PLEASE READ THESE TERMS CAREFULLY! THESE TERMS WILL APPLY TO YOUR USE OF CLIMB. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE CLIMB. YOUR USE OF CLIMB WILL BE SUBJECT AT ALL TIMES TO THESE TERMS AND ALL APPLICABLE LAWS, RULES AND REGULATIONS. IF, AT ANY TIME, YOU NO LONGER WISH TO BE BOUND BY THESE TERMS, YOU MUST IMMEDIATELY CEASE ALL USE OF CLIMB. LICENSE AND ACCESS.
Subject to the terms and conditions of these Terms, and payment by you of all fees (if any) owed to Bank for or in connection with your use of Climb, Bank hereby grants to you, and you hereby accept from Bank, a limited, nonexclusive, nontransferable license (without a right of sublicense), to access and use the following, solely for your personal use: Climb and any related documentation, content, features, functions and solutions, as well as any new versions, modifications and enhancements as the same are made available to you by Bank from time to time (the “Materials”). You agree to use all applicable security protocols that Bank requires. You shall not share any security protocols (e.g., IDs, passwords, challenge questions, tokens) with any person. Bank does not guarantee the effectiveness of any security protocol and is not obligated to determine whether a security protocol has been breached. Notwithstanding anything else in these Terms, Bank may make security changes without prior notice to you if required for security reasons or by applicable law.
UNLAWFUL OR PROHIBITED ACTIVITIES. Your use of Climb and Materials is conditioned upon your compliance with the following rules of conduct.
You represent, warrant and covenant that you will not take, directly or indirectly, any of the following actions:
YOUR REPRESENTATIONS. You represent and warrant that (i) you have the power, capacity and authority to enter into these Terms and bind any entity on whose behalf (or for whose benefit) you are accessing Climb and Materials; (ii) you will use Climb and Materials in compliance with these Terms and all Applicable Laws; and (iii) you will not, directly or indirectly, transmit or upload any Harmful Code.
LIMITED WARRANTY. Bank represents that it will use commercially reasonable efforts to make Climb available for your use. This limited warranty is the sole warranty provided with respect to Climb and any Materials. Your sole remedy in the event of any non-conformance is to stop using Climb.
EXCLUDED EVENTS. Notwithstanding any other provisions of these Terms, Bank shall have no obligations or liabilities resulting (in whole or in part) from or with respect to: (a) any use of Climb other than in accordance with the documentation and these terms; (b) any use, operation or combination of Climb or Materials with any other product, service or content; (c) any failure to promptly implement any update to Climb or properly maintain the infrastructure required to operate Climb; (d) any data and other information entered by or on behalf of you or otherwise provided to Bank (whether directly or indirectly); or (e) any breach of these terms or any negligent act or omission by you.
DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, CLIMB AND MATERIALS ARE PROVIDED "AS IS", “WHERE IS," "WITH ALL FAULTS" AND WITHOUT WARRANTY OF ANY KIND, AND BANK HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, BANK DOES NOT REPRESENT OR WARRANT THAT THE USE OF CLIMB WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS, IF ANY, WILL BE CORRECTED, OR THAT THE MATERIALS WILL BE FREE OF HARMFUL CODE; NOR DOES BANK OR ANY OF THE BANK PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, PERFORMANCE OR SUITABILITY OF CLIMB OR ANY MATERIALS.
