Terms Of Service
Effective Date: May 14, 2018
This page explains our terms of service, which contain important information about your legal rights. When you use Rock Digital Media, you’re agreeing to these terms.
Hello and welcome to Rock Digital Media’s Terms of Service!
These Terms of Service ("Terms") cover your use of and access to the sites, templates, products, applications, tools and features (collectively, the "Services") provided by Rock Digital Media (as defined below), including without limitation during free trials, on the website and associated domains of www.rockdigitalmedia.com and on Rock Digital Media web and mobile applications.
By using or accessing the Services, you're agreeing to these Terms, our Copyright Policy, our Acceptable Use Policy and our Data Processing Addendum (collectively, this “Agreement”). If you're using the Services for an organization, you're agreeing to this Agreement on behalf of that organization, and you represent and warrant that you can do so. References to “you”, "your” and similar terms are construed accordingly in this Agreement. If you don’t agree to all the terms in this Agreement, you may not use or access the Services.
If you are a resident of or have your principal place of business in the United States of America or any of its territories or possessions (the “US”), you are agreeing to this Agreement with Rock Digital Media, and are a “US User”. Otherwise, you are agreeing to this Agreement with Rock Digital Media (“Rock Digital Media”) and are a “Non-US User”. References to “Rock Digital Media”, “us”, “we” and “our” mean Rock Digital Media, if you are a US User or Rock Digital Media if you are a Non-US User. If your place of residence or principal place of business changes, the Rock Digital Media entity you contract with will be determined by your new residence or principal place of business, as specified above, from the date it changes.
Please read this Agreement carefully! It includes important information about your legal rights, and covers areas such as automatic subscription renewals, warranty disclaimers, limitations of liability, the resolution of disputes by arbitration and a class action waiver. Please note if you are an EU Consumer (as defined below), some of these provisions may not apply to you and you may be entitled to specific rights under the mandatory laws of the country in which you live.
We’ve tried to make this Agreement fair and straightforward, but feel free to contact us if you have any questions or suggestions.
1. Creating An Account
Make sure your account information is accurate and that you keep your account safe. You’re responsible for your account and any activity on it. Also, you need to be at least 16 years old to use Rock Digital Media.
1.1. Signing Up. To use many of the Services, you must first create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. We may need to use this information to contact you.
1.2. Staying Safe. Please safeguard your Account and make sure others don't have access to your Account or password. You're solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We’re not liable for any acts or omissions by you in connection with your Account. You must immediately notify us if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised or in case of any actual or suspected unauthorized use of your Account.
1.3. Sixteen And Older. The Services are not intended for and may not be used by children under the age of 16. By using the Services, you represent that you're at least 16. If you’re under the age of 18, depending on where you live, you may need to have your parent or guardian’s consent to this Agreement and they may need to enter into this Agreement on your behalf.
2. Your Content
When you upload content to Rock Digital Media, you still own it. You do, however, give us permission to use it in ways necessary to provide, improve, promote and protect our services. For example, when you upload a photo, you give us the right to save it and display it on your site at your direction. We also may promote or feature your site, but you can opt out if you don’t want us to do that.
2.1. Your User Content Stays Yours. Users of the Services (whether you or others) may provide us with content, including without limitation text, photos, images, audio, video, code and any other materials (“User Content"). Your User Content stays yours, except for the limited rights that enable us to provide, improve, promote and protect the Services as described in this Agreement.
2.2. Your License To Us. When you provide User Content via the Services, you grant Rock Digital Media (including our third party hosting providers acting on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with the Services), communicate, publish, publicly display, publicly perform and distribute User Content for the limited purposes of allowing us to provide, improve, promote and protect the Services. This Section does not affect any rights you may have under applicable data protection laws.
2.3. Featuring Your Site. We may choose to feature sites you use the Services to create or publish (“Your Sites”) or names, trademarks, service marks or logos included on Your Sites. You grant us a perpetual, worldwide, royalty-free, non-exclusive right and license to use any version of Your Sites, or any portion of Your Sites, including without limitation names, trademarks, service marks or logos on Your Sites, for the limited purpose of Rock Digital Media marketing and promotional activities. For example, we may feature Your Sites on our Templates page, on the Customers sections of our sites or on our social media accounts. You waive any claims against us relating to any moral rights, artists’ rights or any other similar rights worldwide that you may have in or to Your Sites or names, trademarks, service marks or logos on Your Sites and any right of inspection or approval of any such use. You can opt out of being featured through your Account. This Section does not affect any rights you may have under applicable data protection laws.
