Last Updated: November 2, 2021
Welcome to RockPorch. RockPorch provides a web-based social community platform (the “RockPorch Platform”) for outdoor enthusiasts who wish to share (collectively, the “Creators” or “you”) information, content and products that they love and want to share with other outdoor enthusiasts (collectively, the “Enthusiasts” or “you”). The website at https://www.rockporch.com/ (the “Site) and the various other related services, features, functions, software, applications, websites and networks (together with the Site and the RockPorch Platform, collectively the “RockPorch Services”) are provided and operated, and are being made available to you and the other Creators, Enthusiasts, the Affiliated Retailers (as defined below) and other users of any of the RockPorch Services (collectively, “Users”) by Evolved Outdoors, Inc. (“RockPorch”, “us” or “we”). All defined terms used herein shall have the meanings prescribed to these terms in these Terms of Service.
These Terms contain an Arbitration provision, which will, with limited exception, require you to submit disputes you have against RockPorch to binding and final arbitration. You will only be permitted to pursue claims against RockPorch on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
To access and use the RockPorch Platform, the Site and the other RockPorch Services you must be at least 18 years of age. BY CLICKING THE “I AGREE” BUTTON OR BY ACCESSING OR USING ANY OF THE ROCKPORCH SERVICES, , YOU REPRESENT THAT:
- YOU SATISFY THE ELIGIBILITY REQUIREMENTS AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE ROCKPORCH PLATFORM, THE SITE OR ANY OF THE OTHER ROCKPORCH SERVICES;
- YOU CONFIRM THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ROCKPORCH;
- YOU WILL COMPLY WITH THESE TERMS AND ALL APPLICABLE LOCAL, STATE, NATIONAL AND INTERNATIONAL LAWS, RULES AND REGULATIONS; AND
- YOU ARE NOT A COMPETITOR OF ROCKPORCH AND DO NOT INTEND TO USE ANY OF THE ROCKPORCH SERVICES FOR REASONS THAT ARE IN COMPETITION WITH ROCKPORCH OR OTHERWISE TO REPLICATE SOME OR ALL OF THE ROCKPORCH SERVICES FOR ANY REASON.
- The RockPorch Platform.
(a) The RockPorch Platform may be used indirectly to sell products posted by Creators on the RockPorch Platform (collectively, the “Products”) through links redirected to independent retailers and websites with which RockPorch has established a direct relationship (collectively, the “Affiliated Retailers”). Products may also include other products purchased by a User from an Affiliated Retailer if the User first linked to that Affiliated Retailer through the RockPorch Platform. No Products are sold directly through the RockPorch Platform.
(b) Subject to these Terms, a Creator may receive a commission for each of the Products sold using the RockPorch Platform so long as the seller is an Affiliated Retailer. RockPorch will receive a share of any such commission.
(c) Any Products that you purchase using the RockPorch are strictly between you and the applicable Affiliated Retailer. Neither RockPorch nor any Creator shall have any responsibility or liability regarding any Product that you decide to purchase.
(a) To become a Creator, you must apply to RockPorch. Any decision regarding the approval of a Creator is at the sole discretion of RockPorch.
(b) Creators will also need to provide us access to their PayPal accounts (or other payment process approved by RockPorch, the “Commission Account”) for payment of commissions associated with the sale of Products.
(c) In addition to Products, Creators may also post information and other content to the RockPorch Platform (the “Creator Content”).
(d) Although we do not undertake a formal background check of the Creators, we use commercially reasonable efforts to vet the Creators. Despite our efforts, however, no vetting process is 100% effective and RockPorch cannot guarantee or warrant the backgrounds or the qualifications of the Creators. If you have any questions or concerns about a Creator, please contact us at email@example.com.
3.3 Enthusiasts. As a general matter, Enthusiasts are not able to post information and other content and/or products to the RockPorch Platform without the prior written approval of RockPorch. Even if approved, the posting of information and other content and/or products by Enthusiasts may be subject to different terms and conditions that would otherwise apply to Creators. For instance, Enthusiasts, even when granted approval to post information and other content and/or products to the RockPorch Platform, will not be eligible to receive any commission for Products sold using the RockPorch Platform.
