General Terms and Conditions
These are the General Terms and Conditions, as used by FITclimbing, a trade name from NIHIL B.V. registered as at the Chamber of Commerce at Enschede with number 76637484 (hereafter: FITclimbing).
By making use of the website, mobile apps and any other products and services of FITclimbing (hereafter: the Products) you declare to explicitly agree with all General Terms and Conditions of FITclimbing (hereafter: Terms and Conditions).
The Terms and Conditions apply to FITclimbings end-users (hereafter: Consumers) and the FITclimbings business users of FITclimbing products and services (hereafter: Professional Clients) and their clients (hereafter: Client Members). Consumers, Professional Clients and Client Members will be referred to in general as Users. Users and FITclimbing will be referred to as Parties.
CLIMBING CAN BE DANGEROUS: There are significant elements of risk in any adventure sport or activity associated with a rock gym: climbing wall, bouldering area, rock climbing, and/or incidental weight and fitness training regimens and equipment (referred to here as the ACTIVITY). We have taken reasonable steps to provide you with appropriate equipment and/or skilled instructors so you can enjoy an activity at which you may or may not be skilled; however, we wish to remind you the ACTIVITY has foreseeable and unforeseeable risks and certain risks cannot be eliminated without destroying the unique and exciting character of the ACTIVITY. The same elements that contribute to the unique and exciting character of the ACTIVITY can be causes of serious injury to persons, death, and/or loss of or damage to equipment and can occur by accident, through negligence, or even intentionally. It is important for you to know in advance what to expect and to be informed of the inherent risks.
PARTIAL LISTING OF RISKS. Some, but not all of the risks, foreseeable or unforeseeable, associated with the ACTIVITY follow:
- Slips, trips, falls and/or collisions while using the climbing walls, bouldering areas, landing pits, work-out areas, floors below climbing walls, bathroom facilities, stairs, exits and entrances, and other facilities or equipment existing now or in the future;
- Misuse of equipment or facilities, or failures of equipment and facilities, including but not limited to: loose or damaged holds, worn or defective ropes, and worn or defective safety devices;
- Your physical strength, coordination, sense of balance, and ability to follow or give directions while climbing, belaying, or working out;
- Abrasion from or entanglement with ropes or equipment; and
- Bad decision making by you or your belayers, and the presence, actions (including mistakes), or falls of other climbers, belayers, and observers.
Express assumption of Risk Associated with Mountaineering, Climbing, and Related Activities.
I hereby affirm and acknowledge that I have been fully informed of the inherent hazards and risks associated with Mountaineering, Rock Climbing, Bouldering, Hiking and Indoor Climbing activities, transportation of equipment related to the activities, and traveling to and from activities sites of which I am about to engage in. Inherent hazards and risks include but are not limited to;
1. Risk of injury from the activity and equipment utilized in Mountaineering, Rock Climbing and Indoor Climbing is significant including the potential for permanent disability and death.
2. Possible equipment failure and/or malfunction of my own or others equipment.
3. My own negligence and/or the negligence of others, including employees, agents, independent contractors or representatives of FITclimbing, including but not limited to operator error.
4. Injury to hands, fingers, feet, and toes, including but not limited to inflammation and/or strain of muscles ligaments and/or tendons, nerve damage or compression, and broken bones.
5. Injury from falling may occur from exposure to high altitude, which may affect judgment and coordination, or from not paying close attention to your climbing or others climbing with or near you.
6. Broken bones, severe injuries to the head, neck, and back which may result in severe physical impairment or even death.
7. Discharge of weapons in or near the area of activity.
8. Cold weather and heat-related injuries and illness including but not limited to frostnip, frostbite, heat exhaustion, heat stroke, sunburn, hypothermia, and dehydration.
9. Exposure to outdoor elements, including but not limited to avalanche, rock fall, inclement weather, thunder and lightning, severe and or varied wind, temperature or weather conditions.
10. Attack by or encounter with insects, reptiles, and/or animals.
11. Accidents or illness occurring in remote places where there are no available medical facilities.
12. Fatigue chill, and/or dizziness, which may diminish my/our reaction time and increase the risk of an accident.
13. My sense of balance, physical coordination, and ability to follow instructions.
*I understand the description of these risks is not complete and that unknown or unanticipated risks may result in injury, illness, or death.