3. Your Responsibilities
You’re responsible for the content you publish on Rock Digital Media, and you vouch to us that it’s all okay to use. We ask that you follow our rules and don’t do anything illegal with the services. Also keep in mind that what you upload may be publicly view-able.
3.1. Only Use Content You’re Allowed To Use. You represent and warrant that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your User Content via the Services and in the manner required by this Agreement. If we use your User Content in the ways described in this Agreement, you represent and warrant that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights, trade secrets or any other intellectual property or proprietary rights. Also, content on the Services may be protected by others' intellectual property, trade secret or other rights. Please don't copy, upload, download or share content unless you have the right to do so.
3.2. Follow The Law. You represent and warrant that your use of the Services is not contrary to law, including without limitation applicable export or import controls and regulations and sanctions.
3.3. Share Responsibly. The Services let you share User Content including without limitation on social media and the open web, so please think carefully about your User Content. We’re not responsible for what you share via the Services.
3.4. Comply With Our Acceptable Use Policy. You must comply with our Acceptable Use Policy. You represent and warrant that all your User Content complies with our Acceptable Use Policy.
3.5. Your Sites And Your End Users Are Your Responsibility. Your Sites may have their own visitors, customers and users (“End Users”). You understand and agree that Your Sites and your End Users are your responsibility, and you’re solely responsible for compliance with any laws or regulations related to Your Sites and/or your End Users. We’re not liable for, and won’t provide you with any legal advice regarding, Your Sites or your End Users. This does not limit or affect any liability we may have to you separately for any breach of the other provisions of this Agreement.
4. Third Party Services And Sites, User Content And Rock Digital Media Specialists
If you use or connect another service on or to Rock Digital Media, follow a link to another site or work with someone you find on Rock Digital Media (such as a specialist or Rock Digital Media member), what happens is between you and them. We’re not responsible for it or what either of you do. There’s also a lot of content on Rock Digital Media uploaded by our users (like you). We’re not responsible for that either.
4.1. Third Party Services. The Services are integrated with various third party services and applications (collectively, “Third Party Services”) that may make available to you their content and products. Examples of Third Party Services include our domain registrar, social media platforms, Rock Digital Media Specialists (as defined below), eCommerce Payment Processors (as defined below), stock images and email service subscriptions for sale via the Services and other integration partners and service providers. These Third Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. We don't control Third Party Services, and we’re not liable for Third Party Services or for any transaction you may enter into with them, or for what they do. Your security when using Third Party Services is your responsibility. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We’re not liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result (except where prohibited by applicable law).
4.2. Third Party Sites. The Services may contain links to third party sites. When you access third party sites, you do so at your own risk. We don’t control and aren’t liable for those sites and what those third parties do.
4.3. User Content. The Services or sites created using the Services may contain User Content: (a) that is offensive or objectionable; (b) that contains errors; (c) that violates intellectual property, trade secret, privacy, publicity or other rights or the good name of you or third parties; (d) that is harmful to your or others’ computers or networks; (e) that is unlawful or illegal; or (f) the downloading, copying or use of which is subject to additional terms and policies of third parties or is protected by intellectual property, trade secret, privacy or other laws. By operating the Services, we don’t represent or imply that we endorse your or other users’ User Content, or that we believe such User Content to be accurate, useful, lawful or non-harmful. We’re not a publisher of, and we’re not liable for, any User Content uploaded, posted, published or otherwise made available via the Services by you or other users. You're responsible for taking precautions to protect yourself, and your computer or network, from User Content accessed via the Services.
4.4. Rock Digital Media Specialists. Certain parts of the Services may provide directories of, and information about, independent third party Rock Digital Media users ("Rock Digital Media Specialists") who can help you use the Services. Rock Digital Media does not employ, is not affiliated with and does not endorse Rock Digital Media Specialists. Rock Digital Media Specialists are a Third Party Service, as defined in Section 4.1.
4.5. Developer Terms. Rock Digital Media may provide you with functionality to connect to, integrate or share information with a Third Party Service through Developer Tools (as defined in the Developer Terms). By accessing or using, or providing a Third Party Service with access to or use of, the Developer Tools, you agree to the Developer Terms. Any access to or use of such Third Party Services is at your own risk and is your responsibility, and is governed by the terms of Third Party Services in Section 4.1.
