Terms & Conditions

Summary in plain English:

This update to our terms and conditions is effective from 24 May 2018.

When we briefed our legal team in early April 2018, about an update to our terms and conditions, this is what we wanted to say.

1. We need to update our terms and conditions in line with the new GDPR regulations

2. We need to make sure that our customers understand that we (Climb) are providing them with a data processing platform. Our customers act as the data controller so they are responsible for the gathering of consent (processing and marketing) of the audience data they upload into their Atlas ® platform.

3. We also need them to understand that we use some other suppliers as part of our offering (they are called sub-processors), namely AWS, Fasthosts, Stripe, Google Analytics, Office 365, ClearBooks, Cloudflare and Teamwork.

4. Of course, in the case of running our business, we (Climb) act as both the data controller and processor of the data we collect about them (our customers), that’s their personal, business and the financial history of our dealings).

5. We don’t own your data. Should you ever wish to leave, your data will be returned or destroyed (your decision on that one)

6. We will monitor your data to ensure system performance.

7. We expect you to adopt and use email best practice at all times within Atlas® should you use it to store your customers details. That means be respectful with your email marketing, and always get people to opt in at the point of signup. We follow the DMA code of conduct and we are registered with the ICO.

8. Our users are responsible for their own GDPR compliance, if they need help, we will help them all we can.

9. Finally, we are a business, so if you don’t pay, we will take it away. In that event, we will destroy your data.


FULL TERMS AND CONDITIONS

(1)     Climb: In these terms and conditions, we refer to Climb. Climb is the trading name of Climb Creative Ltd (company no. 07523310), whose registered office is at Studio 2.09, Northern Design Centre, Abbott’s Hill, Baltic Business Quarter, Gateshead, Tyne and Wear, NE8 3DF.

BACKGROUND

(A)     Climb has developed and provides a service consisting of the design and development of websites and subsequent hosting thereof.

(B)     You want to use Climb’s services in your business operations.

(C)     Climb has agreed to provide and you have agreed to take and pay for Climb’s services subject to these terms and conditions.

DEFINITIONS

1.      INTERPRETATION

1.1     The definitions and rules of interpretation in this clause apply in this Agreement.

1.2     Agreement:  these terms and conditions.

Account Team: the individuals appointed by Climb from time to time who shall serve as your primary contacts for your activities under this Agreement.

ATLAS:  Climb’s own website framework and content management system.

Business Day: any day which is not a Saturday, Sunday or public holiday when the banks in the City of London are open for business.

Confidential Information: information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) which is not in the public domain relating to the business, products, affairs and finances of Climb for the time being confidential to Climb and trade secrets including, without limitation, technical data and know-how relating to the business of Climb or any of its business contacts or identified as confidential information in clause 10.5

Design Services: the website design and development services set out in the Proposal Document and agreed with you from time to time to be performed by Climb to create the Website.

Your Account Team: the individuals appointed by you from time to time who shall serve as Climb’s primary contacts for Climb’s activities under this Agreement.

Your Data: the data inputted into the information fields of the Website by you or by Climb on your behalf.

Your Project Manager: the member of Your Account Team appointed in accordance with clause 7(c).

Deliverable: a defined level of functionality or other pre-set milestone within a particular phase of the Design Services, more particularly described in the Proposal Document.

Effective Date: the date on which your non-refundable deposit payment of the level set out in a deposit invoice, issued by Climb following your agreement of the Proposal Document, is accepted by Climb having been paid by you or the date agreed between the parties.

Fees: the fees payable by you to Climb, as set out in the Proposal Document and agreed with you from time to time.

Hosting Services: the services that Climb provides to allow you to access and use ATLAS and the Website, including hosting set-up and ongoing services, as set out in the Proposal Document.

Maintenance and Support: any error corrections, updates and upgrades that Climb may provide or perform with respect to ATLAS or the Website or the Hosting Services, as well as any other support or training services provided to you under this Agreement.

Climb's Project Manager: the member of Climb's Account Team appointed in accordance with clause 2.2

Project Plan: the plan to be developed in the planning stage of the Design Services, referred to as the Fact Finding Session in the Proposal Document.