3.5 Affiliated Networks. Affiliated Networks provide RockPorch access to sales and other information from Affiliated Retailers. In addition, Affiliated Networks are responsible for obtaining and remitting commission payments from the Affiliated Retailers to RockPorch.
(a) The applicable estimated commission rates will be available to Creators through their accounts (as modified, collectively, the “Estimated Commission Rates”). These commission rates are initially estimated for various reasons, including (i) changes in the commission rates by the Affiliated Retailers that have not yet been reflected in the RockPorch Platform and (ii) the Affiliated Retailers’ various attribution policies and changes in those attribution policies. The actual commissions rates (as modified, collectively, the “Commission Rates”) may not actually be known until the commissions are actually paid by the Affiliated Retailers. The Estimated Commission Rates and the Commission Rates may differ among our various Creators.
(b) A Creator will receive a commission based on his or her Commission Rates when a Product is purchased from an Affiliated Retailer that was first initiated by a User through the RockPorch Platform (a “Qualified Purchase”). The purchase does not have to be of the original Product for which that the User initially connected with the Affiliated Retailer so long as the purchase is made within the applicable time frames agreed to between RockPorch and such Affiliated Retailer.
(c) Once a Qualified Purchase has been made, the Affiliated Retailer or its Affiliated Network will send the applicable commission to RockPorch’s account in accordance with the time frames agreed to between RockPorch and the Affiliated Retailer (a “Qualified Commission”). The Qualified Commission will remain in RockPorch’s account for up to ninety (90) days after a Qualified Purchase during which it may be reduced for a return, a refund or other adjustment made by the Affiliated Retailer in its sole discretion (the remaining commission, an “Eligible Commission”). The Eligible Commission will be paid into the applicable Creator’s Commission Account no less than monthly so long as the aggregate unpaid Eligible Commissions exceed the applicable minimum payment threshold as determined by RockPorch from time to time or as otherwise agreed by the parties (as modified, the “Minimum Payment Threshold”). The current Minimum Payment Threshold may be found in your dashboard or will be provided by RockPorch upon request. If the aggregate unpaid Eligible Commissions are less than the then current Minimum Payment Threshold, then such Eligible Commissions shall continue to be held in RockPorch’s Account until the aggregate unpaid Eligible Commissions meet the then current Minimum Payment Threshold.
(d) Any Eligible Commission remaining in a Creator’s Commission Account after such Creator has officially terminated his or her account will be paid into the Creator’s Commission Account within thirty (30) days of such termination, even if the aggregate unpaid Eligible Commissions are less than the then current Minimum Payment Threshold.
(e) RockPorch is not liable to pay any Eligible Commissions to a Creator from any Affiliated Retailer or Affiliated Network until the Affiliated Retailer or Affiliated Network remits payment to RockPorch. Notwithstanding the foregoing, Creator agrees and authorizes RockPorch to apply any payment received from any Affiliated Retailer or Affiliated Network in the following order of priority: first, to fees owed to RockPorch by Affiliated Retailer or Affiliated Network; and then commissions or fees owed to Creator. Further, RockPorch shall not be liable to Creator for any Affiliated Retailer’s or Affiliated Network’s breach of its obligations to RockPorch or Creator. Although RockPorch uses commercially reasonable efforts to ensure that all Eligible Commissions are paid into a Creator’s designated Commission Account, you acknowledge and agree that RockPorch shall not have any responsibility or liability for any Eligible Commissions that are not paid into a Creator’s designated Commission Account for any reason except to the extent caused by RockPorch’s negligence or willful misconduct.
3.7 Accounts. Whether you are a Creator, an Enthusiast or an Affiliated Retailer, you must register and create an account to access and use most of the RockPorch Services, including the Creator Content. When creating an account, you will be required (a) to provide us certain information such as your name and e-mail address and (b) to create a password.
3.8 Registration Data. In registering and creating an account, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted during the registration and account creation process (“Registration Data”), and (ii) maintain and promptly update the Registration Data, to keep it true, accurate, current and complete. You are responsible for all activities that occur under your account. If you provide any information that is untrue, inaccurate, not current, or incomplete, or RockPorch has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, RockPorch has the right to suspend or terminate your account and prohibit you from accessing and using the RockPorch Platform and/or any of the other RockPorch Services. 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. You agree not to create an account or to access and use the RockPorch Platform or any of the other RockPorch Services if you have been previously removed by RockPorch or if you have been previously banned from accessing and using the RockPorch Platform or any of the other RockPorch Services.