5. Our Intellectual Property
Rock Digital Media is protected by various intellectual property laws. This section summarizes what we own and how we share.
5.1. Rock Digital Media Owns Rock Digital Media. The Services are protected by copyright, trademark and other US and foreign laws. This Agreement doesn't grant you any right, title or interest in the Services, others’ User Content, our trademarks, logos or other brand features or intellectual property or trade secrets or others’ content in the Services. You agree not to change, translate or otherwise create derivative works of the Services or others’ User Content.
5.2. We Can Use Your Feedback For Free. We welcome your feedback, ideas or suggestions (“Feedback”), but you agree that we may use your Feedback without any restriction or obligation to you, even after this Agreement is terminated. This Section does not limit or affect any rights you may have under applicable data protection laws.
5.3. Our Demo Content. We may provide templates or other products featuring demo content, including without limitation text, photos, images, graphics, audio and video (“Demo Content”), to provide you with ideas or inspiration. Unless we tell you otherwise, Demo Content (or any portion of it) may not remain on Your Site or be distributed, publicly displayed, publicly performed or otherwise published.
5.4. Our Betas Are Still In Beta. We may release products and features that we’re still testing and evaluating. Those Services will be marked as beta, preview or early access (or a similar phrasing), and may not be as reliable as our other Services.
6. Our Rights
To operate effectively and protect the security and integrity of Rock Digital Media, we need to maintain control over what happens on our services.
6.1. Important Things We Can Do. We reserve these rights, which we may exercise at any time and in our sole discretion, and without liability or notice to you (except where prohibited by applicable law): (a) we may change parts or all of the Services and their functionality; (b) we may suspend or discontinue parts or all of the Services; (c) we may terminate, suspend, restrict or disable your access to or use of parts or all of the Services; (d) we may terminate, suspend, restrict or disable access to your Account or parts, some or all of Your Sites; and (e) we may change our eligibility criteria to use the Services (and if such eligibility criteria changes are prohibited by law where you live, we may revoke your right to use the Services in that jurisdiction).
6.2. How We Handle Ownership Disputes. Sometimes, ownership of an Account or site is disputed between parties, such as a business and its employee, or a web designer and a client. We try not to get involved in these disputes. However, we reserve the right, at any time and in our sole discretion, and without notice to you, to determine rightful Account or site ownership and to transfer an Account or site to such owner. Our decision in that respect is final. If we feel that we can’t reasonably determine the rightful owner, we reserve the right to suspend an Account or site until the disputing parties reach a resolution. We also may request documentation, such as a government-issued photo ID, credit card invoice or business license, to help determine the rightful owner.
6.3. HTTPS Encryption. We may offer HTTPS encryption for Your Sites. By registering a custom domain via the Services, or pointing a custom domain to the Services, you authorize us to create and maintain a certificate for the limited purpose of providing HTTPS for Your Sites.
7.2. Data Processing Addendum. Our Data Processing Addendum forms part of this Agreement.
7.3. You Must Comply With Data Protection, Security And Privacy Laws. You agree and warrant that you are solely responsible when using Your Sites or the Services for complying with applicable data protection, security and privacy laws and regulations (including, where applicable, the EU General Data Protection Regulation and the EU e-Privacy Directive/Regulation), including any notice and consent requirements. This includes without limitation the collection and processing by you of any personal data, when you use Your Sites and the Services to send marketing and other electronic communications to individuals and when using cookies and similar technologies on Your Sites (including, in particular, those which we place for you at your request as part of the Services, such as to undertake analytics for you).
We comply with copyright law, and respond to complaints about copyright infringement in accordance with our Copyright Policy.
We respect the intellectual property of others and ask that you do too. We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported via the process described in our Copyright Policy, which is incorporated by reference into this Agreement. We reserve the right to delete or disable content alleged to be infringing, and to terminate Accounts of repeat infringes without any refunds.
9. Paid Services And Fees
Certain Services are paid services. This section explains how we handle payments for those paid services. For certain paid services, such as domain registrations and site subscriptions, we’ll automatically bill you in regular intervals (such as monthly or annually) unless you disable auto-renewal or cancel your subscription. You can do that anytime.
