Project 9a Labs Plastick Terms of Service
Last Updated: July 19, 2024
Project 9a Labs, Inc. ("Project 9a," "we," "us," or "our") provides its services (described below) through our website located at https://www.plastick.rocks (the "Site") and through its applications and related services (collectively, such services, including any new features and applications, and the Site, the "Service"), subject to the following Terms of Service (as amended from time to time, these "Terms"). These Terms are effective as of the date you and Project 9a enter into an online order or you otherwise complete the online ordering flow on the Service (the “Effective Date”). If you are accepting these Terms on behalf of your employer, organization, or another entity (collectively, an “Entity”) (which will be deemed to the case if you sign up for a Service using an email address from such Entity), then you represent and warrant that (a) you have read and understand these Terms, (b) you have full legal authority to bind such Entity to these Terms and (c) you agree to these Terms on behalf of such Entity. As used in the remainder of these Terms, “you” means the Entity you represent in accepting these Terms or, if that does not apply, you individually.
Project 9a reserves the right, at our sole discretion, to change or modify portions of these Terms at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Service user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than seven (7) days after they are posted, provided that if you have paid for a subscription to a Service (“Subscription”), then with respect to that Service any such change will take effect at the next renewal of your Subscription, except as set forth below. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST PROJECT 9A ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
In addition, when using certain services, you will be subject to additional terms applicable to such services that may be posted on the Service from time to time, including, without limitation, the Privacy Policy located at https://kayaclimb.com/privacypolicy and the Kaya Community Standards located at https://kayaclimb.com/community-standards. All such terms are hereby incorporated by reference into these Terms. If you are an individual, our Privacy Policy will apply to you and you consent to our collection and use of personal data as outlined therein, or if you are an Entity, our Privacy Policy will apply to your end users.
Access and Use of the Service
Service Description: The Service is designed to enable gyms to manage routesetters and routes for their gyms as well as to generate routesetting reports and view data and analytics on routesetting.
Your Registration Obligations: To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at [[email protected]]. You must be at least eighteen (18) years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations.
Access to the Service: You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, server, software, operating system, networking, email servers, email services, web servers, web services, long distance, and local telephone service (collectively, "Equipment"). You are responsible for ensuring that such Equipment and services are compatible with the Service (and, to the extent applicable, the Software (as defined below)) and complies with all configurations and specifications set forth in Project 9a's published policies then in effect. In the event that you notice a failure or an issue that could cause a problem with the Service, you agree to notify us at [[email protected]] so that we can work to resolve the failure or issue.
General Practices Regarding Use and Storage: You acknowledge that Project 9a may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Project 9a's servers on your behalf. You agree that Project 9a has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Project 9a reserves the right to terminate accounts that are inactive for an extended period of time.
Mobile Services: The Service includes certain services that are available via a mobile device, including (a) the ability to upload content to the Service via a mobile device, (b) the ability to browse the Service and the Site from a mobile device and (c) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the "Mobile Services"). To the extent you access the Service through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
Conditions of Use
User Conduct: Certain features of the Service may permit users to upload content to the Service. You are solely responsible for all content, images, information, data, graphics, message, and other materials ("User Content") that you upload, post, publish, or display (collectively, "transmit") or otherwise use via the Service.
Limited License Grant to Project 9a. By transmitting User Content to or via the Service, you grant Project 9a a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
Limited License Grant to Other Users. By transmitting User Content to or via the Service, you grant your members, customers, and other patrons (“Customers”) a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
User Content Representations and Warranties. Project 9a disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Project 9a and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Project 9a, the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Project 9a to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
User Content Disclaimer. Project 9a is under no obligation to edit or control User Content that you or other users post or publish, and Project 9a will not be in any way responsible or liable for User Content. Project 9a may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in Project 9a’s sole judgment violates these Terms or is otherwise objectionable or irrelevant to the Service. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Project 9a with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, Project 9a may investigate the allegation and determine in Project 9a’s sole discretion whether to remove the User Content, which Project 9a reserves the right to do at any time and without notice. For clarity, Project 9a does not permit copyright-infringing activities on the Service.