NEITHER BANK NOR ANY BANK PARTY SHALL BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
WITHOUT LIMITING THE FOREGOING, BANK DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ANY THIRD PARTY LICENSORS AND/OR SERVICE PROVIDERS ("TPPS") OR ANY OF THEIR SERVICES. YOU SHOULD SEEK APPROPRIATE LEGAL ADVICE BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION BASED ON INFORMATION AND MATERIALS PROVIDED VIA CLIMB. NOTHING ON CLIMB OR IN ANY MATERIALS SHOULD BE CONSTRUED AS LEGAL ADVICE. IN NO EVENT SHALL BANK BE LIABLE FOR LOSSES ARISING FROM ANY USE OF OR RELIANCE ON INFORMATION ON CLIMB OR IN THE MATERIALS OR ANY DELAYS IN THE PROVISION OF INFORMATION OR ANY ACTION TAKEN (OR NOT TAKEN) AS A RESULT OF USING CLIMB AND MATERIALS. TO THE EXTENT THAT THESE EXCLUSIONS ARE EXPRESSLY PROHIBITED BY APPLICABLE LAW IN YOUR STATE, THOSE PARTS OF THE CLAUSES THAT ARE PROHIBITED WILL NOT APPLY. THE REMAINING TERMS AND CLAUSES WILL CONTINUE TO APPLY.
PROPERTY OWNERSHIP. You acknowledge and agree that Climb and all Materials, together with all Bank Confidential Information (as defined below), constitute the sole and exclusive property of Bank (and/or its third party licensors as applicable), together with all modifications, updates, upgrades, enhancements and customizations to and compilations and derivative works of such items, and any intellectual property rights related to or embodied in any of them. You acknowledge and agree that you have no right in or license to any of the foregoing except for the limited rights expressly granted in these Terms.
TRADE NAMES, TRADEMARKS AND SERVICE MARKS. All trade names, trademarks and service marks on Climb or the Materials that are not owned by Bank or Bank Parties are the property of their respective owners. The trade names, trademarks, and service marks owned by Bank or Bank Parties, whether registered or unregistered, may not be used by you in connection with any product or service, or in any manner that is likely to cause confusion or dilution. Nothing in Climb or any Materials should be construed as granting, by implication, estoppel, or otherwise, any right or license to use any of Bank's (or any Bank Parties’) trade names, trademarks, or service marks.
DIGITAL MILLENIUM COPYRIGHT ACT NOTICE. Except for the limited license provided above, nothing in this ese Terms shall be construed as conferring any license or right under any copyright or any other intellectual property right. It is Bank policy to respond appropriately to notices of alleged infringement that comply with the Digital Millennium Copyright Act ("DMCA"), including by removing or disabling access to material claimed to be the subject of infringing activity. If you are an owner of intellectual property who believes that your intellectual property has been improperly posted or distributed via Climb, please notify Bank immediately.
THIRD PARTY LINKS. There may be links that make it easier for you to connect to third party sites or that will let you access Climb from third party sites. Linked third party sites are not under the control of Bank, and Bank is not responsible for the contents of any linked site or any link contained in the linked site. Existence of links to other third party sites is not an endorsement by Bank in favor of such site or the products or services contained in any linked site. If you choose to access a third party website linked to Climb, you do so entirely AT YOUR OWN RISK.
CONFIDENTIALITY. From time to time in the course of using Climb and Materials, you may have access to certain confidential information of Bank ("Bank Confidential Information"). For clarity, as used in these Terms, "Bank Confidential Information" means all nonpublic or proprietary information disclosed by or on behalf of Bank, otherwise learned by you in the course of using Climb and Materials, which is (i) designated as confidential or proprietary; or (ii) a reasonable person would conclude is confidential or proprietary. Bank Confidential Information includes, but is not limited to, the following (whether furnished before or after you start using Climb and Materials, whether disclosed orally, electronically, in writing or visual inspection of Climb and Materials): (a) graphics and content documentation, proprietary software applications, program modules, routines and subroutines, file layouts, displays, diagrams, graphs, sketches, algorithms, design specifications, annotations, documentation, flowcharts, coding sheets, drawings, models, source code and object code, together with all new versions, releases, updates, modifications, improvements, enhancements, patches and bug fixes; (b) information relating to Bank's know-how, processes, techniques, practices, methodologies, policies and procedures, manuals and handbooks, testing, research and development; (c) information regarding acquiring, protecting, enforcing and licensing Bank’s proprietary rights including intellectual property rights; (d) information relating to Bank’s employees, partners and customers; and (e) any and all copies, reproductions, notes, analyses, compilations, studies, interpretations and summaries of any of the above items, regardless of who prepares them. Notwithstanding the foregoing, Bank Confidential Information does not include any information that you can demonstrate by documentary evidence (1) is or has become publicly available through no wrongful act or omission attributable to you; (2) is or becomes rightfully known to you through a third party who is not subject to a restriction on disclosure; or (3) is independently developed by you without the use of or reference to Bank Confidential Information.
