PLEASE NOTE: The Terms are subject to change by Rockhopper, in its sole discretion, at any time. When changes are made, Rockhopper will make a new copy of the Terms available within the Application and through the Services. We will also update the “Last Updated” date at the top of the published Terms within the Application. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 below), we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately. Rockhopper may require you to provide consent to the updated Terms in a specified manner before further use of the Application and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Application and/or the Services. Otherwise, your continued use of the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK TO VIEW THE THEN-CURRENT TERMS.
Use of the Services and Rockhopper Properties
The Application, the Software (as defined below), the Services, and the information and content available in the Application and the Services (as these terms are defined herein) (collectively, the “Rockhopper Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Rockhopper grants you a limited license to reproduce portions of Rockhopper Properties for the sole purpose of using the Services for your internal business purposes. Unless otherwise specified by Rockhopper in a separate license, your right to use any Rockhopper Properties is subject to the Terms.
- Application License. Subject to your compliance with the Terms, Rockhopper grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install, and use a copy of the Application on a single mobile device or computer that you own or control, and to run such copy of the Application solely for your own internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
- Rockhopper Software. Use of any software and associated documentation other than the Application, if any, that is made available for download via the Services (“Software”) is governed by these Terms. Subject to your compliance with the Terms, Rockhopper grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Terms. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms. For the avoidance of doubt, at no time will Rockhopper provide you with any tangible copy of the Software. Rockhopper shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium.
- Updates. You understand that Rockhopper Properties are evolving. As a result, Rockhopper may require you to accept updates to Rockhopper Properties. You acknowledge and agree that Rockhopper may update Rockhopper Properties with or without notifying you. You may need to update third-party software from time to time in order to use Rockhopper Properties.
- Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit (other than for your own internal use) Rockhopper Properties or any portion of Rockhopper Properties, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Rockhopper Properties (including images, text, page layout or form) of Rockhopper; (c) you shall not use any metatags or other “hidden text” using Rockhopper's name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Rockhopper Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Rockhopper Properties; (f) you shall not access Rockhopper Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Rockhopper Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Rockhopper Properties. Any future release, update or other addition to Rockhopper Properties shall be subject to the Terms. Rockhopper, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Rockhopper Properties terminates the licenses granted by Rockhopper pursuant to the Terms.
- Third-Party Materials. As a part of Rockhopper Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Rockhopper to monitor such materials and that you access these materials at your own risk.
- Registering Your Account. In order to access certain features of Rockhopper Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account through the Services or through the Application (“Account”).
- Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Rockhopper Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Rockhopper immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Rockhopper has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Rockhopper has the right to suspend or terminate your Account and refuse any and all current or future use of Rockhopper Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Rockhopper reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Rockhopper Properties if you have been previously removed by Rockhopper, or if you have been previously banned from any of Rockhopper Properties.
- Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and insure to the benefit of Rockhopper.
- Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Rockhopper Properties, including but not limited to, a mobile device that is suitable to connect with and use Rockhopper Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Rockhopper Properties.
Responsibility for Content
- Types of Content. You acknowledge that all information, data, text, software, sound, images, video, messages, tags and/or other materials accessible through Rockhopper Properties (“Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Rockhopper, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Rockhopper Properties (“Your Content”), and that you and other Users of Rockhopper Properties, and not Rockhopper, are similarly responsible for all Content they Make Available through Rockhopper Properties (“User Content”). Your Content may include, but is not limited to, emails that you upload and action, tasks that you create and other materials such as text and files. The Services allow you to share Your Content with other Users of the Services that you designate and authorize.
- No Obligation to Pre-Screen Content. You acknowledge that Rockhopper has no obligation to pre-screen Content (including, but not limited to, User Content), although Rockhopper reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Rockhopper pre-screens, refuses or removes any Content, you acknowledge that Rockhopper will do so for Rockhopper benefit, not yours. Without limiting the foregoing, Rockhopper shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
- Storage. Unless expressly agreed to by Rockhopper in writing elsewhere, Rockhopper has no obligation to store any of Your Content that you Make Available on Rockhopper Properties. Rockhopper has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of Your Content or of other communications originating with or involving use of Rockhopper Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Rockhopper retains the right to create reasonable limits on Rockhopper use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Rockhopper in its sole discretion.
