Rock Gym Pro Facility Terms of Service

Updated September 11, 2025

 

THESE TERMS OF SERVICE CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU.  PLEASE READ THEM CAREFULLY BEFORE USING OUR SERVICES.  THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

 

BY DOWNLOADING OR USING OUR SOFTWARE AND/OR OUR APPLICATION, YOU ACCEPT AND ARE BOUND BY THESE TERMS OF SERVICE.  IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT CHECK “I HAVE READ AND AGREE” AND DO NOT DOWNLOAD OR USE OUR SOFTWARE AND/OR OUR APPLICATION.

 

YOU MAY NOT USE OUR SERVICES IF YOU (A) DO NOT AGREE TO THESE TERMS OF SERVICE OR (B) ARE PROHIBITED FROM ACCESSING OR USING THE SERVICES.  YOU REPRESENT THAT IF YOU ARE AN INDIVIDUAL, YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING CONTRACT, OR THAT IF YOU ARE REGISTERING ON BEHALF OF A LEGAL ENTITY, THAT YOU ARE AUTHORIZED TO ENTER INTO, AND BIND THAT ENTITY TO, THESE TERMS OF SERVICE AND TO UTILIZE OUR SERVICES.

 

1.                  TERMS OF SERVICE

 

a.                  Binding Agreement

 

These Facility Terms of Service (“Terms of Service”) constitute a binding contract between “you”, a facility providing services to individual participants and/or members, and us, RGP Development, LLC ("RGP," "we," "our," or "us"), and are effective as of your first use of the Services (as defined below) (“Effective Date”).  These Terms of Service govern your access to and use of Rock Gym Pro software, which includes the software application that can be downloaded from the internet and any related internet-based services that provide the required functionality for the software (the “Software”), the related mobile application (the “Application”), and any other services provided by or through the foregoing (collectively, the “Services”), in each case, through the entirety of your relationship with us.  PLEASE READ THESE TERMS OF SERVICE THOROUGHLY AND CAREFULLY.  BY USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE.  IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU MAY NOT USE OR ACCESS OUR SERVICES.  If you use the Services on behalf of an entity: (i) you represent and warrant that you have the authority to bind that entity; (ii) your acceptance of these Terms of Service will be deemed an acceptance by that entity; and (iii) "you" and "your'' herein shall refer to that entity, its directors, officers, employees, and agents, as the context requires.

 

b.                  License to Use  

 

Subject to (i) your acceptance of, and compliance with, these Terms of Service, (ii) our acceptance of your registration, and, (iii) for Premium Services, the payment of any upfront fees, RGP grants you a limited, non-exclusive, revocable, non-transferable, and non-sublicensable license to (A) install and use the Software on your computer for the operating system(s) for which the Software was designed and (B) download and/or use the Application, in each case, as specified in the Documentation (as defined below). You may also make copies of the Software as may be necessary solely for backup and archival purposes but not for use by any person other than you.  No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by RGP, its affiliates, or its or their licensors, except for the licenses and rights expressly granted in these Terms of Service.

 

c.                   Modifications to these Terms of Service

 

RGP reserves the right, in its sole discretion, to modify these Terms of Service, and any other documents incorporated by reference herein, at any time and without prior notice. RGP will notify you of changes by: (i) posting on the RGP website at www.rockgympro.com (the “Website”); (ii) sending you an electronic message; and/or (iii) otherwise notifying you when you are logged into your Account (as defined below). Modifications will become effective upon your continued use of the Services following notice of such modifications.  If you do not agree to any such modifications, you may no longer access or use the Services.

 

d.                  Additional Terms and Policies 

 

Please review our Privacy Policy, incorporated herein by reference, for information and notices concerning RGP’s collection and use of your information.  Please also review our Website Terms of Use, incorporated herein by reference, for information and notices regarding your use of the Website.  Certain features of the Software and/or Application may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions or policies.  If there is a conflict between these Terms of Service and the terms and conditions or policies posted for a particular feature of the Software and/or Application, the latter will take precedence with respect to your use of that feature.

 

2.                  KEY TERMS

 

 

3.                  REPRESENTATIONS AND WARRANTIES

 

 

You represent and warrant that you, and any employees, agents, contractors, and/or subcontractors who may perform work for you, are properly and fully licensed, certified, bonded, and insured, as required by Applicable Laws to which you or they may be subject in the jurisdiction(s) in which you or they offer their services and in relation to the specific job you or they are performing.  You otherwise agree to comply with all Applicable Laws, including without limitation, Data Protection Laws, in your use of the Services, any Personal Information accessed, stored, or used from the Software and/or Application, in your provision of services.

 

 

You represent and warrant that you will 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 Services.

 

 

Each of RGP and you, respectively, certify that (i) it is not acting on behalf of any person, group, entity, or nation named by any Executive Order or the United States Treasury Department, through its Office of Foreign Assets Control (“OFAC”) or otherwise, as a terrorist, “Specially Designated Nation”, “Blocked Person”, or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule, or regulation that is enforced or administered by OFAC or another department of the United States government, and (ii) it is not engaged in this transaction on behalf of, or instigating or facilitating this transaction on behalf of, any such person, group, entity, or nation.