4.1 Fees. There are currently no fees, except for those mentioned in Section 3.1 (b), to access and use the RockPorch Platform or any of the other RockPorch Services, including the Creator Content and the Products.
4.2 Changes in Fees and Payment Methods. RockPorch reserves the right at any time to begin charging for services that it is currently providing free of charge, either immediately upon posting on the RockPorch Platform, the Site, any of the other RockPorch Services or by notifying you by email.
- Right to Access and Use; Unauthorized Use.
5.1 Right to Access and Use. Subject to your compliance with all of the terms and conditions set out in these Terms, (a) RockPorch hereby grants to you a limited, non-exclusive, non-transferable, freely revocable right to access and use the RockPorch Platform and the other RockPorch Services to the extent and in accordance with these Terms and (b) RockPorch hereby grants to you as Creator a limited, non-exclusive, non-transferable, freely revocable right to post Creator Content and Products on the RockPorch Platform to the extent and in accordance with these Terms.
5.2 Prevention of Unauthorized Use. RockPorch reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the RockPorch Platform or any of the other RockPorch Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
RockPorch shall provide technical and other limited support with respect to the RockPorch Platform, the Site and the other RockPorch Services through the “contact us” link.
- Additional Policies.
When accessing or using the RockPorch Platform and any of the other RockPorch Services or posting any Creator Content or Products, you will be subject to any additional posted policies, guidelines or rules applicable to the Site, the RockPorch Platform and the other RockPorch Services and features which may be posted from time to time (as added or modified from time to time, the “Policies”). All such Policies are hereby incorporated by reference into these Terms.
- Respecting other People’s Rights.
RockPorch respects the rights of others and so should you. You therefore shall not:
- violate or infringe someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual property right;
- post anything that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by RockPorch in its sole discretion;
- post anything that is false, misleading, untruthful or inaccurate or that includes anyone’s personal information;
- impersonate any person or entity, including any of RockPorch’s personnel or representatives or any other Creator, Enthusiast or other User; or
- spams or solicits any Users, including any Creators, Enthusiasts or other Users.
- Account Security.
When you access and use the RockPorch Platform or any of the other RockPorch Services, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer and mobile devices, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to RockPorch when creating an account and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times.
If you change or deactivate the email that you used to create a RockPorch account, you must update your account information within 72 hours to prevent us from sending to someone else messages intended for you.
If at any time you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any payment information, if applicable), then you shall immediately notify RockPorch at firstname.lastname@example.org. You may be liable for the losses incurred by RockPorch or others due to any unauthorized use of your account or any of the RockPorch Services.
- Modification of these Terms.
RockPorch reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Site or otherwise through the RockPorch Services. If RockPorch updates these Terms, it will update the “last updated” date at the top of the Terms. Please check these Terms, including any Policies, periodically for changes. Your continued use of the RockPorch Platform after the posting of changes constitutes your binding acceptance of such changes. In the event that a change to these Terms materially modifies your rights or obligations (including applicable Fees), RockPorch will make reasonable efforts to notify you of such change. RockPorch may provide notice through a pop-up or banner within any of the RockPorch Services, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, RockPorch may require you to provide consent by accepting the changed Terms. If RockPorch requires your acceptance of the changed Terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by RockPorch, such amended Terms or fees will automatically be effective, replacing the previously-effective Terms or fees, thirty (30) days after they are initially posted on any of the RockPorch Services. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE ROCKPORCH PLATFORM AND ALL OF THE OTHER ROCKPORCH SERVICES.
To the extent that any modifications to the Terms or Policies are not allowed under applicable laws, the prior most recent version of the Terms or Policies shall continue to apply.
- Digital Millennium Copyright Act.
It is RockPorch’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. If you file a notice with our copyright agent, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). RockPorch reserves the right to terminate without notice any User’s access to the RockPorch Platform and the other RockPorch Services if that User is determined by RockPorch to be a “repeat infringer.” In addition, RockPorch accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
- License Grant for Content; Representations and Warranties.