9.1. Fees. You can access certain portions of the Services by submitting a fee payment (such additional services, “Paid Services”). Paid Services will remain in effect until cancelled or terminated in accordance with this Agreement. We’ll tell you about fees for Paid Services before charging you. You may cancel Paid Services at any time via the Services. If you don't pay for Paid Services on time, we reserve the right to suspend or cancel your access to the Paid Services. Transaction fees and additional fees may also apply to certain portions of the Services, and we’ll tell you about those fees before charging you. Our fees will appear on an invoice that we provide via the Services, within your eCommerce Payment Processor account(s) and/or on a mobile app store invoice, unless otherwise indicated. Please note that different Paid Services have different fees and payment schedules, and canceling one Paid Service may not cancel all your Paid Services.
9.2. Taxes. All fees are exclusive of applicable national, provincial, state, local or other taxes (“Taxes”), unless explicitly stated otherwise. You're responsible for all applicable Taxes, and we'll charge Taxes in addition to the fees for the Services when required to do so. If you're exempt from Taxes, you must provide us with valid tax exemption documentation. We reserve the right to determine if the documentation provided is valid. Tax exemption will, provided we’re satisfied its valid and applicable, only apply from and after the date we receive such documentation. If Rock Digital Media has a legal obligation to pay or collect indirect Taxes (such as value-added tax or goods and services tax) on the sale to you under the laws of your country (where you are established, have a permanent address or usually reside), you shall be liable for payment of any such indirect Taxes. Where Rock Digital Media does not have a legal obligation to pay or collect indirect Taxes on a sale of Paid Services to you, you may be required to self-assess those Taxes under the applicable laws of your country (where you are established, have a permanent address or usually reside).
9.3. Automatic Subscription Renewals. To ensure uninterrupted service, we'll automatically bill you for certain Paid Services from the date you submit your initial payment and on each renewal period afterwards until cancellation. Your renewal period will be equal in time to the renewal period of your current subscription. For example, if you're on a monthly subscription plan, each billable renewal period will be for one (1) month. We’ll automatically charge you the applicable amount using the payment method you have on file with us. We’ll let you know in advance if you’re purchasing a Paid Service that includes auto-renewal payments. You can disable auto-renewal at any time via the Services.
9.4. Refunds. While you may cancel any Paid Services at any time, you won't be issued a refund except in our sole discretion, or if legally required. We offer a free trial so you can try out your website subscription. Please note applicable statutory rights of cancellation may not result in a refund, as we do not charge for this trial period.
9.5. Fee Changes. We may change our fees at any time. We’ll provide you with advance notice of these fee changes via the Services. New fees will not apply retroactively. If you don't agree with the fee changes, you have the right to reject the change by canceling the applicable Paid Service before your next payment date.
9.6. Chargebacks. If you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to us (“Chargeback”), we may automatically terminate your Account. If you have questions about a payment made to us, we encourage you to contact Customer Care before filing a Chargeback. We reserve our right to dispute any Chargeback.
9.8. Fees For Third Party Services. Third Party Services purchased via the Services may be subject to different refund policies that those Third Party Services determine, and they may be non-refundable. The purchase terms and conditions for such Third Party Services may be displayed during the purchase process, such as through a link to the purchase terms and conditions. It's your responsibility to verify your ability to purchase, cancel or obtain a refund for a Third Party Service. Unless otherwise stated in this Agreement, we don’t offer refunds for purchases of Third Party Services.
10. Your eCommerce On Rock Digital Media
We offer tools to help you conduct eCommerce activities on Rock Digital Media, such as selling your products or collecting donations. How you conduct your eCommerce activities is your responsibility, and we’re not liable for it. Also, be sure to follow our eCommerce rules, or we may terminate your account. Finally, when you use a third party to process payments for your eCommerce activities, remember that your relationship is with them, not us.
10.1. eCommerce Responsibilities. The Services include features that enable you to provide or sell products and services to, or otherwise collect payments from, your End Users (such activities, “Your eCommerce”). We’re not a party to, and we aren’t liable for, Your eCommerce. You're solely responsible for Your eCommerce, and compliance with any laws or regulations related to it, including without limitation the following:
10.1.1. Taxes. You're solely responsible for: (a) all Taxes and fees associated with Your eCommerce, including without limitation any Taxes related to the purchase or sale of products or services in connection with Your eCommerce; (b) collecting, reporting and remitting required Taxes to relevant government authorities; (c) informing your End Users of required Taxes, and providing them with invoices as required by applicable law; (d) monitoring distance sales thresholds in the EU and other indirect Taxes (such as value-added tax or goods and services tax) and registration thresholds in the countries where you have customers or where you ship goods to or provide services to; and (e) registering for indirect Taxes in countries where you are required to register. You also agree that any tax estimates, reporting or related materials that we may provide via the Services are for illustration purposes only, and you may not rely on them to comply with your tax obligations. We do not give tax advice, and nothing we say should be interpreted as such.
