1. PARTIES AND INTRODUCTION
1.1 This Agreement is between Climb Online Limited, company number 09090758 whose registered office is at Amshold House, Goldings Hill, Loughton, Essex, IG10 2RW (“Climb Online”) and the Client (whose details appear on the attached Order Form), collectively, the “Parties” and each, a “Party”.
1.2 Climb Online is a provider of digital marketing services and the Client wishes to engage Climb Online to provide the Services on the terms and conditions of this Agreement.
1.3 This Agreement forms a binding contract between Climb Online and the Client in respect of the Services.
1.4 This Agreement will only come into effect upon each of the Parties executing the Order Form (in accordance with the requirements of the Order Form) and the Services shall commence on the Services Commencement Date.
1.5 This Agreement applies to all Services provided by Climb Online to the Client and sets out the Parties’ respective rights and obligations in respect of the Services.
1.6 The Client acknowledges and agrees that Climb Online is an online marketing agency and may rely on third parties to perform the Services.
1.7 Climb Online is an independent contractor to the Client, and shall not be deemed to be a partner of, or otherwise associated with, the Client in any way.
1.8 The Services are provided for the sole benefit of the Client, unless expressly agreed otherwise by the Parties and set out in writing.
2. DEFINITIONS AND INTERPRETATION
2.1 In this Agreement the following definitions apply:
“ADR Notice” has the meaning given in Clause 14.4.3 below;
“Agreement” these Terms and Conditions, together with the Order Form to which these Terms and Conditions are attached;
“Authorised Management Representative”
the person named on the Order Form to this Agreement or such other senior, management level representative of Climb Online that Climb Online may nominate from time to time;
those persons who have the authority to bind each of the Parties on their behalf, which, for the Client, is the Main Client Contact and, for Climb Online, is an Authorised Sales Agent of Climb Online and an Authorised Management Representative of Climb Online;
“Authorised Sales Agent” the person named on the Order Form to this Agreement or other sales agent of Climb Online that Climb Online may nominate from time to time to act on its behalf in relation to this Agreement;
“Campaign” a digital marketing campaign carried out by Climb Online on the Client’s behalf pursuant to this Agreement (and “Campaigns” shall be construed accordingly); “Campaign Management Fee” the fee charged by Climb Online for managing the media associated with the Client’s digital marketing campaign;
“Campaign Pause” has the meaning given in Clause 4.4 below;
“Client Confidential Information”
has the meaning given in Clause 7.1 below;
“Client Default” has the meaning given in Clause 4.3 below;
“Client Materials” the materials provided by the Client to Climb Online pursuant to this Agreement which are expressly identified as the Client’s property or are notified as such by the Client to Climb Online;
“Climb Online Confidential Information
has the meaning given in Clause 7.3 below;
“Climb Online Contact” the person identified in the Order Form (as may be replaced by Climb Online from time to time in accordance with Clause 3.3.2) who will be responsible for the dayto-day provision of the Services;
“Climb Online Materials” all data (including, without limitation, all data, and the format of such data, provided to the Client through the Media Platforms), reports, guides, content, project management tools and other information and materials derived from the Services and/or provided to the Client by Climb Online pursuant to this Agreement;
“Control” shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression “change of Control” shall be construed accordingly;
“Creative Climber” the customised suite of creative solutions provided by Climb Online to raise brand profile and identity of the Client;
“Data Climber” the services provided by Climb Online that use software for the collection, analysis and visualisation of data;
“Data Controller” has the meaning given in the Data Protection Act 1998 (or, if appropriate, its successor legislation);
“Data Processor” has the meaning given in the Data Protection Act 1998 (as may be amended or replaced by successor legislation);
“Data Protection Legislation”
the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all other applicable data protection legislation and regulations as amended, introduced or replaced from time to time throughout the world (including, when in force, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation);
“Dispute” has the meaning given in Clause 14.4 below;
“Dispute Notice” has the meaning given in Clause 14.4.1 below;
“Effective Date” the date of this Agreement as set out on the Order Form;