12.2 Content Use by other Users. You hereby consent to the use of your Content by other Users that are authorized to access your Content in the manner contemplated by these Terms and any of the RockPorch Services.
12.3 Content and Confidential Information. You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your Content and the consequences of posting or publishing any Content. By uploading and publishing your Content, you affirm, represent, and warrant that: (a) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize RockPorch and the other authorized Users to use and distribute your Content as necessary to exercise the licenses granted by you in this Section 12 and in the manner contemplated by RockPorch and these Terms; (b) your Content does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, defame, libel, or violate or invade the right of privacy, publicity or other rights of any person or entity; and (iii) your Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of any of the RockPorch Services. Violators of these third-party rights may be subject to criminal and civil liability. RockPorch reserves all rights and remedies against any Users who violate these Terms.
12.4 Content Disclaimer. You understand that when using the RockPorch Platform or any of the other RockPorch Services you may be exposed to Content or other materials from a variety of sources, and that RockPorch is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Content and other content. You further understand and acknowledge that you may be exposed to Content and other materials that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against RockPorch with respect thereto. RockPorch does not endorse any Content and other material or any opinion, recommendation or advice expressed therein, and RockPorch expressly disclaims any and all liability in connection with Content and other materials. If notified by a User or a content owner of any Content or other content or materials that allegedly do not conform to these Terms, RockPorch may investigate the allegation and determine in its sole discretion whether to remove the Content or other content or materials, which it reserves the right to do at any time and without notice. For clarity, RockPorch does not permit copyright infringing activities on or through any of the RockPorch Services.
- Prohibited Conduct.
BY ACCESSING AND USING THE ROCKPORCH PLATFORM OR ANY OF THE OTHER ROCKPORCH SERVICES YOU AGREE NOT TO:
13.1 Develop or create any competing business or service or provide any services, directly or indirectly, that are similar to, or based on, the RockPorch Platform or any of the other RockPorch Services;
13.2 Decipher, decompile, disassemble, reverse engineer, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the RockPorch Platform or any of the other RockPorch Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);
13.3 Use the RockPorch Platform or any of the other RockPorch Services for the benefit of anyone other than you or your Organization, including selling, reselling, distributing, hosting, leasing, renting, licensing or sublicensing, in whole or in part, the RockPorch Platform or any of the other RockPorch Services for hosting or time-sharing services, or as part of a service bureau or outsourcing offering;
13.4 Provide any services to any third party using the RockPorch Platform or any of the other RockPorch Services except in accordance with these Terms;
13.5 Develop or create (a) any derivative work of the RockPorch Platform or any of the other RockPorch Services or (b) any other RockPorch Platform or service to the extent intended to compete with the RockPorch Platform and/or and the other RockPorch Services;
13.6 Reproduce (except as expressly permitted herein), modify, adapt, translate or otherwise make any changes to any of the RockPorch Services or any part thereof;
13.7 Copy, disclose, or distribute any content or data available on or through the RockPorch Platform or any of the other RockPorch Services, in any medium, including without limitation, by any automated or non-automated “scraping;”
13.8 Interfere with, circumvent or disable any security or other technological features or measures of any of the RockPorch Services or attempt to gain unauthorized access to any of the RockPorch Services or its related systems or networks;
13.9 Make unsolicited offers, advertisements, or proposals, or send junk mail or spam to other Users (including Creators and Enthusiasts) of any of the RockPorch Services (including, but not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
13.10 Use bots or other automated methods to: access the RockPorch Platform or any of the other RockPorch Services, download profiles, contacts or any other information, send or redirect messages or perform any other activities through any of the RockPorch Services;
13.11 Use the RockPorch Platform or any of the other RockPorch Services for any unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, transmission of deceptive messages, or harassment;
13.12 Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of any of the RockPorch Services;
13.13 Take any action that imposes, or may impose at RockPorch’s sole determination, an unreasonable or disproportionately large load on RockPorch’s infrastructure;
13.14 Deep-link to the RockPorch Platform or any of the other RockPorch Services without RockPorch’s consent;
13.15 Share or disclose information of other Users without their express consent; or
13.16 Use another User’s account or allow anyone else to use your account.
- Third-Party Sites.
