Project 9a Labs Terms of Service

Last Updated: January 30th, 2024

Welcome, and thank you for your interest in Project 9a Labs, Inc. (“Project 9a,” “we,” or “us”) and our websites at www.kayaclimb.com and www.plastick.rocks, along with our related websites, networks, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Project 9a regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING PROJECT 9A’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. YOUR USE OF THE SERVICE, AND PROJECT 9A’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY PROJECT 9A AND BY YOU TO BE BOUND BY THESE TERMS.

Arbitration NOTICE. Except for certain kinds of disputes described in Section 19, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND PROJECT 9A ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 19.)

1.   Service Overview. Project 9a offers various platforms for climbers (“KAYA”) and climbing gyms (“Plastick”). KAYA enables users to track ascents and training stats, as well as the ability to leave reviews about climbs, upload photos and videos of their climbing experiences, follow climbers, coaches, and brands, follow training plans, and participate in challenges for prizes or rewards. Plastick enables gyms to manage routesetters and routes for their gyms as well as to generate routesetting reports and view data and analytics on routesetting.

2.   No Medical Advice; Disclaimers. 

2.1       YOU ACKNOWLEDGE AND AGREE THAT: (1) PROJECT 9A IS NOT A MEDICAL ORGANIZATION, AND ITS WORKOUT PLANS AND SPECIFIC EXERCISES DO NOT CONSTITUTE MEDICAL ADVICE, PRESCRIPTIONS, OR DIAGNOSES; AND (2) THE SERVICE IS NOT FOR USE IN EMERGENCY OR URGENT SITUATIONS, AND IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, YOU WILL CALL DOCTOR OR 911 IMMEDIATELY.

2.2       YOU 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 PERFORMANCE OF ANY AND ALL EXERCISES OR ACTIVITIES CONTAINED WITHIN THE SERVICE IS WHOLLY AT YOUR 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 WORKOUT PLANS, EXERCISES OR ACTIVITIES. WHILE WE MAY PROVIDE GUIDELINES SUCH AS WRITTEN DESCRIPTIONS, PICTURES, OR VIDEOS DESCRIBING HOW TO PERFORM SPECIFIC EXERCISES OR ACTIVITIES, YOU 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. WE ENCOURAGE YOU TO SEEK MULTIPLE SOURCES OF INFORMATION REGARDING HOW TO PERFORM EACH EXERCISE CORRECTLY, ESPECIALLY IF YOU ARE NEW TO ANY OF THE FORMS OF TRAINING OR ACTIVITY YOU SEEK TO PERFORM. WE HIGHLY RECOMMEND YOU SEEK GUIDANCE FROM A PHYSICAL THERAPIST OR OTHER QUALIFIED HEALTH CARE PRACTITIONER IF YOU HAVE ANY PREEXISTING INJURIES OR CONDITIONS THAT MAY COMPROMISE THE JOINTS, MUSCLES, OR OTHER TISSUES INVOLVED IN YOUR WORKOUTS, OR THAT MIGHT OTHERWISE INTERFERE WITH ANY SUCH WORKOUT PLANS, EXERCISES OR ACTIVITIES.

2.3       YOU MUST DISCONTINUE EXERCISE IN CASES WHERE IT CAUSES PAIN OR SEVERE DISCOMFORT, AND SHOULD CONSULT A MEDICAL EXPERT PRIOR TO RETURNING TO EXERCISE IN SUCH CASES.  

3.   Eligibility. You must be at least thirteen (13) years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least thirteen (13) 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. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization. Project 9a may, in its sole discretion, refuse to offer the Service to any person or entity, and may change its eligibility criteria at any time.

3.1       Health. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS INTENDED FOR USE ONLY BY INDIVIDUALS HEALTHY ENOUGH TO PERFORM STRENUOUS EXERCISE. IF YOU HAVE ANY MEDICAL HISTORY THAT MAY PUT YOU AT RISK, INCLUDING, WITHOUT LIMITATION, ONE OR MORE THE FOLLOWING CONDITIONS, YOU SHOULD SEEK APPROVAL FROM A QUALIFIED HEALTH CARE PRACTITIONER PRIOR TO USING THE SERVICE: HEART DISEASE, HIGH BLOOD PRESSURE, FAMILY HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, CHEST PAIN CAUSED BY PREVIOUS EXERCISE, DIZZINESS OR LOSS OF CONSCIOUSNESS CAUSED BY PREVIOUS EXERCISE, BONE OR JOINT PROBLEMS, DIABETES, HIGH CHOLESTEROL, OBESITY OR ARTHRITIS. 

