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HEART RATE, INC.'S TERMS OF SERVICE FOR VERSACLIMBER LIVE

PLEASE READ CAREFULLY THE TERMS OF SERVICE BEFORE BECOMING A MEMBER AS YOUR PURCAHSE OF A MEMBERSHIP IS AN ACKNOWLEDGEMENT OF THESE TERMS OF SERVICE AND THAT YOU ARE BOUND BY THEM

  1. Introduction

 

Heart Rate, Inc. dba Versaclimber® ("VersaClimber") provides an in person and online fitness membership community with classes and instruction along with related products, services, content and features through the VersaClimber LIVE website including those for our studio, support, boutique, and local country pages (the “VersaClimber LIVE Site(s)”). The VersaClimber LIVE sites may also be accessed through interfaces on tablets connected to VersaClimber fitness equipment, VersaClimber LIVE's fitness studios, and through mobile, desktop, or device applications (including iOS, Android and Amazon FireTV applications (“Apps”)) and VersaClimber LIVE-controlled social media pages (including Facebook, Instagram, Spotify, Twitter, among others).

 

To make these Terms of Service (“Terms”) easier to read, the VersaClimber LIVE Sites and Apps, the VersaClimber LIVE tablet and studio interfaces and VersaClimber LIVE controlled social media pages are collectively called the “VersaClimber LIVE Service” or “the Services”. By registering as a Member, pursuant to the Membership Agreement, or by visiting, browsing, or using the VersaClimber LIVE Service in any way, you (as a “User”) accept and agree to be bound by these Terms, which forms a binding agreement between you and VersaClimber LIVE.

 

If you do not wish to be bound by these Terms, you may not access or use the VersaClimber LIVE Service. Certain elements of the VersaClimber LIVE Service may be subject to additional terms and conditions specified from time to time; your use of those elements of the VersaClimber LIVE Service is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.

 

To enjoy full access to the VersaClimber LIVE Service, you must register as a Member of the VersaClimber LIVE Service and enter into a Membership Agreement for access to our LIVE and on-demand classes, Content and features (a “Membership”). Your Membership is also governed by the Membership Agreement.

 

  1. Membership Advisory

 

We may, in our sole discretion, refuse to offer the VersaClimber LIVE Service to any person or entity and change the eligibility criteria for Membership at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access and use the VersaClimber LIVE Service is revoked where these Terms or use of the VersaClimber LIVE Service is prohibited or conflicts with any applicable law, rule or regulation. Further, the VersaClimber LIVE Service is offered only for your personal, non-commercial use, and not for the use or benefit of any third party.

 

Modification. VersaClimber reserves the right to modify the VersaClimber LIVE Service, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content or features of the VersaClimber LIVE Service, at any time, in its sole discretion. You are responsible for providing your own access point (e.g., computer, mobile device, Internet connection, etc.) to the VersaClimber LIVE Service. VersaClimber has no obligation to screen or monitor any Content and does not guarantee that any Content available on the VersaClimber LIVE Service is suitable for all users or that it will continue to be available for any length of time.

 

Profile Information and Picture. You must provide complete and accurate identification registration information to VersaClimber to be a user. Notify us if any of your information changes. If you fail to keep your account information up to date, we may have to suspend or terminate your Membership. You may not use someone else’s name, or any name, location, other personal or public profile information or image when applying for a Membership that violates any third party rights, is against the law, or that is offensive, obscene or otherwise objectionable (in VersaClimber LIVE’s sole discretion).

 

Account Security. You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not allow others to use your account. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the VersaClimber LIVE Service. If you become aware of an unauthorized access to your account, change your password and notify our Support team immediately.