The RockPorch Services may now or in the future include links or references to other third-party web sites or services, including the Affiliated Retailers (“Third-Party Sites”) solely as a convenience to Users. RockPorch does not endorse any such Third-Party Sites or the information, materials, products, or services contained on or accessible through Third Party Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through any of the RockPorch Services are solely between you and such advertiser except with respect to any Affiliated Retailer as otherwise contemplated in these Terms or in any other agreement between you and RockPorch. Access and use of Third Party Sites, including the information, materials, products, and services on or available through Third Party Sites are solely at your own risk.
- Text Messages; Mobile and Data Charges.
RockPorch may occasionally send text message offers and alerts. By agreeing to these Terms, you authorize RockPorch to send text messages to your mobile device with notifications and occasional special offers.
You are responsible for any mobile and data charges that you may incur for using any of the RockPorch Services, including text-messaging charges. If you’re unsure what those charges may be, you should ask your service provider before using the RockPorch Platform or any of the other RockPorch Services.
16.1 RockPorch. You agree that RockPorch, in its sole discretion, for any or no reason, and without penalty, may suspend or terminate your use of the RockPorch Platform or any of the other RockPorch Services or any account (or any part thereof) you may have with RockPorch and remove and discard all or any part of your account, user profile, and any Content, at any time. RockPorch may also in its sole discretion and at any time discontinue providing access to the RockPorch Platform, or any part thereof, with or without notice. You agree that any suspension or termination of your access to the RockPorch Platform or any the other RockPorch Services or any account you may have, or portion thereof may be effected without prior notice, and you agree that RockPorch will not be liable to you or any third party for any such termination. RockPorch reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing RockPorch to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies RockPorch may have at law or in equity. As discussed herein, RockPorch does not permit copyright infringing activities on the Site, the RockPorch Platform or any of the other RockPorch Services, and shall be permitted to terminate access to any of the RockPorch Services, and remove all Content or other content submitted by any Users who are found to be repeat infringers. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD ROCKPORCH HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ROCKPORCH DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER ROCKPORCH OR LAW ENFORCEMENT AUTHORITIES.
16.2 You. Your only remedy against RockPorch or any of its affiliates with respect to any dissatisfaction with (i) the RockPorch Platform or any of the other RockPorch Services, (ii) any term of these Terms, (iii) any policy or practice of RockPorch in operating the RockPorch Platform and the other RockPorch Services, or (iv) any Content transmitted through the RockPorch Platform or any of the other RockPorch Services, is to terminate your account and your use of all of the RockPorch Services. You may terminate your use of the RockPorch Platform and the other RockPorch Services and your account at any time. After such termination, you must refrain from use of the RockPorch Platform and the other RockPorch Services until authorized by RockPorch.
- Ownership; Proprietary Rights.
The Site, the RockPorch Platform and the other RockPorch Services are owned and operated by RockPorch. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the RockPorch Platform and the other RockPorch Services provided by RockPorch (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Content that is provided and owned by Users, all Materials contained on any of the RockPorch Services are the property of RockPorch or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to RockPorch or its affiliates and/or third-party licensors. Except as expressly authorized by RockPorch, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. RockPorch reserves all rights not expressly granted in these Terms.
If you choose to provide input, suggestions, comments, feedback, improvement requests or other recommendations regarding the RockPorch Platform or any of the other RockPorch Services (collectively, “Feedback”), then you hereby grant RockPorch an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty-free right to use or otherwise exploit the Feedback in any manner and for any purpose without restriction. You should not submit any Feedback to us that you do not wish to license to us as stated above. We have no obligation (a) to maintain any Feedback in confidence; (b) to pay any compensation for any Feedback; or (c) to respond to any Feedback. You grant us the right to use the name that you submit in connection with any Feedback.
You agree to indemnify, save, and hold RockPorch, its affiliated companies, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Site, the RockPorch Platform, any of the other RockPorch Services or any of the Content, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. RockPorch reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify RockPorch, and you agree to cooperate with RockPorch’s defense of these claims. RockPorch will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
- No Warranties; Disclaimers.