Proposal Document:   Climb’s quotation and service proposal document provided to you when providing a quote to you for the services you require the specific terms of which may be varied from time to time by agreement between you and Climb.

Services: the Hosting Services and/or Maintenance and Support as applicable, given the context in which the term Services is used.

Website: the website which Climb will create to be provided by Climb as agreed with you, including any error corrections, updates, upgrades, modifications and enhancements to it provided to you under this Agreement but excluding ATLAS.

Term: the term of this Agreement as set out in clause 13.1

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.3     Clause and paragraph headings shall not affect the interpretation of this Agreement.

1.4     A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.5     A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6     Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.7     Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.8     A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.9     A reference to writing or written includes faxes and e-mail.

1.10    References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.

2.      DESIGN SERVICES

2.1     Climb shall use reasonable endeavours to ensure continuity of its Account Team assigned to this Agreement.

2.2     Climb shall appoint Climb’s Project Manager, who shall have the authority to contractually bind Climb on all matters relating to this Agreement. Climb shall use reasonable endeavours to ensure continuity of Climb’s Project Manager, but has the right to replace him from time to time where reasonably necessary in the interests of its business.

2.3     Climb shall perform the Design Services in accordance with the Proposal Document and shall use reasonable endeavours to meet the performance dates set out in the Proposal Document, but any such dates shall be estimates only, and time shall not be of the essence in this Agreement.

2.4     If any Deliverable fails in any material respect to conform with the Proposal Document, you shall give Climb a detailed description of any such non-conformance (Error), in writing, within a 5 day period.

2.5     With respect to any Errors contained in any Deliverables delivered to you during the Design Services, Climb shall use reasonable endeavours to correct any such Error within a reasonable time and, on completion, submit the corrected Deliverable to you.

2.6     If you do not provide any written comments in the 5 day period described above, or if the Deliverable is found to conform with the Proposal Document, the Deliverable shall be deemed accepted.

2.7     When Climb has completed all of the Deliverables set against the Design Services in accordance with this clause 2, the Design Services shall be deemed accepted.

2.8     If any failure to accept any of the Deliverables resulting from a defect which is caused by an act or omission by you, or by one of your sub-contractors or agents for whom Climb has no responsibility (Non-Supplier Defect), the Design Services shall be deemed to have been delivered notwithstanding such Non-Supplier Defect. Climb shall provide assistance reasonably requested by you in remedying any Non-Supplier Defect by supplying additional services or products. You shall pay Climb in full for all such additional services and products at Climb's then current fees and prices.

2.9     Acceptance of the Design Services shall be deemed to have taken place if you use any part of the Website for any purpose or to provide any services to third parties other than for test purposes.

2.10    If you request any additional service, specification, performance level or otherwise that is not specified in the Proposal Document then Climb shall provide assistance reasonably requested by you and you shall reimburse Climb for all such additional services or products at Climb’s then current fees and charges .

3.      CONSIDERATION

In consideration for the payment of the Fees by you Climb shall deliver the Design Services and the Services on the terms set out in this Agreement.

4.      HOSTING SERVICES, MAINTENANCE AND SUPPORT

4.1     Climb shall perform the Hosting Services and Maintenance and Support services.

4.2     In relation to the Website:

(a)    Climb hereby grants to you on and subject to the terms and conditions of this Agreement a non-exclusive, non-transferable licence to allow you to access ATLAS through the Hosting Services and to use ATLAS solely for your business purposes;

(b)    you agree to be bound by and adhere to any terms and conditions of use imposed by a third party which provides software that is supplied to you as part of the Website, Design Services or Hosting Services;

(c)    you shall not store, distribute or transmit any Virus, or any material through ATLAS or the Website or the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;

(d)    the rights provided under this clause 4.2 are granted to you only, and shall not be considered granted to any subsidiary or holding company of you;

(e)    you shall not: 

(i)     attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of ATLAS except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

(ii)    attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of ATLAS, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

(iii)   access all or any part of ATLAS or the Website or the Hosting Services in order to build a product or service which competes with ATLAS or the Website or the Services; or

(iv)   use ATLAS or Services to provide services to third parties; or

(v)    subject to clause 18.1, transfer, temporarily or permanently, any of its rights under this Agreement; or

(vi)   attempt to obtain, or assist third parties in obtaining, access to ATLAS or the Website or the Services, other than as provided under this clause 4.2(e); and

(f)    you shall use reasonable endeavours to prevent any unauthorised access to, or use of, ATLAS or the Website or the Services and notify Climb promptly of any such unauthorised access or use.

