By logging into the Climbfind Platform or browsing places and other publicly available content on www.climbfind.com, I accept the Terms of Service Agreement of the Climbfind Platform, website, and mobile applications.
Climbfind™ Terms of Service Agreement
Last Updated October 9, 2011
Welcome to Climbfind, Inc., a Delaware Corporation. We provide our websites (including www.climbfind.com, www.climbingpartners.com, api.climbfind.com, accounts.climbfind.com, upload.climbfind.com) (the “Site” or “Website”), and the features, content, mobile applications, tools, and services (combined, the “Platform” or the “Climbfind Platform”) to you subject to the Terms of Service set forth in this Terms of Service Agreement (the “Agreement”).
1.The Platform, Content and User Submissions
1.1The Platform. Our Platform provides our users with a variety of resource, including, but not limited to, the ability to find and meet general climbing partners (a “PartnerCall”TM), to view who has or is climbing in a particular location, to provide and share user-generated climbing-related information and media (“Content”), and to provide and share user-generated information related to logging climbs and progress (“User Submissions”). Our Platform further includes a mobile application to facilitate any or all of the aforementioned resources.
1.2Content. For purposes of this Agreement, “Content” includes, without limitation, any climbing location information, climbing routes (whether climbing gyms or outside climbing), route setter feedback, videos, images, photographs, audio clips, text, comments, information, data, software, scripts, graphics and interactive features generated, provided or otherwise made accessible by Climbfind on or through the Platform. The use of any Content, whether publicly posted or privately transmitted, is the sole responsibility of individual users. The Content is protected by copyrights, trademarks, service marks, patents, trade secrets and other proprietary rights and laws, as applicable. You shall abide by and maintain all copyright notices, information and restrictions contained in any Content accessed through the Platform. Use, reproduction, modification, distribution or storage of any Content for other than personal, non-commercial use is expressly prohibited without prior written permission from Climbfind, or from the copyright holder identified in the Content’s copyright notice, if applicable. You shall not sell, license, rent or otherwise use or exploit any Content for commercial (whether or not for profit) use or in any way that violates Climbfind’s or any third party’s right.
1.3User Submissions. Content added, created, uploaded, submitted, distributed or posted to the Climbfind Platform by users is collectively referred to as “User Submissions.” We may use your User Submissions in a number of different ways in connection with the Platform and Climbfind’s business as Climbfind may determine in its sole discretion, including, but not limited to, publicly displaying it, reformatting it, using it for analytics, incorporating it into marketing materials, advertisements and other works, creative derivative works from it, distributing it, and allowing others to do the same in connection with their own websites, media platform and applications (“Third Party Media”). By submitting User Submissions to the Climbfind Platform, you hereby do and shall grant Climbfind a worldwide, non-excusive, royalty-free, fully paid, sub-licensable and transferable license to use, copy, edit, modify, reproduce, distribute, prepare derivative works of, display, perform or otherwise fully exploit User Submissions in connection with the Platform and Climbfind’s (and its successors’ and assigns’) business, including, without limitation, for promoting and redistributing parts or all of the Platform (and derivative works thereof), or the Platform in any media formats and through any media channels (including, without limitation, third party websites and feeds). You also hereby do and shall grant each user of the Platform, including Third Party Media, a non-exclusive license to access your User Submissions through the Site and the Service, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions in connection with their use of the Site, Service and Third Party Media. You represent and warrant that you have all rights to grant such license to Climbfind without infringement or violation of any third party rights, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights. You understand that all information publicly posted or privately transmitted through the Site is the sole responsibility of the person from which such Content originated; that Climbfind will not be liable for any errors or omissions in any Content; and that Climbfind cannot guarantee the identity of any other users with whom you may interact in the course of using the Platform.