19.1 No Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ROCKPORCH AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “ROCKPORCH PARTIES”) DISCLAIM ALL WARRANTIES, STACREATORY, EXPRESS OR IMPLIED WITH RESPECT TO THE ROCKPORCH PLATFORM AND THE OTHER ROCKPORCH SERVICES, INCLUDING THE CONTENT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, ROCKPORCH PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STACREATORY OR OTHERWISE, THAT THE CREATORING, THE ROCKPORCH PLATFORM OR THE OTHER ROCKPORCH SERVICES OR THE CONTENT, WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE ROCKPORCH PARTIES OR THROUGH THE ROCKPORCH PLATFORM OR THE OTHER ROCKPORCH SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
19.2 “As Is” And “As Available” and “With All Faults”. YOU EXPRESSLY AGREE THAT THE USE OF THE ROCKPORCH PLATFORM AND ANY OF THE OTHER ROCKPORCH SERVICES, AND ANY DATA, ASSESSMENTS, RESULTS, INFORMATION, THIRD-PARTY SOFTWARE, CONTENT, THIRD PARTY SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ROCKPORCH PLATFORM OR ANY OF THE OTHER ROCKPORCH SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
19.3 RockPorch Platform Operation and Content. THE ROCKPORCH PARTIES DO NOT WARRANT THAT THE CONTENT (INCLUDING THE CREATOR CONTENT), DATA, ASSESSMENTS, RESULTS, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE ROCKPORCH PLATFORM OR ANY OF THE OTHER ROCKPORCH SERVICES, OR ANY THIRD-PARTY SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
19.4 Accuracy. EXCEPT AS SPECIFICALLY PROVIDED IN WRITING BY ROCKPORCH, THE ROCKPORCH PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE ROCKPORCH PLATFORM OR ANY OF THE OTHER ROCKPORCH SERVICES OR ANY CONTENT OR THIRD-PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
19.5 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, ASSESSMENTS, RESULTS OR DATA THROUGH THE ROCKPORCH PLATFORM OR ANY OF THE OTHER ROCKPORCH SERVICES OR ANY THIRD-PARTY SITES, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
- Limitation of Liability and Damages.
20.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL THE ROCKPORCH PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE ROCKPORCH PLATFORM OR THE OTHER ROCKPORCH SERVICES OR ANY OTHER INTERACTIONS WITH ROCKPORCH, A CREATOR AND/OR A ENTHUSIAST, EVEN IF ROCKPORCH OR A ROCKPORCH AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, ROCKPORCH’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
20.2 Limitation of Damages. IN NO EVENT WILL THE ROCKPORCH PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, THE CREATORING OR YOUR USE OF THE ROCKPORCH PLATFORM AND THE OTHER ROCKPORCH SERVICES, OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE GREATER OF (A) THE COMMISSIONS RECEIVED BY ROCKPORCH, IF ANY, IN CONNECTION WITH THE PRODUCTS YOU POST, DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR (B) FIFTY DOLLARS.
20.3 Release for Disputes between Users. If you have a dispute with any other Users (including any Creator or Enthusiast) or other third parties, you release RockPorch and the other RockPorch Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
20.4 Third-party Sites. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD-PARTY SITES OR OTHERWISE BY THIRD PARTIES, INCLUDING RETAILERS, AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE ROCKPORCH SERVICES OR RECEIVED THROUGH ANY THIRD-PARTY SITES.
20.5 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT ROCKPORCH HAS OFFERED THE ROCKPORCH PLATFORM AND THE OTHER ROCKPORCH SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND ROCKPORCH, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND ROCKPORCH. ROCKPORCH WOULD NOT BE ABLE TO PROVIDE THE ROCKPORCH PLATFORM OR ANY OF THE OTHER ROCKPORCH SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
20.6 Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
- United States Export Controls.
You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the RockPorch Platform or any of the other RockPorch Services or any underlying intellectual property, information or technology except in full compliance with all United States, foreign and other applicable export control laws and regulations.
22.1 Notice. RockPorch may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on any of the RockPorch Services. Notice will be deemed given twenty-four hours after the email is sent, unless RockPorch is notified that the email address is invalid. Alternatively, RockPorch may give you legal notice by mail to a postal address, if provided by you through any of the RockPorch Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on any of the RockPorch Services is deemed given 30 days following the initial posting.
