CLMBR, INC. TERMS & CONDITIONS
Effective Date of this Version: January 15, 2021
THESE TERMS & CONDITIONS ARE A LEGAL DOCUMENT THAT DESCRIBES YOUR RESPONSBILITIES, CLMBR’S LIABILTY, AND THE LIABILITY OF THIRD PARTIES RELATED TO THE SERVICES.
CLMBR, INC. (“CLMBR”, “we”, or “us”) provides an online fitness community and related products, equipment, services, content and features (collectively the “Services”) through http://CLMBR.com website (the “Site”), the interfaces on tablets connected to CLMBR equipment, and through mobile, desktop, or device applications (including iOS and Android applications (“Apps”)) and CLMBR-controlled social media pages (including on Facebook, Instagram, and Twitter). These Terms apply to all Services.
THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND CLMBR WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
By registering as a member or by visiting, browsing, or using the Services in any way, you (as a “User”) accept and agree to be bound by these Terms & Conditions (“Terms”), which form a binding agreement between you and CLMBR. If you use the Services on behalf of a company, organization, or entity, then (a) User includes that entity, and (b) you represent and warrant that you are an authorized representative of that entity with the authority to bind that entity to these Terms, and that you agree to these Terms on that entity’s behalf, and (c) your entity is legally and financially responsible for your use of the Services as well as for the use of your account by others affiliated with your entity, including and employees, agents, or contractors.
If you do not wish to be bound by these Terms, you may not access or use the Services. Certain elements of the Services may be subject to additional terms and conditions specified from time to time; your use of those elements of the Services is subject to those additional terms and conditions, which are incorporated into these Terms by this reference. These Terms constitute the entire agreement between User and CLMBR with respect to the Services and supersede all prior oral or written understandings relating thereto, and may not be modified or interpreted by reference to any prior course of dealing, usage of trade or course of performance. If a purchase order or any other communication from User contains provisions inconsistent with the provisions hereof, these Terms will prevail and CLMBR hereby notifies User of its objection to and rejection of any such provisions stated by User, whether or not material, that are in conflict with, inconsistent with, or in addition to those contained in these Terms. User’s acceptance of delivery of or payment for any Services provided hereunder constitutes User’s acceptance of this Agreement.
- Who May Use the CLMBR Service(s)
- Age Requirement. You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to register an account with CLMBR and use the Services.
- We may, in our sole discretion, refuse to offer the Services to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access and use the Services is revoked where these Terms or use of the Services is prohibited or conflicts with any applicable law, rule or regulation. Further, the Services is offered only for your personal, non-commercial use, and not for the use or benefit of any third party.
- License to Use the CLMBR Service(s)
License. Subject to your compliance with these Terms and solely for so long as you are permitted by us to access and use the Services, CLMBR grants you a limited, non-transferable, non-exclusive, revocable right and license to access and use the Services for your own personal, non-commercial purposes, a right which may not be assigned or sublicensed to anyone. This license includes the right to view Content (defined below) available on the Services and the right to download one copy of the application to any single device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices. This license will remain in effect unless and until you violate these Terms or this license is terminated by you or CLMBR.
Restrictions. Except as expressly permitted in writing by an authorized representative of CLMBR, you will not reproduce, redistribute, sell, transfer, create derivative works from, decompile, reverse engineer, or disassemble the Services, nor will you take any measures to interfere with or damage the Services. Unless otherwise specified, copying or modifying any Content or using Content for any purpose other than your personal, non-commercial use of the CLMBR Service, including use of any such Content on any other website or networked computer environment, is strictly prohibited. All rights not expressly granted by CLMBR in these Terms are reserved.
- Membership Requirements Registration
To enjoy full access to the Services, you must register as a member of the Services and enter into a subscription agreement for access to our live and on-demand classes, Content and features (a “Subscription”). You must provide complete and accurate registration information to CLMBR, complete the Subscription process, and notify us if any of your information changes. If you fail to keep your account information up to date, we may have to suspend or terminate your Subscription.
- Profile Information and Picture. You may not use someone else’s name, or any name, location, other public profile information or image that violates any third party rights, is against the law, or that is offensive, obscene or otherwise objectionable (in CLMBR’s sole discretion).