Monitoring Content. Project 9a does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Project 9a reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Project 9a chooses to monitor the content, Project 9a still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
System Data. You also acknowledge and agree that User Content does not include any System Data. System Data is owned by Project 9a. "System Data" means aggregated and anonymous user and other data regarding the Service that may be used to generate logs, statistics and reports regarding performance, availability, integrity, and security of the Service. System Data does not include the contents, subject, senders, or recipients of emails you send or receive through the Service.
Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service provided by you to Project 9a ("Submissions"), and any User Content that you make available through the Service in a manner that allows other users of the Service and/or members of the general public not specified or identified by you to access your User Content ("Public User Content") are non-confidential and Project 9a will be entitled to the unrestricted use and dissemination of these Submissions and Public User Content for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Preservation of User Content. You acknowledge and agree that Project 9a may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Project 9a, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
Security of your User Content: Project 9a will implement appropriate technical and organizational measures to protect against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to User Content processed by Project 9a on your behalf in connection with the Service. You agree (a) to immediately notify Project 9a at [[email protected]] of any breach of security or potential security issue you notice while using the Service; and (b) that Project 9a is not responsible for any electronic communications and/or content (as defined below) which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Project 9a. Project 9a will not be liable for any loss or damage arising from your failure to comply with this Section.
Climb Data. The Service will permit you to upload data related to a climb (“Climb Data”), such as climb name, grade, and location. You will have the ability to manage and moderate your Climb Data as permitted by the Service. Please note that your Climb Data does not include user-submitted data about a climb, even if such climb may be the same or similar to your Climb Data, nor does it include usage, analytical, or aggregated data derived from or based on Climb Data.
Challenges. You acknowledge and agree that Project 9a may run Challenges on climbs in its system, including your Climb Data, without consent. For example, Challenges may call for a user to climb any climb, climb specific climbs in the area, or to climb certain climbs at particular gyms. However, you and other users are not permitted to run Challenges using Climb Data belonging to another user without prior written consent from such user or pursuant to a separate arrangement with Project 9A, such as a partnership.
Removal. Certain gyms and board systems will have the right to remove their Climb Data from the Service’s public-view features, provided, however, that such Climb Data may continue to persist in connection with a user’s climb activity history, personal activity metadata, climb diary, or similar log that was already recorded prior to deletion. When you remove Climb Data, users may no longer be able to search for, view, or interact with such Climb Data, except as provided above in this Section.
Fees; Non-Renewal: To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Project 9a information regarding your credit card or other payment instrument. You represent and warrant to Project 9a that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Project 9a the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms. You hereby authorize Project 9a to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. YOU ACKNOWLEDGE AND AGREE THAT (A) SUBSCRIPTIONS WILL AUTOMATICALLY RENEW AND PROJECT 9A IS AUTHORIZED TO CHARGE YOU ON A RECURRING BASIS (AS SPECIFIED IN YOUR PAYMENT PLAN) FOR AS LONG AS YOUR SUBSCRIPTION TO THE SERVICE CONTINUES AND (B) YOUR SUBSCRIPTION WILL CONTINUE UNTIL YOU OR PROJECT 9A ELECTS NOT TO RENEW IT OR PROJECT 9A SUSPENDS OR STOP PROVIDING ACCESS TO THE SERVICE. YOU MAY ELECT NOT TO RENEW YOUR SUBSCRIPTION AT ANY TIME BY EMAILING PROJECT 9A AT [[email protected]] AND PROJECT 9A MAY ELECT NOT TO RENEW YOUR SUBSCRIPTION AT ANY TIME BY EMAILING YOU AT THE EMAIL ADDRESS YOU HAVE PROVIDED TO US; PROVIDED, THAT, NON-RENEWAL WILL BE EFFECTIVE AT THE END OF YOUR THEN-CURRENT SUBSCRIPTION AND NOT RESULT IN ANY REFUND OF PREPAID FEES. If you dispute any charges you must let Project 9a know within [sixty (60)] days after the date that Project 9a charges you. Project 9a reserves the right to change Project 9a's prices. If Project 9a does change prices, Project 9a will provide notice of the change through the Service or in email to you, at Project 9a's option, at least [30 days] before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. Project 9a may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Project 9a [thirty (30)] days after the delivery date of the invoice, or the Service may be suspended or terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with the Service other than U.S. taxes based on Project 9a's net income.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Third Party Distribution Channels
Project 9a offers Software applications that may be made available through the Apple App Store, Android Marketplace, or other distribution channels ("Distribution Channels"). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of the Service, you agree to comply with all applicable terms of any agreement for such third party products and services.
