for any particular device, operating system, or browser.
The continued support for a particular feature of the Service.
The viewing quality of any Program. Producer does not guarantee that you will be able to use the Service at all times, or view any Program uninterrupted, error-free or displayed at any particular resolution. The quality of your viewing experience depends on a number of factors, including your viewing device and the quality of your Internet connection.
The continued availability of any Program or the availability of particular Program within a subscription channel. Programs may be withdrawn at any time without notice.
Producer may provide links to other third-party websites. Producer is not responsible for the content of, or any interactions or transactions that may take place on or through, any such website.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, PRODUCER, ITS PARENT, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, AND PARTNERS SHALL NOT BE LIABLE FOR (I) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES; (II) DAMAGES RELATING TO ANY DISPUTE BETWEEN YOU AND ANOTHER SERVICE USER; OR (III) DAMAGES EXCEEDING THE GREATER OF USD $100 OR THE AMOUNTS PAID BY YOU TO PRODUCER OVER THE 12 MONTHS PRECEDING THE FILING OF YOUR CLAIM.
The foregoing limitations apply to all claims, whether based on warranty, contract, tort, or any other legal theory, whether or not Producer has been informed of the possibility of such damage, and whether a remedy set forth herein is found to have failed its essential purpose. Some jurisdictions may not allow the exclusion of certain warranties or the exclusion or limitation of liability as set forth above, so these limitations above may not apply to you.
9. Indemnification
You shall indemnify, defend, and hold harmless Producer and its parent, directors, officers, employees, representatives, consultants, agents, suppliers, and partners from any liability, claim, demand, damages, losses, and costs (including attorneys’ fees) arising from: (i) your unauthorized use of the Service or any Program; (ii) your breach of this Agreement or violation of any law or third-party right; (iii) your negligence; or (iv) any content that you upload or submit to us.
10. Disputes, Individual Arbitration of Privacy Claims, Class Action and Jury Trial Waiver, and Choice of Law
The terms of this Section 10 apply to all disputes between you and Producer and/or any third party operating on Producer’s behalf (including, but not limited to, any employees, agents, affiliates, service providers, suppliers, or vendors).
10.1 Choice of Law
Any dispute arising out of or relating to this Agreement or your use of the Services will be governed by the laws of North Carolina and the United States of America (with respect to matters subject to federal jurisdiction such as copyright), without regard to principles of conflicts of law. The arbitration agreement set forth in Section 10.4 will be governed by the Federal Arbitration Act.
10.2 Choice of Venue for Litigation
Except for a Covered Privacy Claim (defined below), you and Producer agree that any dispute, controversy, or claim, arising out of or relating in any way to these Terms of Service, your access to or use of our Services, any communications you receive relating to our Service, or any other transaction involving you and Producer, including any dispute that arose before this or any prior agreement must be commenced in either a state or federal court in North Carolina; you consent to the exclusive jurisdiction of those courts. IN ANY SUCH ACTION, PRODUCER AND YOU IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY JURY.
10.3 Pre-Arbitration Informal Dispute Resolution
Producer is always interested in resolving disputes amicably and efficiently. So, before you or Producer commence an arbitration (or initiate an action in small claims court), the complaining party must contact the other party to explain its complaint and participate in an informal dispute resolution conference (either by phone or videoconference), in a good faith effort to resolve it without the need for arbitration. If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
A. Dispute Notice: The party initiating a claim must give notice to the other party in writing of its intent to initiate an informal dispute resolution conference (the “Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Producer should be sent by mail to RTA Media Holdings, LLC Attn: Legal Counsel, PO Box 77268, Charlotte, NC 28271 with an email copy to Legal Notices. Notice to you will be sent to the email address associated with your account. It is your responsibility to keep your contact information up to date. The Notice must include: (1) the name, telephone number, mailing address, email address of the complaining party and the email address associated with any applicable account; (2) the name, telephone number, mailing address, and email address of counsel, if any; and (3) a description of the dispute.
B. Informal Dispute Resolution Conference: The informal dispute resolution conference shall be individualized such that a separate conference must be held each time either party initiates a dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree otherwise. Multiple individuals initiating a dispute cannot participate in the same informal dispute resolution conference unless all parties agree. In the time between a party receiving the Notice and the informal dispute resolution conference, nothing in this section shall prohibit the parties from engaging in informal communications to resolve the dispute. Engaging in the informal dispute resolution conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution conference process required by this section.