22.2 Waiver. The failure of RockPorch to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by RockPorch.
22.3 Dispute Resolution. If a dispute arises between you and RockPorch, the goal is to provide you with a neutral and cost-effective methods of resolving the dispute quickly. Accordingly, you and RockPorch agree that any dispute, claim or controversy at law or equity that arises out of these Terms, the RockPorch Platform or any of the other RockPorch Services (a “Dispute”) will be resolved in accordance with this Section 22.3 or as RockPorch and you otherwise agree in writing. Before resorting to these dispute methods, RockPorch strongly encourages you to first contact RockPorch directly to seek a resolution.
The parties hereby irrevocably and unconditionally agree that service of process in any such Dispute may be effected by mailing a copy of such process by certified mail, postage prepaid, to such party at the address provided by such party.
(a) Choice of Law. THESE TERMS SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OFTEXAS, WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY DISPUTE OR OTHERWISE IN CONNECTION WITH THESE TERMS, THE ROCKPORCH PLATFORM OR ANY OF THE OTHER ROCKPORCH SERVICES.
(b) Arbitration and Class Action Waiver.
PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
(i) Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND ROCKPORCH (WHETHER OR NOT SUCH CLAIM INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS, THE PLATORM OR ANY OF THE OTHER ROCKPORCH SERVICES INCLUDING WITHOUT LIMITATION, YOUR RIGHTS OF PRIVACY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S APPLICABLE RULES FOR ARBITRATION AND YOU AND ROCKPORCH HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND ROCKPORCHWOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Any such arbitration shall be in English and be held in Dallas County, TX and the number of arbitrators shall be one (1). Except as otherwise required by law, the parties and the arbitrator agree to keep confidential and not disclose to third parties any information or documents obtained in connection with the arbitration process, including the resolution of the Dispute. You may bring claims only on your own behalf.
NEITHER YOU NOR ROCKPORCH WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT TO ARBITRATE. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST ROCKPORCH INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if RockPorch is a party to the proceeding.
This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
(ii) Judicial Forum for Disputes. In the event that the agreement to arbitrate under Section 22.3(b) is found not to apply to you or your claim, you and RockPorch agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the applicable procedural rules of, the federal or state courts of Dallas County, TX. Both you and RockPorch irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, RockPorch may bring a claim for equitable relief in any court with proper jurisdiction.
(iii) Survival. This arbitration agreement will survive the termination of your use of the RockPorch Platform or any of the other RockPorch Services or your relationship with RockPorch.
(c) 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in this Section 22.3 above by sending written notice of your decision to opt-out to RockPorch’s contact information listed at the bottom of these Terms. The notice must be sent to RockPorch within thirty (30) days of your registering to use the RockPorch Platform or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with the terms of this Section 22.3. If you opt-out of these arbitration provisions, however, we also will not be bound by them.
(d) Improperly Filed Disputes. All claims you bring against RockPorch must be resolved in accordance with this Section 22.3. All claims filed or brought contrary to this Section 22.3 shall be considered improperly filed. Should you file a claim contrary to this Section 22.3, RockPorch may recover attorneys’ fees and costs up to $15,000, provided that RockPorch has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
22.5 Assignment. These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by RockPorch without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
22.6 Survival. Upon termination of these Terms, your use of the RockPorch Platform or any of the other RockPorch Services, or your relationship with RockPorch, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 1, 2, 4.4, and 11 – 22.
22.7 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
22.9 No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
22.10 Geographic Restrictions. RockPorch is based in the state of Texas in the United States. RockPorch makes no claims that the RockPorch Platform or any of the other RockPorch Services or any of the content is accessible or appropriate outside of the United States. Access to the Site, the RockPorch Platform and the other RockPorch Services may not be legal by certain persons or in certain countries. If you access the RockPorch Platform or any of these other RockPorch Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against RockPorch with respect thereto.
22.11 Disclosures. The RockPorch Platform, the Site and the other RockPorch Services are offered by Evolved Outdoors, Inc. located at: 6125 Luther Ln, #210, Dallas, TX 75225 and email: email@example.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
© 2021 Evolved Outdoors, Inc.