3.2       Minors. If you are younger than 18 years of age (“Minor”), you must have parental consent before registering for an account on the Service and your parent must also accept these Terms on your behalf. If you, as a parent or legal guardian, have agreed to allow your Minor to use the Service, you agree that you and your Minor shall be responsible for: (i) the conduct of such Minor; (ii) monitoring such Minor’s access to and use of the Service; and (iii) the consequences of any use of the Service by such Minor.

4.   Accounts and Registration. 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]. 

5.   General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.

5.1       Price. Project 9a reserves the right to determine pricing for the Service. Project 9a will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Project 9a may change the fees for any feature of the Service, including additional fees or charges, if Project 9a gives you advance notice of changes before they apply. Project 9a, at its sole discretion, may make promotional offers with different features and different pricing to any of Project 9a’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms. 

5.2       Authorization. You authorize Project 9a to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Project 9a, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Project 9a may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. 

5.3       Subscription Service. The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize Project 9a to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service by contacting us at: [email protected]. 

5.4       Delinquent Accounts. Project 9a may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. 

6.   Licenses

6.1       Limited License. Subject to your complete and ongoing compliance with these Terms, Project 9a grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service. 

6.2       License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.

6.3       Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Project 9a an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.

7.   Challenges. From time to time, Project 9a may allow through the Service, or provide the ability for you to participate in programs where participating users satisfying certain criteria may receive prizes or rewards or have the opportunity to win prizes or rewards (“Challenges”).  

7.1       Eligibility. You acknowledge that certain jurisdictions have laws regarding contests and sweepstakes that may prevent Project 9a from awarding you a prize. By using the Service, you acknowledge the risks, and understand that you may win but not be able to receive a prize.

7.2       Participating in a Challenge. You may participate in Challenges offering certain promotional benefits and rewards, each of which is offered through the Service by its sponsor (a “Challenge Sponsor”). In some cases, Project 9a may be a Challenge Sponsor. Each Challenge will be subject to additional terms presented to you at the time of joining that Challenge (“Challenge Rules”), which Challenge Rules are required and administered by the applicable Challenge Sponsor or by us on behalf of the applicable Challenge Sponsor. Using the Service does not require you to enter any Challenge, but you may enter a Challenge at your own discretion. In order for you to enter a Challenge, you must meet the eligibility requirements as provided in the Challenge Rules. A particular Challenge will start and end as indicated in the Challenge Rules. In each Challenge that you participate, you may not actively use more than one Project 9a account. Challenges will be void where prohibited or restricted by law or where there are registration or bonding requirements. Odds of winning will depend on the number of people participating in a Challenge. An alternative winner may be selected if the initial winner fails to respond to a request made by the Challenge Sponsor or us within the required time period. In the event of a dispute as to the identity of a winner, Project 9a or the applicable Challenge Sponsor, as applicable, reserves the right to make the final determination. You agree that, as between you and the applicable Challenge Sponsor of a Challenge that you participate, the applicable Challenge Sponsor has the sole right to decide all matters and disputes arising from that Challenge, which decision will be final and binding. The applicable Challenge Sponsor and Project 9a reserve the right to disqualify and prosecute to the fullest extent permitted by law any participant or winner who they suspect has tampered with a Challenge, the entry or participation process, violated the Challenge Rules, or acted in an unsportsmanlike or disruptive manner. Except where prohibited, participation in a Challenge constitutes your consent to Project 9a’s and its licensees’ use of your name, likeness, images, videos, voice, opinions, biographical information, and location, and any information uploaded by you for promotional purposes in any media without further payment or consideration. Challenge winners may be posted for a period of time on Project 9a sites and social media accounts and the Challenge Sponsor’s site and social media accounts. 