 

 

4.                  REGISTRATION

 

When you register with us to use the Services, you will be asked to provide certain information, including your mailing address, telephone number, and email address.  You will promptly notify us of any change in the information you provide during your registration for the Services.

 

5.                  PREMIUM SERVICES

 

a.                  Account

 

If you subscribe to our Premium Services, we will establish one online document storage and backup account in your name on RGP servers (the “Account”).  In your use of the Services, you are responsible for providing the following: (i) all equipment, such as a computer and modem, necessary to access the internet; (ii) your own access to the internet; and (iii) payment of all telephone or other fees associated with internet access.  The Software and Application provide an extensive range of features.  It is possible that one or more of these features may not be available at certain times.  You are solely responsible for the content of all data you store or retrieve from, or attempt to store or retrieve from, your Account, regardless of whether such data originates from you, your Users, Participants, or any third parties.

 

 

Subject to (i) your acceptance of these Terms of Service, (ii) our acceptance of your registration, and, (iii) the payment of any upfront fees for your Premium Services, you will receive a confirmation via 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 agree to notify us of any unauthorized use or other breach in security of your Account immediately after you learn of the same.

 

 

Your Account and stored documents for Premium Services are encrypted through a private encryption key that you will select when creating your Account.  RGP does not have access to this user-defined key as it is not stored on RGP servers.  IT IS VERY IMPORTANT THAT YOU STORE THIS KEY IN A SAFE PLACE AND MAINTAIN THE KEY IN PRINTED FORM FOR EASY REFERENCE.  ANY DATA BACKED UP USING OUR PREMIUM SERVICES CAN ONLY BE RETRIEVED USING THIS KEY.  IF YOU FORGET OR MISPLACE THIS KEY, THEN YOUR DATA MAY NOT BE RETRIEVABLE.  YOU EXPRESSLY AGREE THAT WE ARE NOT RESPONSIBLE FOR LOSS OF DATA ARISING THEREFROM.

 

The private key based encryption process encrypts the data contained within the file and not the file name itself.  If you are installing the RGP 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.

 

 

We 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. However, it may be necessary to access your Account for support requirements.  It may also be necessary to access your Account to verify that your Account is not being misused, especially with respect to digital copyright laws and resource misuse checks.

 

 

If you are subscribed to the Premium Services, you authorize a recurring monthly or annual charge to your credit or debit card on file in exchange for use of the Premium Services as indicated by published standard plans or a customized quote provided for your specific use.  You also agree that plans for Premium Services auto-renew unless cancelled by you.  You understand and agree that refunds for subscription charges are non-refundable.  In addition, we will not issue any pro-rated refunds for the remaining period during the month when an account with a monthly subscription plan is downgraded to a less expensive plan during the month. The rate applicable to the new plan will instead be charged starting the subsequent month after the downgrade is elected by you.

 

Except as otherwise stated, if and to the extent any payments due by you to RGP are subject to any applicable valid added, goods and services, sales, use, consumption, or other similar taxes imposed by a governmental authority, whether federal, state, local, or non-U.S. ("Taxes"), arising from RGP's performance of the Services and for which you are liable under Applicable Law, RGP shall charge and you shall pay to RGP such Taxes; provided, that such Taxes are separately stated and identified by jurisdiction on a valid tax invoice that includes the Services that are subject to such tax.  Notwithstanding the foregoing, RGP will not invoice you for Taxes where you provide RGP with a valid direct pay or tax exemption certificate.

 

6.                  RESTRICTIONS ON USE OF SOFTWARE, APPLICATION, AND SERVICES

 

You will not, and will not permit any User, Participant, or third-party to, directly or indirectly: (i) use or access the Software, Application, or Services, in whole or in part, except as expressly provided in these Terms of Service; (ii) violate RGP’s Privacy Policy, as updated from time to time; (iii) use the Software, Application, or Services in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Software, Application, or Services; (iv) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Software, Application, or Services; (v) (A) interfere with, disrupt, or attempt to gain unauthorized access to the servers or networks connected to the Software, Application, or Services, (B) violate the regulations, policies, or procedures of such networks, (C) interfere in any manner with the operation or hosting of the Software, Application, or Services, or (D) gain access or attempt to gain access to any account for which you have no access or authorization, or duplicate, modify, distribute, or display any of the data or files from any such account; (vi) access, or attempt to access, the Software, Application, or Services by means other than through the means or interface that is provided by RGP; (vii) use automated scripts to collect information from or otherwise interact with the Software, Application, or Services; (viii) use the Software, Application, or Services to store, retrieve, transmit, or view any file, data, image, or program that contains (A) any code or material that violates the intellectual property rights of others; (B) any Windows temporary files of any kind (including, without limitation, any *.p or ~*.* files); or (C) any viruses, worms, “Trojan horses”, or any other similar contaminating or destructive features; (ix) alter, modify, reproduce, or create derivative works of the Software, Application, or Services; (x) except as otherwise specifically set forth herein, distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of your rights to use or access the Software, Application, or Services, including providing outsourcing, service bureau, hosting, application service provider, or on­line services to any third-party, or otherwise making the Software, Application, or Services, or use of or access thereto, available to any third-party; (xi) use the Software, Application, or Services (A) for the benefit of a third-party, (B) other than for your own internal business purposes, or (C) to build a competitive product or service, including without limitation, internal tools; (xii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software, Application, or Services; (xiii) remove, obscure, or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Software, Application, or Services; (xiv) use or access the Software, Application, or Services in violation of any Applicable Law; or (xv) undertake any activity or engage in any conduct that is inconsistent with the intended purpose of the Software, Application, or Services.  