 

  1. Eligibility to Use VersaClimber LIVE Service

 

Age Requirement. You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to purchase a VersaClimber LIVE Membership and become a Membership Holder (as defined in the Membership Terms). If you under 13 years of age, you may browse our Site. However, you may not provide personal information to us, make a purchase on the Site nor register on the Site. This Site is not directed to children under 13 years of age. By accessing or using the Site, you are acknowledging that you, understand and agree, without limitation or qualification, to be bound by these Terms. Individuals 16 years of age and older who meet user criteria may participate in VersaClimber LIVE classes, provided that such individuals:

 

  1. Have been cleared to participate by a family physician;
  2. Have permission to participate from a parent or legal guardian who will provide supervision;
  3. Abide by all Safety Precautionsand instructions in the applicable user manual; and
  4. Rest, hydrate and modify as needed.

 

  1. License to Use the VersaClimber LIVE Service

 

License. Subject to your compliance with these Terms and solely for so long as you are permitted by us to access and use the VersaClimber LIVE Service, VersaClimber LIVE grants you a limited, non-transferable, non-exclusive, revocable right and license to access and use the VersaClimber LIVE Service for your own personal, non-commercial purposes, a right which may not be assigned or sublicensed to anyone. This license includes the right to view Content (defined below) available on the VersaClimber LIVE Service and the right to download one copy of the application to any single device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices. This license grant is subject to you agreeing to and abiding by the VersaClimber LIVE Intellectual Property and DMCA Policy, which forms a part of these Terms. This license will remain in effect unless and until you violate these Terms or this license is terminated by you or VersaClimber LIVE.

 

Restrictions. Except as expressly permitted in writing by an authorized representative of VersaClimber LIVE, you will not reproduce, redistribute, sell, transfer, create derivative works from, decompile, reverse engineer, or disassemble any code, programming, instructional guide, course material and/or Content information of the VersaClimber LIVE Service, nor will you take any measures to interfere with or damage the VersaClimber LIVE Service. Unless otherwise specified, copying or modifying any Content or using Content for any purpose other than your personal, non-commercial use of the VersaClimber LIVE Service, including use of any such Content on any other website or networked computer environment, is strictly prohibited. All rights not expressly granted by VersaClimber LIVE in these Terms are reserved.

 

  1. Privacy Policy

 

Our Privacy Policy forms a part of these Terms. Please review the Privacy Policy to learn about:

 

  • What information we may collect about you;
  • What we use that information for; and
  • With whom we share that information.

 

  1. Membership Structure and Fees

 

VersaClimber will provide information on the VersaClimber LIVE then-current Membership requirements on the VersaClimber LIVE Site and/or by other means through the VersaClimber LIVE Service. These terms and conditions, features and prices are subject to change.

 

  1. Sale of Products

 

VersaClimber LIVE accepts orders for the VersaClimber and any other equipment, apparel or accessories that we may offer through the VersaClimber LIVE Site or at VersaClimber LIVE retail showrooms, such as the VersaClimber, Versapulley, Versapulley squat deck, VersaRower and ExerVibe Climber. Unfortunately, availability of products cannot be guaranteed. Please note that product, service and other information provided is subject to correction and change without notice. Advertising depictions, graphics and diagrams are for illustrative purposes only and may not accurately reflect actual product or component availability. Colors, styles and other variants depicted are for illustration only and are subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions.

 

Unless otherwise specified at the time of purchase, you must pay for products when you place the order. All products ordered will be delivered to the shipping address you provide. We reserve the right to cancel an order placed by you at any time and for any lawful reason prior to our delivery of the product(s) and receipt of payment in full from you, provided that we will refund any fees that you prepaid for those products if we cancel. We may send an acknowledgment of receipt of your order to the email address you provide and/or proof of purchase information through the VersaClimber LIVE Site or to your email address after your payment has been processed.

 

  1. Termination; Account Deletion

 

Membership Term. Membership begins on the date you first use the VersaClimber LIVE Service and continues as long as you have an account with us and/or continue to use the VersaClimber LIVE Service as set forth in the Membership Agreement.