10.1.2. Fulfillment And Delivery. You're solely responsible for fulfilling and delivering your products and services to your End Users.
10.1.3. Claims And Warranties. You're solely responsible for any claims or warranties you make in connection with Your eCommerce and any claims made by End Users against you.
10.1.4. Customer Service. You're solely responsible for handling any comments or complaints related to Your eCommerce, including without limitation any issues related to payments, promotions, refunds or chargebacks. You agree to provide accurate and complete contact information on Your Sites so that your End Users can submit comments or complaints to you.
10.1.6. Consumer, eCommerce And Other Laws. You are also responsible for complying with any consumer, eCommerce and related laws.
10.2. eCommerce Restrictions. You may not offer or sell any products or services which, in our sole discretion,: (a) we consider hazardous, counterfeit, stolen, fraudulent, abusive or adverse to our interests or reputation; (b) are prohibited for sale, distribution or use; or (c) otherwise fail to comply with any applicable laws or regulations, including without limitation with respect to intellectual property, trade secrets, privacy or publicity rights, consumer protection, product safety or trade regulations or export controls, regulations or sanctions.
10.3. eCommerce Suspensions. While we’d prefer not to, we may, at any time and in our sole discretion, and without any notice to you, suspend, restrict or disable access to or remove your Account, Your Sites or Your eCommerce, without any liability to you or to any End Users, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses (except where prohibited by applicable law). For example, we may suspend Your eCommerce if you’re violating this Agreement.
10.4. eCommerce Payment Processors. To accept payments from your End Users in connection with Your eCommerce, you may integrate Your Sites with third party payment processors (“eCommerce Payment Processors”). Your relationship with such eCommerce Payment Processors is governed by those eCommerce Payment Processors’ terms and policies. We don’t control and aren’t liable for any eCommerce Payment Processors, or for any transaction you may enter into with or through any eCommerce Payment Processors. eCommerce Payment Processors are a Third Party Service, as defined in Section 4.1. While we will try to provide advance notice, you agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, restrict or disable access to or remove from the Services, any eCommerce Payment Processors, without any liability to you or to any End Users, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses (except where prohibited by applicable law). Your eCommerce Payment Processors may provide invoices for any transaction fees associated with Your eCommerce transactions.
11. Term And Termination
Either of us can end this agreement at any time.
This Agreement will remain in effect until terminated by either you or us. You may terminate this Agreement at any time via the Services. We reserve the right to change, suspend or discontinue, or terminate, restrict or disable your use of or access to, parts or all of the Services or their functionality at any time at our sole discretion and without notice. For example, we may suspend or terminate your use of part or all of the Services if you're violating these Terms or our Acceptable Use Policy. We will endeavor to provide you reasonable notice upon suspending or terminating part or all of the Services. All sections of this Agreement that by their nature should survive termination shall survive termination, including without limitation Your Content, Our Intellectual Property, Warranty Disclaimers, Limitation of Liability, Indemnification, Dispute Resolution and Additional Terms.
12. Warranty Disclaimers
We work hard to make Rock Digital Media great, but the services are provided as is, without warranties.
12.1. Disclaimers. To the fullest extent permitted by applicable law, Rock Digital Media makes no warranties, either express or implied, about the Services. The Services are provided “as is” and “as available”. Rock Digital Media also disclaims any warranties of merchantability, fitness for a particular purpose and non-infringement. No advice or information, whether oral or written, obtained by you from Rock Digital Media, shall create any warranty. Rock Digital Media makes no warranty or representation that the Services will: (a) be timely, uninterrupted or error-free; (b) meet your requirements or expectations; or (c) be free from viruses or other harmful components. However, Rock Digital Media will provide the Services with reasonable care.
12.2. Exceptions. Under certain circumstances, some jurisdictions don't permit the disclaimers in Section 13.1, so they may not apply to you. However, the disclaimers apply to the maximum extent permitted by applicable law. You may have other statutory rights and nothing in this Agreement affects your statutory rights or rights under mandatory laws. The duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by applicable law.