 

7.                  YOUR DATA

 

a.                  License

 

For the term of these Terms of Service, you hereby grant to us a non-exclusive, non-sublicensable, non-transferable, revokable, limited license in and to Your Data, for the sole purpose of us providing Services under these Terms of Service.  As between RGP and you, you own and retain all of your rights in and to Your Data, including all compilations and other results obtained from your use of the Software, Application, and Services, in each case, through your processing of Your Data, and you do not convey any proprietary interest therein to RGP other than the licenses set forth herein.

 

b.                  Title and Non-Infringement

 

You represent and warrant to us that (i) you have all necessary right, title, interest, authorization, and consent necessary to allow us to access and use Your Data for the purposes for which you provide Your Data to us hereunder, including the transfer, storage, modification, communication, and processing of Your Data, and (ii) that all Your Data was lawfully acquired and its use under these Terms of Service does not and will not constitute an infringement, violation, or misappropriation of the rights of any third-party, including, without limitation, intellectual property rights and the rights of Participants.

 

c.                   Content Restrictions

 

You represent and warrant to us that none of Your Data or the use of Your Data as contemplated by these Terms of Service: (i) violates these Terms of Service or Applicable Law; (ii) is libelous, defamatory, obscene, abusive, pornographic, threatening, harmful, or an invasion of privacy; (iii) is illegal or advocates illegal activity; (iv) is an advertisement or solicitation of funds, goods, or services; (v) is false, misleading, or inaccurate; or (vi) is or could be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message, or disruptive advertisement.  Except as expressly set forth herein, you will be solely responsible for all Your Data transferred, stored, modified, communicated, or shared by you, any User or any Participant, or that we may receive, collect, or obtain, in each case, through your Account or your, User’s, or Participant’s use of, or access to, the Software, Application, or Services, as applicable.  You acknowledge that, to the extent you or any User grants access to Your Data through the Services to any third-party, you are solely responsible for all use of and access to Your Data by such third-party.  We shall have no responsibility for any such activity, or the actions taken or not taken by any third-party to whom you have granted any such use or access.  We may take remedial action if any of Your Data violates these Terms of Service or Applicable law, including the deletion thereof or disabling your access thereto; provided, that we are under no obligation to review any Your Data for compliance with these Terms of Service or Applicable Law.

 

d.                  Our Access and Use of Your Data

 

i.                   Data Processing

 

If, and only if, RGP processes Personal Information on your behalf in the course of providing the Services, RGP and you, respectively, agree to comply with the terms of the Data Processing Addendum, which shall be incorporated into these Terms of Service.

 

ii.                   Security

 

To protect Your Data, RGP shall (i) implement and maintain administrative, technical, physical, and organizational safeguards regarding security, continuation, backup, and disaster-recovery that are consistent with industry standards and practices and comply with Applicable Law, including Data Protection Laws, in connection therewith, and (ii) only access and use your Systems to the extent necessary to provide or improve the Services.

 

iii.                   Usage Restrictions  

 

Except as (i) expressly permitted in these Terms of Service, (ii) requested or approved in writing by you (email to suffice), including in connection with any customer support matters, (iii) in order to provide or improve the Services, including to prevent or address any service or technical problems, (iv) in order to develop and test new features and services, or (v) compelled by law in accordance with Section 12(d) (Compelled Disclosure), RGP shall not access or modify Your Data, or disclose Your Data to any third-party.

 

iv.                   Return of Your Data  

 

Upon any termination of these Terms of Service, we will provide you with a software program to remove Your Data from the RGP servers (the “Removal Tool”) by sending the Removal Tool to your email address that you have provided to us.  You will have fourteen (14) days from the date of the termination notice to download your stored files from the RGP servers using the Removal Tool, after which we will remove your stored data files from main storage and archives.

 

v.                   Backups of Your Data  

 

As part of the Premium Service, RGP offers an optional, online backup service.  Please note that you are responsible for configuring the Software for proper backup of Your Data.  You are also responsible for confirming that the online backup ran as scheduled.  RGP maintains regular backups of data to recover from software or hardware failures.  RGP 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 periodically for the desktop application completely, including individual entries for files and total count to ensure that the backups are taking place successfully and in case of errors, take corrective action.  We require 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.  Also, it is important to upgrade the Software from time to time 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 Software may lead to unreliable functioning of the Software and RGP will have no responsibility or liability therefor.

 

vi.                   Use of Aggregated Anonymous Data  

 

Notwithstanding anything in these Terms of Service to the contrary, RGP may (i) collect and process information to generate and process Aggregated Anonymous Data, and (ii) freely use and make available Aggregated Anonymous Data for the purpose of (A) improving, testing, maintaining, and operating the Software, Application, and Services, (B) developing future products and services, and (C) marketing and promoting the Software, Application, and Services, and any future products and services, to other customers and potential customers.  RGP is and shall remain the sole and exclusive owner of all right, title, and interest in and to all Aggregated Anonymous Data, including all intellectual property rights related thereto, and may freely use all Aggregated Anonymous Data during the term of these Terms of Service and thereafter, without compensation or notice to, or approval of, you.

