These Website Standard Terms And Conditions (these “Terms” or these “Website Standard Terms And Conditions”) contained herein on this webpage, shall govern your use of this website, including all pages within this website (collectively referred to herein below as this “Website”). These Terms apply in full force and effect to your use of this Website and by using this Website, you expressly accept all terms and conditions contained herein in full. You must not use this Website, if you have any objection to any of these Website Standard Terms And Conditions.
This Website is not for use by any minors (defined as those who are not at least 18 years of age), and you must not use this Website if you are a minor.
2. Intellectual Property Rights.
Other than content you own, which you may have opted to include on this Website, under these Terms, General Marketing Solutions, LLC and/or its licensors own all rights to the intellectual property and material contained in this Website, and all such rights are reserved. You are granted a limited license only, subject to the restrictions provided in these Terms, for purposes of viewing the material contained on this Website.
You are expressly and emphatically restricted from all of the following:
- Publishing any Website material in any media;
- Selling, sublicensing and/or otherwise commercializing any Website material;
- Publicly performing and/or showing any Website material;
- Using this Website in any way that is, or may be, damaging to this Website;
- Using this Website in any way that impacts user access to this Website;
- Using this Website contrary to applicable laws and regulations, or in a way that causes, or may cause, harm to the Website, or to any person or business entity;
- Engaging in any data mining, data harvesting, data extracting or any other similar activity in relation to this Website, or while using this Website;
- Using this Website to engage in any advertising or marketing;
Certain areas of this Website are restricted from access by you and General Marketing Solutions, LLC may further restrict access to you to any areas of this Website, at any time, in its sole and absolute discretion. Any user ID and password you may have for this Website are confidential and you must maintain confidentiality of such information.
4. Your Content.
In these Website Standard Terms And Conditions, “Your Content” shall mean any audio, video, text, images or other material you choose to display on this Website. With respect to Your Content, by displaying it, you grant General Marketing Solutions, LLC a non-exclusive, worldwide, irrevocable, royalty-free, sublicensable license to use, reproduce, adapt, publish, translate and distribute it in any and all media.
Your Content must be your own and must not be infringing on any third party’s rights. General Marketing Solutions, LLC reserves the right to remove any of Your Content from this Website at any time, and for any reason, without notice.
5. No warranties.
This Website is provided “as is,” with all faults, and General Marketing Solutions, LLC makes no express or implied representations or warranties, of any kind related to this Website or the materials contained on this Website. Additionally, nothing contained on this Website shall be construed as providing consult or advice to you.
6. Limitation of liability.
In no event shall General Marketing Solutions, LLC, nor any of its officers, directors and employees, be liable to you for anything arising out of or in any way connected with your use of this Website, whether such liability is under contract, tort or otherwise, and General Marketing Solutions, LLC, including its officers, directors and employees shall not be liable for any indirect, consequential or special liability arising out of or in any way related to your use of this Website.
You hereby indemnify to the fullest extent General Marketing Solutions, LLC from and against any and all liabilities, costs, demands, causes of action, damages and expenses (including reasonable attorney’s fees) arising out of or in any way related to your breach of any of the provisions of these Terms.
If any provision of these Terms is found to be unenforceable or invalid under any applicable law, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole, and such provisions shall be deleted without affecting the remaining provisions herein.
9. Variation of Terms.
General Marketing Solutions, LLC is permitted to revise these Terms at any time as it sees fit, and by using this Website you are expected to review such Terms on a regular basis to ensure you understand all terms and conditions governing use of this Website.
General Marketing Solutions, LLC shall be permitted to assign, transfer, and subcontract its rights and/or obligations under these Terms without any notification or consent required. However, you shall not be permitted to assign, transfer, or subcontract any of your rights and/or obligations under these Terms.
11. Entire Agreement.
These Terms, including any legal notices and disclaimers contained on this Website, constitute the entire agreement between General Marketing Solutions, LLC and you in relation to your use of this Website, and supersede all prior agreements and understandings with respect to the same.
12. Governing Law & Jurisdiction.
These Terms will be governed by and construed in accordance with the laws of the State of Florida, and you submit to the non-exclusive jurisdiction of the state and federal courts located in Florida for the resolution of any disputes.
DISPUTE RESOLUTION BY BINDING ARBITRATION:
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Summary: Most customer concerns can be resolved quickly and to the customer’s satisfaction by calling our customer service department at 888-433-9083. In the unlikely event that MaxiClimber’s customer service department is unable to resolve a complaint to your satisfaction (or if MaxiClimber has not been able to resolve a dispute between us after attempting to do so informally or through mediation), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction.
Arbitration is more informal than a lawsuit in court. Arbitration uses a NEUTRAL ARBITRATOR instead of a judge or jury. You thus 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).
You are entitled to LEGAL REPRESENTATION and a FAIR HEARING, BUT the arbitration procedures, including discovery, are SIMPLER, MORE LIMITED AND USUALLY FASTER THAN PROCEEDINGS IN COURT.
Arbitration decisions are as enforceable as any court order BUT ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT. Arbitrators can award the same damages and relief that a court can award.
Any arbitration under this Agreement will take place on an INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
For any non-frivolous claim that does not exceed $75,000, MaxiClimber will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from MaxiClimber to at least the same extent as you would be in court.
In addition, under certain circumstances (as explained below), MaxiClimber will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) twice his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what MaxiClimber has offered you to settle the dispute.
(1) MaxiClimber and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
- claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- claims that may arise after the termination of this Agreement.
References to “MaxiClimber,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of products and services under this or prior Agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Trade Commission or Consumer Product Safety Commission. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and MaxiClimber are each WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
(2) 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 MaxiClimber should be addressed to: Office for Dispute Resolution, MaxiClimber, 4095 State Road 7 Ste L216, Wellington, FL 33449 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If MaxiClimber and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or MaxiClimber may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by MaxiClimber or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or MaxiClimber is entitled.
(3) After MaxiClimber receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $75,000. (The filing fee currently is $125 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, MaxiClimber will pay it directly upon receiving a written request at the Notice Address.)
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address.
The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide.
Unless MaxiClimber and you agree otherwise, or the arbitrator directs otherwise, any arbitration hearings will take place in the county of your billing address. If your claim is for $10,000 or less, we agree 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.
Except as otherwise provided for herein, MaxiClimber will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. (Each party shall pay the fees and costs of its own counsel, experts and witnesses.) If, however, 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 such fees will be governed by the AAA Rules. In such case, you agree to reimburse MaxiClimber for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
(4) If, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of MaxiClimber’s last written settlement offer made before an arbitrator was selected, then MaxiClimber will:
- pay you the amount of the award or $5,000 (“the alternative payment”), whichever is greater; and
- pay your attorney, if any, twice the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration (“the attorney premium”).
If MaxiClimber did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(5) The right to attorneys’ fees and expenses discussed in paragraph (4) supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or costs. Although under some laws MaxiClimber may have a right to an award of attorneys’ fees and expenses if it prevails in an arbitration, MaxiClimber agrees that it will not seek such an award.
(6) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND MAXICLIMBER 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 MaxiClimber 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. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.