Release of Liability, Waiver of Claims and Indemnity Agreement
In consideration for being permitted to participate in any way in Mountaineering, Rock Climbing and Indoor Climbing and related activities, I hereby agree, acknowledge and appreciate that:
1. I HEREBY RELEASE AND HOLD HARMLESS WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property, WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE, the following named persons or entities, herein referred to as release, FITclimbing.
2. To release the releases, their officers, directors, employees, representatives, agents, and volunteers, and vessels from liability and responsibility whatsoever and for any claims or causes of action that I, my estate, heirs, survivors, executors, or assigns may have for personal injury, property damage, or wrongful death arising from the above activities whether caused by activity or passive negligence of the releases or otherwise. By executing the document, I agree to hold the releases harmless and indemnify them in conjunction with any injury, disability, death, or loss or damage to person or property that may occur as a result of engaging in the above activities.
2.1 The use of the Products is only allowed, if the General Terms and Conditions and the Privacy Statement are agreed upon, with a few exceptions in a number cases mentioned hereafter. Therefore, by using one or more Products, the Party declares to agree with the Terms and Conditions.
2.2 FITclimbing reserves the right to forbid the use of and/or access to her products without (prior) notice or reason, for example by blocking or removing profiles or by blocking IP-addresses of computers, in case FITclimbing finds this appropriate due to whatever reason.
2.3 Consumer Profiles are restricted to natural persons for personal use only and public groups are for users with a joint interest only. Companies and other institutions, like foundations, gyms and other commercial companies are only allowed to create groups within the FITclimbing services, not on the public version of the Products, unless they have received prior written permission from FITclimbing.
2.4 Profiles and groups contrary to previous rules can be removed, without prior notice.
3. Objectionable Content Policy
Content may not be submitted to the Products and FITclimbing moderates all content and ultimately decides whether or not to post a submission to the extent such content includes, is in conjunction with, or alongside any, Objectionable Content. Objectionable Content includes, but is not limited to: (i) sexually explicit materials; (ii) obscene, defamatory, libelous, slanderous, violent and/or unlawful content or profanity; (iii) content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right, or that is deceptive or fraudulent; (iv) content that promotes the use or sale of illegal or regulated substances, tobacco products, ammunition and/or firearms; and (v) gambling, including without limitation, any online casino, sports books, bingo or poker.
4. Age Restrictions
By using the Products of FITclimbing, you represent and warrant that (a) you are 16 years of age or older and you agree to be bound by this Agreement; (b) if you are under 16 years of age, you have obtained verifiable consent from a parent or legal guardian; and (c) your use of the Products does not violate any applicable law or regulation. Your access to the Products may be terminated without warning if FITclimbing believes, in its sole discretion, that you are under the age of 16 years and have not obtained verifiable consent from a parent or legal guardian. If you are a parent or legal guardian and you provide your consent to your childs use of the Products, you agree to be bound by this Agreement in respect to your childs use of the Products.
5. Offered information
5.1 Although the information on this website and contained within the other Products with the exception of the user-generated content is made with great care, a complete accuracy, reliability or suitability whatsoever cannot be guaranteed. Therefore, in case you rely on the information on this website or contained within the other Products, whether or not originating from FITclimbing or one of its employees, this is completely at your own risk.
5.2 The information is explicitly not meant for replacing medical care, medical advice or support by professionals within other disciplines. FITclimbing should in example never be used for (self)diagnosis. In any case, it is strongly recommended that users immediately consult their doctor with any medical questions, complaints and/or symptoms.
5.3 By accepting these Terms and Conditions the Party explicitly recognizes that FITclimbing cannot be held liable for any defects and/or wrong information contained within the information offered, and the possible damage which may occur in result thereof.
6. Physical exercise and Nutrition
6.1 Performing physical exercise or following a diet plan can pose a health risk, ranging from injuries to death. Users that wish to start with any form of physical exercise or a diet plan with the Products, must always consult their doctor and/or dietitian prior to starting said exercise or plan. Users who experience any form of pain or become dizzy or short of breath should immediately stop the physical exercise or their diet plan and contact a doctor for advice.