With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, "Apple-Enabled Software"), in addition to the other terms and conditions set forth in these Terms, the following terms and conditions apply:
Project 9a and you acknowledge that these Terms are concluded between Project 9a and you only, and not with Apple Inc. ("Apple"), and that as between Project 9a and Apple, Project 9a, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Project 9a's sole responsibility, to the extent it cannot be disclaimed under applicable law.
Project 9a and you acknowledge that Project 9a, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Apple-Enabled Software or the end-user's possession and use of that Apple-Enabled Software infringes that third party's intellectual property rights, as between Project 9a and Apple, Project 9a, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Project 9a at [[email protected]].
Project 9a and you acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
With respect to Software that you download from the Google Play Store (“Google-Sourced Software”), in addition to the other terms and conditions set forth in these Terms, the following terms and conditions apply: (a) you acknowledge that these Terms are between you and Project 9a only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Project 9a, and not Google, is solely responsible for Project 9a’s Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to Project 9a’s Google-Sourced Software.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain visual interfaces, graphics, designs, compilations, information, data, computer code (including source code and object code), products, software, services, and other content or features ("Service Content") that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Additionally, the technology and software underlying the Service or distributed in connection therewith are the property of Project 9a, our affiliates and our partners (the "Software"). Any use of the Service, Service Content or Software other than as specifically authorized herein is strictly prohibited. Without limiting the foregoing, you agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Project 9a.
The Project 9a name and logos are trademarks and service marks of Project 9a (collectively the "Project 9a Trademarks"). Other Project 9a product and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Project 9a. Nothing in these Terms or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Project 9a Trademarks displayed on the Service, without Project 9a’s prior written permission in each instance. All goodwill generated from the use of the Project 9a Trademarks will inure to Project 9a’s exclusive benefit.
Third Party Services
The Service may provide, or third parties may provide, links or other access to other sites, services, products, and resources on the Internet ("Third Party Services"). Project 9a has no control over such Third Party Services and Project 9a is not responsible for and does not endorse such Third Party Services. You further acknowledge and agree that Project 9a will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods, or services available on or through any such Third Party Service. Any dealings you have with third parties while using the Service are between you and the third party, and you agree that Project 9a is not liable for any loss or claim that you may have against any such third party.
Indemnity
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Project 9a and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Project 9a Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PROJECT 9A EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. PROJECT 9A MAKES NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE UNIQUE, ORIGINAL, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
YOU ACKNOWLEDGE AND AGREE THAT: (A) PROJECT 9A IS NOT A MEDICAL ORGANIZATION, AND DOES NOT PROVIDE MEDICAL ADVICE, PRESCRIPTIONS, OR DIAGNOSES; AND (B) THE SERVICE IS NOT FOR USE IN EMERGENCY OR URGENT SITUATIONS, AND IF YOU THINK ANY YOU, ANY OF YOUR EMPLOYEES, CONTRACTORS, END USERS, OR CUSTOMERS HAS A MEDICAL EMERGENCY, YOU WILL CALL A DOCTOR OR 911 IMMEDIATELY.
YOU AND YOUR EMPLOYEES, CONTRACTORS, END USERS, AND CUSTOMERS SHOULD BE AWARE THAT THERE ARE INHERENT PHYSICAL AND MENTAL HEALTH RISKS TO EXERCISE, INCLUDING RISK OF INJURY OR ILLNESS. BY ACCESSING THE SERVICE, YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR OR ANY OF YOUR EMPLOYEE’S, CONTRACTOR’S, END USER’S, OR CUSTOMER’S PERFORMANCE OF ANY AND ALL EXERCISES OR ACTIVITIES CONTAINED WITHIN THE SERVICE IS WHOLLY AT YOURS OR THEIR OWN RISK. NEITHER PROJECT 9A NOR ANY OF ITS EMPLOYEES, CONTENT AUTHORS, CONTRIBUTORS, REPRESENTATIVES OR AGENTS, WILL BE LIABLE FOR ANY PHYSICAL OR MENTAL INJURY OR ILLNESS THAT MAY RESULT, WHETHER DIRECTLY OR INDIRECTLY, FROM ANY OF OUR OR YOUR WORKOUT PLANS, EXERCISES OR ACTIVITIES. YOU AND YOUR EMPLOYEES, CONTRACTORS, END USERS, AND CUSTOMERS ASSUME SOLE RESPONSIBILITY FOR PERFORMING THOSE EXERCISES OR ACTIVITIES, INCLUDING PERFORMING SUCH EXERCISES OR ACTIVITIES WITH PROPER FORM, AS RISK OF INJURY OR ILLNESS INCREASES WITH IMPROPER FORM.
