EFFECTIVE DATE: 3.17.23
These Service Terms and Conditions (“Service Terms”) are between you (“User” or “You”) and CLMBR, Inc. (“CLMBR”) and govern your use of CLMBR’s mobile, desktop, or device applications (“Apps”), the interfaces connected to CLMBR fitness machines (“Interfaces”), and the fitness content and related features and services available through the CLMBR website, http://CLMBR.com (“Website”), Apps, and Interfaces, collectively the “Services.” We refer to the Website, Apps, and Interfaces together as the “Platform.”
These Service Terms do not govern the purchase or delivery of CLMBR fitness machines (“Fitness Machines”). Such purchases are governed by the Terms and Conditions of Sale (“Terms of Sale”) available at www.clmbr.com/terms-of-sale. Furthermore, these Service Terms only apply to you if you have an account and use the fitness content provided on the Platform. If you are just visiting the website, please refer to our Website Visitor Terms and Conditions (“Website Terms”) available at www.clmbr.com/terms-and-conditions.
By creating an account on the Platform or otherwise accessing or using the Services, you agree (i) that you are at least 18 years old and (ii) to read, comply with, and be legally bound by these Service Terms and any additional terms and conditions, agreements, or policies published on the Platform that are applicable to your use of the Services. If you do not wish to be bound by these Service Terms, do not create an account or otherwise access or use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity.
Although CLMBR may attempt to notify you when major changes are made to these Service Terms, from time to time you should review the most up-to-date version here at www.clmbr.com/service-terms. CLMBR may, in their sole discretion, modify or revise these Service Terms at any time. By continuing to access and use the Services, you agree to be bound by such modifications or revisions.
THESE SERVICE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES AND LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. THUS, CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION BELOW.
1. Access to and Use of the Services.
Authorization. Subject to your compliance with the Service Terms and payment of any applicable Fees, CLMBR hereby grants you a non-exclusive, non-transferable, revokable right to access and use the Services for your own personal, non-commercial purposes.
Accounts. To access and use the Services, you must have an account with CLMBR. Each User account is personal in nature and may only be used by the User assigned to the account. You may not allow any third party to access or use your account. You are responsible for maintaining the confidentiality and security of your account including, without limitation, keeping the account password confidential. CLMBR is not liable to you or any third party for any unauthorized use of your account, including, without limitation, any damage that results from any unauthorized use of your account.
Free Account Inactivity. You are responsible for keeping your account active, which means you must sign in periodically to avoid any disruption or loss of access to the Services, or termination of your account. If you don’t sign into your account periodically, we reserve the right to assume your account is inactive, and close it for you. You understand that you will lose any data stored in your account upon closure. Prior to closing your account for inactivity, we will attempt to notify you.
Pre-release or Beta Version. We may designate the Services, or a feature of the Services, as a prerelease or beta version (“Beta Version”). A Beta Version does not represent the final Services and may contain bugs that may cause system or other failures and data loss. We may choose not to release a commercial version of the Beta Version. You must promptly cease using the Beta Version if we request you to do so. In exchange for your use of a Beta Version, you agree that we may collect data, including crash data, regarding your use of the Beta Version and analyze your User Content, as defined below.
Links to Third Party Websites. The Platform and Services may include links to other websites or services solely as a convenience. CLMBR is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any such linked sites or other information, material, products or services contained on other linked sites or accessible through other linked sites. Your use of linked sites is solely at your own risk.
Third Party Services. The Services may include integrations with web or other third party services that are accessed through the Platform and subject to terms and conditions with those third parties. These third party services are not part of the Services and these Service Terms do not apply to them. CLMBR is not responsible for the content of third party services.
Reservation of Rights. CLMBR reserves all rights not expressly granted to User in these Service Terms. Except for the limited rights and licenses expressly granted under these Service Terms, nothing in these Service Terms grants, by implication, waiver, estoppel, or otherwise, to User or any third party any Intellectual Property Rights or other right, title, or interest in or to the Services or the Platform, or any and all intellectual property provided to any User in connection with the foregoing.
Fees. Most features of the CLMBR Services are only available to Users with paid memberships (“Members”). Users can purchase a membership at https://clmbr.com/membership. If you use the Services as part of a membership, you agree to pay us for the Services in the amount set forth at https://clmbr.com/membership#membershipOptions (“Fees”) on a monthly basis or as otherwise specified on the Platform (“Subscription Period”).