 

Termination. VersaClimber LIVE may, in VersaClimber LIVE’s sole discretion, suspend, disable, or delete your account (or any part thereof) or block or remove any User Content (defined below) that you submitted, for any lawful reason, including if VersaClimber LIVE determines that you have violated these Terms or that your conduct or User Content would tend to damage VersaClimber LIVE’s reputation or goodwill. If VersaClimber LIVE deletes your account, you may not re-register for or use the VersaClimber LIVE Service under any other user name or profile. VersaClimber LIVE may block your access to the VersaClimber LIVE Service to prevent re-⁠registration.

 

Effect of Termination / Account Deletion. Upon termination of your Membership, all licenses granted by VersaClimber LIVE will terminate. The following sections survive termination: Privacy (Section 5), User Content (Section 9), Indemnification (Section 13), No Warranties (Section 14), Limitation of Liability (Section 16), Safety Warnings (Section 17), Intellectual Property (Section 18), Arbitration Requirement & Class Action Waiver (Section 20), Contracting Entities, Governing Law and Jurisdiction (Section 21), and all general provisions. In the event of account deletion for any reason, User Content may no longer be available and VersaClimber LIVE is not responsible for the deletion or loss of such User Content. For clarity, if you cancel your Subscription or it is terminated for any reason, you will lose access to all LIVE and on-demand classes and any other Content or features provided through the VersaClimber LIVE Service. VersaClimber LIVE, in its sole discretion, may make available a very limited amount of Content or features to non-subscribers from time to time, and any use of that Content is governed by these Terms.

 

  1. User Content

 

“Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the VersaClimber LIVE Service; and (ii)  “User Content” means any content that users (including you) provide to be made available through the VersaClimber LIVE Service. Content includes, without limitation, User Content.

 

Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with these Terms and with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the VersaClimber LIVE Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any Content that you access on or through the VersaClimber LIVE Service.

 

As between you and VersaClimber LIVE, you represent that you own (or have all rights necessary to grant VersaClimber LIVE the rights below to) all User Content that you submit to the VersaClimber LIVE Service, and that VersaClimber LIVE will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant VersaClimber LIVE a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the VersaClimber LIVE Service permission to view your User Content for their personal, non-commercial purposes. If you make suggestions to VersaClimber LIVE or through the VersaClimber LIVE Service about improving or adding new features or products to the VersaClimber LIVE Service or you otherwise provide feedback, product or service reviews or testimonials, you hereby grant to VersaClimber LIVE a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback, reviews and testimonials for any purpose (including for marketing), without any notice, compensation or other obligation to you.

 

You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the VersaClimber LIVE Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

 

  1. Rights and Terms for Apps

 

Rights in App Granted. Subject to your compliance with these Terms, VersaClimber LIVE grants to you a limited non-exclusive, non-transferable, revocable license, with no right to sublicense, to download and install a copy of the App on a mobile device, tablet, or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not:

 

  1. copy, modify or create derivative works based on the App;
  2. distribute, transfer, sublicense, lease, lend or rent the App to any third party;
  • reverse engineer, decompile or disassemble the App; or
  1. make the functionality of the App available to multiple users through any means.

 

VersaClimber LIVE reserves all rights in and to the App not expressly granted to you under these Terms.

 

Accessing App from an App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store, Google Play, or Amazon) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:

 

  • These Terms are between you and VersaClimber LIVE, and not with the App Provider, and VersaClimber LIVE (not the App Provider), is solely responsible for the App.
  • The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
  • In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of VersaClimber LIVE.
  • The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to:
    1. product liability claims;
    2. any claim that the App fails to conform to any applicable legal or regulatory requirement; and
  • claims arising under consumer protection or similar legislation.
  • In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, VersaClimber LIVE will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
  • The App Provider and its affiliates are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
  • You represent and warrant that
    1. you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country;
    2. you are not listed on any U.S. Government list of prohibited or restricted parties;
  • you are not an individual, or associated with an entity, designated under the UK’s Terrorist Asset-Freezing etc. Act 2010 (TAFA 2010); and
  1. you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.
  • You must also comply with all applicable third party terms of service when using the App.