- Administrator Access to Your Content. When you sign up for the Services, you associate one or more email addresses with your Account. If you use an email address provided to you by a third party entity of which you are a part (such as email@example.com or firstname.lastname@example.org) (each an “Entity”) you hereby grant that Entity and its administrator(s) permission to access, use, download, export, disclose, share, restrict and/or remove Your Content that you have associated with the email address that includes their domain. You acknowledge and understand that an Entity may elect to utilize one or more third party applications in connection with their teams’ use of the Services and that, by associating Your Content with an email address that includes an Entity’s domain, you are granting permission to have such Content shared with such third party application(s). You also acknowledge and understand that an Entity may restrict or terminate your access to Your Content associated with the email address that includes their domain. Please remember that you can associate more than one email address with your Rockhopper Account, so you may want to consider associating Your Content that is of a personal nature with a personal email address.
- Rockhopper Properties. You agree that Rockhopper and its suppliers own all rights, title, and interest in Rockhopper Properties (including but not limited to, copyrights, patents, trademarks, trade secrets, methods of operation, moral rights, and documentation). You will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Rockhopper Properties.
- Trademarks. [Rockhopper's stylized name] and other related graphics, logos, service marks and trade names used on or in connection with Rockhopper Properties or in connection with the Services are the trademarks of Rockhopper and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Rockhopper Properties are the property of their respective owners.
- Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Rockhopper Properties.
- Your Content. Rockhopper does not claim ownership of Your Content. However, when you, as a User, post or publish Your Content on or in Rockhopper Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue, or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
- License to Your Content. Subject to any applicable account settings that you select, you grant Rockhopper a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of (i) operating and providing Rockhopper Properties to you; and (ii) analyzing and improving the operation of the Rockhopper Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above**.** You agree that you, not Rockhopper, are responsible for all of Your Content that you Make Available on or in Rockhopper Properties.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Rockhopper through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Rockhopper has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Rockhopper a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Rockhopper Properties.
- Acceptable Use Policy. You represent and warrant that you will comply in all respects with Rockhopper Acceptable Use Policy.
- General Conduct. Without limiting any term or condition set forth under our Acceptable Use Policy, as a condition of use, you agree that you will not, under any circumstances:
- Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of Rockhopper Properties (including your Account), or access to or use of Rockhopper Properties;
- Interfere or attempt to interfere with the proper functioning of Rockhopper Properties or connect to or use Rockhopper Properties in any way not expressly permitted by the Terms;
- Use, display, mirror or frame Rockhopper Properties, or any individual element within Rockhopper Properties, Rockhopper's name, any Rockhopper trademark, logo or other proprietary information, without Rockhopper's express written consent;
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide Rockhopper Properties, or to obtain any information from Rockhopper Properties; or
- Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court.
Rockhopper may, but is not obligated to, monitor or review Rockhopper Properties and Content at any time. Without limiting the foregoing, Rockhopper shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Rockhopper does not generally monitor user activity occurring in connection with Rockhopper Properties or Content, if Rockhopper becomes aware of any possible violations by you of any provision of the Terms, Rockhopper reserves the right to investigate such violations, and Rockhopper may, at its sole discretion, immediately terminate your license to use Rockhopper Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
Interactions with Other Users
- User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you choose to interact through the Services; provided, however, that Rockhopper reserves the right, but has no obligation, to intercede in such disputes. You agree that Rockhopper will not be responsible for any liability incurred as the result of such interactions.
- Content Provided by Other Users. Rockhopper Properties may contain User Content provided by other Users. Rockhopper is not responsible for and does not control User Content. Rockhopper has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
Third-Party Websites, Applications & Ads
Rockhopper Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications''). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Rockhopper Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Rockhopper. Rockhopper is not responsible for any Third-Party Websites or Third-Party Applications. Rockhopper provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or their products or services. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Fees and Purchase Terms
- General Purpose of Terms: Sale of Service, not Software. The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees considered payment for the sale, license, or use of Rockhopper Software, and, furthermore, any use of Rockhopper Software by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
- Payment. You agree to pay all subscription fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable (each, a “Service Subscription Fee”). You must provide Rockhopper with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing Rockhopper with your credit card number or PayPal account and associated payment information, you agree that Rockhopper is authorized to immediately invoice your Account for all fees and charges due and payable to Rockhopper hereunder and that no additional notice or consent is required. You agree to immediately notify Rockhopper of any change in your billing address or the credit card or PayPal account used for payment hereunder. Rockhopper reserves the right at any time to change its prices and billing methods, either immediately upon posting on Rockhopper Properties or by e-mail delivery to you.