13. Limitation Of Liability
If something bad happens as a result of your using Rock Digital Media, our liability is capped.
Unless you are an EU Consumer, you acknowledge and agree that to the fullest extent permitted by applicable law, in no event will Rock Digital Media and its affiliates and its and their directors, officers, employees and agents be liable with respect to any claims arising out of or related to the Services or this Agreement for: (a) any indirect, special, incidental, exemplary, punitive or consequential damages; (b) any loss of profits, revenue, data, goodwill or other intangible losses; (c) any damages related to your access to, use of or inability to access or use parts, some or all of your Account, Your Sites or parts or all of the Services, including without limitation interruption of use or cessation or modification of any aspect of the Services; (d) any damages related to unavailability, degradation, loss, corruption, theft, unauthorized access or, unauthorized alteration of, any content, information or data, including without limitation User Content and Your eCommerce data; (e) any User Content or other conduct or content of any user or third party using the Services, including without limitation defamatory, offensive or unlawful conduct or content; or (f) any Third Party Services or third party sites accessed via the Services. If you are an EU Consumer, we shall, despite any other provision in this Agreement, provide the Services with reasonable care but will not be liable for any losses which were not a reasonably foreseeable consequence of our breach of this Agreement (except in relation to death or personal injury resulting from our negligence or fraud). These limitations apply to any theory of liability, whether based on warranty, contract, tort, negligence, strict liability or any other legal theory, whether or not Rock Digital Media has been informed of the possibility of such damage, and even if a remedy set forth in this Agreement is found to have failed its essential purpose. To the fullest extent permitted by applicable law (whether or not you are an EU Consumer), in no event shall the aggregate liability of Rock Digital Media for all claims arising out of or related to the Services and this Agreement exceed the greater of twenty dollars ($20) or the amounts paid by you to Rock Digital Media in the twelve (12) months immediately preceding the event that gave rise to such claim. If you are an EU Consumer, Rock Digital Media is liable under statutory provisions for intent and gross negligence by us, our legal representatives, directors or other vicarious agents. An “EU Consumer” means a natural person acting for purposes outside their trade, business, craft or profession (as opposed to a User for business or commercial purposes) habitually residing in the European Economic Area.
If you do something that gets us sued, you’ll cover us.
To the fullest extent permitted by law, you agree to indemnify and hold harmless Rock Digital Media and its affiliates and its and their directors, officers, employees and agents from and against all damages, losses, liabilities, costs, claims, demands, fines, awards and expenses of any kind (including without limitation reasonable attorneys' fees and costs) arising out of or related to: (a) your breach of this Agreement; (b) your User Content, Your Sites and Your eCommerce; (c) any claims by, on behalf of or against your End Users; (d) your violation of any law or regulation or the rights or good name of any third party; and (e) any claims from tax authorities in any country in relation to Your eCommerce operations, including without limitation your sales to individual consumers (including distance sales) and other operations for which Rock Digital Media may be held jointly and severally liable. Your indemnification obligations under this Section shall not apply to the extent directly caused by our breach of this Agreement or, where you are an EU Consumer, to the extent that the consequences were not reasonably foreseeable.
15. Dispute Resolution
This Section 16 may not apply to you. If it does, before filing a claim against Rock Digital Media, you agree to try to work it out informally with us first. Also, all formal disputes must be resolved through arbitration following the rules described below, unless you opt out of arbitration following the procedure described below. Finally, claims can only be brought individually, and not as part of a class action.
15.1. Applicability. This Section 16 shall only apply to: (a) US Users; (b) Non-US Users who are not EU Consumers; or (c) EU Consumers who bring any claim against Rock Digital Media in the US (to the extent not in conflict with Section 17.2).
15.2. Informal Resolution. Before filing a claim against Rock Digital Media, you agree to try to resolve the dispute by first emailing firstname.lastname@example.org with a description of your claim. We'll try to resolve the dispute informally by following up via email, phone or other methods. If we can’t resolve the dispute within thirty (30) days of our receipt of your first email, you or Rock Digital Media may then bring a formal proceeding.