You shall not, directly or indirectly:
- a.Take any action that imposes or may impose (as determined by Climbfind in its sole discretion) an unreasonable or disproportionately large load on Climbfind's (or its third party providers') infrastructure;
- b.Interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform;
- c.Bypass any measures Climbfind may use to prevent or restrict access to the Platform (or other accounts, computer systems or networks connected to the Platform);
- d.Run any form of auto-responder or “spam” on the Platform;
- e.Use manual or automated software, devices, or other processes to “crawl” or “spider” the Platform;
- f.Harvest or scrape any Content from the Platform;
- g.Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, republish, repurpose, sell, trade, or in any way exploit the Platform or Site Content (other than your User Submissions), except as expressly authorized by Climbfind;
- h.Decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform (including, without limitation, any application or widget), except to the limited extent applicable laws specifically prohibit such restriction;
- i.Copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder post pornography; or
- j.Otherwise take any action in violation of Climbfind's guidelines and policies.
1.4Climber Profiles. Climber Profiles are special profile pages that may only be used to display the information you volunteer to provide, and can be used as a social networking platform. If you have a “Climber Profile” (also “Climber Profiles”) on the Climbfind Platform, you also agree to the following:
- a.You may only administer your own personal Climber Profile and you shall not falsely represent another individual, or construct a Climber Profile of another individual without his permission;
- b.All content posted on the Climber Profile will be made available to all users of the Profile, unless otherwise indicated, so use your discretion when providing information, keeping in mind that your information is searchable;
- c.You shall not display any information on your Climber Profile that is an advertisement, or that which could be construed as an advertisement; and,
- d.You are responsible for ensuring that your Climber Profile, including any Content and User Submissions you post on your Climber Profile, shall comply with all applicable laws, rules and regulations and the Terms of this Agreement.
1.5Climbfind cannot guarantee the authenticity or accuracy of any Climber Profile, Content, User Submissions or data which users may provide about themselves or climbing facilities or climbing routes. You acknowledge that all Content and User Submission accessed and used by you is at your own risk, and that you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our Platform, including, without limitation your participation in or involvement with any Partner CallTM and your submission of acceptable Public Information (as defined in Section 4 ("Your Information")). You also agree to comply with all applicable laws, statutes, ordinances and regulations regarding the transmission of technical data exported from the United States or the country in which you reside.
2. Eligibility and Registration
2.1 Eligibility. Our Platform is available to all individuals who are at least 14 years of age. Our Platform is not available to any temporarily or indefinitely suspended Climbfind users. By registering to use our Platform, you represent and warrant that you are at least 14 years of age. Additional eligibility requirements for Climbfind may change at any time. We have the right, in our sole discretion, to suspend or terminate your use of our Platform and refuse any and all current or future use of all or any portion of our Platform.
2.2 Registration. You may browse the Site and view Content without registering, but as a condition to using certain aspects of the Platform, you are required to register with Climbfind and represent, warrant and covenant that you provide Climbfind with accurate, truthful and complete registration information (including, but not limited to, your name (“User Name”), email address and a password you will use to access the Service), and that you will keep your registration information accurate and up-to-date. Failure to do so shall constitute breach of this Agreement, which may result in immediate termination of your Climbfind account. You shall not:
- a.Provide any false personal information to Climbfind or create any account for anyone other than yourself without such person’s permission;
- b.Use a User Name that is the name of another person with the intent to impersonate that person;
- c.Use a User Name or Climbfind account that is subject to any rights of a person than you without appropriate authorization; or,
- d.Use a User Name that is otherwise offensive, vulgar or obscene or otherwise unlawful.
Climbfind reserves the right to refuse registration of, or cancel a User Name, in its sole discretion. You shall never use another user’s account without such other user’s prior express permission.
2.3 Password and Security. When you complete our registration process, you will create a password that will enable you to access Platform. You agree to maintain the confidentiality of your password, and are fully responsible for all liability and damages resulting from your failure to maintain that confidentiality and all activities that occur through the use of your password. You agree to immediately notify us in writing of any unauthorized use of your password or account, or any other breach of security. You agree that Climbfind cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 2.3.
