RACK PERFORMANCE – SITE USER TERMS OF USE

Last Updated: December 8, 2016

PLEASE READ THESE RACK PERFORMANCE SITE USER TERMS OF USE CAREFULLY BEFORE USING THE SERVICES. USE OF THE SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW.

Thank you for your interest in Rack Performance, LLC’s (“Rack Performance,” “we,” “us,” “our”) web based strength and fitness tracking solutions. This Rack Performance Site User Terms of Use Agreement (“Agreement”) governs your use of this website, the user portal accessible through https://rackperformance.com/Account/Login, and the services accessible through the user portal (collectively, the “Services”).

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT.

YOUR USE OF THE SERVICES

You are responsible for your use of the Services. You may only use the Services in compliance with this Agreement, any agreement entered into by your school district, school, or coach relating to the Services, and all applicable laws and regulations. The Services are licensed, not sold, on a subscription basis.

You must have a parent or legal guardian review this Agreement with you and agree to it on your behalf if you are not of legal age to form a binding contract with us (age 18 in most states). If you have authorized or registered another person to use the Services, including a minor, you are fully responsible for that person’s use of the Services and the consequences of that person’s misuse of the Services. The parent or legal guardian of a minor must affirmatively consent to such minor’s use of the Services.

YOUR ACCOUNT

You must have an account to use the Services. When you create an account, you may have the option to select a unique username. Your username must be appropriate and not offensive. We reserve the right in our sole discretion to change and disable any account that does not meet our naming standards.

We create and maintain different types of accounts for different types of users. Your account is personal to you and you may not share it or allow any other person to utilize your account. You may not use another person’s account. You are responsible for all activities that occur under your account. You must immediately notify us if your registration information changes. Students cannot create an account by themselves; they can only do so if they’re invited by their teacher and given an invitation code.

The Services may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access the Services. If someone else has access to your computer or mobile device the automatic login feature will allow that person to have access to your account. You are responsible for all damages resulting from unauthorized access to the Services from your account. You must immediately notify us if you learn of or have reason to suspect any unauthorized use of your account or any other breach of security.

PRIVACY

We collect, store, and use data collected from you in accordance with our Privacy Notice, located at https://rackperformance.com/Home/Privacy. The terms and conditions of the Privacy Notice are incorporated into this Agreement.

As between Rack Performance and you, any personal information that we collect from you that includes any information that is directly related to a student that is maintained by your school district, your school or by us, as part of the provision of the Services (“Student Data”), belongs to you and we claim no right, title, or interest in any Student Data that is made available to us. Student Data may include “educational records” as defined by the Family Educational Rights and Privacy Act.

If you are a student under the age of 13 (“Child”), you may not use the Services unless you have been invited by a coach, teacher, school, or school district (“Educator”) who has obtained verifiable consent for your participation from your parent or legal guardian. YOU ARE PROHIBITED FROM USING THE SERVICES UNLESS YOU HAVE RECEIVED AN INVITATION AND YOUR EDUCATOR HAS OBTAINED YOUR PARENT’S OR LEGAL GUARDIAN’S VERIFIABLE CONSENT.

USER CONTENT

You may have the opportunity to upload and display content on the Services (“User Content”). User Content uploaded or provided through the Services may be protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You understand and agree that these rights in User Content are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on User Content. Any unauthorized use of User Content, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. We will not be liable for User Content uploaded or posted to the Services by you or any other user.

We do not claim ownership rights in User Content, but by uploading, transmitting, or posting User Content to the Services, you hereby grant to us a non-exclusive, transferable, worldwide, irrevocable, royalty-free license to use, reproduce, modify, edit, adapt, publish, translate, display, host, store, distribute, sublicense, and create derivative works and compilations incorporating User Content as part of providing the Services. You represent and warrant that you have all rights and authority to grant us the license herein to the User Content you post or upload to the Services.

You are responsible for your User Content and for the consequences and liability related to or connected with User Content and your use of any User Content you access or obtain through the Services.

We do not pre-screen or approve User Content but we reserve the right to remove User Content that we believe is infringing, offensive, objectionable, or illegal at our sole discretion and without liability to you or any other person.

YOUR LICENSE TO USE THE SERVICES

We grant to you a limited, non-exclusive, non-assignable, non-transferable license to access and use the Services for your own personal, non-commercial purposes, subject to your agreement to and compliance with this Agreement. We reserve all rights not otherwise expressly granted by this Agreement. You may not: rent or sell the Services to a third party, copy or reverse engineer the Services, create derivative works of the Services, change or alter User Content or notices, use a bot or other automatic process to harvest information or User Content on the Services, introduce a virus or malicious code into the Services, use the Services to violate a third party’s intellectual property rights, send advertisements or spam using or through the Services, use any information in the Services to create a competing service, or engage in any activity that violates this Agreement or any applicable law or regulation.