7. Rights of intellectual property
7.1 By accepting these Terms and Conditions the Party explicitly recognizes that all designs, information, images and other content within the Products with exception of user-generated content are property of FITclimbing, and are protected by relevant laws of intellectual property, including but not restricted to copyrights, trademark rights, database rights, neighboring rights, patents and design rights.
7.2 FITclimbing grants users a limited, personal, non-exclusive, non sub-licensable, non-transferable and revocable right to use the Products for personal purposes and under the terms and conditions, as stated in these General Terms and Conditions.
7.3 In case FITclimbing and a third party, being a company or institution, agree upon the licensing of one or more of the Products, this concerns a limited, non-exclusive, not sub-licensable, non-transferable and revocable right to use said Products concerned.
7.4 It is explicitly forbidden to copy, duplicate, modify, publish or use the designs, information, graphics and other content for direct or indirect commercial purposes, unless explicitly agreed in written form with FITclimbing.
7.5 The Party declares not to perform any acts which infringe or can infringe the (intellectual property- or database) rights of FITclimbing or third parties.
8. Licensing for shared information
8.1 The Party grants FITclimbing in exchange for the services granted by FITclimbing a continued, worldwide, unlimited, irrevocable, non-exclusive license without any extra remuneration by FITclimbing, including the right to sub-license, to all information, including but not limited to texts, images, photos, video and sound files, designs and user information, which is uploaded to, shared with or saved within the Products or shared with FITclimbing in any other way by the Party(hereafter: the Shared Information), to use, copy, distribute, transfer, perform, modify, or use otherwise, for commercial or other purposes through all existing media.
8.2 By accepting the General Terms of Conditions, the opposite party guarantees that the Shared Information does not infringe any intellectual property right, privacy or other rights of third parties, does not contravene the law, does not contains (child)pornographic material or is otherwise offensive, does not constitute threat or defamation, is free from viruses or other code which is harmful or can be harmful to computers, other electronics or the data or programs contained thereon, and has no commercial purpose.
8.3 The Party remains fully responsible and liable for any direct or indirect damage caused by FITclimbing and third parties due to the Shared Information by the Party.
9. User information and registration
9.1 The Party declares that the information provided, for example for registration, is correct and complete and that it will update these where possible within the Products, in case of changes. Any passwords should be kept carefully and may not be shared with third parties.
9.2 The Party may not grant third parties access to Products via his own registered account. In case the Party shares his account access information with third parties, he will be fully responsible and liable for direct and indirect damages resulting thereof.
9.3 The Party agrees that FITclimbing saves, processes and stores all the data provided by the Party, including through use of the Products. Please also see our Privacy Statement.
10.1 FITclimbing may send varying communications to users via the Products, including update notifications or reminders, emails or other communications. Users can indicate at the settings until what extent they wish to receive said communications.
10.2 The Party agrees that FITclimbing may approach the Party for important changes or updates to the Products, in the case deemed necessary by FITclimbing. Such communication shall in principle never contain any commercial messages from third parties.
10.3 Members can communicate with each other within the Products, e.g. by placing comments or sending messages or discussing within groups. The Party declares not to send spam, or any other communications which are undesired by the receiver, being commercial or otherwise, including but not limited to threatening, aggressive, obscene, ignominious, offending, privacy infringing or commercial communications. Any acts contrary to these conditions can as with the other conditions result in immediate denial of access and use of the Products and termination of the user license.
10.4 FITclimbing is at any time free to delete any user communications or other Shared Information without any prior or further notice if these are regarded to be below standard or otherwise inappropriate by FITclimbing.
10.5 For all communication and contact via the Products the following user guidelines apply:
a) Keep it always fun and positive!
b) Treat each other with respect.
c) Respect each others opinion, even if you do not agree with it.
d) Do not place off-topic messages within discussions.
e) Do not bother people with irrelevant matters.
f) Do not advertise for any products or services.
11. Information from third parties
11.1 The Products may contain information from third parties or refer thereto, including but not restricted to information created by users, advertisements, banners and website links (hereafter: Information from Third Parties).
11.2 Information from Third Parties generally is and cannot be previously checked by FITclimbing, which means that we can not guarantee the quality and validity thereof. FITclimbing is not responsible or liable for Information from Third Parties, nor for the possible direct or indirect damage which may result from it.