10.4 Binding Individual Arbitration Agreement
A. Overview: Arbitration provides a private dispute resolution process that is usually more streamlined and less formal than litigation. In an arbitration, your rights will be determined by a neutral third party called an arbitrator, and not a judge or jury. Both you and Producer are entitled to fundamentally fair proceedings at every stage of the arbitration, including the hearing. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
B. Arbitration Agreement: You and Producer agree that any Covered Privacy Claim (defined herein) arising out of or relating to this Agreement or the Services will be resolved by binding individual arbitration (the “Arbitration Agreement”). A “Covered Privacy Claim” means any dispute arising out of or relating to (a) Producer’s collection, use, storage, analysis, or transfer of your Personal Information; (b) an alleged breach of our Privacy Policy; (c) an alleged data breach or unauthorized disclosure of data or content; or (d) an allegation that Producer failed to comply with any privacy or data security right or obligation. “Personal Information” means any information about you, including your registration information (e.g., email address), payment information, location information, device information, biometric identifiers or information, IP address, and your activities (including viewing and search history) and any other information considered “Personal Information” under the Privacy Policy or applicable law, but does not include content that you upload (except to the extent the content contains personal information about you). You and Producer further agree: (i) these Terms of Service memorialize a transaction in interstate commerce; (ii) the Federal Arbitration Act (9 U.S.C. § 1, et seq.) governs the interpretation and enforcement of this section (notwithstanding the choice-of-law provision contained above); and (iii) this section shall survive termination of these Terms of Service.
Administrator and Applicable Rules: Any arbitration will be administered by the National Arbitration & Mediation ("NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures (the “NAM Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Supplemental Rules for Mass Arbitration Filings (the “NAM Mass Filing Rules”), and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum.
Arbitration Proceedings: If the informal dispute resolution process described above does not resolve satisfactorily within 45 days after receipt of the Notice, you and Producer agree that either party shall have the right to finally resolve the Covered Privacy Claim through binding arbitration. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). A Request to Producer should be sent by mail to RTA Media Holdings, LLC Attn: Legal Counsel PO Box 77268, Charlotte, NC 28271 and a copy by email to Legal Notices. A Request to you will be sent to your email address associated with your account. It is your responsibility to keep your contact information up to date. The Request must include: (1) the name, telephone number, mailing address, email address of the party seeking arbitration and the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the informal dispute resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. Upon receipt of a Request, the responding party may assert any counterclaims it may have against the complaining party. The arbitration will be conducted in the English language by a single arbitrator. The arbitration hearing (if any) will be held by videoconference, unless either party requests an in-person hearing and the arbitrator agrees. Unless you and Producer otherwise agree, an in-person hearing will be held in the county where you reside or as determined by the arbitrator (in the case of Batch Arbitration). You and Producer agree that at least 14 days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which they otherwise would be entitled and shall pay the offering party’s costs from the time of the offer.
- Batch Arbitration: To increase the efficiency of administration and resolution of arbitrations, you and Producer agree that in the event that there are 10 or more individual Requests of a substantially similar nature filed against Producer by or with the assistance of the same law firm, group of law firms, or organizations, within a 90-day period (or as soon as possible thereafter), then NAM will (1) administer the arbitration demands in batches of 100 Requests per batch (or, if between 10 and 99 individual Requests are filed, a single batch of all those Requests, and, to the extent there are less than 100 Requests remaining after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief.
To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM must appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree that the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Producer.
You and Producer agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision may in no way be interpreted as authorizing a class, collective, and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
Expiration: You and Producer agree that any arbitration proceeding must be initiated within the applicable statute of limitation for the underlying claim or controversy, or it will be forever time barred. Likewise, you and Producer agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Arbitrator: The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from NAM’s roster of consumer arbitrators, provided that if the Batch Arbitration process is triggered, NAM will appoint the arbitrator for each batch. If the parties are unable to agree upon an arbitrator within 35 days of delivery of the Request, then NAM will appoint the arbitrator in accordance with NAM Rules.