15.3. Arbitration Agreement. Unless you opt-out during the Opt-Out Period in accordance with Section 16.4, you and Rock Digital Media agree to resolve any claims, disputes and matters arising out of or in connection with this Agreement (including without limitation its existence, formation, operation and termination) and/or the Services (including without limitation non-contractual disputes and matters) through final and binding arbitration and you and Rock Digital Media expressly waive the right to formal court proceedings (including without limitation trial by jury), except as set forth below. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would have in court may not be available in arbitration. There is no judge or jury in arbitration, only an independent third party that will act as the arbitrator, and court review of an arbitration award is limited.
15.4. Arbitration Opt-Out. You can decline this agreement to arbitrate by emailing us at email@example.com within thirty (30) days of the date that you first agree to this Agreement (“Opt-Out Period”). Your email must be sent from the email address you use for your Account, and must include your full name, residential address and a clear statement that you want to opt out of arbitration. If you opt out of arbitration pursuant to this Section 16.4, then Sections 16.3, 16.5, 16.6 and 16.7 of these Terms do not apply to you. This opt-out doesn’t affect any other sections of the Terms, including without limitation Sections 16.9 (Time for Filing), 16.10 (No Class Actions) and 17.2 (Controlling Law; Judicial Forum for Disputes). If you have any questions about this process, please contact firstname.lastname@example.org.
15.5. Arbitration Time For Filing. Any arbitration must be commenced by filing a demand for arbitration within one (1) year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law prohibits a one (1) year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
15.6. Arbitration Procedures. JAMS, Inc. (“JAMS”) will administer the arbitration in accordance with the JAMS Streamlined Arbitration Rules & Procedures (“JAMS Rules”) in effect at the time of the dispute.
15.6.1. US Users. If you are a US User, you and Rock Digital Media agree that this Agreement affects interstate commerce, so the US Federal Arbitration Act and federal arbitration law apply and govern the interpretation and enforcement of these provisions (despite Section 17.2 below). Any arbitration hearings will take place at a location to be agreed upon in California, Rancho Cucamonga, in English, and shall be settled by one (1) commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the JAMS Rules. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including without limitation reasonable attorneys' fees and costs), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
15.6.2. Non-US Users. If you are a Non-US User, you and Rock Digital Media agree that any arbitration hearings will take place at a location to be agreed upon in United States, California, in English, and shall be settled by one (1) commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected in accordance with the JAMS Rules. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including without limitation reasonable attorneys' fees and costs), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
15.6.3. EU Consumers. If you are an EU Consumer who brings a claim against Rock Digital Media in the US, you and Rock Digital Media agree that any arbitration hearings will take place at a location to be agreed upon in California, Rancho Cucamonga, in English, and shall be settled by one (1) commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the JAMS Rules. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including without limitation reasonable attorneys' fees and costs), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
15.7. Arbitration Fees. The JAMS Rules will govern payment of all arbitration fees. We won’t seek our attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
15.8. Exceptions To Arbitration Agreement. Either you or Rock Digital Media may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement or misappropriation (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute resolution process described above.
15.8.1. US Users. If you are a US User, either you or Rock Digital Media may assert claims, if they qualify, in small claims court in California, Rancho Cucamonga, or any US county where you live or work.
15.8.2. Non-US Users. If you are a Non-US User, either you or Rock Digital Media may assert claims, if they qualify, in small claims court in United States, California or any county in the United States where you live or work.
15.8.3. EU Consumers. If you are an EU Consumer who brings a claim against Rock Digital Media in the US, such claims must be asserted, if they qualify, in small claims court in California, Rancho Cucamonga.
15.9. Time For Filing. Any claim not subject to arbitration must be commenced within one (1) year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law prohibits a one (1) year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
15.10. NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class actions, class arbitrations, private attorney general actions and consolidation with other arbitrations aren't allowed.
16. Additional Terms
This section includes some additional important terms. For instance, this Agreement is the whole agreement between us regarding your use of Rock Digital Media. Depending on where you reside or have your place of business, this Agreement is governed by either US or Irish law. If we ever change it in a way that meaningfully reduces your rights, we’ll give you notice and an opportunity to cancel. Also, if you’re reading this in a language other than English, note that the English language version controls.
16.1. Entire Agreement. This Agreement constitutes the entire agreement between you and Rock Digital Media regarding the subject matter of this Agreement, and supersedes and replaces any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of this Agreement. You agree that you have not relied upon, and have no remedies in respect of, any term, condition, statement, warranty or representation except those expressly set out in this Agreement. You also may be subject to additional terms, policies or agreements that may apply when you use other services, including Third Party Services. This Agreement creates no third party beneficiary rights.
