THE LEGAL AGREEMENT SET OUT BELOW GOVERNS YOUR USE OF THE ROCK GYM PRO SOFTWARE AND, IF APPLICABLE, ROCK GYM PRO PREMIUM SERVICES. TO AGREE TO THESE TERMS, CHECK “I HAVE READ AND AGREE”. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CHECK “I HAVE READ AND AGREE” AND DO NOT USE THE ROCK GYM PRO SOFTWARE AND/OR, IF APPLICABLE, THE ROCK GYM PRO PREMIUM SERVICES. YOUR USE OF THE ROCK GYM PRO SOFTWARE, AND IF APPLICABLE, THE ROCK GYM PRO PREMIUM SERVICES INDICATES YOUR AGREEMENT TO THE TERMS OF SERVICE HEREIN AS MAY FROM TIME TO TIME BE AMENDED.
You have selected to use the Rock Gym Pro Software, and if applicable, the Rock Gym Pro premium services. As used herein, “Rock Gym Pro Software” includes the Rock Gym Pro software application that can be downloaded from the internet and any related internet based services that provide the required functionality for the Rock Gym Pro Software. The Rock Gym Pro premium services, include (1) customer support via telephone, email, and remote desktop (2) Remote backup of your Rock Gym Pro database, (3) Online document storage and retrieval service, (4) use of Rock Gym Pro digital waiver stations, (5) Use of the Rock Gym Pro online booking and transaction system and such other services as Rock Gym Pro may from time to time add. Both the use of the Rock Gym Pro Software and the Rock Gym Pro premium services are referred to herein as (the “Service”). The Service is provided to you under the terms and conditions set forth in these Terms and Conditions of Use (“Agreement”).
1. Rock Gym Pro Software GRANT OF LICENSE.
The Rock Gym Pro Software is licensed as follows: (1) RGP Development, LLC grants you the right to install and use copies of the Rock Gym Pro Software on your computer running a validly licensed copy of the operating system for which the Rock Gym Pro Software was designed and (2) You may also make copies of the Rock Gym Pro Software as may be necessary solely for backup and archival purposes but not for use by any person other than You.
1a. Description of Rights and Other Limitations
You must not remove or alter any copyright notices on any and all copies of the Rock Gym Pro Software. You may not distribute copies of the Rock Gym Pro Software to third parties. You may not reverse engineer, decompile, or disassemble the Rock Gym Pro Software except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not rent, lease, or lend the Rock Gym Pro Software. You must comply with all applicable laws regarding use of the Rock Gym Pro Software.
2. Description of Services
“Rock Gym Pro” is a trademarked and copyrighted product owned by RGP Development, LLC, an Oregon limited liability company (hereinafter “Rock Gym Pro”). Subject to Rock Gym Pro’s acceptance of Your registration and Your compliance with the terms and conditions of this Agreement, Rock Gym Pro will grant You a non-exclusive license to use the Rock Gym Pro Software only (the “Basic Service”). For a fee, Rock Gym Pro also offers a premiumservice. If You subscribe to the premium service, (a) Rock Gym Pro will establish one (1) online document storage and backup account in Your name on the Rock Gym Pro servers (the “Account”); (b) Rock Gym Pro will allow You to retrieve your stored documents and Your backed-up data files from Your Account during the time that you are not in default on any payments due to Rock Gym Pro; (c) the use of Rock Gym Pro’s Digital Waiver Stations (the “Premium Service”) and (d) such additional functionality and database capacity as may be activated in the Rock Gym Pro Software. Both the Basic Service and the Premium Service are referred to herein as the “Service.” In Your use of the Service, you are responsible for providing the following: (i) all equipment, such as a computer and modem, necessary to access the World Wide Web; (ii) Your own access to the World Wide Web; and (iii) payment of all telephone or other fees associated with such access. Rock Gym Pro provides an extensive range of services. It is possible that one or more of these services may not be available at certain times. See the Rock Gym Pro home page to get current status on the services being offered by Rock Gym Pro.
