COMMERCIAL TERMS & CONDITIONS

1. Acceptance.

The customer named on the CLMBR invoice or ordering document that references these Standard Terms & Conditions of Purchase (“Customer”) hereby offers to purchase from CLMBR, Inc. (“CLMBR”) the products and services described on the relevant CLMBR invoice or ordering document (“Order”) (respectively, “Products” and “Services”), subject to the below terms and conditions. These Standard Terms & Conditions of Purchase, any addendum(s) attached hereto, together with information contained on the Order, and any additions or revisions mutually agreed to in a signed writing by Customer and CLMBR (collectively, this “Agreement”) constitute the entire agreement between Customer and CLMBR with respect to the purchase of the Products and/or Services specified on the Order, 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 Customer contains provisions inconsistent with the provisions hereof, this Agreement will prevail and CLMBR hereby notifies Customer of its objection to and rejection of any such provisions stated by Customer, whether or not material, that are in conflict with, inconsistent with, or in addition to those contained in this Agreement. Customer’s acceptance of delivery of or payment for any Products or Services provided hereunder constitutes Customer’s acceptance of this Agreement. If there is any conflict between the terms and conditions set forth in any such addendum(s), Order and such conflict shall be resolved by giving precedence in the following order: the Order, applicable addendum and these Standard Terms & Conditions of Purchase.

2. Orders.

CLMBR will use commercially reasonable efforts to supply to Customer such quantities of Products and Services as Customer orders pursuant to this Agreement. Customer may not cancel any Order after acceptance, and changes in order quantities require CLMBR’s prior written consent. CLMBR will use reasonable efforts to comply with such requests, but will not be responsible or liable for any failure to provide changed amounts. Notwithstanding any other provision herein, CLMBR’s obligation to supply Products and Services to Customer is subject to availability and CLMBR’s other obligations.

3. Payment Terms.

Unless otherwise stated on the Order, invoiced amounts are due upon receipt and payable in U.S. dollars. Customer will pay or reimburse CLMBR for all sales, use, value- added and other taxes (except taxes on CLMBR’s net income) claimed or imposed by any governmental authority upon the sale of the Products and Services or payments to CLMBR under this Agreement. Customer may not set off from any amounts due to CLMBR any amounts claimed to be owed by CLMBR to Customer for any reason.

4. Remedies.

If Customer fails to pay when due any amount that Customer owes to CLMBR for Products, CLMBR has, in addition to any other rights of CLMBR, the right (without liability to Customer) to repossess such Products, to suspend the provision of Services, and/or to require Customer to effect return delivery of such Products to CLMBR at Customer’s expense. In addition, until Customer has paid to CLMBR the entire amount due for such Products, CLMBR will retain a security interest in such Products in the amount of the full purchase price plus all other amounts due hereunder, and CLMBR will retain all rights and remedies of a secured party under the Uniform Commercial Code as in effect at the time of delivery of such Products. A copy of CLMBR’s invoice may be filed with the appropriate authorities at any time as a financing statement or chattel mortgage in order to perfect CLMBR’s security interest. Upon request, Customer will execute any financing statements and other instruments necessary or appropriate for CLMBR to perfect its security interest.

5. Shipment.

CLMBR will use commercially reasonable efforts to ship by the scheduled shipping date(s) on the Order, but shipping dates are not guaranteed. If no shipping date is specified, shipment will be made on date(s) selected by CLMBR. In no event will CLMBR be liable for any damages or penalties for delay in delivery or for failure to give notice of delay. Delivery may be made in advance of any scheduled delivery date upon reasonable prior notice to Customer. Except as otherwise specified in the Order, items will be packed for shipment and shipped in accordance with CLMBR’s standard practices.

6. Title and Risk of Loss.

Subject to Section 4, title to the Products sold by CLMBR to Customer, and all risk of loss of or damage to such Products, pass to and are assumed by Customer upon delivery to the destination specified by Customer.