 

8.                  USE OF DIGITAL WAIVER STATIONS

 

As part of the Premium Services, RGP provides a 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 RGP for you separately from your backup data.  Although RGP 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.  We are 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 us, is responsible for determining the legal enforceability of any digital waivers of liability, including their 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 understand and agree that we do not directly facilitate signatures or otherwise interact with any Participant in any manner as part of this digital waiver service.  The collection, review, and management of digital waiver signatures is strictly your responsibility.

 

9.                  PAYMENT PROCESSING

 

If you elect to use our payment processing services, you will be charged third-party payment processing fees incurred through the use of such services. Such fees are separate from, and in addition to, your monthly fees for your subscription.

 

 

RGP reserves the right, at any time and in its sole discretion, to modify the Software, Application, or Services, or any part thereof, subject to these Terms of Service.

 

 

a.                  RGP’s Intellectual Property

 

i.                   General  

 

You understand and agree that the Software, Application, and Services are licensed, not sold.  Nothing in these Terms of Service conveys to you any rights of ownership in or related to the Software, Application, or Services, or any intellectual property rights therein, which may include, without limitation, concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, generalized features of the structure, sequence, and organization of the Software or Application, user interfaces and screen designs, general purpose consulting and software tools, utilities, routines, logic, coherence, and methods of operation of RGP Systems (collectively, the “RGP Technology”).  Except as expressly set forth in these Terms of Service, RGP alone (and its licensors, where applicable) will retain all intellectual property rights relating to the RGP Technology, Software, Application, and Services, including, without limitation, any modifications or enhancements thereto, or any derivatives thereof.  For the avoidance of doubt, all licenses granted under these Terms of Service with respect to the RGP Technology, Software, Application, and Services, shall automatically terminate upon the termination of these Terms of Service.

 

ii.                   Improvements

 

You understand and agree that RGP shall be entitled to use and incorporate into the Software, Application, and Services and any future products or services, for you as well as any of its other customers or future customers, any suggestions, enhancement requests, recommendations, or other feedback provided by you, Users, or Participants, relating to the Software, Application, or Services (“Improvements”), and RGP shall have no obligations to you, Users, Participants, or any third-party for any such use or incorporation.  You agree to execute and deliver, or cause to be executed and delivered, to RGP such instruments and documents, and to take such other actions as RGP may request, for the purpose of evidencing, establishing, documenting, or otherwise supporting RGP’s intellectual property rights in and to any such Improvements, at RGP’s expense.

 

b.                  Your Intellectual Property

 

You hereby grant to RGP a non-exclusive, non-sublicensable, non-transferable, revokable, royalty-free, limited license to use and display your name, trade name, service mark, logo, and other trademarks, solely for the purpose of facilitating your use of the Software, Application, and Services as contemplated by these Terms of Service.  As between RGP and you, you own all rights, title, and interest in and to any such names, trade names, service marks, logos, and other trademarks, as well as any other materials and information, which are provided by or on behalf of you to RGP in connection with the Services.  Except as otherwise set forth in these Terms of Service, RGP shall not use any such materials and information, in whole or in part, for any other purpose other than as required to provide the Services in accordance with these Terms of Service.  The license set forth in this Section 11(b) shall automatically terminate at the termination of these Terms of Service.

 

12.              CONFIDENTIALITY

 

a.                  Disclosure

 

In connection with the performance of its obligations under these Terms of Service, each of RGP and you, respectively (the “Disclosing Party”), may, from time to time, disclose to the other party, or the other party may be given access to (the “Receiving Party”), certain Confidential Information, including but not limited to, (i) trade secrets, business, financial, technical, and other material and non-public information and intellectual property, in written or other tangible form, or orally, and (ii) information with respect to which the Receiving Party has a reasonable basis to believe is confidential, including but not limited to, any documentation, data, or information which would, under the circumstances, appear to a reasonable person to be confidential or proprietary (collectively and individually, “Confidential Information”).  Each of RGP and you, respectively, acknowledges and agrees that the other party’s intellectual property as well as these Terms of Service and any Documentation, including, without limitation, any correspondence or communications related thereto, and any non-public product, service, pricing, and technical information, shall be considered Confidential Information.  Your Data and Personal Information shall each be considered “Confidential Information” for purposes of this Section 12.

 

b.                  Confidentiality Obligations

 

The Receiving Party, and its affiliates, shareholders, members, partners, directors, officers, employees, agents, and representatives (collectively, “Representatives”), shall maintain all Confidential Information of the Disclosing Party in strict confidence, shall refrain from using or misappropriating the same (either in whole or in part) for any purpose whatsoever, shall take all reasonable precautions to prevent disclosing any part thereof to any third-party, and shall not, except as otherwise may be reasonably necessary for fulfilling its obligations under these Terms of Service, copy, extract, or otherwise duplicate any Confidential Information (either in whole or in part) without the prior written consent of the Disclosing Party.  Receiving Party’s obligation to maintain in confidence all Confidential Information of the Disclosing Party shall include, but not be limited to, exercising at least the highest degree of care that the Receiving Party utilizes to protect its own Confidential Information of a similar nature, which, for the elimination of doubt, shall be no less than reasonable care.  Furthermore, the Receiving Party shall limit the dissemination of, and access to, all Confidential Information only to such Representatives who have a legitimate need to know.  Notwithstanding the foregoing, the Receiving Party shall not disseminate Confidential Information to any Representative until such Representative has agreed to be bound by confidentiality obligations no less stringent than those contained herein.