3.Fees and Payments
Access to our websites and use of selected features of our Platform is free. We may charge fees for various premium features and services that we offer, and we will notify you of those charges at the time that we offer you the premium features or services for a fee. We may, in our sole discretion, and by notifying you on our website, change this policy and begin charging for access to our Platform and other features and services, and we may, in our sole discretion, add, remove or change the features and services we offer or the fees (including the amount or the type of fees) we charge at any time. If we introduce a new service or charge a new fee, we will establish and notify you of the fees for that service at the launch of the service or start of charging a new fee. If we notify you of new fees or change the fees for an existing service, you agree to pay all fees and charges specified and all applicable taxes for your continued use of the applicable service. We are not responsible for any charges or expenses you incur resulting from being billed by us in accordance with these Terms of Service (e.g., overdrawn accounts, exceeding account limits, etc.).
4.1Definition. “Your Information” is defined as any information or material you provide (directly or indirectly), including through the registration process for a Partner CallTM, or through the use of our Platform, in any public message board or through email. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of your Public Information (as defined below).
Any of Your Information that, through the use of our Platform or otherwise, you submit or make available for inclusion on publicly accessible areas of our website is referred to as “Public Information” (your name (if provided) and location are considered Public Information); any other portion of Your Information shall be referred to as “Private Information.” “Publicly accessible” areas of our website are those areas that are available either to some or all of our members (i.e., not restricted to your viewing only) or to the general public. You should assume that any and all information you provide is publicly accessible information, unless specifically indicated otherwise.
You should understand that your Public Information may be accessible by and made public through syndication programs (including data feed tools) and by search engines, metasearch tools, crawlers, metacrawlers and other similar programs.
4.2 Restrictions. In consideration of your use of our Platform, you agree that your Information:
- a.Shall not be fraudulent;
- b.Shall not infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- c.Shall not violate any law, statute, ordinance or regulation;
- d.Shall not be defamatory, libelous, unlawfully threatening or unlawfully harassing;
- e.Shall not be obscene or contain pornography, child pornography, or photographs of unclothed person(s);
- f.Shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- g.Shall not create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; and
- h.Shall not link directly or indirectly to any materials to which you do not have a right to link to or include.
In addition, you agree that you will provide us with your valid, current email address, both at the time of your registration with us and from time to time as your email address changes.
4.5Consent to Disclosure. You acknowledge and agree that Climbfind may disclose Your Information if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to: (a) comply with a current judicial proceeding, a court order or legal process served on us or our Platform; (b) enforce this Agreement; (c) respond to claims that Your Information violates the rights of third parties; (d) protect the rights, property or personal safety of Climbfind, its employees, users and the public; or (e) enable the transfer or sale to another entity of all or substantially all of our stock or assets in the line of business to which this Agreement relates, or upon any other corporate reorganization, subject to the promises made in this Agreement. We also may disclose any information about you to law enforcement or other government officials as we, in our sole discretion, believe necessary or appropriate, in connection with an investigation of fraud, intellectual property infringements, or other activity that is illegal or that we believe may expose us or you to legal liability.
5.Use of Platform
5.1Control. You, and not Climbfind, are entirely responsible for all of your Public Information that you upload, post, email, transmit or otherwise make available via our Platform. We do not control your Public Information or the Public Information of or posted by other users and do not guarantee the accuracy, integrity or quality of Your Information or the Information of or posted by other users. Nor do we endorse any opinions expressed by you or other users. You understand that by using our Platform, you may be exposed to information that is offensive, indecent or objectionable. We do not have any obligation to monitor, nor do we take responsibility for, Your Information, Public Information or information of or posted by other users. You agree that under no circumstances will Climbfind, its directors, officers, shareholders, employees, consultants, agents, advisers, affiliates, subsidiaries or its third-party partners be liable in any way for any information, including, but not limited to, any errors or omissions in Your Information or the Information of or posted by other users, or for any loss or damage of any kind incurred as a result of the use of Your Information or Information of or posted by other users posted, emailed, transmitted or otherwise made available in connection with our Platform, or for any failure to correct or remove information.