“Fees” the fees set out in the Order Form of this Agreement (or as otherwise agreed by the Parties in accordance with the terms of this Agreement);
“Force Majeure Event” has the meaning given in Clause 13.1 below;
“Increase Date” has the meaning given in Clause 6.10 below;
“Initial Services Term” the minimum period of time for which the Services will be provided by Climb Online (as specified on the Order Form), which will commence on the Services Commencement Date;
“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer products, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
“Lead Climber” the action or process of identifying and cultivating potential clients for a business’s products or services provided by Climb Online;
“Main Client Contact” the authorised representative of the Client whose details appear on the Order Form who shall be the Client’s contact for any queries in relation to this Agreement and for agreeing any variations to this Agreement in accordance with its terms;
“Management Fee” the fee charged by Climb Online which is equal to the average monthly Fees charged to the Client during the Term, calculated at the date either Party gives notice to terminate this Agreement in accordance with its terms;
“Media Optimisation Fee” the fee charged by Climb Online for purchasing media software or media products from third party online and/or digital publishers on the Client’s behalf;
“Media Platforms” the third party digital marketing account platforms used by Climb Online to provide the Services;
“Order Form” the Order Form attached to these Terms and Conditions;
“Organic Climber” the search engine optimisation services provided by Climb Online;
“Organic Social Climber” the monitoring and management of social media profiles provided by Climb Online;
“Paid Climber” the paid search advertising services provided by Climb Online across sponsored listings of search engines and partner websites of such search engines;
“Personal Data” has the meaning given in the Data Protection Act 1998 (as may be amended or replaced by successor legislation) and relates only to personal data, or any part of such personal data, provided by
the Client to Climb Online under or in connection with this Agreement;
“Personnel” in relation to either Party, its officers, directors and/or employees;
“Processing” and “Process”
have the meaning set out in section 1(1) of the Data Protection Act 1998 (as may be amended by successor legislation);
“Services” those services to be provided by Climb Online to the Client as specified on the Order Form and pursuant to the terms of this Agreement (including, but not limited to, the Creative Climber, the Data Climber, the Lead Climber, the Organic Social Climber, the Social Climber, and/or the Website Climber) together with any other
Services that the Client engages Climb Online to provide from time to time during the Term, and each a “Service”;
“Services Commencement Date”
the date on which Climb Online confirms to the Client by email that Climb Online has received the first payment of the Fees (including the Set Up Fee) and that Climb Online is ready to commence the performance of the Services;
“Social Climber” the sponsored listing services provided by Climb Online across social media platforms and partner websites of such search engines;
“Set Up Fee” the fee charged by Climb Online for building or rebuilding a digital marketing campaign for the Client;
“Technical Fees” the fees charged by Climb Online for the use of third party software to monitor or optimise the Client’s digital marketing accounts;
“Term” the term of this Agreement, as defined in Clause 11.1 below;
“VAT” Value Added Tax, as defined by the Value Added Tax Act 1994;
“Website Climber” the services provided by Climb Online in relation to the planning, design, content and development of a website for hosting via intranet or internet;
“Working Hours” Mondays to Fridays inclusive from 9.00 to 17.00, excluding English public and bank holidays and “Working Day(s)” shall be construed accordingly; and
“Year” each successive twelve (12) month period from the Effective Date (or part of such twelve (12) month period, as the context may require).
2.2 Unless the context otherwise provides or requires, or as expressly stated, references to “Clause(s)” are to clauses of these Terms and Conditions.
2.3 Any references to a statute, directive, regulation, code or guideline (“legislation”) are references to such legislation as amended, modified or re-enacted from time to time.
2.4 The headings in this Agreement are for convenience only and shall not affect its construction or interpretation.
2.5 In the event of a conflict in the interpretation of the provisions of these Terms and Conditions and the Order Form, the Order Form shall prevail and take priority.