 

c.                   Exceptions to Restrictions

 

The confidentiality, non-use, and non-disclosure obligations of the Receiving Party shall not apply to any Confidential Information which the Receiving Party can document: (i) was in the Receiving Party’s possession prior to disclosure by Disclosing Party, provided that such information is or was not, to Receiving Party’s knowledge, subject to another confidentiality agreement, and is not and was not prohibited from being disclosed by any other contractual, legal, or fiduciary obligation; (ii) is, as of the Effective Date, in, or hereafter enters, the public domain through no fault or action of the Receiving Party or its Representatives; (iii) is obtained by the Receiving Party from a third-party which is not subject to any legal restriction on its right to use and disclose such information; (iv) has been independently acquired or developed by the Receiving Party without reference to the Confidential Information, in whole or in part, and without violating any of its obligations under these Terms of Service; or (v) is disclosed with the prior written consent of the Disclosing Party.

 

d.                  Compelled Disclosure

 

Notwithstanding anything in these Terms of Service to the contrary, the Receiving Party may make disclosures required by court order or the order of an administrative agency or other governmental body; provided, however, that the Receiving Party must provide prompt and reasonable notice of such order to the Disclosing Party to enable the Disclosing Party, at its own cost, to seek a protective order, participate in the proceeding, or otherwise prevent or restrict such disclosure.  Notwithstanding the foregoing, in the event of any compelled disclosure, the Receiving Party shall limit such disclosure to the minimum necessary to comply with such order.

 

e.                  Proprietary Interest

 

Each of RGP and you, respectively, acknowledges and agrees that all Confidential Information is and shall remain the exclusive property of the Disclosing Party.  No right or license, either express or implied, is granted to the Receiving Party pursuant to these Terms of Service, other than the limited right of the Receiving Party to access or utilize such Confidential Information as provided in these Terms of Service.

 

f.                    Injunctive Relief

 

Each of RGP and you, respectively, hereby acknowledges and agrees that the Confidential Information constitutes unique and valuable assets of the Disclosing Party.  Each of RGP and you, respectively, each further acknowledges that, because of the unique nature of the Confidential Information, monetary damages may be inadequate to compensate the Disclosing Party for any breach by the Receiving Party of its covenants and agreements set forth in this Section 12.  Accordingly, each of RGP and you, respectively, agrees and acknowledges that any violation of the terms of this Section 12 may cause irreparable damage to the Disclosing Party and, therefore, that in addition to any other legal remedies or equitable relief available to the Disclosing Party for any breach of this Section 12, the Disclosing Party shall be entitled to seek, from a court of appropriate jurisdiction, specific performance in the form of injunctive relief to prevent, inhibit, or enjoin any actual, suspected, or threatened violation of the terms of this Section 12 by the Receiving Party or its Representatives, without the necessity of posting a bond.

 

g.                  Destruction of Information

 

Subject to Section 7(d)(iv) (Return of Your Data), upon the termination of these Terms of Service, or upon the earlier, written request of the Disclosing Party, the Receiving Party shall immediately destroy any Confidential Information that the Receiving Party received in written, electronic, or other tangible form (including all copies and electronic reproductions thereof).  Notwithstanding the foregoing, nothing in these Terms of Service shall require the alteration, modification, deletion, or destruction of back-up tapes or other comparable electronic records made in the ordinary course of business pursuant to the Receiving Party’s or its Representatives’ respective electronic information systems.  Additionally, Receiving Party shall only be required to use reasonable efforts to search for and destroy copies of routine emails between Representatives, but it shall not be required to conduct exhaustive electronic discovery for such emails that do not contain attachments containing Confidential Information.  Notwithstanding the return, destruction, or deletion of Confidential Information pursuant to this Section 12(g) by the Receiving Party and its Representatives, the Receiving Party and its Representatives shall continue to be obligated to maintain the confidentiality of, and not use for any purpose not described in or permitted by these Terms of Service, any Confidential Information retained or archived by the Receiving Party or its Representatives, in accordance with the terms of this Section 12.

 

h.                  Survival of Confidentiality Obligations

 

Receiving Party’s obligations under this Section 12 regarding Disclosing Party’s Confidential Information terminate two (2) years after the end of the termination of these Terms of Service, except that Receiving Party’s obligations survive (i) in perpetuity for backed up Personal Information; and (ii) for Confidential Information that is a trade secret, for as long as such Confidential Information is a trade secret under Applicable Law.

 

13.              TERM AND TERMINATION

 

a.                  Term

 

These Terms of Service begin on the Effective Date and continue until terminated in accordance with Section 13(b) (Termination).