5.2API License. Subject to the terms and conditions of this Agreement, Climbfind grants you a limited, non-exclusive, non-transferable, non-sublicensable license to use any application programming interface (“API”) that Climbfind makes available via the Platform for the sole purpose of integrating or making available Public Information on another web site. Climbfind reserves all rights not expressly granted under this Agreement.
5.3Commercial Use. The Platform is for the personal use of individual members only, and may not be used in connection with any commercial endeavors, without the express written permission of Climbfind. Organizations, companies, and/or businesses, including, but not limited to climbing instructors, may not use the Platform or the Website for business and/or promotional purposes, without the express written permission of Climbfind.
5.4Grounds for Removal, Sanction and/or Suspension. Illegal and/or unauthorized uses of the Platform, including collecting User Names and/or email addresses of members by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Website may be investigated, and appropriate legal action will be taken, including, without limitation, civil, criminal and injunctive redress. Use of the Platform is with the sole permission of Climbfind, and may be revoked at any time, for any reason, in Climbfind’s sole discretion. Notwithstanding any other provision of this Agreement, the following types of actions are cause for immediate removal, repeal and/or suspension or termination of your account from our Platform:
- a. The use of our Platform to:
- (i) harm or intimidate another person in any way, including restricting or inhibiting any other user from using our Platform;
- (ii) impersonate any person or entity (including Climbfind, Climbfind employees and volunteers, and members of the Platform), or falsely state or otherwise misrepresent your affiliation with any person, through the use of similar email addresses, nicknames, or creation of false account(s) or any other method or device;
- (iii) “stalk” or otherwise harass another in any manner;
- (iv) advertise merchandise, auctions, services or commercial websites, including offers to trade or charitable solicitations;
- (v) resell Public Information or access to Public Information;
- (vi) collect or store personal data about other users;
- b. Posting any Public Information or other material:
- (i) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, intimidating, vulgar, obscene, profane, libelous, invasive of another's privacy (including the posting of private emails or contact information about another individual), hateful, or racially, ethically or otherwise objectionable, including any Public Information or other material that may be considered hate speech;
- (ii) that is obscene, pornographic or adult in nature;
- (iii) that you do not have a right to make available under any law or under contractual or fiduciary relationships;
- (iv) that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party or rights of publicity or privacy;
- (v) that is unsolicited or unauthorized advertising, promotional materials, or any other form of solicitation (including, but not limited to, “spam,” “junk mail,” and “chain letters”);
- (vi) that is inappropriate, posted in bad faith, or contrary to the spirit of Climbfind;
- (vii) that uses the Platform primarily as a “lead generator” or listing service for another website;
- c.Encouraging others to violate this Agreement;
- d.Refusing to follow Climbfind employee instruction or direction;
- e.Violation (intentional or unintentional) of this Agreement, or of any applicable local, state, national or international law, statute, ordinance or regulation; or,
- f.Disclose the Private Information of any member of Climbfind without the permission of that member.
Your posting of other inappropriate actions or other materials may also warrant removal and/or suspension from the Climbfind Platform at Climbfind’s sole discretion. For purposes of this Agreement, “posting” includes uploading, posting, emailing, transmitting or otherwise making available. Without limiting the foregoing, Climbfind and its designees shall have the right to remove any Public or Private Information or other material that violates this Agreement or is otherwise objectionable without warning or further notice. While we prohibit objectionable conduct and content, and any content that is not aligned with the spirit of Climbfind, you understand and agree that you nonetheless may be exposed to such conduct or content, and that you use the Platform and meet with climbing partners at your own risk.