5.      CUSTOMER DATA

5.1     You shall own all rights, title and interest in and to all of Your Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.

5.2     In the event of any loss or damage to Your Data, your sole and exclusive remedy shall be for Climb to use reasonable endeavours to restore any of Your Data that is lost or damaged from the latest back-up of Your Data maintained by Climb. Climb shall not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party (except those third parties sub-contracted by Climb to perform services related to Customer Data maintenance and back-up).

5.3     If Climb processes any personal data on your behalf when performing its obligations under this Agreement, the parties record their intention that you shall be the data controller and Climb shall be a data processor and in any such case:

(a)    you shall ensure that you are entitled to transfer the relevant personal data to Climb so that Climb may lawfully process the personal data in accordance with this Agreement on your behalf;

(b)    Climb shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by you from time to time; and

(c)    each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

6.      CLIMB'S OBLIGATIONS

6.1     Climb undertakes that the Services and Design Services will be performed with reasonable skill and care. 

6.2     The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of ATLAS or the Website contrary to Climb's instructions or modification or alteration of ATLAS or the Website by any party other than Climb or Climb's duly authorised contractors or agents. If ATLAS or the Website does not conform with the foregoing warranty, Climb will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, Climb does not warrant that your use of ATLAS and/or the Website and/or the Services will be uninterrupted or error-free.

6.3     This Agreement shall not prevent Climb from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this Agreement.

7.      CUSTOMER'S OBLIGATIONS

You shall:

(a)    provide Climb with: 

(i)     all necessary co-operation in relation to this Agreement; and

(ii)    all necessary access to such information as may be required by Climb;

in order to render the Services and Design Services, including but not limited to Your Data and security access information;

(b)    provide such personnel assistance, including Your Account Team and your other personnel, as may be reasonably requested by Climb from time to time. Climb shall use reasonable endeavours to ensure continuity of its personnel assigned to this Agreement;

(c)    appoint Your Project Manager, who shall have the authority to contractually bind you on all matters relating to this Agreement. You shall use reasonable endeavours to ensure continuity of your Project Manager;

(d)    comply with all applicable laws and regulations with respect to your activities under this Agreement; and

(e)    carry out all your other responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, Climb may adjust any timetable or delivery schedule set out in this Agreement as reasonably necessary.

8.      CHARGES AND PAYMENT

8.1     You shall pay the amounts you have agreed with Climb.

8.2     You shall reimburse Climb for all actual, reasonable travel expenses including, but not limited to, airfare, hotel and meals incurred by Climb in performance of the Services and Design Services. 

8.3     All amounts and fees stated or referred to in this Agreement are exclusive of value added tax, which shall be added to Climb's invoice(s) at the appropriate rate. 

8.4     Unless varied by the Proposal Document, Climb shall invoice you for the Design Services in three stages as follows:

(a)    Climb will, before work begins, issue a deposit invoice for 30% of the total fees for the Design Services, as referred to in the definition of Effective Date in this Agreement. Payment must be received before work will begin.

(b)    Climb will issue an invoice for 40% of the total fees for the Design Services at a date agreed between the parties during the provision of the Design Services.

(c)    Climb will issue a balance invoice for the remaining 30% of the total fees for the Design Services upon completion of the Design Services, prior to the Website going live.

8.5     Each payment stage in clause 8.4 above shall operate independently and the variation of any stage or stages shall not alter or affect any other stage or stages.