 

b.                  Termination

 

Either RGP or you may terminate these Terms of Service with or without cause at any time by giving notice of such termination to the other in the manner described in Section 19 (Notices). RGP may, in its sole discretion, delay termination related to non-payment for the Services and provide a grace period of up to sixty (60) days from due date to allow for you to arrange for payments.  However, no Services will be provided during any grace period.  Further, if we believe that you have violated your obligations under these Terms of Service, we may, at our option, and in addition to our other remedies, immediately and without notice, suspend your Account, remove and destroy data and files stored by you on RGP’s servers and/or terminate these Terms of Service.  You agree that we will not be liable to you or any third-party for any suspension or termination of your Account or the Services.  Should you object to any terms and conditions of these Terms of Service or any subsequent modifications thereto or become dissatisfied with the Services in any way, your only recourse is to immediately: (i) discontinue use of the Services; (ii) terminate these Terms of Service; and (iii) destroy all copies of the Software in your possession.  

 

c.                   Effect of Termination  

 

Upon the termination of these Terms of Service, RGP shall (i) cease providing all Services, including any Premium Services, if any, and (ii) if applicable, provide to you a final invoice for all Services rendered, and any expenses incurred through the date of termination.  Unless otherwise given express, prior written permission otherwise, you will uninstall all Software and RGP Technology from your Systems, as applicable.  

 

d.                  Survival

 

All sections of these Terms of Service, which by their nature should survive the termination of these Terms of Service, shall so survive, subject to any survival periods specified therein.

 

14.              DISCLAIMER OF WARRANTIES

 

The transmission, storage, viewing, and retrieval of data and files through the internet is subject to a variety of conditions that make such transmission, storage, viewing, and retrieval potentially unreliable. ACCORDINGLY, YOUR USE OF THE SOFTWARE, APPLICATION, YOUR ACCOUNT, AND THE SERVICES IS AT YOUR SOLE RISK.  THE SOFTWARE, APPLICATION, YOUR ACCOUNT, AND THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. RGP DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, APPLICATION, YOUR ACCOUNT, AND THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT).  RGP MAKES NO REPRESENTATION OR WARRANTY: (I) THAT THE SOFTWARE, APPLICATION, YOUR ACCOUNT, OR THE SERVICES WILL MEET YOUR OR YOUR PARTICIPANTS’ NEEDS; (II) THAT ACCESS TO YOUR ACCOUNT OR THE SERVICES WILL BE TIMELY, ERROR-FREE, UNINTERRUPTED, VIRUS-FREE, OR SECURE; (III) THAT THE DATA AND FILES YOU STORE IN YOUR ACCOUNT WILL NOT BE LOST OR DAMAGED; (IV) THAT THE DATA ON YOUR DESKTOP OR SERVER WILL NOT BE LOST OR DAMAGED; OR (V) THAT DEFECTS IN THE SOFTWARE, APPLICATION, OR SERVICES WILL BE CORRECTED.  YOU ACKNOWLEDGE THAT ANY MATERIAL OR DATA YOU RETRIEVE THROUGH THE USE OF THE SERVICES IS DONE AT YOUR CHOICE AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE RETRIEVAL OF SUCH MATERIAL OR DATA.

 

15.              EXCLUSION OF DAMAGES

 

IN NO EVENT SHALL WE 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 THE SOFTWARE, APPLICATION, YOUR ACCOUNT, OR THE SERVICES OR YOUR LOSS OF DATA OR FILES STORED THEREIN AND YOU HEREBY RELEASE AND HOLD RGP, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, HARMLESS FROM ANY CLAIM, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, THAT YOU MAY INCUR AS A RESULT OF USING THE SOFTWARE, APPLICATION, YOUR ACCOUNT, AND THE SERVICES.

 

16.              LIMITATION OF LIABILITY

 

IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF RGP, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, ARISING FROM OR RELATING TO THESE TERMS OF SERVICE, THE SOFTWARE, APPLICATION, YOUR ACCOUNT, OR THE SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU TO RGP HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM, OR ONE HUNDRED DOLLARS ($100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. 

 

17.              INDEMNIFICATION

 

You will defend, indemnify, and hold RGP, its affiliates, and their respective officers, directors, employees, and agents harmless from any Claim, including reasonable attorneys’ fees and costs, made by any third-party (including, without limitation, Participants) due to or arising out of (i) your use of the Software, Application, your Account and/or the Services, (ii) any data files and content stored by the Software or you, in your Account, and otherwise on the RGP servers, (iii) any breach of your representations and/or warranties under these Terms of Service, and (iv) any violation of these Terms of Service or Applicable Law by you.

 

18.              DISPUTE RESOLUTION AND BINDING ARBITRATION

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

19.              NOTICES

 

Any notice under these Terms of Service given by us to you will be deemed to be properly given if delivered by (i) email to your email address given during registration, (ii) a startup screen that starts before your next use of the Services, (iii) written communication mailed by first class U.S. mail to your address given during your registration, or (iv) a display about the changed information in these Terms of Service on the index page if the change is generic.  It is important that you maintain a correct working email address and update such email address as necessary to be able to receive our communications.  It is also important that your email system is able to receive emails from rockgympro.com into your inbox.  Any notice under these Terms of Service given by you to us will be deemed to be properly given if received by email sent to RGP’s customer service team at support@rockgympro.com.  To cancel your Account, you must email a cancellation request to support@rockgympro.com.   