LIMITATION OF LIABILITY
PROJECT 9A WILL NOT BE LIABLE FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PROJECT 9A HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE OR (B) ANY AGGREGATE DAMAGES, LOSSES OR CAUSES OF ACTION EXCEEDING THE AMOUNT YOU HAVE PAID TO PROJECT 9A IN THE LAST TWELVE (12) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
If you are using any Service without a Subscription to that Service, including free accounts, trial use and pre-release, alpha or beta versions or features (collectively, “No-Charge Products”), your use of No-Charge Products is subject to any additional terms that Project 9a may specify. Project 9a may modify or terminate your right to use No-Charge Products at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROJECT 9A DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS, INCLUDING ANY SERVICE LEVEL OR INDEMNITY OBLIGATIONS, AND PROJECT 9A’S MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “INDEMNITY”, "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF LIABILITY" ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration:
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and Project 9a, whether arising out of or relating to these Terms (including any alleged breach thereof), the Service, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and Project 9a are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND PROJECT 9A AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND PROJECT 9A AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIMS, EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
Project 9a is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at [email protected]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Project 9a should be sent to Project 9a Labs, Inc., 1434 Spruce Street Suite 100, Boulder, CO 80302 ("Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Project 9a and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Project 9a may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Project 9a or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Project 9a is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Consumer Arbitration Rules (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, https://go.adr.org/consumer-arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Project 9a and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Project 9a agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. To the extent any Arbitration Fees are not specifically allocated to either Project 9a or you under the AAA Rules, Project 9a and you shall split them equally; provided that if you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of any Arbitration Fees, Project 9a will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Project 9a will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
f. Confidentiality of Arbitration
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
g. Severability
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, Project 9a agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Project 9a written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Termination
You agree that Project 9a, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Project 9a believes that you have violated or acted inconsistently with the letter or spirit of these Terms, provided that if you have a Subscription to a Service, subject to the Subscription non-renewal provisions above, Project 9a may terminate your Subscription only if you commit a material breach of any terms or conditions of these Terms and fail to remedy such breach within thirty (30) days after written notice of such breach. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities.
In addition to the Subscription non-renewal provisions above, you may terminate a Subscription if Project 9a commits a material breach of any terms or conditions of these Terms with respect to such Subscription and fails to remedy such breach within thirty (30) days after written notice of such breach.
Upon non-renewal or termination of your account or any Subscription, any terms or conditions that by their nature should survive such termination will survive, including the terms and conditions relating to payment, proprietary rights and confidentiality, Service restrictions, disclaimers, indemnification, limitations of liability, termination, the Arbitration Agreement, and the general provisions below.
Modifications to these Terms
Project 9a may modify these Terms as set forth above. Notwithstanding anything herein, in some cases (e.g., changes addressing new functions of the Services or changes made for legal reasons) we may specify that such modifications become effective immediately or on a set date. If you object to those modifications and have paid for a Subscription, and the effective modification date is during your then-current Subscription, then (as your exclusive remedy) you may terminate your then-current Subscription upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Service for the terminated portion of the applicable Subscription term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications.
User Disputes
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Project 9a will have no liability or responsibility with respect thereto. Project 9a reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
General
These Terms constitute the entire agreement between you and Project 9a and govern your use of the Service, superseding any prior agreements between you and Project 9a with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Project 9a agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Alameda County, California. The failure of Project 9a to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without the prior written consent of Project 9a. As an exception to the foregoing, you may assign these Terms in their entirety to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets; provided that you provide Project 9a with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these terms. Project 9a may assign, sublicense, or transfer any or all of its rights and obligations under these Terms without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at 1434 Spruce Street Suite 100, Boulder, CO 80302, or by telephone at (510) 224-4623.
Questions? Concerns? Suggestions?
Please contact us at [[email protected]] to report any violations of these Terms or to pose any questions regarding these Terms or the Service.