5.5Interference with Platform. You agree that you will not:
- a.Upload, post, email, or otherwise transmit any files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- c.take any action that imposes an unreasonable or disproportionately large load on our infrastructure; or
- d.copy, reproduce, alter, modify, or publicly display any information displayed on our website (except for Your Information), or create derivative works from our website (other than from Your Information), to the extent that such action(s) would constitute copyright infringement or otherwise violate the intellectual property rights of Climbfind or any other third party, except with the prior written consent of Climbfind or the appropriate third party.
5.6General Practices Regarding Use of Platform. You acknowledge and agree that we may establish general practices and limits concerning the use of our Platform. You agree that we have no responsibility or liability for the storage or the deletion of, or the failure to store or delete, any of Your Information. You acknowledge that we reserve the right to log off users who are inactive for an extended period of time. In addition, you acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
6.Interaction With Other Members and Sessions at Venues
6.1Venues. Venues include, but are not limited to, climbing gyms and facilities, outdoor climbing areas (paid and unpaid), crags, boulders, ocean boulders, park boulders, slack lines, National Parks, public parks, private parks, trees, art instillations, private homes, towers, buildings, and any and all manmade or natural objects, throughout the world, which can be utilized to facilitate the sport of climbing.
6.2Sessions. Through our Platform, we provide tools that enable our members to arrange physical climbing sessions (“Sessions”) at Venues. We do not supervise these Sessions and are not involved in any way with the actions of any individuals at these Sessions. As a result, we have no control over the identity or actions of the individuals who are present at these Sessions, and our users must exercise caution and good judgment when attending these Sessions.
6.3Interaction With Other Members. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS. YOU UNDERSTAND THAT CLIMBFIND DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS MEMBERS. CLIMBFIND ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ITS MEMBERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS MEMBERS. CLIMBFIND MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT, INTEGRITY OR SAFETY RECORD OF MEMBERS. HOWEVER, CLIMBFIND RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES), AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS. IN NO EVENT SHALL CLIMBFIND BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE PLATFORM, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR SESSIONS WITH OTHER REGISTERED USERS OF THIS PLATFORM OR PERSONS YOU MEET THROUGH THE CLIMBFIND PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER MEMBERS OF THE CLIMBFIND COMMUNITY.
6.4Release. Your use of any, data, information or materials on this Website or via the Platform, including, but not limited to, information about venues and climbing partners, is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this Website meet your specific requirements. Because we do not supervise or control the Sessions or interactions among or between members of Climbfind and other persons or companies, and because we are not involved in any way with physical transportation to or from Sessions or with the actions of any individuals at Sessions, and because we cannot guarantee the true identity, age, or sex of Platform users, and because we have very limited control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of various aspects of the Platform, you agree, by registering as a member of Climbfind and use of the Platform, that you bear all risk and you agree to release us (and our officers, directors, shareholders, agents, employees, affiliates, subsidiaries, and third party partners) and Organizers and Creators or Hosts and their designees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, now and in the future, arising out of or in any way connected with your use of the Platform. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.
7.Communications from Climbfind and Members of the Climbfind Community
7.1Climbfind Communications. You understand that certain communications, including, but not limited to, Climbfind service announcements and newsletters, as well as offers of sponsorship or promotion relevant and beneficial to you, and push notifications through the mobile application, are part of our Platform. By using our Platform, you expressly agree to receive such communications from Climbfind. You may manage your subscriptions to Climbfind communications in the Communication Preferences tab of the Your Account page; however, some basic communications are a necessary part of our Platform and may not be disabled.
7.2Communications With and Among Climbfind Members. By joining Climbfind, you understand and agree that you may receive communication from other Climbfind Members in the normal course of utilizing our Platform. Communications will be relayed to your email address through our Platform, which does not disclose your email address unless you specifically include your email address on your Climber Profile. Keep in mind that when you send an email to another Climbfind Member, your email address may be disclosed.
7.3Other Users. We do not control the information provided by other users, which is made available through our system. You may find other users' information to be offensive, harmful, inaccurate or deceptive. Please use caution and common sense when using our Platform. Please note there is a risk that you may be dealing with underage persons or people acting under false pretense.