 

20.              Force Majeure

 

RGP will not be liable for any failure or delay to perform any obligation hereunder due to causes beyond RGP’s reasonable control, including the elements, acts of God, acts of the public enemy and/or terrorism, acts of civil or military authority, fires, floods, epidemics, pandemics, quarantine restrictions, failure or erratic behavior of telecommunications or power systems, sabotage, armed hostilities, and riots.

 

21.              Severability

 

If any provision of these Terms of Service is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law and the remaining provisions of these Terms of Service will remain in effect.

 

22.              Assignment

 

You will not assign any of your rights or delegate any of your obligations under these Terms of Service without our prior written consent.  Any purported assignment or delegation in violation of this provision is null and void.  No assignment or delegation relieves you of any of your obligations under these Terms of Service.  These Terms of Service may be assigned by us without restriction.

 

23.              No Third Party Beneficiaries

 

Except as expressly provided herein, these Terms of Service (i) are entered into by and between, and may be enforced only by, RGP and you, and (ii) will not be deemed to (A) create any rights in third parties (other than each of RGP’s and your respective permitted successors and assigns and any persons or entities expressly entitled to indemnity hereunder), including without limitation, Participants and each of RGP’s and your respective affiliates and their respective officers, directors, employees, and agents, or (B) create any obligations of RGP or you, respectively (nor its affiliates or their respective officers, directors, employees, or agents) to any such third parties, including Participants.

 

24.              Waiver

 

The failure or delay by us to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision, nor will any single or partial exercise of any right or provision by us prevent further exercise of any right or provision or the exercise of any other right or provision by us under these Terms of Service.  The waiver of any right or provision by us will be effective only if in writing and signed by a duly authorized representative of us.

 

25.              Statute of Limitations

 

No Claim, regardless of form, may be brought or asserted by either of RGP or you, respectively (nor its affiliates or their respective officers, directors, employees, or agents) against the other (nor its affiliates or their respective officers, directors, employees, or agents) under these Terms of Service more than one year after the cause of such Claim became known to the potential claimant or should have been known to the claimant based on the surrounding circumstances.

 

26.              Governing Law, Jurisdiction, and Venue

 

These Terms of Service shall be governed and construed in accordance with applicable United States federal law and the laws of the State of Delaware, without regard to conflict of laws principles.  RGP and you, respectively, hereby submit to the jurisdiction of, and waive any venue objections against, the federal and state courts of the State of Delaware for any Claim arising out of or relating to these Terms of Service or the negotiation, validity, or performance of these Terms of Service.

 

27.              Relationship of the Parties

 

The relationship of RGP and you is as independent contractors.  Nothing in these Terms of Service or performance under these Terms of Service shall create or be deemed to create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between RGP and you.  You shall retain responsibility for and control over all aspects of your relationship with your customers (including Participants) and your business, products, and services.

 

28.              Publicity

 

Notwithstanding any other provision contained in these Terms of Service, RGP is permitted to disclose that you are one of its customers to any third-party at its sole discretion (including without limitation by including your name and logo in customer lists that may be made available on the Website or in RGP’s marketing materials).

 

29.              Currency

 

All amounts due under these Terms of Service or with respect to the Services, including with respect to indemnification obligations, shall be paid in U.S. dollars.

 

30.              Entire Agreement

 

These Terms of Service and any other terms posted to our Website will be deemed the final and integrated agreement between you and us on the matters contained in these Terms of Service.  Your use of digital waiver services, if any, is governed by Smartwaiver’s Terms of Service.

 

 

DATA PROCESSING ADDENDUM

 

This Data Processing Addendum (this “DPA”) forms a part of the Terms of Service between RGP and you.  RGP and you enter into this DPA to comply with applicable Data Protection Laws (as defined below).

 

1.                Certain Defined Terms. Capitalized terms used in this DPA but not otherwise defined in this DPA or the Terms of Service have the following meanings:

 

1.                “Data Protection Laws” means all Applicable Laws, self-regulatory rules and guidelines, and your policies relating to or impacting the processing, privacy, or security of Personal Information, including the California Privacy Rights Act of 2020.

 

2.                “Personal Health Information” or “PHI” has the meaning set forth under the Health Insurance Portability and Accountability Act.

 

3.                “Personal Information” means information processed by RGP on your behalf through (i) your Account, (ii) your, User’s, or Participant’s use of, or access to, the Software, Application, or Services, as applicable, or (iii) any other purpose contemplated by the Terms of Service; which, in each case, that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly to, a natural person. “Personal Information” does not include Usage Data.

 

4.                "Usage Data" means data and information generated, collected, or derived from your use of the Software, Application, Services, or your Account, including but not limited to: (i) technical information about device information and identifiers, IP addresses, log files, browser type and version, system configuration, and API calls and responses; (ii) Service interaction metrics such as features and functionalities accessed, frequency and duration of use, user navigation patterns, click-stream behavior, performance metrics, error rates, and system stability data; and (iii) aggregate statistics about Service utilization patterns, resource consumption, user engagement metrics, response times, and system load information.