No Refunds. Fees are nonrefundable and there are no refunds or credits for partially used Subscription Periods. However, at any time, and for any reason, CLMBR may provide a refund, discount, or other consideration to some or all of our users (“Credits”). The amount and form of such Credits, and the decision to provide them, are at our sole and absolute discretion. The provision of Credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
Updated Information. You agree to provide current, complete and accurate purchase and account information for all purchases of our Services. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that CLMBR can complete your transactions and contact you as needed.
Changes. CLMBR reserves the right to change any Fees or applicable charges upon sixty (60) days’ notice to you.
Taxes. You are responsible for paying all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government or regulatory authority on any amounts payable by you hereunder, other than taxes imposed on CLMBR’s income.
3. Acceptable Use
Use Restrictions. User shall not use the Services for any purpose beyond the scope of the access granted in these Service Terms. You may not use the Services for any commercial purpose without CLMBR’s prior, express authorization. Prohibited commercial uses include, but are not limited to the following:
- Selling access to the Services on another website or service or framing the Services on another website or service.
- Any use of the Services that CLMBR finds, in their sole discretion, competes with or displaces the market for the Services or the content or Services provided here.
Acceptable Use. You must not misuse the Services. You agree not to: (i) copy, modify, or create derivative works of the Platform or Services, in whole or in part; (ii) collect or store, or attempt to collect or store, personal information about other users of our Services, except as expressly permitted under these Service Terms or any other agreements that govern your use of the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component or source code of the Services, in whole or in part; (iv) transmit or upload any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs or other items of a destructive nature; (v) remove any proprietary notices from the Platform; (vi) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other rights of any person, or that violates any applicable law; (vii) access or use the Services for any purpose that is to CLMBR’s detriment or commercial disadvantage; (viii) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm the Platform or Services; or (ix) bypass or breach any security device or protection used by CLMBR to access or use the Platform or Services; and (x) use the Platform or Services in violation of the Website Terms available at www.clmbr.com/terms-and-conditions.
4. User Content
User Content. In using the Services, you may upload, import into, or create text, information, communication, or material, such as audio files, video files, or images (collectively, “User Content”). Although CLMBR reserves the right to edit or remove content that violates these Service Terms, you acknowledge and accept responsibility and liability for User Content posted by you.
Sharing User Content. Depending on how you use our Services, you may be able to share your User Content and other information related to your use of the Services and Fitness Machines such as challenge results and workout summaries with other users or to make it public. Please carefully consider what you choose to share or make public as you are responsible for the User Content that you share.
Reliance on User Content. CLMBR does not endorse any User Content, and is not responsible or liable for any User Content that appears on the Platform.
Ownership of the Platform and Services. CLMBR owns or licenses all rights, title and interest, including all Intellectual Property Rights, in and to the Platform and Services, including without limitation, all software and code that comprise and operate the Platform and all the text, photographs, illustrations, images, graphics, audio, video, URLs and other materials provided by CLMBR through the Platform.
User Content Ownership. Between you and CLMBR, CLMBR owns all User Content and by posting content to the Platform, you hereby assign to CLMBR all right, title, and interest, including all Intellectual Property Rights, in and to your User Content. As owner of the posted User Content, CLMBR has the full right to use, perform, display, reproduce, distribute, modify, make derivative works of, and otherwise exploit the User Content.
Intellectual Property Rights Defined. For purposes of these Service Terms, “Intellectual Property Rights” means, on a worldwide basis, all patents, trademarks, service marks, trade name rights, logos, drawings, inventions, copyrights, mask works, samples, processes, moral rights, rights of publicity, rights of ownership, designs, design rights, trade secrets, specifications, instruction manuals, technology, materials, know how, information, data, goodwill, improvements and writings, and any applications, registrations or common law rights in any of the foregoing, as applicable.
Feedback. If you send or transmit any communications or materials to CLMBR by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, CLMBR’s intellectual property, or other services CLMBR provides, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), you hereby assign to CLMBR all right, title, and interest in the Feedback and CLMBR is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although CLMBR is not required to use any Feedback.
6. Term and Termination
Term. These Service Terms begin on the date you first use the Services and continue in effect as long as you have an account with us and/or continue to use the Services.
Cancelation. If you are a Member, you may cancel your subscription on the Fitness Machine at any time by following the instructions we provide. Following any cancellation, you will continue to have access to the applicable paid Services through the end of your then-current Subscription Period. These Service Terms will then terminate at the end of your then-current Subscription Period.
Right to Terminate. We reserve the right, with or without notice and in our sole discretion, to terminate these Service Terms, your account, and/or your ability to access or use our Services for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Service Terms, or in the case of any activity by you that may harm us or other users, including, but not limited to, fraud, abuse of privileges, or misuse of our Services. You agree that we will not be liable to you or any third party for any such termination.