- Account Security. You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not allow others to use your account. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the Services. If you become aware of an unauthorized access to your account, change your password immediately
- Membership Structure and Fees
CLMBR will provide information on its then-current Subscription requirements on the Site and/or by other means through the Services. Features and prices are subject to change.
- Sale of Products and/or Services
The Services permit you to purchase certain Products and Subscriptions. User acknowledges and agrees that all information provided with regards to a purchase of Products or Subscriptions, including, without limitation, credit card or other payment information, is accurate, current, and complete. User represents and warrants that User has the legal right to use the payment method provided to CLMBR or its payment processor, including, without limitation, any credit card you provide when completing a transaction. CLMBR reserves the right, with or without prior notice and in its sole and complete discretion, to (a) discontinue, modify, or limit the available quantity of, any Products or Services, (b) refuse to allow any User to purchase any Products or Services or deliver such Products to a User or a User-designated address, and (c) cancel any order placed through the Services without liability, justification or notice. When User purchases Products, User (a) agrees to pay the price for such Products as set forth in the Services, all applicable shipping and handling charges and all applicable taxes in connection with the purchase (the “ Full Purchase Amount ”), and (b) authorizes CLMBR to charge User’s credit card or other payment method for the Full Purchase Amount or, if applicable, any installment charges. CLMBR will refund User in the event the order is canceled after charging User’s credit card or other payment method. The Services may allow User’s to purchase Products and designate them to be delivered or provided at a future date. In such instances, User acknowledges and agrees that CLMBR may charge User’s credit card or other payment method for the Full Purchase Amount or, if applicable, any installment charges on the date of purchase, rather than on the ultimate date of delivery or provision of the applicable Product. Unless otherwise noted, all currency references are in U.S. Dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Payment can be made by credit card, debit card, or other means that CLMBR makes availableFailure to pay the Full Purchase Amount (or any amount thereof) will result in the termination of your access to any applicable Services.
CLMBR accepts orders for equipment, apparel, and/or accessories that we may offer through the Site or CLMBR retail showrooms. Unfortunately, availability of products cannot be guaranteed. Please note that product, service and other information provided is subject to corrections and changes without notice. Graphics and diagrams are for illustrative purposes only and may not accurately reflect actual product availability. Colors, styles and other variants depicted are for illustration only and are subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions. All purchases of CLMBR equipment are subject to the CLMBR, Inc. Terms and Conditions of Purchase unless otherwise specified at the time of purchase.
- Order Acceptance; Shipment
Once CLMBR receives User’s order for a Product, it will provide an order confirmation. Receipt of an order confirmation, however, does not signify CLMBR’s acceptance of an order, nor does it constitute confirmation of CLMBR’s offer to sell; it is simply confirmation that the order has been received. CLMBR reserves the right at any time after receiving User’s order to accept or decline the order for any reason and at CLMBR’s sole discretion. If CLMBR cancels an order after User has already been billed, then CLMBR will refund the billed amount. CLMBR reserves the right to ship partial orders (at no additional cost to User). While deliveries may be scheduled for a specified arrival, CLMBR cannot guarantee delivery by any specific date or time.
- Term and Termination; Account Deletion
- Term. These Terms begin on the date you first use the Services continue as long as you have an account with us and/or continue to use the Services.
- Termination. CLMBR may, in CLMBR’s sole discretion, suspend, disable, or delete your account (or any part thereof) or block or remove any User Content (defined below) that you submitted, for any lawful reason, including if CLMBR determines that you have violated these Terms or that your conduct or User Content would tend to damage CLBMR’s reputation or goodwill. If CLMBR deletes your account, you may not re-register for or use the Services under any other user name or profile. CLMBR may block your access to the Services to prevent re-registration.