3.1 In consideration of the payment of the Fees, Climb Online shall, from the Services Commencement Date, use reasonable endeavours to provide the Services specified on the Order Form in accordance with the terms of this Agreement.
3.2 Any samples, drawings, descriptive matter or advertising issued by Climb Online, and any descriptions or illustrations contained in Climb Online’s catalogues or brochures in relation to the Services (collectively, “Marketing Materials”), are issued or published for the sole purpose of giving an approximate idea of the Services described in them. Such Marketing Materials do not form part of this Agreement or have any contractual force.
3.3 Climb Online shall:
3.3.1 perform the Services with reasonable care and skill;
3.3.2 use reasonable endeavours to ensure that the same person acts as the Climb Online Contact
throughout the Term, but may replace that person from time to time where reasonably necessary in the interests of Climb Online’s business, or where such person leaves Climb Online;
3.3.3 have the right to sub-contract, sub-license or otherwise transfer certain parts of the Services to specified third parties as it deems necessary or appropriate;
3.3.4 report on its performance of the Services and other information to the Client via email to the Main Client Contact (using the email address specified on the Order Form), or via such other method of communication as Climb Online may agree with the Client from time to time during the Term;
3.3.5 implement any change to a Campaign reasonably requested by the Client and agreed by Climb Online in accordance with this Agreement as soon as reasonably practicable from the date that such change is agreed; and
3.3.6 comply with all applicable laws and regulations relating to performance of the Services.
4. THE CLIENT’S OBLIGATIONS
4.1 The Client shall:
4.1.1 pay all Fees and additional charges in accordance with this Agreement;
4.1.2 co-operate with Climb Online in all matters relating to the Services;
4.1.3 ensure that Climb Online has all such access to the Client’s information, electronic systems and materials as Climb Online may reasonably require in order to supply the Services;
4.1.4 promptly provide Climb Online with all assistance, directions, instructions or information, as reasonably required by Climb Online to perform the Services;
4.1.5 provide timely updates on any information relevant to the Services, including (without limitation) any changes to the Client’s website that would affect the Client’s Campaigns;
4.1.6 comply with all applicable laws and regulations in relation to its receipt of and use of the Services, and any guidelines or policies of Climb Online issued to the Client from time to time during the Term;
4.1.7 notify Climb Online promptly if it wishes to change the contact details for, or replace, the Main Client Contact, providing Climb Online with all required information prescribed in the Order Form;
4.1.8 keep all Climb Online Materials at the Client’s premises in safe custody and at its own risk, maintain the Climb Online Materials in good condition until returned to Climb Online, and not dispose of or use Climb Online Materials other than in accordance with Climb Online’s written instructions or authorisation;
4.1.9 take out and maintain insurance sufficient to cover all its liability arising out of this Agreement; and
4.1.10 not develop any product or service using any part of the Services.
4.2 The Client shall not use any trade mark, copyright, branding elements, or other Intellectual Property Rights of Climb Online without Climb Online’s prior written consent, unless the Client is entitled to do so under applicable law.
4.3 If Climb Online’s performance of any of its obligations under this Agreement is prevented or delayed by any act by or omission of the Client, or by any failure by the Client to perform any relevant obligation (“Client
4.3.1 without limiting or affecting any other right or remedy available to it, Climb Online shall have the right to immediately suspend performance of the Services until the Client remedies such Client Default, and to rely on such Client Default to relieve it from the performance of any of its obligations, in each case to the extent that such Client Default prevents or delays Climb Online’s performance of any of its obligations;
4.3.2 Climb Online shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Client’s failure or delay to perform any of its obligations as set out in this Clause 4.3; and
4.3.3 the Client shall reimburse Climb Online on written demand for any and all costs or losses sustained or incurred by Climb Online arising directly or indirectly from any Client Default.