 

2.                Scope. This DPA only applies to the extent that RGP processes Personal Information on your behalf in the course of providing the Services. This DPA does not apply to the processing of PHI. In the event RGP processes PHI on your behalf, RGP and you will enter into a Business Associate Agreement that will govern such processing.  To the extent Usage Data is considered Personal Information under applicable Data Protection Laws, RGP is the “controller” or “business” with respect to such Usage Data.

 

3.                Compliance with Laws. Each of RGP and you respectively will comply with its obligations under applicable Data Protection Laws. You may take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Information by RGP.  If applicable Data Protection Laws related to the processing of Personal Information change, RGP reserves the right to make any necessary amendments to this DPA.

 

4.                Instructions. RGP will process your Personal Information in accordance with your documented lawful instructions as set forth in this DPA and the Terms of Service and as otherwise necessary to provide the Services (together “Processing Instructions”). You will ensure that your Processing Instructions comply with Applicable Laws.  If, in RGP’s opinion, your Processing Instructions violate applicable Data Protection Laws, RGP will notify you. RGP may without penalty refuse further processing of Personal Information under this DPA that it believes to be in violation of any law, including Data Protection Laws.

 

5.                Use of Personal Information. RGP may process Personal Information to provide the Services and as otherwise provided in the Terms of Service and this DPA. RGP will not:

 

1.                sell, share (as such terms are defined under applicable Data Protection Laws) or otherwise disclose any Personal Information to any third-party other than its duly authorized subcontractors for purposes of performing or improving the Services, including to prevent or address any service or technical problems;

 

2.                collect, retain, use, or otherwise disclose or process Your Data, including Personal Information, for any purpose other than as necessary to provide the Services specified in the Terms of Service or outside of the direct business relationship between RGP and you; provided that RGP may retain, use, and disclose Your Data: (i) to retain and employ a Subprocessor (as defined below), (ii) for internal purposes to build or improve the quality of its services or develop and test new features and services, and (iii) to detect data security incidents or protect against fraudulent or illegal activity, or as otherwise permitted by Data Protection Laws; or

 

3.                combine Personal Information with personal information RGP receives from, or on behalf of, another person or persons, or which RGP collects from its own interactions with an individual, in each case except as expressly agreed by you and permitted by Applicable Laws.

 

RGP certifies that it understands the restrictions in this Section 5 and will comply with them. 

 

6.                Security.  RGP will implement and maintain appropriate technical and organizational security measures designed to preserve the security and confidentiality of Your Data processed by the Platform. RGP may update its security measures, provided that any updates will not materially diminish the overall security of Personal Information or the Platform.

 

7.                Subprocessors. You generally authorize RGP to engage third parties to assist in the processing of Personal Information on your behalf (each, a “Subprocessor”). RGP will require that each person processing Personal Information on its behalf be subject to a duty of confidentiality with respect to such Personal Information. If RGP engages a new Subprocessor, RGP will provide notice to you of that engagement and provide you with an opportunity to object to such engagement.

 

8.                Disposition of Personal Information Upon Termination.  Upon termination of the Terms of Service, RGP will promptly delete all Personal Information in its custody or control, except for Personal Information retained in RGP’s backup files, if any, which will be deleted in the ordinary course of RGP’s business in accordance with its standard data retention schedules. 

 

9.                Third-Party Communications. RGP will promptly notify you if it receives any communication from a third-party (from an individual, a governmental, or otherwise) which relates to the processing of Personal Information, or to either RGP’s or your respective compliance with Data Protection Laws, and will refer such third-party to you.

 

10.            Compliance and Audit. 

 

1.                RGP will provide all information reasonably necessary to demonstrate compliance with this DPA.

 

2.                RGP will allow you or an auditor appointed by you to, not more than once every twelve (12), months unless required by Applicable Law, carry out audits or other security assessment (“Security Assessment”) relating to the processing of Personal Information by RGP.  The scope of any Security Assessment will be mutually agreed by RGP and you in advance.  You will be solely responsible for all costs related to any Security Assessment, including all costs incurred by RGP in connection with cooperating with such Security Assessment.

 

3.                RGP may, but is not required to, retain a qualified and independent assessor to perform an annual audit of the physical, technical, administrative, and organizational safeguards put in place by RGP that relate to the protection of the security, confidentiality, or integrity of Personal Information using an appropriate and industry accepted control standard or framework and assessment procedure, or documentation of certification of compliance with, industry-accepted information security standards (“Third-Party Audit”).

 

4.                You agree to first review any available Third-Party Audit prior to conducting any Security Assessment.

 

11.            Personal Information Breach.  RGP will notify you without undue delay of any unauthorized access to, or disclosure or acquisition of, to Personal Information.  RGP will provide you with information regarding the extent of data exposure, including the number and identity of affected individuals, if known, and the status of remediation efforts.

 

12.            Conflict. In the event of any conflict between this DPA and the Terms of Service, the terms of this DPA will prevail.

 

13.            Limitation of Liability. Notwithstanding anything to the contrary in this DPA or the Terms of Service, and to the maximum extent permitted by law, RGP’s, its affiliates’, and their respective officers’, directors’, employees’, and agents’, liability, in the aggregate, arising out of or related to this DPA, whether in contract, tort, or under any other theory of liability, will remain subject to the limitation of liability section of the Terms of Service.

 

14.            Survival.  The obligations placed upon each party under this DPA will survive so long as RGP processes Personal Information on your behalf.