8.6     Climb shall invoice you monthly for all Services performed by Climb during each month. Apart from the deposit invoice, each invoice is due and payable 30 days after the invoice date. If Climb has not received payment within 5 days after the due date, and without prejudice to any other rights and remedies of Climb:

(a)    Climb shall be under no obligation to provide any or all of the Services and/or Design Services while the invoice(s) concerned remain unpaid; and

(b)    interest shall accrue on such due amounts at an annual rate equal to 8% over the then current base lending rate of Barclays Bank PLC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

(c)    you shall be liable to Climb for all and any of Climb’s costs incurred as a result of any overdue payments pursuant to this Agreement

9.      PROPRIETARY RIGHTS

9.1     You acknowledge and agree that Climb and/or its licensors own all intellectual property rights in ATLAS and the Services and the Design Services. Except as expressly stated herein, this Agreement does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of ATLAS or the Services, Design Services or any related documentation.

9.2     Climb confirms that it has all the rights in relation to ATLAS that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

9.3     If expressly agreed you shall own the intellectual property rights in the Website.

10.     CONFIDENTIALITY

10.1    Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not include information that:

(a)    is or becomes publicly known other than through any act or omission of the receiving party; or

(b)    was in the other party's lawful possession before the disclosure; or

(c)    is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d)    is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e)    is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

10.2    Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement. 

10.3    Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. 

10.4    Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party. 

10.5    You acknowledge that ATLAS, the results of any performance tests of ATLAS and the Services form part of Climb's Confidential Information.

10.6    This clause 10 shall survive termination of this Agreement, however arising.

11.     INDEMNITY

11.1    You shall defend, indemnify and hold harmless Climb against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of ATLAS or the Website or Services, provided that:

(a)    you are given prompt notice of any such claim; 

(b)    Climb provides reasonable co-operation to you in the defence and settlement of such claim, at your expense; and 

(c)    you are given sole authority to defend or settle the claim.

11.2    Climb shall defend you, its officers, directors and employees against any claim that ATLAS infringes any United Kingdom patent effective as of the Effective Date, copyright, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that: 

(a)    Climb is given prompt notice of any such claim; 

(b)    you provide reasonable co-operation to Climb in the defence and settlement of such claim, at Climb's expense; and

(c)    Climb is given sole authority to defend or settle the claim.

11.3    In the defence or settlement of the claim, Climb may obtain for you the right to continue using ATLAS and the Website, replace or modify the Website so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement without liability to you. Climb shall have no liability if the alleged infringement is based on: 

(a)    a modification of ATLAS or the Website by anyone other than Climb; or

(b)    your use of ATLAS or the Website in a manner contrary to the instructions given to you by Climb; or

(c)    your use of ATLAS or the Website after notice of the alleged or actual infringement from Climb or any appropriate authority.

11.4    The foregoing and clause 12.4(b) state your sole and exclusive rights and remedies, and Climb’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

12.     LIMITATION OF LIABILITY

12.1    This clause 12 sets out the entire financial liability of Climb (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you:

(a)    arising under or in connection with this Agreement;

(b)    in respect of any use made by you of ATLAS, the Services, the Website, the Deliverables or any part of them; and

(c)    in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

12.2    Except as expressly and specifically provided in this Agreement:

(a)    you assume sole responsibility for results obtained from the use of ATLAS and the Website and the Services by you, and for conclusions drawn from such use. Climb shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Climb by you in connection with the Services, or any actions taken by Climb at your direction; and

(b)    all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

12.3    Nothing in this Agreement excludes the liability of Climb:

(a)    for death or personal injury caused by Climb's negligence; or

(b)    for fraud or fraudulent misrepresentation.

12.4    Subject to clause 12.3:

(a)    Climb shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement; and

(b)    Climb's total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Design Services and the Services during the 12 months preceding the date on which the claim arose.

13.     TERM AND TERMINATION

13.1    This Agreement shall come into force on the Effective Date and, unless otherwise terminated as provided in this clause 13, shall continue:

(a)    In respect of the Design Services, until the acceptance of the Design Services pursuant to clause 2

(b)    In respect of the Services, from the date of acceptance of the Design Services for a period of 12 months thereafter and shall automatically renew for 12 month periods unless either party notifies the other, in writing, prior to the end of the Term.