4.4 The Client may request the temporary suspension of a Campaign (a “Campaign Pause”) but such request is at all times subject to and conditional upon:
4.4.1 the Client giving Climb Online a minimum of thirty (30) days’ advanced written notice of its request for a Campaign Pause (failing which Climb Online shall have the sole and absolute right to reject such request);
4.4.2 such Campaign Pause being of a maximum duration of thirty (30) days;
4.4.3 Climb Online being under no obligation to provide the Services or otherwise being required to perform its obligations under the Agreement during the Campaign Pause; and
4.4.4 the Client only being entitled to request one Campaign Pause during the Term.
For the avoidance of doubt, during any Campaign Pause, the Client will continue to be liable to pay all Fees and other sums as they fall due under this Agreement in respect of Services rendered prior to the date of the Campaign Pause coming into effect.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Client Materials) shall be owned exclusively by, and vest absolutely in, Climb Online.
5.2 Climb Online and its licensors own, and shall retain ownership of, all Intellectual Property Rights in the Climb Online Materials.
5.3 Climb Online grants the Client a non-exclusive, non-transferrable, revocable, limited licence during the Term to use the Climb Online Materials solely in relation to its receipt of the Services. Such licence is at all times conditional upon: (i) the Client paying all Fees to Climb Online as they fall due; and (ii) the Client’s full compliance with this Agreement. For the avoidance of doubt, the Client may not sub-license, assign or otherwise transfer the rights in the Climb Online Materials without Climb Online’s prior written consent.
5.4 In relation to the Client Materials, the Client:
5.4.1 and its licensors own, and shall retain ownership of, all Intellectual Property Rights in the Client Materials;
5.4.2 hereby grants Climb Online a fully paid-up, non-exclusive, royalty-free, worldwide, transferable licence to copy, modify and use the Client Materials during the Term for any purpose in connection with this Agreement and providing the Services;
5.4.3 warrants that the receipt and use of the Client Materials in the performance of this Agreement by Climb Online, its agents, subcontractors or consultants does not, and shall not, infringe the
rights, including any Intellectual Property Rights, of any third party; and
5.4.4 shall hold Climb Online harmless from, and on demand indemnify Climb Online and keep Climb Online indemnified in full from and against, all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Climb Online, and any sums agreed to in settlement, as a result of, or in connection with, any claim brought against Climb Online, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, Climb Online’s (or its sub-contractors’) receipt or use of the Client Materials in accordance with this Agreement.
6.1 Unless otherwise agreed in writing, the Fees payable by the Client for the Services shall be the amounts specified on the Order Form of this Agreement.
6.2 The Client acknowledges and agrees that it shall pay the Fees to Climb Online monthly in advance (unless otherwise agreed by the Parties in writing).
6.3 The Client acknowledges and agrees that the Fees exclude the following, which Climb Online shall be entitled to charge the Client, and the Client shall pay monthly in arrears (unless otherwise agreed in writing), following submission of an appropriate invoice:
6.3.1 the cost of any agreed out-of-pocket expenses and ancillary expenses reasonably incurred by Climb Online, its Personnel and/or its sub-contractors in connection with the Services (including without limitation, any travelling expenses, hotel costs, subsistence and any associated expenses);
6.3.2 the cost of providing the Services in languages other than English (as may be requested by the Client and agreed between the Parties); and
6.3.3 the cost to Climb Online of any materials or services procured by Climb Online from third parties for the provision of the Services, as such items and their cost are approved by the Client in advance from time to time.
6.4 The Client warrants and represents to Climb Online that (where the Client has selected to pay for the Fees by credit card or debit card) there are sufficient funds on any credit card or debit card registered with Climb Online to pay for all Fees and any other sums payable under this Agreement.
6.5 In the event of cancellation of the Services or termination of this Agreement, Climb Online may determine in its absolute discretion whether to refund any advance payment for Services (which shall exclude any costs that are not reimbursed by third parties).