We may provide, or third parties may provide, links to other websites or resources. Other websites, services and resources may contain links to the Climbfind Website. Because we have no control over such 3rd party websites or resources, you acknowledge and agree that Climbfind is not responsible for the availability or content of such websites or resources, and Climbfind does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. When you access third party websites, you do so at your own risk. These other websites are not under Climbfind’s control, and the inclusion of any such link does not imply endorsement by Climbfind or any association with its operators. You also acknowledge and agree that Climbfind shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resource.
10.Dealings with Marketing Partners and Third Parties
Your correspondence or business dealings with, or participation in promotions of, marketing partners or other third parties found on our website or through our Platform, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such marketing partner or other third party. You agree that Climbfind shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such marketing partners or other third parties.
By use of the Platform, you agree to defend, indemnify and hold Climbfind and its officers, directors, shareholders, agents, employees, consultants, affiliates, subsidiaries and third-party partners harmless from any and all losses, costs, actions, claims, damages, expenses (including reasonable attorneys’ fees), demands, or liabilities, made by any third party due to or arising out of your breach of your representations and warranties of this Agreement or the documents it incorporates by reference; your use of our Platform, Content, and/or User Submissions; your violation of any law, statute, ordinance or regulation or the rights of a third party; or your participation in a Session (whether the claim or demand is due to or arising out of your transportation to or from, attendance at, or the actions of you or other users at a Session). Without limiting the foregoing, you, agree to indemnify and hold Climbfind and its officers, directors, shareholders, agents, employees, consultants, affiliates, subsidiaries and third-party partners harmless from any claim or demand, including reasonable attorneys’ fees, made by any Climbfind Member or third party due to or arising out of your actions as a Member.
12.1Disclaimer of Warranties. Save to the extent as required by law, Climbfind has no special relationship with or fiduciary duty to you. Your use of our Platform is at your sole risk. Our Platform is provided to you “as is” and on an “as available” basis. We specifically disclaim all warranties and conditions of any kind, whether express, implied or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. We disclaim any warranties regarding the security, reliability, timeliness, and performance of our Platform. We disclaim any warranties for any information or advice obtained through our Platform. We disclaim any warranties for services or goods received through or advertised on our Platform or received through any links provided by our Platform and/or Website, as well as for any information or advice received through any links provided through our Platform and/or Website.
In addition, no advice or information (oral or written) obtained by you from us shall create any warranty. The information contained in the Website and on the Platform is for general information purposes only. While we endeavor to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Website, Platform, or the information, products, services, or related graphics contained on the Website or within the Platform for any purpose. Any reliance you place on such information is therefore strictly at your own risk.
You release us from all liability relating to your connections and relationships with other Members. You understand that we do not, in any way, screen users, nor do we inquire into the backgrounds of users or attempt to verify their backgrounds or statements. We make no representations or warranties as to the conduct of users or the veracity of any information users provide. In no event shall we be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the Platform, including, without limitation, bodily injury, emotional distress, and any damages resulting in any way from communications, climbing Sessions, or general meetings with Members or persons you may otherwise meet through the Climbfind Platform. As such, you agree to take reasonable precautions and exercise the utmost personal care in all interactions with any individual you come into contact with through the Platform, particularly if you decide to meet such individuals in person and for a climbing Session. You understand and agree that you download or otherwise obtain material or data through the use of our Platform at your own discretion and risk, and that you will be solely responsible for any damages to your computer system or loss of data that results from the download of such material or data.
12.2 Limitation of Liability. You agree that in no event shall Climbfind be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Climbfind has been advised of the possibility of such damages), arising out of or in connection with our Platform or this Agreement or the inability to use our Platform (however arising, including negligence), arising out of or in connection with third parties, or arising out of or in connection with your use of our Platform.