13.2    Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:

(a)    If any sums payable under this Agreement remain unpaid; or

(b)    the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

(c)    an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to such other party; or  

(d)    an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of such other party, or notice of intention to appoint an administrator is given by such other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

(e)    a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of such other party, or if any other person takes possession of or sells such other party's assets; or

(f)    the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

(g)    the other party ceases, or threatens to cease, to trade; or

(h)    the other party takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt.

13.3    On termination of this Agreement for any reason:

(a)    all licences granted under this Agreement shall immediately terminate;

(b)    each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;

(c)    Climb may destroy or otherwise dispose of any of Your Data in its possession unless Climb receives, no later than 10 days after the effective date of the termination of this Agreement, a written request for the delivery to you of the then most recent back-up of Your Data. Climb shall use reasonable commercial endeavours to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by Climb at Climb’s then hourly rates in returning or disposing of Customer Data; and

(d)    If you require an exportable copy of the Website, then you must make such a request within 10 days after the termination of this Agreement. Such a copy will be delivered to you in a zip file containing HTML, JavaScript, CSS, SQL database export and media files (excluding any stock imagery used). If you require such a copy to be exported in a format of your choice, Climb shall attempt to deliver the same to you in that format but make no representation that they will be able to do so. Work undertaken pursuant to this clause (d) shall be charged to you at Climb’s normal rates.

(e)    the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

13.4    If this Agreement is terminated for any reason by you you shall pay Climb on demand any remaining Fees as liquidated damages. You and Climb confirm that this sum represents a genuine pre-estimate of Climb’s loss.

14.     FORCE MAJEURE

Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Climb or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Climbs or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this Agreement by giving 30 days written notice to the other party.


15.     WAIVER

15.1    A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. 

15.2    Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

16.     SEVERANCE

16.1    If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

16.2    If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

17.     ENTIRE AGREEMENT

17.1    This Agreement and any documents referred to in it constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement.

17.2    Each party acknowledges that, in entering into this Agreement documents referred to in it, it has not relied and does not rely on any statement, representation (whether innocent or negligent), assurance or warranty (Representation) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement or those documents.  

17.3    Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this Agreement.

17.4    Nothing in this clause shall limit or exclude any liability for fraud.

18.     ASSIGNMENT

18.1    You shall not, without the prior written consent of Climb, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. 

18.2    Climb may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

19.     NO PARTNERSHIP OR AGENCY

Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.


20.     VARIATION

No variation of this Agreement shall be effective unless it is in writing.


21.     THIRD PARTY RIGHTS

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999. 


22.     NOTICES

22.1    Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this Agreement.

22.2    A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

23.     GOVERNING LAW AND JURISDICTION

23.1    This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England. 

23.2    The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

24.     DATA PROTECTION

24.1    Notwithstanding any other provision of this Agreement, in exercising its rights and performing its obligations under this Agreement, Climb shall, to the extent necessary, comply with the Data Protection Legislation. For the purpose of this clause 8, “controller”, “processor”, “personal data”, “process” and “processing” have the meanings given to them by the Data Protection Legislation.

24.2    The parties will comply with all applicable requirements of the Data Protection Legislation. This clause 24.2 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation

24.3    The parties each acknowledge that for the purposes of the Data Protection Legislation, you are the controller and Climb is the processor of any personal data from the point when any such data is transferred by you to Climb.

24.4    If, notwithstanding the intentions of the parties set out at clause 24.3, Climb processes personal data as a controller, it shall comply with the provisions of the Data Protection Legislation imposed on a controller.

24.5    You warrant that you have the legal right and have in place all necessary appropriate consents and notices required to disclose all personal data that you do in fact disclose to Climb under or in connection with this Agreement, and that the processing of that personal data by Climb for the purposes of performing its obligations under this Agreement will not breach any Data Protection Legislation.