3. Conditions of Use
You are solely responsible for the content of all data You store or retrieve from, or attempt to store or retrieve from, Your Account and for all transmissions by You from and to Your Account. Your use of the Service is subject to all applicable local, state, national and international laws and regulations. You will: (a) not use the Service for any illegal purposes; (b) not use the Service to store, retrieve, transmit or view any file, data, image or program that contains: (i) any illegal pictures, materials or information; (ii) any harassing, libelous, abusive, threatening, harmful, vulgar, pornographic, obscene or otherwise objectionable material of any kind or nature; (iii) any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation; (iv) any code or material that violates the intellectual property rights of others; (v) any Windows temporary files of any kind (including, without limitation, any *.p or ~*.* files); or (vi) any viruses, worms, “Trojan horses” or any other similar contaminating or destructive features; (c) comply with United States and other applicable law regarding the exportation and re-exportation of any data or other materials from the United States or other jurisdictions through the Service; (d) comply with all regulations, policies and procedures of networks through which You access and use the Service; and (e) not access or attempt to access any Service account for which You have no access authorization or duplicate, modify, distribute or display any of the data or files from any such account. Rock Gym Pro is an Online Storage and Backup service solely to back up Your Rock Gym Pro data, and, if applicable, digital waivers using the Rock Gym Pro digital waiver stations. Rock Gym Pro is not responsible for any business interruptions that may be caused due to the use of the Service or the backup process.
4. Registration Information/Credit Card Charges
You authorize a recurring monthly or annual charge to your credit card in exchange for use of the Rock Gym Pro Premium service as indicated by published standard plans or a customized quote provided for your specific use. You also agree that the enrollment for the next service period is automatic. Refunds on a pro-rated basis are issued only for monthly plans. When yearly subscriptions are canceled before the subscriptions end, refunds are issued based on a pro-rated calculation of the subscription charges at the monthly rate for the plan, for the actual number of days the account was subscribed (the number of days between the most recent yearly charges and the cancellation date). If the calculated refund amount exceeds the yearly subscription rate, then no refund is issued.
Rock Gym Pro will not issue any pro-rated refunds for the remaining period during the month when an account with a monthly subscription plan (“current plan”) is downgraded to a smaller plan (“new plan”) (a plan that costs less per month than the current plan) during the middle of a month. However the rate applicable to the new plan will automatically be charged starting the first of the subsequent month.
4a. Use of IP Addresses
An IP address is a number that’s automatically assigned to your computer whenever you’re surfing the Web. Rock Gym Pro may collect IP addresses for the purposes of system administration, to audit the use of our site and services. We can and will use IP addresses to identify a user when we feel it is necessary to enforce compliance with our house rules or terms of service or to protect our service, site, customers, or others. Some services and emails sent from Rock Gym Pro, such as registration related, may display IP addresses along with the message.
4c. Other Data
Rock Gym Pro will also collect the following information from your database: your location, database name, Rock Gym Pro error reports, computer name, software version, and facility name. If you use the Rock Gym Pro digital waiver services, Rock Gym Pro will, in addition, collect information contained on any such waiver forms for storage purposes only.
5. Account Access
After You accept this Agreement and Your registration has been accepted by Rock Gym Pro, You will receive a confirmation by email that your Account has been established. This confirmation email will contain the required Activation Keys to utilize your Account. You are solely responsible for any consequences arising out of Your failure to maintain the confidentiality of Your Account Activation Key. You will notify Rock Gym Pro of any unauthorized use or other breach in security of Your Account immediately after You learn of the same.
6. Encryption and Encryption Key
Your Rock Gym Pro database and stored documents are encrypted through a private encryption key that you selected when creating your Rock Gym Pro database. Rock Gym Pro personnel do not have access to this user defined key as it is not stored on the Rock Gym Pro servers. It is very important that you store the key in a safe place and maintain this key in printed form for easier reference. Any data backed up using Rock Gym Pro can only be retrieved using this key, if you forget or misplace this key then your data may not be retrievable. Rock Gym Pro is NOT responsible for loss of data arising as a result of such cases.
The private key based encryption process encrypts the data contained within the file and not the file-name itself.
If you are installing the Rock Gym Pro application on a fresh machine, re-enter the encryption key correctly. IF YOU ENTER AN INCORRECT ENCRYPTION PASSWORD KEY, YOUR DATA WILL NOT BE RETRIEVED CORRECTLY.