- Taxes. Rockhopper's fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Rockhopper, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Rockhopper for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Rockhopper is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
- Withholding Taxes. You agree to make all payments of fees to Rockhopper free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Rockhopper will be your sole responsibility, and you will provide Rockhopper with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
- Subscription to the Services. Your subscription will continue indefinitely until terminated in accordance with the Terms. If you want to change or terminate your subscription, please log in and go to the “Change/Cancel Membership” page on your “Account Settings” page or email email@example.com. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Rockhopper to charge your Payment Provider for your applicable Service Subscription Fee now, and again at the beginning of the each subsequent subscription period.Upon renewal of your subscription, if Rockhopper does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Rockhopper may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and your new subscription commitment period will begin as of the day payment was received).If the subscription is an annual subscription, the subscriber will receive notification of their pending renewal 30 days prior to their renewal date.
- Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Rockhopper to have the charges reversed.
- Disputes You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: 548 Market St #45902, San Francisco, California 94104-5401 United States.
Use of the Rockhopper Application
- App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from which you received the Application license (e.g., the Apple iPhone or Android app stores, “App Store”). You acknowledge that the Terms are between you and Rockhopper and not with the App Store. Rockhopper, not the App Store, is solely responsible for the Rockhopper Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Rockhopper Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Rockhopper Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
- Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Terms are concluded between you and Rockhopper only, and not Apple, and (ii) Rockhopper, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Rockhopper and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Rockhopper.
- You and Rockhopper acknowledge that, as between Rockhopper and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Rockhopper acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Rockhopper and Apple, Rockhopper, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You and Rockhopper acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other provisions of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
- Subscription Tier Use. In connection with your use of our web application, you agree to only use system features that are relevant to your purchased subscription tier (i.e. Team, Business, or Enterprise). In the event that you use system features that are outside the boundaries of our purchased subscription tier (defined within our Pricing page), you agree to be charged the applicable pricing associated with the system feature’s pricing tier.
In the event Rockhopper Inc. ceases operations, customers will be advised if the Rockhopper platform will become unavailable. If the Rockhopper platform is to become unavailable, customers will be advised of the date access will cease. Customers will be able to request their data. If requested all customer data will be provided.
You agree to indemnify and hold Rockhopper, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Rockhopper Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, Rockhopper Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Rockhopper reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Rockhopper in asserting any available defenses. You agree that the provisions in this section will survive any termination
Disclaimer of Warranties
- AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF Rockhopper PROPERTIES IS AT YOUR SOLE RISK, AND Rockhopper PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. Rockhopper PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT Rockhopper PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD Rockhopper PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- Rockhopper PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) Rockhopper PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF Rockhopper PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF Rockhopper PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN Rockhopper PROPERTIES WILL BE CORRECTED.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH Rockhopper PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS Rockhopper PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. Rockhopper MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES
- From time to time, Rockhopper may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Rockhopper's sole discretion. The provisions of this section apply with full force to such features or tools.
- NO LIABILITY FOR CONDUCT OF OTHER USERS. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF Rockhopper PROPERTIES.
Limitation of Liability
- DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL Rockhopper PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH Rockhopper PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT THE Rockhopper PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS OR INTERACTIONS WITH OTHER USERS OF Rockhopper PROPERTIES, ON ANY THEORY OF LIABILITY, INCLUDING ANY SUCH DAMAGES RESULTING FROM: (1) THE USE OR INABILITY TO USE Rockhopper PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH Rockhopper PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT, YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON Rockhopper PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO Rockhopper PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
- CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL Rockhopper PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY Rockhopper AS A RESULT OF YOUR USE OF Rockhopper PROPERTIES IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT A CLAIM. IF YOU HAVE NOT PAID Rockhopper ANY AMOUNTS IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT ANY SUCH CLAIM, Rockhopper'S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
- USER CONTENT. Rockhopper PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
- BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Rockhopper AND YOU.
Procedure for Making Claims of Copyright Infringement
It is Rockhopper's policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Rockhopper by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Rockhopper Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Rockhopper Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. For contact information of Rockhopper's Copyright Agent for notice of claims of copyright infringement, please contact us at firstname.lastname@example.org.