7. Inspection and Returns.

Customer must carefully inspect all deliveries of Products and report promptly to CLMBR any alleged error, shortage, defect or nonconformity of such Products. Products are non-returnable except as set out in CLMBR’s Return Policy in effect at the time of purchase, the current version of which is located at www.clmbr.com/return-policy/. Prior to initiating any return, Customer must call its designated CLMBR account representative, or CLMBR customer support, and describe the issues with the Products. A return shipping fee is charged for some Products.

8. Warranty Claims.

The CLMBR 02 Limited Warranty (Commercial) provided by CLMBR, which can be found at www.clmbr.com/commercial-warranty/ (or such successor website as CLMBR may designate from time to time), as may be amended by CLMBR in its sole discretion (the “Limited Warranty”), applies to purchases of the Products. Customer must contact CLMBR Customer Support to obtain warranty or support service for the Products and Services, whether under the Limited Warranty or otherwise. If Customer obtains service for the Products and Services from anyone other than a CLMBR authorized representative, Customer may no longer receive warranty protection from CLMBR.

9. Product Use.

Customer may not charge any fees of any kind for use of the Products and Services (e.g., pay-per-session or access fees or subscription charges) without CLMBR’s prior written consent in each instance (which may be withheld in CLMBR’s sole discretion). Prior to using any CLMBR Products and Services, all users are required to accept CLMBR’s Service Terms and Conditions and Privacy Policy, the current versions of which are located at www.clmbr.com, as well as any other terms presented to users during the sign-in process (collectively, the “CLMBR Terms of Service”). Customer may not create or otherwise publicize general-use login credentials for any CLMBR Products and Services that enable any user to access the CLMBR Products or Services without a personal account. To the extent the CLMBR Terms of Service, as applied to Customer, conflict with the terms of this Agreement, the terms of this Agreement control. Without limiting anything else in this Agreement or in the CLMBR Terms of Service, Customer acknowledges and agrees that Customer is solely responsible for

1. maintaining its premises and equipment in good working order, for posting all appropriate health and safety notices,
2. adhering to all applicable safety guidance provided by CLMBR with respect to the Products, including those in the applicable user manual, and
3. obtaining waivers and releases of liability from all users of Customer’s facilities and equipment. Customer’s license to access and use the CLMBR software included in the Products, the online fitness community and related products, services, content, and features, and the interfaces on tablets connected to CLMBR Products is subject to the CLMBR Terms of Service, which can be found at www.clmbr.com (or such successor website as CLMBR may designate from time to time), as may be amended by CLMBR in its sole discretion.

10. Professional Advice and Medical Disclaimers.

The Products and Services offer health and fitness information and are designed for educational and entertainment purposes only. Customer should not, and will instruct its users not to, rely on such information as a substitute for, nor does it replace, professional medical advice, diagnosis, or treatment. The use of any information provided by the Products and Services is solely at the user’s own risk, and users should not disregard, avoid, or delay in obtaining medical or health related advice from a healthcare professional because of any information provided through the Products and Services. Nothing stated in the Products and Services are intended to be, nor may be taken to be, the practice of medical or counseling care (including without limitation, psychiatry, psychology, psychotherapy, or health care treatment, instructions, diagnosis, prognosis or advice). The Products and Services are continually under development, and CLMBR makes no warranty of any kind, implied or express, as to the accuracy, completeness or appropriateness thereof for any purpose. In that regard, developments in medical research may impact health, fitness and nutritional advice. No assurance can be given that the Products and Services will always include the most recent findings or developments with respect to the particular material.

11. Insurance.

CLMBR does not provide theft, property, personal injury, or any other type of insurance to Customer, except that upon Customer’s request CLMBR will provide evidence of coverage solely in connection with and for purposes of completing the delivery of Products to Customer’s premises. Customer acknowledges that it is Customer’s sole responsibility to insure Customer’s Products and Services, and CLMBR shall have no liability to Customer in connection therewith.