You agree not to use Bank Confidential Information for any purpose other than as required to use Climb and Materials in accordance with these Terms (the "Purpose"). You agree to hold all Bank Confidential Information in strict confidence using at least the degree of care you would use to protect your most sensitive information and in no event less than a reasonable degree of care. You agree to not publish, disseminate, or otherwise disclose, or permit or facilitate the disclosure of, any Bank Confidential Information to any third party. To the extent required for the Purpose as authorized by Bank in writing, you may disclose Bank Confidential Information only to your employees, directors, officers and agents ("Representatives") who have a need to know such information to carry out the Purpose and are bound to obligations of confidentiality (either by written agreement or Applicable Law) which are no less restrictive than those set forth in these Terms. You agree to be responsible for all acts and omissions of your Representatives. Any copy, extract, portion, or derivative of Bank Confidential Information shall be identified as belonging to Bank and prominently marked "confidential."
JURISDICTIONAL ISSUES. Climb is controlled and operated by Bank from its office in New York and are not intended to subject Bank to the laws or jurisdiction of any state, country, or territory other than that of New York and of the United States of America. Bank does not represent or warrant that Climb or other Materials, or any aspect thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access Climb or the Materials do so on their own initiative and at their own risk and are responsible for complying with local laws. Bank may limit the availability of Climb and Materials to any person, geographic area, or jurisdiction it chooses, at any time in Bank’s sole discretion.
INDEMNITY. You agree to indemnify, defend and hold harmless Bank and each of the Bank Parties from and against any third party claim, suit, demand or action for damages arising from your use or modification or alteration of Climb or Materials.
LIMITATION ON DAMAGES. IN NO EVENT SHALL BANK OR ANY BANK PARTIES BE LIABLE TO YOU IN CONNECTION WITH YOUR USE OF CLIMB OR MATERIALS FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES OR LOSSES, OR FOR ANY LOSS OF PROFITS, REVENUE, INVESTMENT OR BUSINESS OPPORTUNITIES, DIMINUTION IN VALUE, INCREASED COST OF BUSINESS, LOSS OF SALES, OR LOSS OF OR INACCESSIBLE DATA OR INFORMATION, BREACH OF DATA OR DATA SECURITY. IN NO EVENT SHALL THE TOTAL LIABILITY OF BANK (AND THE BANK PARTIES) TO YOU IN CONNECTION WITH YOUR USE EXCEED THE GREATER OF (A) THE TOTAL FEES ACTUALLY PAID BY YOU TO BANK, IF ANY, DURING THE SIX (6) MONTH PERIOD PRECEDING THE INITIAL EVENT WHICH GIVES RISE TO THE LIABILITY; OR (B) ONE HUNDRED DOLLARS ($100). THIS PARAGRAPH STATES YOUR SOLE REMEDY FOR FINANCIAL HARM.
THE PURPOSE OF EACH PROVISION OF THESE TERMS THAT PROVIDES A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS RELATING TO YOUR USE OF CLIMB AND MATERIALS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND BANK. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE(S).