7. Notice and Procedure for Making Claims of Copyright Infringement
CLMBR Policy. CLMBR respects the Intellectual Property Rights of others. CLMBR will remove User Content and other materials on the Platform in accordance with the Digital Millennium Copyright Act (“DMCA”) upon receipt of proper notice that such User Content or other materials infringe a third party’s copyright. Additionally, subject to Section 3(c) below, CLMBR will terminate the accounts of repeat infringers.
Notice of Infringement. Any copyright owner, or an agent thereof, who believes that User Content or other materials on the Platform infringes upon their copyrights, may submit a notification pursuant to the DMCA to the address provided below. Such notification must contain the following:
- the signature of the copyright owner or an authorized agent;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are on a single site, a representative list of such works at that site;
- identification of the infringing material or activity (or the reference or link to such material) and information reasonably sufficient to permit CLMBR to locate the material (or the reference or link);
- contact information for the copyright owner or authorized agent;
- a statement that the person sending the notice has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notice is accurate, and under penalty of perjury, that the person sending the notice is authorized to act on behalf of the copyright owner.
CLMBR may disclose DMCA notices to affected users and third party databases that collect information about copyright takedown notices.
Repeat Infringers. Without limiting anything else in these Service Terms, CLMBR will terminate any account that receives three (3) DMCA Takedown Actions. A “DMCA Takedown Action” occurs each time User Content or other materials is removed due to a DMCA notice. CLMBR may group multiple DMCA notices received in a short period of time as a single DMCA Takedown Action. CLMBR may remove a DMCA Takedown Action in appropriate circumstances, such as where: (1) the material is restored due to a DMCA counter-notification; or (2) the party who provided the DMCA notice withdraws their complaint.
Address for Notices. DMCA notices and counter-notifications may be sent to CLMBR’s designated agent, Kenneth Rosenzweig at the following addresses:
By mail to: CLMBR, Inc.
Attn: Kenneth Rosenzweig / Chief Operating Officer
3033 East 1st Avenue, Suite 501
Denver, CO 80206
8. Safety Warnings
THE CLMBR SERVICES INCLUDE FITNESS AND EXERCISE CONTENT AND PROGRAMING. YOU SHOULD CONSULT YOUR DOCTOR BEFORE BEGINNING ANY NEW EXERCISE PROGRAM, ESPECIALLY IF YOU HAVE NOT EXERCISED RECENTLY. IF YOU USE THE SERVICES FOR EXERCISE PURPOSES, YOU DO SO AT YOUR OWN RISK.
THE SERVICES ARE DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. INFORMATION PROVIDED THROUGH THE SERVICES IS NOT MEDICAL OR HEALTH ADVICE. USE OF THIS INFORMATION IS AT YOUR OWN RISK. DO NOT RELY ON INFORMATION PROVIDED THROUGH YOUR USE OF THE SERVICES IN PLACE OF MEDICAL ADVICE.
9. Disclaimer of Warranties
THE PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CLMBR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE. CLMBR MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM AND SERVICES, OR ANY OF THE RESULTS FROM THE USE THEREOF, WILL MEET USER’S OR ANY THIRD PARTY’S, REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, OR ERROR-FREE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CLMBR, ITS AFFILIATES, OR OTHER THIRD PARTIES SHALL CREATE A WARRANTY OF ANY KIND OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY EXPRESSLY GRANTED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold harmless CLMBR and our officers, directors, and employees from any and all third party claims, liability, damages, costs or demands, including, but not limited to, attorneys’ fees, arising from (i) your use of the Services, including, but not limited to, all content therein and any products or services obtained by you through the Service, (ii) your violation of the Acceptable Use Provisions of these Service Terms; (iii) your infringement of any intellectual property or other right of any person or entity; or (iv) your violation of any applicable law or regulation (all of the foregoing, “Claims and Losses”). You agree that we may have our own counsel present at, and participate in, all proceedings or negotiations relating to such Claims and Losses at our expense. Notwithstanding the foregoing, we retain the exclusive right to settle, compromise and pay any and all Claims and Losses, and reserve the right to assume the defense and control of any Claims and Losses.