16.2. Controlling Law; Judicial Forum For Disputes.
16.2.1. US Users. If you are a US User, this Agreement (including its existence, formation, operation and termination) and the Services as well as all disputes and matters arising out of or in connection with this Agreement and the Services (including non-contractual disputes and matters) shall be governed in all respects by the laws of the State of California, without regard to its conflict of law provisions. If Section 16 is found not to apply to you or your claim, or if you opt out of arbitration pursuant to Section 16.4, you and Rock Digital Media agree that any judicial proceeding (other than small claims actions) arising out of or in connection with this Agreement (including its existence, formation, operation and termination) and/or the Services (including non-contractual disputes and matters) must be brought exclusively in the federal or state courts of California, Rancho Cucamonga and you and Rock Digital Media consent to venue and personal jurisdiction in such courts.
16.2.2. Non-US Users. If you are a Non-US User, this Agreement (including its existence, formation, operation and termination) and the Services as well as all disputes and matters arising out of or in connection with this Agreement and the Services (including non-contractual disputes and matters) shall be governed in all respects by the laws of United States, without regard to its conflict of law provisions. If you are an EU Consumer, this Section does not limit or affect any rights you may have under any mandatory laws of the country where you habitually live. If Section 16 is found not to apply to you or your claim, or if you opt out of arbitration pursuant to Section 16.4, you and Rock Digital Media agree that, except where Section 17.2.3 applies, any judicial proceeding (other than small claims actions) arising out of or in connection with this Agreement (including its existence, formation, operation and termination) and/or the Services (including non-contractual disputes and matters) must be brought exclusively in the courts of United States and you and Rock Digital Media consent to venue and personal jurisdiction in such courts.
16.2.3. EU Consumers. If you are an EU Consumer, as long as Section 16 does not apply to you or your claim, you and Rock Digital Media agree that any judicial proceeding arising out of or in connection with this Agreement (including its existence, formation, operation and termination) and/or the Services (including non-contractual disputes and matters) may only be brought in a court located in United States or a court with jurisdiction in your place of habitual residence. If you are an EU Consumer and Rock Digital Media wishes to enforce any of its rights against you as a consumer, we may do so only in the courts of the jurisdiction in which you habitually reside.
16.3. EU Online Dispute Resolution. If you are an EU Consumer, you can access the European Commission’s online dispute resolution platform here. Please note that Rock Digital Media is not committed nor obliged to use an alternative dispute resolution entity to resolve disputes with you.
16.4. Waiver, Severability And Assignment. Our failure to enforce any provision of this Agreement is not a waiver of our right to do so later. If any provision of this Agreement is found unenforceable, the remaining provisions will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not delegate, transfer or assign this Agreement or any of your rights or obligations hereunder without our prior written consent, and any such attempt will be of no effect. We may delegate, transfer or assign this Agreement or some or all of our rights and obligations hereunder, in our sole discretion, to any of our affiliates or subsidiaries or to any purchaser of any of our business or assets associated with the Services, with thirty (30) days prior written notice. If you are an EU Consumer, we will ensure that the delegation, transfer or assignment does not adversely affect your rights under this Agreement.
16.5. Modifications. We may modify this Agreement from time to time, and will always post the most current version on our site. If a modification meaningfully reduces your rights, we’ll notify you (by, for example, sending you an email or displaying a prominent notice within the Services). The notice will designate a reasonable period after which the new terms will take effect. Modifications will never apply retroactively. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified Agreement and price changes. If you disagree with our changes, then you should stop using the Services and cancel all Paid Services.
16.6. Events Beyond Our Control. We are not in breach of this Agreement or liable to you if there is any total or partial failure of performance of the Services resulting from any act, circumstance, event or matter beyond our reasonable control. This may include where such results from any act of God, fire, act of government or state or regulation, war, civil commotion, terrorism, insurrection, inability to communicate with third parties for whatever reason, failure of any computer dealing or necessary system, failure or delay in transmission of communications, failure of any internet service provider, strike, industrial action or lock-out or any other reason beyond our reasonable control.
16.7. Translation. This Agreement was originally written in English. We may translate this Agreement into other languages. In the event of a conflict between a translated version and the English version, the English version will control except where prohibited by applicable law.