Project 9a and Challenge Sponsors reserve the right to shorten, extend, modify, or cancel any Challenge, in its sole discretion, at any time and without notice, even though such action may affect your ability to win a prize or reward. Challenge Sponsors and Project 9a are not responsible for any typographical or other error in printing or description of any Challenge. These Challenges, as well as any other contests, giveaways, or promotions offered through the Service, may be subject to additional terms and conditions (including third-party terms and conditions) and it is your responsibility to carefully review those terms and conditions.

Project 9a does not have any obligation to review Challenges, Challenge Rules, or the use of the Service by Challenge Sponsors. Project 9a assumes no responsibility or liability for Challenges, Challenge Sponsors, or any loss or damage incurred as a result of participation in a Challenge. We make no representation that Challenges are appropriate or lawful in any jurisdiction. Participating in a Challenge from a jurisdiction where such participation is illegal is prohibited.

7.3       Prizes. The Challenge Rules will indicate (i) the prizes and rewards to be awarded each winner, and (ii) if applicable, the approximate retail value of each prize and reward awarded and the aggregate approximate value of all prizes and rewards. No substitution, assignment, or transfer of the prizes or rewards is permitted, except by Challenge Sponsor, who has the right to substitute a prize or reward with another comparable one. Prizes and rewards awarded may be subject to third-party terms and conditions. You are responsible for all taxes and fees associated with the receipt and use of any prize and reward, and prize and reward winners may have to provide a taxpayer identification prior to the awarding of any prize or reward. Challenge Sponsors and their designees have the right to withhold payment or awarding of any prize or reward as they believe reasonably necessary for legal compliance, including any tax regulations. You may have to provide a personal identification number or taxpayer identification number prior to the awarding of any prize. 

7.4       Submitting User Content for a Challenge. Some Challenges may require you to submit certain User Content to be eligible for a prize or reward. Any User Content may be made permanently available on the Service so long as such Challenge is available on the Service. You irrevocably waive (and caused to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You also waive (and cause to be waived) any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof.

8.   Ownership; Proprietary Rights. The Service is owned and operated by Project 9a. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Project 9a are protected by intellectual property and other laws. All Materials included in the Service are the property of Project 9a or its third party licensors. Except as expressly authorized by Project 9a, you may not make use of the Materials. Project 9a reserves all rights to the Materials not granted expressly in these Terms.

9.   Third Party Terms 

9.1       Third Party Services and Linked Websites. Project 9a may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Project 9a with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Project 9a may transfer that information to the applicable third party service. Third party services are not under Project 9a’s control, and, to the fullest extent permitted by law, Project 9a is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Project 9a’s control, and Project 9a is not responsible for their content.

9.2       Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.

10.   User Content

10.1   User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service. 

10.2   Limited License Grant to Project 9a. By providing 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. 

10.3   Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.

10.4   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.

10.5   User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and 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 our 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, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Project 9a does not permit copyright-infringing activities on the Service.

10.6   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. 

10.7  Organization Data. If you are a gym, local climbing organization, brand, or board systems, the following terms apply to your Climb Data (as defined below): 

  • 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 3.c.

10.8   Contributor Data. If you are a guidebook author, local climbing organization, or other individual or organization (collectively, the “Contributor”) accessing www.plastick.rocks to prepare, submit, change, or otherwise edit Climb Data, the following terms apply (as described below):

Delivery of Climb Data. Contributor may, at his or her own expense, prepare and deliver to Project 9a all or parts of the climb data (“Data”) described in Section 22. Exhibit A, in electronic form. The parties acknowledge and agree that the Data will consist of two categories: (i) “Reference Data”, which is factual information relating to the physical attributes of a climbing route, including, but not limited to, name, location including latitude and longitude (“GPS”), length, grade, bolt count, protection, and any other factual information describing a route; and (ii) “Contributor Data”, which includes Contributor’s own unique route descriptions, area descriptions, and Contributor’s own photos and videos.

Uploading of Data. Project 9a will upload data prepared and delivered by the Contributor to the Service at one time or any time. Contributor may upload the Data directly to the Service at one time or at any time, once approved by Project 9a.

License to Data. Contributor grants to Project 9a a nonexclusive, worldwide, perpetual, royalty-free license to use, format, host, publish, reproduce, transmit, display, market, and sell the Data in accordance with its standard licensing practices or industry standard practices.