11. Limitation of Liability
General. IN NO EVENT SHALL CLMBR OR ITS PARENTS, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, OR AGENTS (“REPRESENTATIVES”) BE LIABLE TO YOU UNDER OR IN CONNECTION WITH THESE SERVICE TERMS FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF PREVIOUSLY APPRISED OF THE POSSIBILITY THEREOF), WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTORY OR ANY OTHER LEGAL THEORY OR FOR ANY ERROR OR INTERRUPTION OF USE; INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS; LOSS OF GOODWILL OR REPUTATION; OR COST OF REPLACEMENT GOODS OR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL CLMBR OR ITS REPRESENTATIVES BE RESPONSIBLE FOR ANY LOSS, DAMAGE, OR LIABILITY ARISING OUT OF ANY MISTAKES OR OTHER ERRORS MADE BY YOU AS A RESULT OF YOUR USE OF THE SERVICES.
Limitation. THE AMOUNT OF CLMBR’S LIABILITY TO YOU UNDER ANY AND ALL CLAIMS FOR LOSS OR LIABILITY BASED UPON, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THESE SERVICE TERMS SHALL IN NO CASE EXCEED THE FEES ACTUALLY PAID BY YOU TO CLMBR IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE TO THE CLAIM OR, IF NO FEES HAVE BEEN PAID DURING THAT PERIOD, THE AMOUNT $500 USD.
12. Special Terms for Apps Distributed Through The Apple App Store Or Google Play
Acknowledgement. The CLMBR Apps may be available through the Apple App Store or Google Play. You and CLMBR each acknowledge that these Terms and any other terms and conditions imposed by CLMBR with respect to the CLMBR Apple App and the CLMBR Google App (the “CLMBR Apps”) and any other agreements entered into between you and CLMBR in connection with the CLMBR Apps (collectively, the “CLMBR App Agreements”) are between you and CLMBR only, and not with Apple Inc. or Google, Inc. (each an “App Distributor”), and that CLMBR, not an App Distributor, is solely responsible for the CLMBR Apps and the content thereof. In the event the CLMBR App Agreements provide usage rules for the CLMBR Apps that are in conflict with the App Distributor Service Terms, the App Distributor Service Terms shall control with respect to the CLMBR Apps.
Scope of License. In addition to the other terms set forth in the CLMBR App Agreements, the licenses granted to you for the CLMBR App are solely for use by you on a device that utilizes the Apple iOS or Android operating system, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor terms of service.
Maintenance and Support. CLMBR is solely responsible for providing any maintenance and support services with respect to the CLMBR Apps, as specified in the CLMBR App Agreements or as required under applicable law. You and CLMBR acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the CLMBR Apps.
Warranty. CLMBR is solely responsible for any product warranties, whether express or implied by law, to the extent not disclaimed in the CLMBR App Agreements. In the event of any failure of the CLMBR Apps to conform to any applicable warranty, you may notify an App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the CLMBR App. Further, to the maximum extent permitted by applicable law, an App Distributor will have no other warranty obligation whatsoever with respect to the CLMBR App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be CLMBR’s sole responsibility.
Product Claims. You and CLMBR acknowledge that CLMBR, not an App Distributor, is responsible for addressing any claims that you or any third party have relating to the CLMBR App or your possession and/or use of the CLMBR App, including, but not limited to: (1) product liability claims; (2) any claim that the CLMBR App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection, privacy or similar legislation.
Intellectual Property Rights. You and CLMBR acknowledge that, in the event of any third party claim that the CLMBR App, or your possession and use of the CLMBR App, infringes that third party’s Intellectual Property Rights, subject to the limitations of liability and indemnification obligations set forth in the CLMBR App Agreements, CLMBR, not the App Distributor, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Third Party Terms. You must comply with applicable third party terms when using the CLMBR App.
Third Party Beneficiary. You and CLMBR acknowledge and agree that the App Distributors, and their subsidiaries, are third party beneficiaries to these Terms as applicable to the CLMBR App, and that, upon your acceptance of these Terms, each App Distributor will have the right (and will be deemed to have accepted the right) to enforce these Terms (as applicable) against you as a third party beneficiary thereof.
13. DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS.
Waiver of Rights. YOU AGREE THAT BY ACCESSING OR USING OUR SERVICES, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE RELEASED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Agreement to Arbitrate.
YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THESE TERMS, YOUR ACCESS TO OR USE OF THE SERVICES, OR YOUR DEALINGS WITH CLMBR IN CONNECTION WITH THE FOREGOING SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION.
THIS AGREEMENT TO ARBITRATE INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1-16 (“FAA”), AND NOT BY STATE LAW.
THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FAA.
THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION.
FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, YOU MUST ABIDE BY THE FOLLOWING RULES: (1) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS AND (2) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) WILL TAKE PLACE IN DENVER, CO.