6.6 Without prejudice to any other right or remedy it might have, if the Client fails to pay Climb Online any sum due under this Agreement (including, without limitation, any third party costs that Climb Online incurs on the Client’s behalf) on the due date for payment:
6.6.1 Climb Online may charge the Client for any additional administration and legal costs that Climb Online may incur as a consequence of such late payment;
6.6.2 Climb Online may charge the Client interest (both before and after judgment) on the amount unpaid at the rate for the time being that would be applicable if the debt were a qualifying debt under the Late Payment of Commercial Debts (Interest) Act 1998; and
6.6.3 Climb Online may, at its election, suspend the supply of all or part of the Services under this Agreement (or any other contract between the Client and Climb Online) until payment has been made or terminate this Agreement on written notice to the Client.
6.7 Climb Online shall be entitled to set off or withhold any amount owed to the Client under this Agreement against any amount payable by the Client to Climb Online.
6.8 All sums payable to Climb Online under this Agreement:
6.8.1 are exclusive of VAT, which shall be payable by the Client in addition at the rate and in the manner for the time being prescribed by law;
6.8.2 exclude any surcharges for payment methods used by the Client to pay the Fees; and
6.8.3 shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.9 If any payment pursuant to this Agreement constitutes the whole or any part of the consideration for a taxable or deemed taxable supply to the Client, Climb Online shall increase that payment by an amount equal to the VAT which is chargeable in respect of the taxable or deemed taxable supply, provided that the Client shall have delivered a valid VAT invoice in respect of such VAT.
6.10 Climb Online may increase the Fees for any or all of the Services at its discretion each Year with effect from each anniversary of the Effective Date. In the event that Climb Online determines that it wishes to increase the Fees for any of the Services, Climb Online shall notify the Client of such increase(s) in writing at least ninety (90) days prior to the date of such increase(s) coming into effect (“Increase Date”). If the Client does not wish to accept the increase(s) to the Fees for the Services, or any particular Service, it may give notice to terminate this Agreement prior to the Increase Date in accordance with Clause 11.1, failing which the Client shall be deemed to have accepted the relevant increase on the Increase Date.
7.1 Subject to Clause 7.2, Climb Online will hold all content and information that the Client has provided and either marked as confidential, or is notified to Climb Online as being confidential (“Client Confidential Information”), in the strictest confidence, and Climb Online will not disclose any such content or information to any other person, company or organisation. Client Confidential Information shall include any Personal Data provided by or on behalf of Client (“Client Personal Data”) pursuant to this Agreement.
7.2 The confidentiality obligations in Clause 7.1 shall not apply:
7.2.1 to any disclosures that Climb Online is required to make by law, by a court of competent jurisdiction, or by any regulatory body;
7.2.2 to information that has come into the public domain through no fault of Climb Online;
7.2.3 to information that Climb Online develops independently (without benefit of the Client Confidential Information) or receives from a third party (which is not in breach of a continuing obligation of confidentiality to the Client); and
7.2.4 in respect of Climb Online’s right to share the Client Confidential Information with its Personnel, sub-contractors, professional advisors, consultants and auditors, who will each be informed of the confidential nature of the Client Confidential Information and instructed to treat such information) confidentially.
7.3 Subject to Clause 7.4, the Client will hold all Climb Online Confidential Information in the strictest confidence. “Climb Online Confidential Information” for the purposes of these Terms and Conditions is defined as anything provided by or on behalf of Climb Online that is marked as “confidential”, is notified to the Client as being confidential or that could reasonably be considered to be confidential (including, without limitation, any Personal Data accessed and/or processed by the Client’s Personnel) and any confidential information relating to the business, affairs, strategies, suppliers or staff of Climb Online.