7. Security of Stored Data and Files
Rock Gym Pro will endeavor to restrict access to the data and files You store or retrieve from Your Account to persons accessing such data and files through use of Your Account or Password. However, it may be necessary to access users’ accounts for support requirements. It may also be necessary to access users’ accounts to verify that the accounts are not being misused, especially with respect to digital copyright laws and resource misuse checks.
8. Content of Stored Data and Files
You are solely responsible for (a) obtaining sufficient rights to the content of all data and files stored by You on Rock Gym Pro’s servers and (b) ensuring that such content does not include any of the items listed in paragraph 2(b) above. Rock Gym Pro normally does not review, inspect, edit or monitor any content, data or files stored by You or any other user of the Service, including, without limitation, for viruses, worms, “Trojan horses” or any other similar contaminating or destructive features. However, Rock Gym Pro reserves the right to examine the content of the online storage and backup account. In addition, Rock Gym Pro may be asked to provide user data and logs as a part of a legal issue in a third party case by a court order or a subpoena, discovery request or other lawful process that may override privacy rules. Rock Gym Pro may comply with these subpoenas or court orders with or without notice to the subscriber. Rock Gym Pro reserves the right to refuse, remove or disable access to any data or files stored on Rock Gym Pro’s servers with immediate effect that Rock Gym Pro learns may be illegal, may violate the terms of Paragraph 2 above or may violate the rights of any third party.
8a. Backups of your data
As part of the Premium Service, Rock Gym Pro offers an online backup service. Your use of this service is optional. Please note that You are responsible for configuring Your Rock Gym Pro software for proper backup of the Rock Gym Pro data. You are also responsible for confirming that the online backup ran as schedule.
Rock Gym Pro maintains regular backups of data to recover from software or hardware failures. Rock Gym Pro keeps a copy of data at a geographically distanced data center from the primary location for additional protection.. However, we advise you to audit your logs for the desktop application completely including individual entries for files and total count periodically to ensure that the backups are taking place successfully and in case of errors, take corrective action. Rock Gym Pro requires periodic review, at least on a weekly basis to verify the execution of backups as backups could fail for any number of reasons including but not limited to, internet connectivity issues, authentication issues, firewalls, blocks by anti-virus programs and system configuration changes to the computer, etc. Also, it is important to upgrade the Rock Gym Pro software periodically to the most recent version for improved reliability and functioning of the backup application. Version Number (if applicable) and Release Dates are posted on respective product download pages. Out of date versions of the application may lead to unreliable functioning of the application.
8b. Use of Digital Waiver Stations.
As part of the Premium Service, Rock Gym Pro provides a convenient method for obtaining and storing waivers of liability in a purely digital format, without the need for paper files. Digital waivers of liability are stored remotely by Rock Gym Pro for You separately from Your backup data. Although Rock Gym Pro may from time to time provide You with standardized digital waivers of liability for You to use, the laws regarding waivers of liability vary from state to state. Rock Gym Pro is not a provider of legal services or legal advice and it is important that You consult with Your own lawyer to determine the legal enforceability of the waiver of liability form that You use. In particular, You, not Rock Gym Pro, are responsible for determining the legal enforceability of any digital waivers of liability, including its compliance with The Electronic Signatures in Global and National Commerce Act (ESIGN, Pub. L. No. 106-229, 14 Stat. 464, 15 U.S.C. ch. 96) and the Uniform Electronic Transactions Act (UETA) as the UETA may be adopted in Your state. You further agree, in addition to the provisions in paragraphs 8, 9 and 10, and without limiting the scope of those paragraphs, to hold Rock Gym Pro, its parents, subsidiaries, affiliates, agents, officers, directors, members, employees, successors and assigns, harmless from any claim or demand, including reasonable attorneys’ fees and costs, that may arise in connection with Your use of the digital waiver station service and storage of digital waivers.