- Effect of Termination/Account Deletion. Upon termination of these Terms all licenses granted by CLMBR will terminate. The following sections of these Terms survive termination: Privacy, User Content, Indemnification, No Warranties, Limitation of Liability, Safety Warnings, Intellectual Property, Arbitration Requirement & Class Action Waiver, Contracting Entities, Governing Law and Jurisdiction, and all general provisions. In the event of account deletion for any reason, User Content may no longer be available and CLMBR is not responsible for the deletion or loss of such User Content. For clarity, if you cancel your Subscription or it is terminated for any reason, you will lose access to all live and on-demand classes and any other Content or features provided through the Services. CLMBR, in its sole discretion, may make available a very limited amount of Content or features to non-subscribers from time to time, and any use of that Content is governed by these Terms.
- User Content
“Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) ”User Content” means any content that users (including you) provide to be made available through the Services. Content includes, without limitation, User Content.
Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with these Terms and with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the CLMBR Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any Content that you access on or through the Services.
As between you and CLMBR, you represent that you own (or have all rights necessary to grant CLMBR the rights below to) all User Content that you submit to the Services, and that CLMBR will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant CLMBR a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the Services permission to view your User Content for their personal, non-commercial purposes. If you make suggestions to CLMBR or through the Services about improving or adding new features or products to the Services or you otherwise provide feedback, product or service reviews or testimonials, you hereby grant to CLMBR a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback, reviews and testimonials for any purpose (including for marketing), without any notice, compensation or other obligation to you.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the CLMBR Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
- Rights and Terms for Apps
- Rights in App Granted. Subject to your compliance with these Terms, CLMBR grants to you a limited non-exclusive, non-transferable, revocable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. CLMBR reserves all rights in and to the App not expressly granted to you under these Terms.
- Accessing App from an App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
- These Terms are between you and CLMBR, and not with the App Provider, and CLMBR (not the App Provider), is solely responsible for the App.
- The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of CLMBR.
- The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, CLMBR will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- The App Provider and its affiliates are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; (iii) you are not an individual, or associated with an entity, designated under the UK’s Terrorist Asset-Freezing etc. Act 2010 (TAFA 2010); and (iv) you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.
- You must also comply with all applicable third party terms of service when using the App.
- General Prohibitions and CLMBR’s Enforcement Rights
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity; (vii) exploits minors or (viii) promotes illegal or harmful activities or substances;
- Download and/or install any third party software and/or application on any CLMBR hardware (excluding assistive technologies that are necessary for your own use of the Services, such as screen-readers) that is not expressly permitted by CLMBR in writing;
- Use, display, mirror or frame the Services or any individual element within the Services, CLMBR’s name, any CLMBR trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without CLMBR’s express written consent;
- Access, tamper with, or use non-public areas of the Services, CLMBR computer systems, or the technical delivery systems of CLMBR’s providers;
- Attempt to probe, scan or test the vulnerability of any CLMBR system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by CLMBR or any of CLMBR’s providers or any other third party (including another user) to protect the Services or Content;
- Bypass any territorial restrictions, including IP address-based restrictions, that may be applied to the Services;
- Attempt to access, scrape or search the Services or Content or download Content from the Services, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by CLMBR or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a CLMBR trademark, logo URL or product name without CLMBR’s express written consent;
- Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or permitted expressly in writing by CLMBR;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Copy, use, index, disclose or distribute any information or data obtained from the Services, whether directly or through third parties (such as search engines), without CLMBR’s express written consent;
- Alter, replicate, store, distribute or create derivatives from the Content available via the Services except as expressly permitted in writing by CLMBR;
- Impersonate or misrepresent your affiliation with any person or entity;
- Access, use or exploit the Services in any manner (other than as expressly permitted by these Terms), including to build, develop (or commission the development of), replicate, or consult upon any product or service that may compete (directly or indirectly) with CLMBR or the Services;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of CLMBR. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects CLMBR. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
- Member Interactions, Dealings with Third Parties
When interacting with other CLMBR Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence or personal or business dealings with any third party found on or through the Services, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that CLMBR is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings.
You agree to indemnify, defend, and hold harmless CLMBR and its directors, officers, employees, and agents, from and against all claims, damages, losses and costs that arise from or relate to (i) your activities on the Services, (ii) any User Content submitted by or on behalf of you or (iii) your violation of these Terms.