 

  1. General Prohibitions and VersaClimber LIVE’s Enforcement Rights

 

You agree not to do any of the following:

 

  1. Post, upload, publish, submit or transmit any User Content or engage in any activity that:
    1. infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
    2. violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
  • is fraudulent, false, misleading or deceptive;
  1. is defamatory, obscene, pornographic, vulgar or offensive;
  2. promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
  3. is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity;
  • exploits minors or
  • promotes illegal or harmful activities or substances;

 

  1. Download and/or install any third party software and/or application on any VersaClimber LIVE hardware (excluding assistive technologies that are necessary for your own use of the VersaClimber LIVE Service, such as screen-readers) that is not expressly permitted by VersaClimber LIVE in writing;
  2. Use, display, mirror or frame the VersaClimber LIVE Service or any individual element within the VersaClimber LIVE Service, VersaClimber LIVE’s name, any VersaClimber LIVE trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without VersaClimber LIVE’s express written consent;
  3. Access, tamper with, or use non-public areas of the VersaClimber LIVE Service, VersaClimber LIVE’s computer systems, or the technical delivery systems of VersaClimber LIVE’s providers;
  4. Attempt to probe, scan or test the vulnerability of any VersaClimber LIVE system or network or breach any security or authentication measures;
  5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by VersaClimber LIVE or any of VersaClimber LIVE’s providers or any other third party (including another user) to protect the VersaClimber LIVE Service or Content;
  6. Bypass any territorial restrictions, including IP address-based restrictions, that may be applied to the VersaClimber LIVE Service;
  7. Attempt to access, scrape or search the VersaClimber LIVE Service or Content or download Content from the VersaClimber LIVE Service, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by VersaClimber LIVE or other generally available third-party web browsers;
  8. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation that incorporates any element or component of the VersaClimber LIVE;
  9. Use any meta tags or other hidden text or metadata utilizing a VersaClimber LIVE trademark, logo URL or product name without VersaClimber LIVE’s express written consent;
  10. Use the VersaClimber LIVE Service or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or permitted expressly in writing by VersaClimber LIVE;
  11. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the VersaClimber LIVE Service or Content to send altered, deceptive or false source-identifying information;
  12. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the VersaClimber LIVE Service;
  13. Collect or store any personally identifiable information from the VersaClimber LIVE Service from other users of the VersaClimber LIVE Service without their express permission;
  14. Copy, use, index, disclose or distribute any information or data obtained from the VersaClimber LIVE Service, whether directly or through third parties (such as search engines), without VersaClimber LIVE’s express written consent;
  15. Alter, replicate, store, distribute or create derivatives from the Content available via the VersaClimber LIVE Service except as expressly permitted in writing by VersaClimber LIVE;
  16. Impersonate or misrepresent your affiliation with any person or entity;
  17. Access, use or exploit the VersaClimber LIVE Service in any manner (other than as expressly permitted by these Terms), including to build, develop (or commission the development of), replicate, or consult upon any product or service that may compete (directly or indirectly) with VersaClimber LIVE or the VersaClimber LIVE Service;
  18. Downloading and/or installing any third party software and/or applications that are not expressly authorized by VersaClimber LIVE on any VersaClimber LIVE hardware;
  19. Violate any applicable law or regulation; or
  20. Encourage or enable any other individual to do any of the foregoing.

 

Any violation of these general prohibits, or any action taken that violate the above listed restrictions, constitutes a breach of these Terms and subjects you to liability for any claim of injury or damages and any other right or remedy VersaClimber has both pursuant to these Terms and pursuant to local, state and federal law.