13.1Process. The parties will attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Agreement, including the documents it incorporates by reference, your use of our Platform or Content, Your Information, your violation of any law or the rights of a third party, or your participation in a Session (whether the dispute, claim or controversy is due to or arising out of you attendance at, participation in, or the actions of you or other users at a Session). In the event that the dispute, claim or controversy is not resolved by these negotiations, the matter will be submitted to mediation services, for mediation pursuant to Section 13.3, and if the matter is not resolved through mediation, then it shall be submitted to arbitration for a final and binding arbitration pursuant to Section 13.4. Nonetheless, legal action taken by Climbfind to collect any fees and/or recover damages for, or obtain an injunction relating to, our Website operations, intellectual property or our Platform, shall not be submitted to mediation or arbitration, except as otherwise agreed to in writing by Climbfind. In addition, Climbfind may seek any interim or preliminary relief from a Court of competent jurisdiction to protect the rights or property of Climbfind pending the completion of arbitration.
13.2Negotiation. Either party may initiate negotiations by providing written notice in letter form to the other party, setting forth the subject of the dispute and the relief requested. The recipient of such notice will respond in writing within fifteen (15) business days with a statement of its position on and recommended solution to the dispute. If the dispute is not resolved by this exchange of correspondence, then representatives of each party with full settlement authority will meet in person or otherwise at a mutually agreeable time and place within thirty (30) business days of the date of the initial notice in order to exchange relevant information and perspectives, and to attempt to resolve the dispute through mediation pursuant to Section 13.3.
13.3Mediation. Either party may commence mediation by providing to the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with one another in selecting a mediator from a panel of neutrals, and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or its employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or forty-five (45) days after the date of filing the written request for mediation, whichever occurs first. The mediation may continue after the commencement of arbitration if the parties so desire. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case.
13.4Arbitration. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement that are not resolved by their mutual agreement by negotiation or mediation under Sections 13.2 and 13.3, shall be submitted to final and binding arbitration. Either party may commence the arbitration process called for in this Agreement by filing a written demand for arbitration with the arbitrator, with a copy to the other party. The arbitration will be conducted in accordance with the provisions of the arbitrator’s rules and provisions in effect at the time of filing of the demand for arbitration. The parties will cooperate with the arbitrator and with one another in selecting an arbitrator from a panel of neutrals, and in scheduling the arbitration proceedings. The parties covenant that they will participate in the arbitration in good faith, and that they will share equally in its costs.
13.5Enforcement. The provisions of Sections 13.3 and 13.4 may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered.
13.6Notice; Waiver. By agreeing to this Agreement you have, except as otherwise specified in Section 13.1, decided by negotiation, neutral mediation and/or neutral arbitration as provided in this Section 13, that you are giving up any rights you might possess to have those matters litigated in a court or jury trial. Also, by agreeing to this Agreement you are giving up your judicial rights to discovery and appeal except to the extent that they are specifically provided for under this Agreement. If you refuse to submit to arbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law.
13.7Dispute Resolution By Climbfind for the Benefit of Users. We may try to help Climbfind members resolve disputes. We do so in our sole discretion, and we have no obligation to try to resolve disputes between Platform users. To the extent we attempt to resolve disputes, we will do so in good faith based solely on the general rules and standards of the Platform, and we will not make judgments regarding legal issues or claims.
We reserve the right at any time or times to modify or discontinue, temporarily or permanently, all or any portion of our Platform with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or termination of our Platform.
You agree that we, in our sole discretion, may issue a warning, temporarily suspend, indefinitely suspend, remove content or information you have posted, or terminate your account, your status, or your ability to use all or any portion of our Platform (including any APIs), for any reason, including, without limitation, (a) for lack of use, (b) if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the documents or agreements it incorporates by reference or with the spirit of Climbfind, (c) if we are unable to verify or authenticate any information you provide to us, or (d) if we believe that your actions may cause legal liability for you, our users or us. You agree that any termination of your account or access to all or any portion of the Platform under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or our Platform. You also agree that we shall not be liable to you or any third party for any termination of your use of or access to all or any portion of the Platform.