- Third Party Software and Applications
Downloading and/or installing any third party software and/or applications that are not expressly authorized by CLMBR on any CLMBR hardware constitutes a breach of these Terms; any such downloading or installation is done at your own risk and may void any applicable warranty or support commitments by CLMBR.
- Third Party Links and Content
There may be links on the Services that let you leave the particular Service you are accessing in order to access a linked site that is operated by a third party. CLMBR neither controls nor endorses these sites, nor has CLMBR reviewed or approved the content that appears on them. CLMBR is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any such third party sites. You acknowledge and agree that CLMBR is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access or use of any of the links, content, goods or services available on or through these third party sites.
- No Warranties
CLMBR reserves the right to modify the Services, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content or features of the Services, at any time, in its sole discretion. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Services. CLMBR has no obligation to screen or monitor any Content and does not guarantee that any Content available on the Services is suitable for all users or that it will continue to be available for any length of time.
CLMBR provides the Services on an “AS IS” and “AS AVAILABLE” basis. You therefore use the Services at your own risk. Other than as expressly provided in writing by CLMBR in connection with your purchase of a CLMBR product, to the extent permitted by law, CLMBR expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment and any other warranty that might arise under any law. Without limiting the foregoing, CLMBR makes no representations or warranties:
- That the Services are or will be permitted in your jurisdiction;
- That the Services will be uninterrupted or error-free;
- Concerning any Content, including User Content;
- Concerning any third party’s use of User Content that you submit;
- That the Services will meet your personal or professional needs;
- That CLMBR will continue to support any particular feature of the Services; or
- Concerning sites and resources outside of the Services, even if linked to from the Services.
To the extent that another party may have access to or view Content on your device, you are solely responsible for informing such party of all disclaimers and warnings in these Terms. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE SERVICES, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
- Limitation of Liability
To the fullest extent permitted by law: (i) CLMBR shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, inability to use the Services or Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and (ii) CLMBR’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to CLMBR over the 12 months preceding the date your first claim(s) arose. If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of CLMBR’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between CLMBR and you.
- Safety Warnings
THE CLMBR SERVICES OFFER HEALTH AND FITNESS INFORMATION AND ARE DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN OR GENERAL PRACTITIONER BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN, GENERAL PRACTITIONER OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE CLMBR SITE OR HEARD ON THE SERVICE. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK AND IS NOT MEDICAL OR HEALTHCARE ADVICE.
NOTHING STATED OR POSTED ON THE CLMBR SITE OR AVAILABLE THROUGH ANY CLMBR SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. THE CLMBR SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND, TO THE FULL EXTENT PERMITTED BY LAW, CLMBR MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE CLMBR SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
In becoming a user of CLMBR with the intent of using the Services, you affirm that either (A) all of the following statements are true: (i) no physician or general practitioner has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician or general practitioner; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician or general practitioner is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your physician or general practitioner has been specifically consulted by you and approved of your use of the CLMBR Service.
If applicable, you further affirm that (a) you are not pregnant, breastfeeding or lactating; unless (b) your physician or general practitioner has been specifically consulted and approved your use of the CLMBR Service.
CLMBR reserves the right to refuse or cancel your membership if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect.
- Intellectual Property Acknowledgment
The Services and their content, including their look and feel (e.g., text, graphics, images, logos), proprietary content, information, and other materials, are protected under intellectual property, copyright, trademark, and other laws. You acknowledge and agree that CLMBR and/or its licensors own all right, title, and interest in and to the Services (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how, and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of CLMBR’s (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks, or other intellectual property rights on account of these Terms. All rights not expressly granted in these Terms are reserved. The CLMBR name, logos, and affiliated properties, designs, and marks, are the exclusive property of CLMBR whether registered or unregistered, and may not be used in connection with any product or service that is not ours, or in any manner that is likely to cause confusion as to our endorsement, affiliation, or sponsorship of any person, product, or service.
- Arbitration Requirement & Class Action Waiver
IMPORTANT: PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS. APPLICABLE TO THE FULLEST EXTENT PERMITTED BY LAW.