 

Although we are not obligated to monitor your access to or use of the VersaClimber LIVE Service or Content or to review or edit any User Content, we have the right to do so for the purpose of operating the VersaClimber LIVE Service, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the VersaClimber LIVE Service and VersaClimber LIVE’s systems. We reserve the right, but are not obligated, to remove or disable access to any User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the VersaClimber LIVE Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

 

  1. Member Interactions, Dealings with Third Parties

 

When interacting with other VersaClimber LIVE Members, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you do not know. Your participation, correspondence or personal or business dealings with any third party found on or through the VersaClimber LIVE Service, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that VersaClimber LIVE is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings. In addition, when visiting or taking classes at any of our studios, please be advised that VersaClimber LIVE is not responsible for any lost or stolen items and that visitors, guests and Members are required to adhere to then-current policies in place at that studio and the directions of that studio’s employees and representatives.

 

  1. Indemnification

 

You agree to indemnify, defend, and hold harmless VersaClimber LIVE and its directors, officers, employees, and agents, from and against all claims, damages, losses and costs that arise from or relate to (i) your activities on the VersaClimber LIVE Service, (ii) any User Content submitted by or on behalf of you and/or (iii) your violation of these Terms.

 

  1. Third Party Links and Content

 

There may be links on the VersaClimber LIVE Service that let you leave the particular VersaClimber LIVE Service you are accessing to access a linked site that is operated by a third party. VersaClimber LIVE neither controls nor endorses these sites, nor has VersaClimber LIVE reviewed or approved the content that appears on them. VersaClimber LIVE is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any such third party sites. You acknowledge and agree that VersaClimber LIVE is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access or use of any of the links, content, goods or services available on or through these third party sites.

 

  1. No Warranties

 

VersaClimber LIVE provides the VersaClimber LIVE Service on an “AS IS” and “AS AVAILABLE” basis. You therefore use the VersaClimber LIVE Service at your own risk. Other than as expressly provided in writing by VersaClimber LIVE in connection with your purchase of a VersaClimber product, to the extent permitted by law, VersaClimber expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment and any other warranty that might arise under any law. Without limiting the foregoing, VersaClimber makes no representations or warranties:

 

  • That the VersaClimber LIVE Service is or will be permitted in your jurisdiction;
  • That the VersaClimber LIVE Service will be uninterrupted or error-⁠free;
  • Concerning any Content, including User Content;
  • Concerning any third party’s use of User Content that you submit;
  • That the VersaClimber LIVE Service will meet your personal or professional needs;
  • That VersaClimber will continue to support any particular feature of the VersaClimber LIVE Service; or
  • Concerning sites and resources outside of the VersaClimber LIVE Service, even if linked to from the VersaClimber LIVE Service.

 

To the extent that another party may have access to or view Content on your device, you are solely responsible for informing such party of all disclaimers and warnings in these Terms. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE VERSACLIMBER LIVE SERVICE, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.

 

  1. Limitation of Liability

 

To the fullest extent permitted by law:

 

  1. VersaClimber shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, inability to use the VersaClimber LIVE Service or Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and
  2. VersaClimber's total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to VersaClimber LIVE over the 12 months preceding the date your first claim(s) arose.

 

If you LIVE in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of VersaClimber LIVE’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between VersaClimber LIVE and you.

 

  1. Safety Warnings

 

THE VERSACLIMBER LIVE SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EXERCISE AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN OR GENERAL PRACTITIONER BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN, GENERAL PRACTITIONER OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE VERSACLIMBER LIVE SITE OR HEARD ON THE VERSACLIMBER LIVE SERVICE. THE USE OF INFORMATION PROVIDED THROUGH THE VERSACLIMBER LIVE SERVICE IS SOLELY AT YOUR OWN RISK AND IS NOT MEDICAL OR HEALTHCARE ADVICE.