USAGE AND LIMITATIONS

We do not guarantee that the Services will be compatible or operate with your computer, Internet provider’s service plan, mobile carrier’s service plan, or any other piece of hardware, software, equipment, or device you use to access or use the Services. You are responsible for providing, maintaining, and ensuring the compatibility of all hardware, software, and other system requirements necessary for your access to and use of the Services. You are also responsible for all third party charges and fees, including to your Internet service provider and mobile carrier, in connection with your access and use of the Services and for complying with any contracts, terms of service agreements, and restrictions associated with such third party services.

The quality and availability of the Services may be affected by factors outside of our control because the Services is provided over the Internet. We will not be liable for damages or losses related to the Services being unavailable.

OUR RIGHTS AND OWNERSHIP

We may discontinue or alter any aspect of the Services, restrict the time the Services is available, install bug fixes, updates, patches, and other upgrades to the Services, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. Your only remedy is to discontinue using the Services if you do not want a modification we make to the Services.

The Services are our copyrighted property and it may not be reproduced, recreated, modified, accessed, or used in any manner contrary to what is allowed by this Agreement or disseminated or distributed to any other person. Our images, trademarks, service marks, logos and other content that we display in the Services and all accounts, features, and components of the Services are our property. Third party materials in the Services are licensed to us and these third parties may enforce their ownership rights against you if you violate the terms of this Agreement. Any feedback or suggestions you give to us about the Services is voluntary and we may use such feedback or suggestions in our sole discretion without obligation to you.

DISCLAIMERS

TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SUITABILITY, INTEGRATION, CURRENTNESS, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICES WILL BE MALWARE OR VIRUS FREE. WE SPECIFICALLY DISCLAIM ANY REPRESENTATIONS THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT ACCESS TO OR OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS IN THE SERVICES, IF ANY, WILL BE CORRECTED, OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WE DO NOT GUARANTEE THE SERVICES’ AVAILABILITY OR UPTIME. WE DO NOT WARRANT OR REPRESENT THAT USE OF THE SERVICES WILL RESULT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, AND YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCE WILL WE BE RESPONSIBLE FOR LOST PROFITS, REVENUES, FINANCIAL LOSSES, OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY FOR ANY CLAIMS UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO $100.00. THE LIMITATIONS OF THIS SECTION WILL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

INDEMNIFICATION

You agree to defend, indemnify, and hold us and our officers, members, managers, employees, and agents harmless from and against any and all claims, liabilities, damages, losses, demands, or expenses, including attorney’s fees and costs and expenses, arising out of or in any way connected with your use of the Services, your breach or alleged breach of this Agreement, your unauthorized use of User Content, unauthorized use of your account, or your violation of any rights of any other person.

TERMINATION

This Agreement is effective until you or Rack Performance terminates it. You may terminate this Agreement at any time by discontinuing your use of the Services. We may terminate this Agreement at any time and for any reason without prior notice to you, and accordingly, we may deny you access to the Services. Termination of this Agreement will not affect any right or relief to which we are entitled at law or in equity. Upon termination of this Agreement, you must terminate all use of the Services and any information or materials that have been provided to you. The terms and conditions in this Agreement that by their nature and context are intended to survive any termination of this Agreement will survive such termination and will be fully enforceable thereafter.

COMPLIANCE WITH NON-US LAW

We do not make any representation that the Services, User Content, or other material or information provided through the Services is appropriate to or available in locations outside of the United States. You may not use the Services or export User Content in violation of United States export laws, regulations, or restrictions. If you access the Services from outside of the United States, you are responsible for compliance with all applicable laws.

GOVERNING LAW AND OTHER MISCELLANEOUS TERMS

This Agreement and any claim related thereto will be governed by the laws of the State of Kansas, without reference to its conflicts or choice of law principles. All claims and disputes arising under this Agreement will be brought solely in any court located in Jackson County, Kansas. You irrevocably submit and consent to the personal jurisdiction of such courts.

We have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.

This Agreement controls the relationship between Rack Performance and you. This Agreement does not create any third party beneficiary rights.

Our failure to enforce the provisions of this Agreement does not constitute a waiver of our right to enforce them.

If any term or provision of this Agreement is held to be invalid or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and the invalid or unenforceable term or provision will not be considered to be part of this Agreement.

In the event of a conflict between this Agreement and any additional policies, procedures, disclaimers, guidelines, rules, terms, or conditions of specific application, the additional policies, procedures, disclaimers, guidelines, rules, terms, or conditions of specific application will control.

DIGITAL MILLENNIUM COPYRIGHT ACT

We respect the intellectual property of others and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact us at info@rackperformance.com.

CHANGES TO THIS AGREEMENT

We reserve the right to change, modify, add, or remove portions of this Agreement. We will post notice of modifications to this Agreement on this page and we will attempt to notify you through your account and the email address that you provided of any changes to this Agreement. Changes will become effective immediately but will not apply retroactively. If you do not agree to the modified Agreement you should immediately discontinue your use of the Services.

If you have any questions or would like further clarification about the Services or this Agreement, please e-mail us at info@rackperformance.com.