11.3 Third parties may connect to FITclimbing via the API and obtain access to publicly available data contained in the Products, including possibly personal user data which has been published on the Products with their permission. Beside that third parties can obtain access to public and closed personal data via the API, when a user explicitly gives permission for it. The General Terms and Conditions and Privacy Statement from FITclimbing do in principle not apply to applications from third parties. These third parties may use different General Terms and Conditions and Privacy Statements.
12. Unlawful information
12.1 After a report FITclimbing will investigate the presence of unlawful information in one or more of the Products within a reasonable time and will take action against it if possible. Any unlawful communication should be reported directly via email to firstname.lastname@example.org.
12.2 This report should in any case contain the following information:
a) the URL where the alleged unlawful information can be found.
b) your explicit statement that the material is unlawful and why.
c) in case it is a case of infringement of rights of intellectual property, you need to substantiate that you are the rightful owner of said rights, and to which extent the information infringes said rights.
d) in case you represent someone else, an authorization which allows you to act on behalf of the rightful claimant, signed by the rightful claimant.
e) Your name, email address, address and phone number, so that FITclimbing can contact you.
13. Paid Products
13.1 The listed prices of the Products are in Euros and exclusive VAT, unless explicitly stated otherwise.
13.2 All listed prices are conditional and can be adjusted without an prior notice.
13.3 Termination of periodical subscriptions cannot take effect before the end of the period that has been agreed upon. Such termination has to be done at least 14 days before the end of the (renewed) contract period. Without termination, the subscriptions will automatically be extended after the agreed period has ended, in principle for the same period, unless otherwise agreed. Users can unsubscribe at any time, although the aforementioned notice term applies.
13.4 In order to terminate a subscription effectively, the user should deactivate his/her account. The membership will end on the given end date.
13.5 Payment is due once the agreement is in place, unless otherwise agreed upon.
13.6 The Products shall be delivered as soon as possible or within the agreed period after payment. FITclimbing accepts no liability for any damage, in case the delivery takes place after the agreed period.
14. Modifications to the Products
14.1 FITclimbing explicitly reserves the right at any time to modify, stop or change a part of, or the whole of one or more of the Products, for a determined period or always, without prior notification or after to the Party, whether it concerns paid or unpaid Products.
14.2 This may also result in non-accessibility or loss of a part or the whole of the Shared Information, including the Shared Information of the Party. FITclimbing cannot be held liable for any direct or indirect damage resulting thereof.
14.3 In case of such a modification of the Products, for whatever reason, the Party will have on his request the (already) paid amounts to FITclimbing or her partners refunded pro ratio.
15. Modification of the General Terms and Conditions
15.1 FITclimbing reserves the right to change her General Terms and Conditions at any time. After such a modification the changed General Terms and Conditions will be offered for inspection immediately on the website.
15.2 By using the website and the other products of FITclimbing after changes to the General Terms and Conditions the Party declares to agree to the new general terms and Conditions.
16. Conformity and exclusion of liability
16.1 The Products and the content thereof are delivered by FITclimbing as such, including potential defects.
16.2 Nor FITclimbing, nor her partners or suppliers give any guarantee, explicit or implicit, regarding the functionality of the Products or any content thereof.
16.3 FITclimbing cannot and does not guarantee that the Products are available at any moment at any location, and that said availability occurs safely, or that any errors will be solved or that the Products are free from viruses or other potentially damaging software or parts.
16.4 The Party acknowledges that the Products may contain potential (hidden) defects and accepts the risks for any direct or indirect damage which may occur thereof. The Party cannot terminate an agreement based on non-compliance.
17. Electronic signature
17.1 By using the Products the Party provides an electronic signature so that these General Terms and Conditions apply.
18. Application and competence
18.1 These General Terms and Conditions replace all prior agreements or commitments, unless these are explicitly agreed upon by an authorized director of FITclimbing.
18.2 One or more parts of these General Terms and Conditions may not apply in the applicable legal system. In such a case the remaining parts of this agreement remain valid between parties.
18.3 Dutch Law applies to this agreement. Any disputes which may result from this agreement will be exclusively decided upon by the competent court in Rotterdam, The Netherlands.
Last modification: 01 April 2020