Moderation of Content. With respect to any destination for which a Contributor has been granted written permission to act as a Moderator to in the Service, Contributor may moderate the Data and user-generated content submitted by users of the Service (“UGC”). 

a. Contributor will be responsible for managing such UGC, including but not limited to revising, accepting, denying and/or returning such UGC to the submitting user.

b. Contributor must publish UGC data to the Service’s public-view features (to “Publish”) within a reasonable time frame, unless; there is an expressed, written agreement between the Parties that all or parts of UGC data remain out of the public-view, or unless the data violates KAYA’s Community Standards, contains profane, racist, derogatory, etc. information. Contributor must verify the accuracy of UGC data if the data includes, at a minimum, a name, a grade, a photo, GPS information, and written climb description (“to Verify”). 

For the avoidance of doubt, a climb contains factual information if it exists in the real world and its existence has been verified by a user of the Service or any other means. A reasonable time frame is to be considered no less than 30 days after the date the UGC data has been submitted. 

c. In Project 9a’s judgment, if Contributor is unable, unwilling, or fails to provide satisfactory revisions or updates to the Data or the applicable UGC, Project 9a may, at its sole option, terminate Contributors access to any and all parts of the Service, without any liability whatsoever on Project 9a’s part, at any time. Additionally, Project 9a reserves the right from time to time and at any time to manage, Publish, Verify, revise, accept, deny, and/or overwrite (the “Revisions”) data that has or has not been moderated by Contributor. For the avoidance of doubt, this means that Project 9a has the final authority to make these Revisions to any part of the Data or UGC on the Service.

Removal of Data. Contributor will have the right from time to time and at any time to remove any Contributor Data from the Service’s public-view features. For the avoidance of doubt, Contributor shall not be entitled to remove any Reference Data contributed by Contributor to the Service. Contributor will notify KAYA in writing 30 days prior to removing Contributor Data. KAYA will have 30 days to complete the removal request.  

Challenges.  Contributor acknowledges that Project 9a may run Challenges on climbs in its system, which Challenges may include any and all Data, without Contributor’s consent. For example, Challenges may call for a user to climb any climb or climb specific climbs in the destination. However, Contributor and other users are not permitted to run Challenges using any 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. 

Publication and Marketing.  Contributor grants to Project 9a the right to use Contributor’s name and likeness, and relevant information about Contributor, in connection with the Service and the Data. 

11.   Communications. 

                 Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page. 

11.1   Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself. 

12.   Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:

a.     use the Service for any illegal purpose or in violation of any local, state, national, or international law;

b.     harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;

c.      violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;

d.     interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; or (iii) use or launch any manual or automated system or software, devices, scripts robots, other means or processes to access, scrape, crawl, or cache any part of the Service;

e.     interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;

f.       perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;

g.     sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 8) or any right or ability to view, access, or use any Materials; or

h.     attempt to do any of the acts described in this Section 11 or assist or permit any person in engaging in any of the acts described in this Section 11.

13.   Digital Millennium Copyright Act

13.1   DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:

Project 9a Labs, Inc.

ATTN: Copyright Department

1100 Mandana Blvd, Oakland, CA 94610

801-691-2727

Email: [email protected]

Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

a.     an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

b.     a description of the copyrighted work or other intellectual property that you claim has been infringed;

c.      a description of the material that you claim is infringing and where it is located on the Service;

d.     your address, telephone number, and email address;

e.     a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and

f.       a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

13.2   Repeat Infringers. Project 9a will promptly terminate the accounts of users that are determined by Project 9a to be repeat infringers.

14.   Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 14, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. 

15.   Term, Termination and Modification of the Service

15.1   Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 15.2.

15.2   Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Project 9a may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at [email protected]. 

15.3   Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Project 9a any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 6.3, 8, 10, 15.3, 16, 17, 18, 19 and 20 will survive. 

15.4   Modification of the Service. Project 9a reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Project 9a will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service, except that Project 9a will refund any unused portions of prepaid fees in the case of Project 9a discontinuing or terminating the Service.

16.   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.

17.   Disclaimers; No Warranties

THE SERVICE, CHALLENGES, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PROJECT 9A DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, CHALLENGES, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PROJECT 9A DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PROJECT 9A DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR PROJECT 9A ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE PROJECT 9A ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.