7.4 The confidentiality obligations in Clause 7.3 shall not apply to:
7.4.1 any disclosures that the Client is required to make by law, by a court of competent jurisdiction, or by any regulatory body, but only to the minimum extent required, and provided that the Client first notifies Climb Online of the requirement (if not prohibited by applicable law) and, upon the request of Climb Online, the Client shall use commercially reasonable efforts to assist Climb Online, at Climb Online’s sole expense, in seeking an appropriate protective order;
7.4.2 information that has come into the public domain through no fault of the Client;
7.4.3 information that the Client develops independently (without benefit of Climb Online Confidential Information) or receives from a third party (which is not in breach of a continuing obligation of confidentiality to Climb Online); and
7.4.4 the Client’s right to share the Climb Online Confidential Information with its Personnel, professional advisors, consultants and auditors, who will each be informed of the confidential nature of the Climb Online Confidential Information and instructed to treat such information confidentially and the Client shall be liable to Climb Online if any such Party should fail to comply with the terms of such confidentiality obligation.
7.5 Neither Party shall use the other Party’s confidential information (the Client Confidential Information, or the Climb Online Confidential Information (as applicable)) for any purpose other than to perform its obligations under this Agreement.
8. DATA PROTECTION
8.1 The Parties acknowledge that for the purposes of the Data Protection Act 1998 (and successor legislation), the Client is the Data Controller and Climb Online is the Data Processor in respect of any Client Personal Data processed in accordance with this Agreement, except in respect of Climb Online’s use of the Client Personal Data of the Main Client Contact for Climb Online’s business, operational or administrative purposes other than the provision of the Services, in which case Climb Online shall act as the Data Controller.
8.2 Climb Online may email the Main Client Contact occasionally with information about the Services. Such emails are important and the Client acknowledges and agrees that the Main Client Contact will not be able to unsubscribe from them during the Term.
8.3 Climb Online shall process the Client Personal Data (other than the Personal Data of the Main Client Contact) only in accordance with this Agreement and/or the Client’s reasonable instructions from time to time, and shall not process the Client Personal Data (other than the Personal Data of the Main Client Contact) for any purposes other than those expressly authorised by the Client or this Agreement, unless required to do so by applicable law.
8.4 Climb Online shall take reasonable steps to ensure the reliability of all its Personnel who have access to the Client Personal Data.
8.5 Climb Online warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:
8.5.1 take appropriate technical and organisational measures against the unauthorised or unlawful processing of the Client Personal Data and against the accidental loss or destruction of, or damage to, the Client Personal Data to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and (ii) the nature of the data to be protected; and
8.5.2 take appropriate steps to ensure compliance with those measures.
8.6 The Client consents to Climb Online appointing subcontractors as third party processors of Client Personal Data under this Agreement. Climb Online confirms that it has entered or (as the case may be)
will enter with such third-party processors into written agreements substantially in conformance with Climb Online’s obligations under Clauses 7 and 8 of this Agreement. As between the Client and Climb Online, Climb Online shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 8.6.
8.7 Climb Online shall, when acting as a Data Processor in respect of the Client Personal Data:
8.7.1 provide the Client, at the Client’s cost, with reasonable assistance in responding to any request from any individual whose Personal Data forms part of the Client Personal Data and in ensuring the Client’s compliance with its obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
8.7.2 notify the Client without undue delay on becoming aware of any security breach in respect of Client Personal Data;
8.7.3 at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Agreement, except to the extent required by applicable law ; and
8.7.4 maintain complete and accurate records and information to demonstrate its compliance with this clause.
8.8 Climb Online shall not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the transfer is in accordance with Data Protection Legislation.
9. WARRANTIES AND INDEMNITIES: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1 Each Party warrants to the other that:
9.1.1 it has the full power, capacity and authority to enter into the Agreement and to perform its obligations under this Agreement; and
9.1.2 in performing its obligations under this Agreement, it will comply with all applicable Data Protection Legislation. This Clause 9.1.2 is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.
9.2 The Client hereby warrants and represents that:
9.2.1 without prejudice to the generality of Clause 9.1.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to Climb Online for the duration and purposes of this Agreement;
9.2.2 the Client’s receipt and use of the Services shall be for legitimate business purposes and in compliance with all applicable laws and regulations;
9.2.3 the Client has obtained all necessary approvals, consents and permissions from any relevant authority or third party in connection with its receipt and use of the Services; and
9.2.4 the Client Materials are accurate, complete and up to date, and the Client accepts sole responsibility and liability for such Client Materials.