 

NOTHING STATED OR POSTED ON THE VERSACLIMBER LIVE SITE OR AVAILABLE THROUGH ANY VERSACLIMBER LIVE SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. THE VERSACLIMBER LIVE SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND, TO THE FULL EXTENT PERMITTED BY LAW, VERSACLIMBER LIVE MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE VERSACLIMBER LIVE SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

 

In becoming a User of VersaClimber LIVE with the intent of using the VersaClimber LIVE Service, you affirm that either (A) all of the following statements are true:

 

  1. no physician or general practitioner has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician or general practitioner;
  2. you have never felt chest pain when engaging in physical activity;
  • you have not experienced chest pain when not engaged in physical activity at any time within the past month;
  1. you have never lost your balance because of dizziness and you have never lost consciousness;
  2. you do not have a bone or joint problem that could be made worse by a change in your physical activity;
  3. your physician or general practitioner is not currently prescribing drugs for your blood pressure or heart condition;
  • you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and
  • you do not know of any other reason you should not exercise; or

 

(B) your physician or general practitioner has been specifically consulted by you and approved of your use of the VersaClimber LIVE Service.

 

If applicable, you further affirm that

 

  1. you are not pregnant, breastfeeding or lactating; unless
  2. your physician or general practitioner has been specifically consulted and approved your use of the VersaClimber LIVE Service.

 

VersaClimber LIVE reserves the right to refuse or cancel your Membership if we discover or determine that you have certain medical conditions that may impact your ability to be a VersaClimber LIVE Member or that the representations set forth above are untrue in any respect.

 

  1. Intellectual Property Acknowledgment

 

You acknowledge and agree that your use of the VersaClimber LIVE Services and any Content contained therein is dependent upon you agreeing to and abiding by the VersaClimber LIVE Intellectual Property and DMCA Policy at all times. You further acknowledge that the VersaClimber LIVE Service contains software and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All VersaClimber LIVE-generated content, and content provided to VersaClimber LIVE by its partners and licensors, is subject to copyright and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions and protected under other intellectual property laws worldwide; further, as between you and VersaClimber LIVE, VersaClimber LIVE own intellectual property rights in the selection, coordination, arrangement and enhancement of all content in the VersaClimber LIVE Service.

 

 

 

  1. Intellectual Property Usage and Reporting Infringement

 

VersaClimber respects the intellectual property of others, and we ask our users to do the same. Each User is responsible for ensuring that their User Content does not infringe any third party’s right or other intellectual property rights. If you believe that the VersaClimber LIVE Service or any Content contains elements that infringe or misappropriate your copyrights or other intellectual property rights (or the intellectual property rights of others), please go to the VersaClimber LIVE Intellectual Property and DMCA Policy for directions on how to report it to us.

 

  1. ARBITRATION REQUIREMENT & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS. APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW.

 

  1. Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and VersaClimber LIVE agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the VersaClimber LIVE entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Terms and that you and VersaClimber LIVE are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.

 

  1. Exceptions and Opt-out. As limited exceptions to Section 20 above:

 

  1. you may seek to resolve a Dispute in small claims court if it qualifies; and
  2. we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights.

 

In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by regular mail sent to the attention of VersaClimber LIVE’s Legal Department at the VersaClimber address set out below within 30 days following the date you first agree to these Terms.

 

  1. Initial Dispute Resolution and Notification. You agree that before initiating any Dispute or arbitration proceeding, we will attempt to negotiate an informal resolution of any dispute. To begin this process, before initiating any arbitration proceeding, you must send a Notice of Dispute (“Notice”) by certified mail to the attention of VersaClimber's Legal Department at the VersaClimber LIVE address set out in Section 24 below. In the Notice, you must describe the nature and basis of the Dispute and the relief you are seeking. If we are unable to resolve the Dispute within 45 days after VersaClimber's receipt of the Notice, then you or VersaClimber LIVE may initiate arbitration proceedings as set out below.