- Informal Process First. You agree that in the event of any dispute between you and CLMBR, you must first send a Notice of Dispute (“Notice”) by certified mail to the attention of CLMBR’s Legal Department at the CLMBR address set out below. In the Notice, you must describe the nature and basis of the Dispute and the relief you are seeking. If we are unable to resolve the Dispute within 45 days after CLMBR’s receipt of the Notice, then you or CLMBR may initiate arbitration proceedings as set out below.
- Mandatory Arbitration of Disputes. In the event that the Informal Process is not successful, we each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and CLMBR agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms and that you and CLMBR are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
- Exceptions and Opt-out. As limited exceptions to Mandatory Arbitration: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by regular mail sent to the attention of CLMBR’s Legal Department at the CLMBR address set out below within 30 days following the date you first agree to these Terms.
- Conducting Arbitration and Arbitration Rules. Any arbitration will be conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) then in effect, except as modified by these Terms. The JAMS Rules are available at www.jamsadr.com or by calling 1-800-352-5267. A party who wishes to start arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Rules. JAMS provides a form Demand for Arbitration at www.jamsadr.com. JAMS will appoint an arbitrator that is either (1) a retired federal or state court judge, or (2) an attorney who has been licensed to practice law in the state of Colorado for at least 10 years. The arbitration will be conducted by an in-person hearing, unless we both agree otherwise. If JAMS fails or declines to conduct the arbitration for any reason, we will mutually select a different arbitration administrator. If we cannot agree, a court will appoint a different arbitration administrator.
Any arbitration hearings will take place in the county (or other municipality) where you live, unless we both agree to a different location. The parties agree that the arbitration shall be conducted by a single arbitrator who shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement. During the arbitration, both you and CLMBR may take one deposition of the opposing party, limited to 4 hours. If we cannot agree on a time and location for a deposition, the arbitrator will resolve any scheduling disputes.
- Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If you assert a claim against CLMBR, you will be responsible for paying a $250 consumer filing fee. CLMBR will pay for all other filing, administration and arbitrator fees and expenses. If your Dispute is for less than U.S. $10,000 (including attorneys’ fees and costs) and the arbitrator, upon final disposition of the case, finds your Dispute was not frivolous, CLBMR will reimburse your initial filing fee. If we prevail in arbitration, we will pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
- Class Action Waiver. YOU AND CLMBR AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, neither JAMS nor the arbitrator may consolidate another person’s claims with your claims or otherwise preside over any form of a representative or class proceeding for any purpose.
- Effect of Changes on Arbitration. Notwithstanding the provisions of the “Modification” section of these Terms, if CLMBR changes any of the terms of this “Arbitration Requirement & Class Action Waiver” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of CLMBR’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and CLMBR in accordance with these Terms as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
- Severability. If an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
- Interpretation; Severability; Waiver; Remedies
Headings are for convenience only and shall not be used to construe these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by CLMBR in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of CLMBR. CLMBR’s rights and remedies hereunder are cumulative and not exclusive. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
- Successors; Assignment; No Third Party Beneficiaries
These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without CLMBR’s prior written consent. CLMBR may assign its rights, obligations and/or these Terms at any time in its sole discretion without notice to you.
You consent to receive all communications including notices, agreements, disclosures, or other information from CLMBR electronically. CLMBR may communicate by email or by posting to the CLMBR Service. For all notices to CLMBR, write to the following addresses:
3033 East 1st Avenue, Suite 705
Denver, CO 80206
Attn: Legal Department
Nothing in these Terms or otherwise limits CLMBR’s right to object to subpoenas, claims, or other demands.
We may update these Terms at any time, in our sole discretion. If we do so, we’ll let you know by, at a minimum, posting the updated Terms (as indicated by a revised “Last Updated” date at the top of this page) on the Site and/or through the Services. Modifications will be effective on the date that they are posted to the Site. It’s important that you review the Terms whenever we update them before you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then you may not use the Services anymore. Because the Service is evolving over time we may change or discontinue all or any part of the Service, at any time and without notice, at our sole discretion.
- Force Majeure
Neither Party shall be liable for any failure or delay in performance under these Terms (other than for delay in the payment of money due and payable in accordance with these Terms) for causes beyond a Party’s reasonable control and not caused by that Party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.