Authority of Arbitrator: The arbitrator shall have exclusive authority to resolve any Covered Privacy Claim, including, without limitation, disputes regarding the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except that all disputes regarding the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of that subsection is unenforceable, illegal, void or voidable, or that that such subsection has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
Fees: Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM Rules. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Discovery: Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
Communications with the Arbitrator: Whenever communicating with the arbitrator, the parties must include each other – for example, by including the other party on a telephone conference call and copying the other party on any written submissions, such as letters or emails. To the extent practicable, conferences with the arbitrator will take place by telephone conference call or email. Ex parte communications are not permitted with any arbitrator.
Confidentiality: You and Producer agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
10.5 Waiver of Jury Trials, Class Actions, and Class Arbitrations
A. Waiver of Jury Trial: YOU AND PRODUCER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
B. Waiver of Class and Other Non-Individualized Relief: YOU AND PRODUCER AGREE THAT, EXCEPT AS SPECIFIED IN THIS SECTION 10, (A) EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS, AND (B) ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
C. Additional Terms: Subject to the Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this Section is intended to, nor shall it, affect the terms and conditions under the Section entitled “Batch Arbitration” above. Notwithstanding anything to the contrary in the Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this paragraph are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Producer agree that that particular claim or request for relief (and only that particular claim or request for relief) will be severed from the arbitration and may be litigated in the state or federal courts located in the State of North Carolina. All other disputes shall be arbitrated or litigated in small claims court. Neither you nor Producer are prevented from participating in a class-wide settlement of claims.
10.6 Exceptions
Notwithstanding the above, each party has the right to bring a dispute in a small claims court of competent jurisdiction, if such claims qualify and remain in small claims court. If one party files an arbitration that could be litigated in such a small claims court, the responding party may request that the dispute proceed in small claims court. If the responding party requests to proceed in small claims court before the appointment of the arbitrator, the arbitration shall be administratively closed. If requested after the appointment of the arbitrator, the arbitrator shall administratively close the arbitration so long as the proceedings are at an early stage and no hearing has occurred.
Either party may also seek injunctive relief, such as a temporary restraining order or preliminary injunction, in a court of competent jurisdiction. Seeking such relief does not waive a party’s ability to arbitrate under the Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph will automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action.
10.7 Modification
You and we agree that Producer retains the right to modify this Arbitration Agreement in the future. Any such changes will be posted here and you should check for updates regularly. Notwithstanding any provision in these Terms of Service to the contrary, we agree that if Producer makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within 30 days of such change becoming effective by writing to Producer at support@racingamerica.com, your continued use of the Service, including the acceptance of products and Services offered by Producer following the posting of changes to this Arbitration Agreement, constitutes your acceptance of any such changes. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate disputes arising out of or relating in any way to your access to or use of the Service, the provisions of this Arbitration Agreement as of the date you first accepted the Terms of Service (or accepted any subsequent changes to these Terms of Service) remain in full force and effect.
11. General Provisions
A. No Waiver: Producer reserves all rights not expressly granted herein. Producer’s rights and remedies are cumulative. The failure of Producer to exercise or enforce any term of this Agreement will not constitute a waiver of such term.
B. Provisions Severable: Except as provided in Section 10.4, if any term of this Agreement is held invalid or unenforceable, that term will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining terms will remain in full force and effect.
C. No Third Parties: No third parties shall have any rights under this Agreement, except that Vimeo.com, Inc. is a third-party beneficiary of this Agreement and may enforce the terms herein against you as permitted by Producer, and indemnified parties may enforce indemnification rights.
D. Force Majeure: Producer shall not be liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; natural disasters; wars; civil or military disturbances; sabotage; strikes; epidemics; riots; power failures; computer failure; loss or malfunction of utility, transportation, computer (hardware or software) or telephone communication service; accidents; labor disputes, acts of civil or military authority; governmental actions; or inability to obtain labor, material, equipment or transportation.
E. Entire Agreement: This Agreement sets forth the entire understanding between you and Producer concerning your use of the Service and supersedes all prior agreements regarding the same. This Agreement may only be modified by us. Any changes will be posted to the Producer website and will apply prospectively.
F. Contact Us: If you have any support questions, please contact us at support@racingamerica.com. You must send any notices of a legal nature to us at:
RTA Media Holdings, LLC, Attn:
PO Box 77268, Charlotte, NC 28271
With a copy to: Legal Notices Email and support@racingamerica.com