12. Cancellation.

If Customer breaches any material provision of this Agreement, CLMBR may cancel all or part of any orders hereunder, at any time, without liability or payment to Customer. CLMBR may also cancel all or part of this Agreement, without cause, at any time by written notice, in which case CLMBR will refund to Customer the amounts specified in the Order that were previously paid by Customer for Products and Services not delivered prior to cancellation.

13. Limited Warranty and Warranty Disclaimer.

It is the sole and exclusive responsibility of Customer to determine the suitability of any and all Products and Services for Customer’s intended uses. THE LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY CLMBR, AND CLMBR GIVES OR MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NO REPRESENTATIVE OF CLMBR IS AUTHORIZED TO MAKE ANY OTHER REPRESENTATION OR WARRANTY OR MODIFY THE LIMITED WARRANTY OR THIS SECTION IN ANY WAY EXCEPT IN A WRITTEN AMENDMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF CLMBR THAT MAKES SPECIFIC REFERENCE TO THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, CLMBR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AS WELL AS ALL WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.

14. Limitation of Liability.

CLMBR’S SOLE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, IN CONNECTION WITH THE SALE OR USE OF PRODUCTS AND SERVICES SOLD HEREUNDER, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, WILL BE STRICTLY LIMITED TO CLMBR’S OBLIGATIONS AS SPECIFICALLY AND EXPRESSLY PROVIDED HEREIN. IN NO EVENT WILL CLMBR HAVE ANY LIABILITY TO CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THE SALE OR USE OF THE PRODUCTS AND SERVICES SOLD HEREUNDER OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN AN AMOUNT IN EXCESS OF, AND CLMBR’S LIABILITY WILL BE STRICTLY LIMITED TO, AMOUNT(S) ACTUALLY RECEIVED BY CLMBR FROM CUSTOMER FOR THE PRODUCTS AND SERVICES THAT GIVE RISE TO THE LIABILITY. IN NO EVENT WILL CLMBR HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING IN ANY WAY IN CONNECTION WITH THE PRODUCTS AND SERVICES OR THEIR SALE OR USE, INCLUDING BUT NOT LIMITED TO DAMAGE TO PROPERTY, INJURY TO PERSONS, LOSS OF USE, DATA OR PROFITS, OR DELAYS OR INCONVENIENCE, EVEN IF CLMBR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer acknowledges that no guarantees or assurances have been made as to results that may be obtained from the use of the Products and Services whether used singly or in combination with other products or services. Customer acknowledges that it does not rely on, and waives any claim relating to, any recommendation or instruction given to Customer by CLMBR or any of its representatives regarding the specifications, storage, handling, maintenance or use of Products and Services, which recommendation or instruction is followed or acted upon entirely at Customer’s own risk. Customer acknowledges that it is purchasing Products and Services to be used by its own end users.
To the extent allowed by law, CLMBR will not be liable to these end users, and Customer agrees to indemnify CLMBR for any injuries incurred in connection with its users’ use of the Products and Services. There are inherent risks in the use of exercise equipment, and all users’ use of the Products is at their own risk.

15. Confidentiality.

“Confidential Information” means all trade secrets, know-how, inventions, developments, software, pricing information and other business or technical information disclosed by or for CLMBR, but not including any information that Customer can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation of confidentiality, (b) generally available to the public without breach of this Agreement, or (c) independently developed by it without access to or reliance on CLMBR’s information. The pricing and quantity provisions in the Order constitute Confidential Information. Except for the specific rights granted by this Agreement, Customer will not use or disclose any Confidential Information without CLMBR’s prior written consent, and will use reasonable care to protect it from unauthorized access, use or disclosure. Customer will be responsible for any breach of confidentiality by anyone to whom Customer discloses Confidential Information. Any breach or threatened breach of this provision will cause irreparable harm to CLMBR for which money damages would not be an adequate remedy. Accordingly, CLMBR will, in addition to any other legal or equitable remedies, be entitled to an injunction or similar equitable relief against any such breach or threatened breach without the necessity of posting any bond.