YOU ACKNOWLEDGE AND AGREE THAT PROJECT 9A IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD PROJECT 9A LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, THIRD PARTY PLATFORMS, OR OTHER USERS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.  WHEN YOU USE THE SERVICE, YOU MAY FIND THAT ACTUAL REAL-WORLD CONDITIONS DIFFER FROM THE INFORMATION AND DATA PROVIDED THROUGH THE SERVICE.  EXERCISE YOUR INDEPENDENT JUDGMENT AND USE THE SERVICE AT YOUR OWN RISK. YOU ARE RESPONSIBLE AT ALL TIMES FOR YOUR CONDUCT. 

THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PROJECT 9A DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT PROJECT 9A IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

18.   Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PROJECT 9A ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, CHALLENGES, OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PROJECT 9A ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

EXCEPT AS PROVIDED IN SECTION 19.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PROJECT 9A ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PROJECT 9A FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

19.   Dispute Resolution and Arbitration 

19.1   Generally. In the interest of resolving disputes between you and Project 9a in the most expedient and cost effective manner, and except as described in Section 19.2 and 19.3, you and Project 9a agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND 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.

19.2   Exceptions. Despite the provisions of Section 19.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

19.3   Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 19 within 30 days after the date that you agree to these Terms by sending a letter to Project 9a Labs, Inc., Attention: Legal Department – Arbitration Opt-Out, 1100 Mandana Blvd, Oakland, CA 94610 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Project 9a receives your Opt-Out Notice, this Section 19 will be void and any action arising out of these Terms will be resolved as set forth in Section 20.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice. 

19.4   Arbitrator. Any arbitration between you and Project 9a will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Project 9a. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

19.5   Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Project 9a’s address for Notice is: Project 9a Labs, Inc., 1100 Mandana Blvd, Oakland, CA 94610. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Project 9a may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Project 9a must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Project 9a in settlement of the dispute prior to the award, Project 9a will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000. 

19.6   Fees. If you commence arbitration in accordance with these Terms, Project 9a will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Alameda County, CA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Project 9a for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

19.7   No Class Actions. YOU AND PROJECT 9A AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Project 9a agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

19.8   Modifications to this Arbitration Provision. If Project 9a makes any future change to this arbitration provision, other than a change to Project 9a’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Project 9a’s address for Notice of Arbitration, in which case your account with Project 9a will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

19.9   Enforceability. If Section 19.7 or the entirety of this Section 19 is found to be unenforceable, or if Project 9a receives an Opt-Out Notice from you, then the entirety of this Section 19 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 20.2 will govern any action arising out of or related to these Terms.

20.   Miscellaneous

20.1   General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, including any Challenge Rules, are the entire and exclusive understanding and agreement between you and Project 9a regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

20.2   Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Project 9a submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Alameda County, CA for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.

20.3   Privacy Policy. Please read the Project 9a Privacy Policy https://kayaclimb.com/privacy-policy carefully for information relating to our collection, use, storage, disclosure of your personal information. The Project 9a Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

20.4   Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

20.5   Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

20.6   Contact Information. The Service is offered by Project 9a Labs, Inc., located at 1100 Mandana Blvd, Oakland, CA 94610. You may contact us by sending correspondence to that address or by emailing us at [email protected].

20.7   Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

20.8   No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.

20.9   International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.

21.   Notice Regarding Apple. This Section 21 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Project 9a only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby 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. 

22. EXHIBIT A. DESCRIPTION OF DATA

Reference Data:

  1. Taxonomy:

    1. Name

    2. Grade

    3. Destination

    4. Area

    5. Subarea

  2. Location:

    1. GPS (Latitude and Longitude)

    2. Approach GPX (“Trail Data”)

Contributor Data:

  1. Written descriptions describing:

    1. Destination

    2. Area

    3. Subarea

    4. Approach paths

    5. History

    6. Any and all uniquely written Contributor descriptions

  2. Media: (any media submitted by the Contributor)

    1. Drawn Maps:

      1. Area Overview

      2. Boulders and Routes Overview 

    2. Photographs - i.e. front of boulder with climbs demarcated via lines drawn on top 

    3. Video (elective)