16.Trademarks; Copyrights; Proprietary Rights
16.1 Climbfind’s Trademarks. Climbfind trademarks and service marks, and other Climbfind logos, products and service names, are trademarks of Climbfind Inc. (the “Climbfind Trademarks”). Except as otherwise permitted by law, you agree not to display or use in any manner the Climbfind Trademarks without Climbfind’s prior written consent.
16.2 Copyrights and Trademarks of Others. Climbfind respects the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and in our sole discretion, remove, or disable access to, material that infringes on the rights of others, and terminate access to our Platform to those who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our IP Agent with a Notice including the following information: 1) an electronic or physical signature of the person allegedly authorized to act on behalf of the owner of the copyright or other intellectual property interest; 2) a description of the allegedly copyrighted work or other intellectual property that you claim has been infringed; 3) a description of where the material that you claim is allegedly infringing is located on the site; 4) your address, telephone number, and email address; 5) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and 6) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. Notice of claims of intellectual property infringement can be submitted to:
16.3 Proprietary Rights. You acknowledge and agree that our Platform contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You also acknowledge and agree that content contained in sponsor advertisements or information presented to you through our Platform or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as consented to by Climbfind or advertisers in writing, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on our Platform, in whole or in part.
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of Climbfind’s Platform, use of the Platform, or access to the Platform for any sales or promotions of any company, goods or services.
18.1 Notices. Except as otherwise stated in this Agreement or as expressly required by local law, any Notice, such as a Notice of violation of this Agreement, shall be given by certified postal mail to The Law Office of Suzan Hixon PLLC, 1860 Mellwood Avenue, Suite 119, Louisville, KY 40206, or by email to email@example.com, and any Notice to you shall be given to the email address that you provided us during the registration process. Notice shall be considered given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Notice given by postal mail shall be considered given three (3) days after the date of mailing.
18.2 Entire Agreement. This Agreement constitutes the entire agreement between you and Climbfind, superseding any prior agreements between you and Climbfind. To the extent that you have previously registered with Climbfind and provided Your Information, this Agreement now governs how Climbfind may use Your Information, whether provided in the past or the future.
18.3 No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between you and Climbfind is intended or created by this Agreement.
18.4 Governing Law. Except as expressly provided in this Section, (a) this Agreement and the relationship between you and Climbfind shall be governed by the laws of the United States, and (b) you agree to submit to the personal and exclusive jurisdiction of the courts located within the United States.
18.5 Assignment. You agree that this Agreement, all rights herein, and all incorporated agreements may be automatically assigned by Climbfind, in our sole discretion, to one or more third parties in the event of a merger, acquisition, corporate reorganization, sale of all or substantially all of Climbfind’s assets, or similar transaction.
18.6 No Guaranty. We do not guarantee continuous, uninterrupted or secure access to our Platform, and operation of our Platform may be interfered with by numerous factors outside of our control.
18.7 No Waiver. Climbfind’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision and does not waive our right to act with respect to subsequent or similar breaches.
18.8 Integration and Severability. This Agreement is the entire agreement between you and Climbfind with respect to the Platform and the use of the Platform, Website, Content and User Submissions, and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and Climbfind with respect to the Platform. If any provision of this Agreement is found to be invalid or unenforceable, that provision will be eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with this Agreement to be binding, Climbfind must provide you with written notice of such waiver though one of its authorized representatives.
18.9 Survival. Provisions 4.3 (License), 5.5 (Interference with Platform), 6.4 (Release), 11. (Indemnification), 12. (Warranties; Liability), 13. (Dispute Resolution) and 18.4 (Governing Law) shall survive any termination or expiration of this Agreement.
18.10 Limitation. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of our Platform or this Agreement must be filed within one (1) year after the claim or cause of action arose or be forever barred.
18.11 Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
The Platform offered under this Agreement is offered by Climbfind Inc., 9 Fairweather St. Bellevue Hill, NSW 2023, Sydney, Australia 2.