16. Marketing and Publicity.

Any marketing or promotion of the Products and Services must comply with CLMBR’s Commercial Marketing Guidelines as updated from time to time in CLMBR’s discretion and any additional instructions or guidelines that Customer receives from CLMBR from time to time. Customer may not use CLMBR imagery or marketing collateral (“CLMBR Material”) unless such CLMBR Material is posted on CLMBR’s Brandpad page at www.brandpad.io/clmbr-commercial/ or provided to Customer by CLMBR. Customer has a limited right to copy and use CLMBR Material, without modification, solely for purposes of marketing and promoting the Products and Services pursuant to this Agreement in accordance with CLMBR’s Commercial Marketing Guidelines, as updated from time to time in CLMBR’s discretion and which may be found at www.clmbr.com/commercial-guidelines and the confidentiality restrictions herein. Customer may not make any use of CLMBR’s name or trademarks for purposes other than marketing or promoting the Product and Services consistent with the guidelines referenced above, or make any modifications to CLMBR Material, without CLMBR’s express prior written approval, which may be granted or denied by CLMBR in its sole discretion. To request such permission, Customer should contact [email protected]. Customer agrees that CLMBR may use Customer’s name, trademarks, logos and other branding features in connection with marketing-related communications and may reference Customer in partner listings. Customer acknowledges that failure to adhere to these requirements constitutes waiver of the Limited Warranty with respect to Customer and a material breach of this Agreement, and may constitute a violation of trademark, copyright, unfair competition, false advertising, and related laws.

17. Export Control.

Customer will comply with the U.S. Foreign Corrupt Practices Act (regarding, among other things, payments to government officials) and all export laws and restrictions and regulations of the Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and not export, or allow the export or re-export of any Product or Service in violation of any such restrictions, laws or regulations.

18. General.

Communications under this Agreement will be in English, via email or in writing, and deemed to have been duly given upon receipt if sent to the email or address set forth on the Order or such other address as a party may specify. If any provision of this Agreement is determined to be invalid, unenforceable or void for any reason, such provision will be limited or modified to the limited extent necessary to most closely reflect the parties’ intent and render the remainder of this Agreement in full force and effect and enforceable. The waiver of any breach will not be construed as a waiver of any succeeding breach of the same or any other provision, nor will any delay or omission to exercise any right or remedy, operate as a waiver. This Agreement and the transactions contemplated hereby will be governed by and construed in accordance with the laws of the State of Colorado without regard to its principles on conflicts of law. Exclusive jurisdiction and venue for any litigation arising under this Agreement is in the federal and state courts located in Denver, Colorado, and both parties hereby consent to such jurisdiction and venue for this purpose. In any action to enforce this Agreement the prevailing party will be entitled to recover its reasonable attorneys’ fees and other costs incurred in connection with that action, in addition to any other relief to which such party may be entitled. Nothing contained in this Agreement will be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose. In no event will CLMBR have any liability for any delayed performance or nonperformance by CLMBR that results, in whole or in part, directly or indirectly, from any cause beyond CLMBR’s reasonable control, including (but not limited to) acts of God, wars, riots, civil disturbances, labor disputes, fires, storms, floods, earthquakes, natural disasters, inability to obtain or use raw or component materials or parts, labor, equipment, utilities, facilities, or transportation, and acts of any government or agency thereof. Customer’s order will be deemed suspended for so long as any such cause prevents or delays CLMBR’s performance. In the event of any such suspension, CLMBR will have the option, upon notice to Customer, to (a) terminate its obligation to sell any or all of the Products and Services, or (b) resume performance as soon as practicable after the suspension, and reschedule delivery of the Products and Services ordered hereunder to one or more deferred dates agreed upon by Customer and CLMBR. This Agreement (i) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersede all prior written or oral understandings and agreements as to such subject matter; (ii) may be amended or modified only by a writing executed by an authorized officer of the party against whom enforcement is sought; (iii) may not be assigned by Customer without the written consent of CLMBR; and (iv) will be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns.

CLMBR, Inc.
3033 E 1st Ave, STE 501
Denver, CO 80206