MODIFICATION AND TERMINATION. Bank may at any time: (i) modify or discontinue any part of Climb or Materials; (ii) charge, modify or waive fees required to use Climb and Materials; or (iii) offer opportunities to some or all users of Climb and Materials. Bank reserves the right to make changes to these Terms at any time, and such changes will be effective immediately. Each time you use Climb, you should review the current terms. You can determine when these Terms were last revised by referring to the "LAST UPDATED" date at the bottom. Your continued use of Climb or Materials will indicate your acceptance of the current Terms. You agree that Bank shall not be liable to you or any third party for any termination of your access to Climb. Upon termination, all provisions of these Terms which by their nature are intended to survive termination (including, without limitation, all obligations of confidentiality, ownership, limitations of liability and indemnities) shall survive such termination.
GOVERNING LAW AND ARBITRATION. You and Bank agree that in the event of any claim, dispute or controversy (whether in contract, tort or otherwise) arising out of, relating to or connected in any way with your use of Climb or Materials or the breach, enforcement, interpretation or validity of these Terms (each, a "Claim") will be resolved exclusively by final and binding arbitration, except as otherwise provided in these Terms. Arbitration is more informal than a lawsuit and uses a neutral arbitrator to resolve the claim rather than a jury. Arbitration is subject to limited review by courts, but arbitrators can award the same damages and relief that a court can award. YOU AND BANK ARE EACH WAIVING THE RIGHT TO A JURY TRIAL. Notwithstanding the foregoing, each of the parties may bring an action in court to enjoin infringement or other misuse of a party’s intellectual property.
You and Bank agree to use good faith efforts to resolve any claims within thirty (30) days following written notice by either party that a claim has arisen. If the parties cannot resolve the claim within such time period, then the claim shall be determined by a single arbitrator through Judicial Arbitration Mediation Services ("JAMS"), in Erie County, New York. Alternatively, if it is determined or these Terms provide that a claim should not proceed through arbitration, each of you and Bank agree that the claim will be resolved exclusively in federal court in Buffalo, New York (the "Venue") and waive any objections as to personal jurisdiction in the Venue. The then-current JAMS Comprehensive Arbitration Rules and Procedures shall apply. All fees charged by JAMS shall be split equally by you and Bank, but each party shall be responsible for its own attorneys’ fees. If the claim is valued at $10,000 or less, you may choose to have the arbitration conducted solely on the basis of the documents submitted to the arbitrator. You hereby acknowledge and agree that Bank may affect service of process by email to the address provided by you to Bank in connection with setting up your account. Each of the parties waives the right to personal service.
You and Bank agree that all claims will be governed by the laws of the State of New York, without regard to conflict of laws principles and the Federal Arbitration Act (FAA). Any claims must be raised within one (1) year after the event which gives rise to the claim and may only be brought in your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. You agree that, to the extent permitted by law: (A) any and all claims will be resolved individually in the Venue designated above, without resort to any form of class action; and (B) any judgments and awards will be limited to actual third-party, out-of-pocket costs incurred, but in no event will attorneys’ fees be awarded or recoverable.
MISCELLANEOUS. These Terms, including policies and information linked from or incorporated herein, constitute the entire agreement between you and Bank with respect to your use of any of Climb and Materials and supersede all prior or contemporaneous communications, agreements, and proposals with respect to such use. No provision of these Terms may be waived except pursuant to a writing executed by the party against whom the waiver is sought. No failure to exercise, partial exercise of, or delay in exercising any right or remedy under these Terms shall operate as a waiver or estoppel of any right, remedy, or condition. If any provision of these Terms is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired. You may not assign, transfer, or sublicense any of your rights or obligations under these Terms without Bank’s express prior written consent. Bank will not be responsible for failure to fulfill any obligation due to causes beyond our control. Nothing in these Terms is intended to confer on any third party any benefit or any right to enforce these Terms.
COMMUNICATION. If you desire to communicate with or otherwise provide notice to Bank for any reason, your communication must be in writing, delivered electronically to the following address: email@example.com. You acknowledge that BANK may contact you at any email address or physical address we have on file for you.
Updated as of February 23, 2021