9. Disclaimer of Warranties
The transmission, storage, viewing and retrieval of data and files through the World Wide Web is subject to a variety of conditions that make such transmission, storage, viewing and retrieval potentially unreliable. ACCORDINGLY, YOUR USE OF THE ROCK GYM PRO SOFTWARE, YOUR ACCOUNT AND THE SERVICE IS AT YOUR SOLE RISK. THE ROCK GYM PRO SOFTWARE AND YOUR ACCOUNT AND THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. ROCK GYM PRO, ON BEHALF OF ITSELF AND ITS DISTRIBUTORS, ADVERTISERS AND SUPPLIERS, MEMBERS AND SHAREHOLDERS, DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO YOUR ACCOUNT AND THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT). YOUR ACCOUNT AND THE SERVICE MAY NOT MEET YOUR NEEDS. ROCK GYM PRO MAKES NO REPRESENTATION OR WARRANTY: (A) THAT YOUR ACCOUNT OR THE SERVICE WILL MEET YOUR NEEDS; (B) THAT ACCESS TO YOUR ACCOUNT OR THE SERVICE WILL BE TIMELY, ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE; (C) THAT THE DATA AND FILES YOU STORE IN YOUR ACCOUNT WILL NOT BE LOST OR DAMAGED; (D) THAT THE DATA ON YOUR DESKTOP OR SERVER WILL NOT BE LOST OR DAMAGED; OR (E) THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. YOU ACKNOWLEDGE THAT ANY MATERIAL OR DATA YOU RETRIEVE THROUGH THE USE OF THE SERVICE IS DONE AT YOUR CHOICE AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE RETRIEVAL OF SUCH MATERIAL OR DATA.
10. Limitations of Liability
IN NO EVENT SHALL ROCK GYM PRO, ITS ADVERTISERS, SUPPLIERS, MEMBERS, SHAREHOLDERS OR EMPLOYEES HAVE ANY OBLIGATION OR LIABILITY TO YOU FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR DATA OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, REVENUE OR PROFITS OR BUSINESS INTERRUPTION) OR OTHER PECUNIARY LOSS ARISING OUT OF YOUR USE OR INABILITY TO USE YOUR ACCOUNT OR THE SERVICE OR YOUR LOSS OF DATA OR FILES STORED THEREIN AND YOU HEREBY RELEASE ROCK GYM PRO, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, THAT YOU MAY INCUR AS A RESULT OF USING THE SERVICES.
You will defend, indemnify and hold Rock Gym Pro, its parents, subsidiaries, affiliates, agents, officers, directors, members, employees, successors and assigns harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of (a) Your use of the Rock Gym Pro Software, Your Account and/or the Service, (b) any data files and content stored by the Rock Gym Pro Software, You, in Your Account and otherwise on the Rock Gym Pro servers and (c) any violation of this Agreement by You.
Either you or Rock Gym Pro may terminate this Agreement with or without cause at any time by giving notice of such termination to the other in the manner described in Paragraph 12 below. Further, if Rock Gym Pro believes that You have violated Your obligations under this Agreement, Rock Gym Pro may, at its option and in addition to its other remedies, immediately and without notice, suspend Your Account, remove and destroy data and files stored by You on Rock Gym Pro’s servers and/or terminate this Agreement. Rock Gym Pro will not be liable to You or any third party for any suspension or termination of Your Account or the Service. Should You object to any terms and conditions of this Agreement or any subsequent modifications thereto or become dissatisfied with the Service in any way, Your only recourse is to immediately: (a) discontinue use of the Service; (b) terminate this Agreement; and (c) notify Rock Gym Pro of such termination, and (d) destroy all copies of the Rock Gym Pro Software in your possession. Upon any termination of this Agreement, Rock Gym Pro will provide you with a software program to remove your data from the Rock Gym Pro servers (the “Removal Tool”) by sending the Removal Tool to Your email address that You have provided to Rock Gym Pro. You will have 14 days from the date of the termination notice to download your stored files from the Rock Gym Pro servers using the Removal Tool. Rock Gym Pro will remove your stored data files from main storage and archives within fourteen (14) calendar days from the date of the termination notice. Paragraphs 7, 8, 9, 10, 11, 12, 13, 14 and 15 of this Agreement (and any other provision that can be reasonably construed to survive termination) will survive termination of this Agreement.
Any notice under this Agreement given by Rock Gym Pro to You will be deemed to be properly given if sent by email to Your email address as set forth in the Registration Information, or by a startup screen that starts before Your next use of the Service or by written communication mailed by first class U.S. mail to Your address on record in the Registration Information or by a display about the changed information in the agreement on the index page if the change is generic. It is important that you maintain a correct working email address and update it if necessary to be able to receive Rock Gym Pro’s communication. It is also important that your email system is able to receive emails from RockGymPro.com into your inbox. Any notice under this Agreement given by You to Rock Gym Pro will be deemed to be properly given if received by email sent to Rock Gym Pro’s Customer Service at support@RockGymPro.com. To cancel your Account, you must email a cancellation request to email@example.com. On successful cancellation of account by the user, or by Rock Gym Pro due to various reasons including non-payment for the services, user data files will be removed within fourteen (14) days from cancellation date from main storage as well as archives.