 

  1. Conducting Arbitration and Arbitration Rules. Any arbitration will be conducted by a dedicated arbitration service such as Judicate Wet, AAA, ARC JAMS, ADR Services, Inc., or IVAMS, pursuant to that services arbitration rules and procedures (the “Arbitration Rules”) then in effect, except as modified by these Terms. A party who wishes to initiate arbitration must submit a written Demand for Arbitration to the selected arbitration service and give notice to the other party as specified in those Arbitration Rules.

 

If the arbitration service fails or declines to conduct the arbitration for any reason, we will mutually select a different arbitration administrator. If we cannot agree, a court will appoint a different arbitration administrator.

Any arbitration hearings will take place in the county (or other municipality) where you, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement. During the arbitration, both you and VersaClimber LIVE may take one deposition of the opposing party, limited to 4 hours. If we cannot agree on a time and location for a deposition, the arbitrator will resolve any scheduling disputes.

 

  1. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the Arbitration Rules. If you assert a claim against VersaClimber LIVE, you will be responsible for paying a $250 consumer filing fee. VersaClimber LIVE will pay for all other filing, administration and arbitrator fees and expenses. If your Dispute is for less than U.S. $10,000 (including attorneys’ fees and costs) and the arbitrator, upon final disposition of the case, finds your Dispute was not frivolous, VersaClimber will reimburse your initial filing fee. If we prevail in arbitration, we will pay all of our attorneys’ fees and costs and will not seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

 

  1. Class Action WaiverYOU AND VERSACLIMBER LIVE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, neither the arbitration service nor the arbitrator may consolidate another person’s claims with your claims or otherwise preside over any form of a representative or class proceeding for any purpose. If this specific provision is found to be unenforceable, then the entirety of this Section 20 shall be null and void.

 

  1. Effect of Changes on Arbitration. If VersaClimber changes any of the terms of this Section 20 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of VersaClimber's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and VersaClimber in accordance with the terms of this Section 20 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

 

  1. Severability. With the exception of any of the provisions in Section 20 above, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.

 

  1. Governing Law and Jurisdiction

 

These Terms shall be governed by the laws of the State of California, United States of America, without regard to principles of conflicts of law. If your contract for the VersaClimber LIVE Service is with another VersaClimber entity, these terms shall be governed by the laws of the jurisdiction under which that VersaClimber entity is incorporated, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.

 

  1. Interpretation; Severability; Waiver; Remedies

 

Headings are for convenience only and shall not be used to construe these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by VersaClimber in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of VersaClimber. VersaClimber's rights and remedies hereunder are cumulative and not exclusive.

 

  1. Successors; Assignment; No Third Party Beneficiaries

 

These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without VersaClimber's prior written consent. VersaClimber may assign its rights, obligations and/or these Terms at any time in its sole discretion without notice to you.

 

  1. Notices

 

You consent to receive all communications including notices, agreements, disclosures or other information from VersaClimber electronically. VersaClimber may communicate by email or by posting to the VersaClimber LIVE Service. For support-related inquiries, you may email Support. For all other notices to VersaClimber, write to the following address:

 

Heart Rate, Inc.

1411 E. Wilshire Avenue

Santa, Ana, CA 92705

 

Nothing in these Terms or otherwise limits VersaClimber's right to object to subpoenas, claims, or other demands.

 

  1. Entire Agreement

 

These Terms incorporate the following legal documents by reference, as well as any other policies or procedures referenced herein that are posted to the VersaClimber LIVE Site from time to time:

 

 

In the event of a conflict between any policies posted on the VersaClimber LIVE Service and these Terms, these Terms will control. These Terms represents the entire understanding between VersaClimber LIVE and you regarding the VersaClimber LIVE Service or Content and supersede all prior agreements and understandings regarding the same. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

 

  1. Force Majeure

 

Neither Party shall be liable for any failure or delay in performance under these terms (other than for delay in the payment of money due and payable in accordance with these terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

 

 

 

*VersaClimber® is a registered trademark of Heart Rate, Inc.