- Violations. If Rockhopper becomes aware of any possible violations by you of the Terms, Rockhopper reserves the right to investigate such violations. If, as a result of the investigation, Rockhopper believes that criminal activity has occurred, Rockhopper reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Rockhopper is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Rockhopper Properties, including Your Content, in Rockhopper's possession in connection with your use of Rockhopper Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Rockhopper, its Users or the public, and all enforcement or other government officials, as Rockhopper in its sole discretion believes to be necessary or appropriate.
- Breach. In the event that Rockhopper determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Rockhopper Properties, Rockhopper reserves the right to:
- Warn you via e-mail (to any e-mail address you have provided to Rockhopper) that you have violated the Terms;
- Delete any of Your Content provided by you or your agent(s) to Rockhopper Properties;
- Discontinue your registration(s) with the any of Rockhopper Properties, including any Services or any Rockhopper community;
- Discontinue your subscription to any Services;
- Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
- Pursue any other action which Rockhopper deems to be appropriate.
Term and Termination
- Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect for the duration of your subscription to the Services, unless terminated earlier in accordance with the Terms.
- Prior Use. Notwithstanding the foregoing, if you used Rockhopper Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used Rockhopper Properties (whichever is earlier) and will remain in full force and effect while you use Rockhopper Properties, unless earlier terminated in accordance with the Terms.
- Termination of Services by Rockhopper. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if Rockhopper is required to do so by law (e.g., where the provision of the Application, the Software or the Services is, or becomes, unlawful), Rockhopper has the right to, immediately and without notice, suspend, or terminate any Services provided to you. You agree that all terminations for cause shall be made in Rockhopper's sole discretion and that Rockhopper shall not be liable to you or any third party for any termination of your Account.
- Termination of Services by You. If you want to terminate the Services provided by Rockhopper, you may do so in accordance with Section 9.5 (Monthly Subscription to the Services) above.
- Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Rockhopper will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- No Subsequent Registration. If your registration(s) with or ability to access Rockhopper Properties is discontinued by Rockhopper due to your violation of any portion of the Terms, then you agree that you shall not attempt to re-register with or access Rockhopper Properties through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Rockhopper Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Rockhopper reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
Rockhopper Properties are controlled and offered by Rockhopper from its facilities in the United States of America. Rockhopper makes no representations that Rockhopper Properties are appropriate or available for use in other locations. Those who access or use Rockhopper Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Please read this Arbitration Agreement carefully. It is part of your contract with Rockhopper and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Rockhopper that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Rockhopper, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Rockhopper should be sent to: 175 Varick Street, New York NY 10014 United States. After the Notice is received, you and Rockhopper may attempt to resolve the claim or dispute informally. If you and Rockhopper do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in the state of Deleware, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Rockhopper made to you prior to the initiation of arbitration, Rockhopper will pay you $1,000 in addition to the award. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or Rockhopper pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Rockhopper, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Rockhopper.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Rockhopper in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND Rockhopper WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Rockhopper.
- Small Claims Court. Notwithstanding the foregoing, either you or Rockhopper may bring an individual action in small claims court
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New Castle County, Delaware, for such purpose.
- Electronic Communications. The communications between you and Rockhopper use electronic means, whether you visit Rockhopper Properties or send Rockhopper e-mails, or whether Rockhopper posts notices on Rockhopper Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Rockhopper in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Rockhopper provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Rockhopper's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Rockhopper shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. If a Force Majeure event occurs that affects Rockhopper's performance of its obligations under these Terms: (a) Rockhopper will contact you as soon as reasonably possible to notify you; and (b) Rockhopper's obligations under these Terms will be suspended and the time for Rockhopper's performance of its obligations will be extended for the duration of the Force Majeure event. You may cancel the Services affected by a Force Majeure event which has continued for more than sixty (60) To cancel please contact Rockhopper.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Rockhopper Properties, please contact us at: concierge@Rockhopperhq.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Limitations Period. YOU AND Rockhopper AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, Rockhopper PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
- Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
- Notice. Where Rockhopper requires that you provide an e-mail address, you are responsible for providing Rockhopper with your most current e-mail address. In the event that the last e-mail address you provided to Rockhopper is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Rockhopper's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Rockhopper at the following address: 175 Varick Street, New York NY 10014 United States. Such notice shall be deemed given when received by Rockhopper by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Export Control. You may not use, export, import, or transfer Rockhopper Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Rockhopper Properties, and any other applicable laws. In particular, but without limitation, Rockhopper Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Rockhopper Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Rockhopper Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Rockhopper are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Rockhopper products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.