THE ARBITRATOR IS BOUND BY THE TERMS OF THIS AGREEMENT TO ARBITRATE. YOU ACKNOWLEDGE AND AGREE THAT, IN ANY ARBITRATION PROCEEDING, NO DEPOSITIONS WILL BE TAKEN, AND ALL OTHER FORMS OF DISCOVERY OF FACTS WILL BE LIMITED TO THOSE THINGS THAT THE ARBITRATOR DETERMINES, IN ITS SOLE DISCRETION, TO BE NECESSARY. FURTHER, IN ANY ARBITRATION PROCEEDING: (1) THERE SHALL BE NO PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL OR OTHER SPECIAL DAMAGES; (2) ALL DAMAGES, CLAIMS, AND AWARDS WILL BE GOVERNED BY COLORADO LAW; (3) THE PARTIES WILL CONDUCT THE ARBITRATION CONFIDENTIALLY AND EXPEDITIOUSLY AND WILL PAY THEIR OWN COSTS AND EXPENSES OF ARBITRATION, INCLUDING THEIR OWN ATTORNEY FEES. IF YOU PROVE THAT YOU ARE UNABLE TO AFFORD THE AAA FEE, YOU AGREE TO NOTIFY ALL PERSONS AGAINST WHOM YOU HAVE AN ARBITRABLE CLAIM AND GIVE SUCH PERSONS THE OPPORTUNITY, INDIVIDUALLY AND AS A GROUP, TO PAY SUCH FEE. THE PROCEEDING AND THE DECISION SHALL BE KEPT CONFIDENTIAL BY THE PARTIES.
THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
THE ARBITRATION SHALL BE CONDUCTED IN THE ENGLISH LANGUAGE.
EXCEPT IN THE EVENT YOU OPT OUT OF THIS AGREEMENT TO ARBITRATE AS DESCRIBED BELOW, THIS AGREEMENT TO ARBITRATE WILL SURVIVE TERMINATION OF YOUR ACCESS TO OR USE OF OUR SERVICES AND YOUR RELATIONSHIP WITH US.
Information About Arbitration. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG. THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION.
Waiver of Class Action Rights. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION, OR SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES. NOTWITHSTANDING ANY PROVISION IN THE AGREEMENTS TO THE CONTRARY, IF THIS CLASS ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, YOU AGREE THE YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS.
Opt-Out of Agreement to Arbitrate. IF YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF THE EFFECTIVE DATE OF THESE SERVICE TERMS OR WHEN YOU FIRST USE THE SERVICES, WHICHEVER IS LATER, YOU MUST SEND US A LETTER STATING: “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” TO:
Attn: Legal Department
3033 East 1st Avenue, Suite 501
Denver, CO 80206
Venue for Litigation. IF THE AGREEMENT TO ARBITRATE IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, OR IF YOU OPT OUT OF THE AGREEMENT TO ARBITRATE IN ACCORDANCE, THEN, UNLESS PROHIBITED BY APPLICABLE LAW, THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO OR THE STATE COURTS OF COLORADO LOCATED IN DENVER, COLORADO, AS APPROPRIATE. YOU ALSO THEREFORE AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSES OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU HEREBY WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION, AND AGREE TO REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THIS AGREEMENT.
Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State Colorado.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Service Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Notices. 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 Platform. For all notices to CLMBR, write to the following addresses:
CLMBR, LLC 3033 East 1st Avenue, Suite 705 Denver, CO 80206 Attn: Legal Department
Survival. The provisions of these Service Terms which by their nature are intended to survive the termination or cancellation of these Service Terms shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation. Without limiting the foregoing, the provisions of the regarding indemnity and limitations of liability, shall survive the termination or cancellation of these Service Terms.
Severability. If any part of these Service Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, any warranty disclaimers and limitations of liability set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Service Terms shall continue in effect.
Force Majeure. Except with regard to payments due to CLMBR, neither Party will be liable for any delays or failures in performance due to circumstances beyond its reasonable control. In the event any such delay continues for a period of sixty (60) or more days, then either Party may terminate these Service Terms upon ten (10) business days’ prior written notice, provided Customer shall remain responsible for payments due to CLMBR prior to termination.
Entire Agreement. These Service Terms (together with the Website Terms and the Terms of Sale, which are also deemed incorporated by this reference) comprise the entire agreement between you and us and supersede all prior agreements between you and us regarding the subject matter contained herein. Where applicable, in the event of any conflict or inconsistency between the provisions of (i) the Terms of Sale (ii) these Service Terms, (iii) the Website Terms, and (iv) any other agreements between you and us related to your use of the Platform and Services, the governing order of precedence shall be in the priority listed in this sentence.