You are solely responsible for retrieving all of your data and documents stored by Rock Gym Pro within fourteen (14) days of notification of cancellation of Your account using the Removal Tool or Your documents and data will be deleted forever. Rock Gym Pro may, in its sole and unfettered discretion, delay the cancellation related to non-payment for the services and provide a grace period of up to 60 days from due date to allow for the customer to arrange for payments. However, no Rock Gym Pro services will be provided during any grace period.
This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (a) such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision and (b) such invalidity or unenforceability will not affect any other provision of this Agreement.
15. Modifications to this Agreement
The terms and conditions of this Agreement may be changed by Rock Gym Pro from time to time. Upon any such change, Rock Gym Pro will notify You of such change in accordance with paragraph 12 above and post an updated version of this Agreement on Rock Gym Pro’s Rock Gym Pro website located at http://www.RockGymPro.com. Your use of any Services after such notification will constitute Your acceptance of such changed terms and conditions.
Your right to use the Service is personal to You, and You will not assign any of Your rights, obligations or interest in this Agreement or Your Account. Without limiting the foregoing, this Agreement is binding upon and inures to the benefit of the parties and their respective successors and assigns. Rock Gym Pro’s failure to insist upon or enforce strict performance of any provision or right of this Agreement will not be construed as a waiver of any provision or right.
15b. Choice of Law and AGREEMENT TO ARBITRATE DISPUTES.
This Agreement will be governed by the laws of the State of Oregon, without regard to its conflict of laws rules. The provisions of the U.N. Convention on Contracts for the International Sale of Goods and any successor treaties will not apply. In the event of a dispute between the parties arising from or relating to this Agreement, Your use of the Service or Your Account, the parties agree that they will use their best efforts to amicably resolve any dispute arising out of or relating to this Agreement. Any controversy, claim or dispute that cannot be so resolved shall be settled by final binding arbitration. It is hereby agreed that the dispute shall be referred to arbitration by a single arbitrator of the American Arbitration Association in Deschutes County, Oregon pursuant to its rules governing arbitrations. The arbitrator’s decision shall be final and legally binding and judgment may be entered thereon.
Each party shall be responsible for its share of the arbitration fees in accordance with the applicable Rules of Arbitration. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator’s award, or fails to comply with the arbitrator’s award, the other party is entitled to costs of suit, including a reasonable attorney’s fee for having to compel arbitration or defend or enforce the award, in addition to any damages and attorney’s fees that may be awarded pursuant to this Agreement. You consent to the venue and exclusive jurisdiction of the state and federal courts located in the judicial district of Deschutes County, Oregon, U.S.A., to enforce any arbitral award.
You agree to waive any otherwise applicable statutes of limitations and instead, will commence any claim or cause of action arising under or otherwise occurring by reason of this Agreement within one (1) year after the claim or cause of action arises or such claim or cause of action is forever barred.
15c. Full Agreement Of The Parties.
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous understandings and agreements.
15d. Force Majeure
Rock Gym Pro is not liable for failure to perform Rock Gym Pro’s obligations if such failure is as a result of Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service.
15e. Attorney’s Fees.
In the event any party challenges any term or provision of this Agreement, or believes she/he is required to pursue legal action to enforce any provision hereof, whether or not a legal pleading is filed, the prevailing party shall be entitled to recover all reasonable legal fees and costs, including actual attorney fees, actually incurred by that party.
Title to all intellectual property in and to the Rock Gym Pro Software, Rock Gym Pro website, and Rock Gym Pro Premium Services and any copies thereof , including but not limited to copyrights, patents and trademarks, is owned by RGP Development LLC or its suppliers. All intellectual property rights in and to the content which may be accessed through use of the Rock Gym Pro Software, Rock Gym Pro website, and Rock Gym Pro Premium Services is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This agreement grants you no rights to use such content. All rights not expressly granted herein are reserved by RGP Development, LLC.