24.6    Without prejudice to the generality of clause 24.2, where, in the performance of its obligations under this Agreement, Climb process personal data on your behalf then in relation to such personal data it shall:

(a)    act only on and at all times comply with your lawful, reasonable and documented instructions, unless Climb is required by the laws of any member of the European Union or by the laws of the European Union applicable to Climb to process personal data in which case Climb shall, to the extent permitted by such law, inform you of that legal requirement before processing that personal data;

(b)    having regard to the state of technological development and to the cost of implementing any measures, take appropriate technical and organisational measures against unauthorised or unlawful processing of such personal data, unauthorised access to, or disclosure of, such personal data and against accidental loss or destruction of, or damage to, such personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected. At a minimum, Climb’s safeguards for the protection of personal data shall include (i) limiting access of personal data to authorised employees/authorised persons who are obliged to keep the personal data confidential; (ii) securing business facilities, data centres, paper files, servers, back-up; (iii) implementing network, device application, database and platform security; (iv) securing information transmission, storage and disposal; (v) implementing authentication and access controls within applications, operating systems and equipment; (vi) not sharing, disclosing or subcontracting the processing of such personal data with any third parties, unless required to by an instrument of law, without your express written consent; and (vii) where appropriate, may also include the pseudonyimisation or encryption of personal data;

(c)    not transfer personal data provided by you to Climb outside of the European Economic Area (EEA) unless such transfer is undertaken in accordance with applicable Data Protection Legislation.

24.7    You shall indemnify and hold harmless Climb against all losses costs and expenses incurred by it as a result of: (1) breach of clause 10.; and/or (2) processing personal data on your behalf in accordance with the provisions of clause 24.5.

24.8    Climb may at its sole discretion and at any time on not less than 30 days’ written notice, revise this clause 8 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.

24.9    Where Climb engages another processor for carrying out specific processing activities on your behalf (a “Sub-processor”), in relation to each Sub-processor:

(a)    [you acknowledge and hereby authorise Climb to engage in connection with exercising its rights and performing its obligations under this Agreement those Sub-processors set out in Annex 1 (“Approved Sub-processors”) to this Agreement, which includes the identities of those Sub-processors and their country of location;]

(b)    Climb may amend and update the Approved Sub-processors list by providing written notice to you of any proposed new Sub-processor. You may notify Climb promptly in writing within ten (10) Business Days after receipt of Climb’s notice if you have a reasonable basis for objecting to a new Sub-processor.  Climb shall not appoint (or disclose any personal data to) that proposed Sub-processor until reasonable steps have been taken to address the objections raised by you and you have been provided with a reasonable written explanation of the steps taken;

(c)    prior to giving any Sub-processor access to personal data, Climb shall ensure that such Sub-processor has entered into a written agreement with Climb including terms in the contract between Climb and the proposed Sub-processor which are substantially the same as those set out in Annex 1 and the requirements of article 28(3) of the GDPR; and Climb shall remain fully liable to the Customer for any failure by a Sub-processor to fulfil its obligations in relation to the Processing of any Personal Data under the Agreement; and

(d)    In the EEA, or in circumstances or in a country that is the subject of a valid adequacy decision by the European Commission (“Restricted Country”), Climb may only authorise a third party to process the personal data in a Restricted Country if the Standard Contractual Clauses are at all relevant times incorporated into the agreement between, on the one hand, Climb and on the other hand the Sub-processor, or, if requested by you and required by Data Protection Legislation, you have entered into (or have procured that any relevant third party has entered into) a controller to processor data transfer agreement, incorporating the Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of protection, as set out in Commission Decision C(2010) 593, as updated, amended or superseded from time to time to the extent that such sub-processing does not occur. 

Annex 1

Approved Sub-processors

We hold our data with Fasthosts who are contracted by us for the provision of technical services. We remain responsible at all times for the security of your information, but if you want to know more about how we interact with Fasthosts you can view their Privacy Notice, amongst their other policies here.

We also use AWS, Stripe, Google Analytics, Office 365, ClearBooks and Cloudflare to process data and help provide our services.