9.3 The Client will hold Climb Online harmless from, and indemnify Climb Online on demand and keep fully and effectively indemnified Climb Online from and against, any liability, losses, damages, costs (including legal fees) and expenses of any nature incurred by Climb Online directly or indirectly from:
9.3.1 any breach of the Client’s confidentiality obligations under Clause 7.3 of these Terms and
9.3.2 any breach by the Client of Clause 9.2 of the these Terms and Conditions.
The indemnities in this Clause shall remain in full force and effect notwithstanding the termination or expiry of this Agreement.
9.4 If any third party makes a claim, or notifies Climb Online that it is intending to make a claim, against Climb Online, which may reasonably be considered to be likely to give rise to a liability under an indemnity given under Clause 5.4.4 or Clause 9.3 of this Agreement, Climb Online will give the Client written notice of such claim and allow the Client to have sole authority to dispute, compromise or defend such claim with the assistance of Climb Online as reasonably requested by the Client (and the Client agrees to reimburse Climb Online in full for all such assistance).
10. LIMITATIONS OF LIABILITY: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10.1 Subject to Clauses 10.2 to 10.3 (inclusive), Climb Online’s liability to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise arising out of, or in connection with, this Agreement shall not exceed an amount which is equal to the average annual Fees (calculated by reference to the Fees in successive twelve (12) month periods from the Effective Date) paid by the Client as at the date that the relevant liability accrued.
10.2 Subject to Clause 10.3, Climb Online shall have no liability to the Client in any circumstances, whether in tort (including, without limitation, for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for respect of any: (i) loss of income, sales, business or revenue; (ii) loss of profits; (iii) loss or corruption of software, data or information; (iv) loss of business opportunity, goodwill or reputation; (v) business interruption; (vi) loss of anticipated savings; or (vii) for any indirect or consequential loss or damage of any kind.
10.3 Notwithstanding anything contained in this Agreement, neither Party excludes or limits its liability for: (i) personal injury or death resulting from its negligence; (ii) fraud or fraudulent misrepresentation; or (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 or any other liability which cannot be excluded or limited by law.
10.4 Save as expressly set out in this Agreement, the Services and the Climb Online Materials are provided to the Client ‘as is’, and ‘as available’, and to the maximum extent permitted by applicable law, no warranties (whether express or implied) are made by Climb Online as to their suitability, fitness for purpose, accuracy or otherwise.
10.5 All warranties, conditions and other terms, express or implied (by statute or otherwise) are, unless expressly set out in this Agreement, excluded from this Agreement to the fullest extent permitted by applicable law.
11. DURATION AND TERMINATION
11.1 This Agreement shall commence on the Effective Date and, subject to earlier termination in accordance with its terms, will continue in force for the duration of the Initial Services Term. Following expiry of the Initial Services Term, this Agreement, subject to earlier termination in accordance with its terms, will continue in force thereafter unless and until terminated by either Party giving not less than sixty (60) days’ written notice of termination to the other, such termination to take effect no earlier than expiry of the Initial Services Term (the “Term”).
11.2 Without affecting any other right or remedy available to it, either Party may terminate one or more of the Services by giving the other Party sixty (60) days’ prior written notice, such termination to take effect no earlier than expiry of the Initial Services Term. In the event of a Party terminating one or more of the Services in accordance with this Clause, the terms of this Agreement will continue to apply to the remaining Service(s).
11.3 Either Party may terminate one or more of the Services or this Agreement in accordance with Clause 13.2 (Force Majeure).
11.4 Either Party may terminate this Agreement (or at the notifying Party’s option, a particular Service) immediately by written notice if the other Party:
11.4.1 commits any material or persistent breach of any of its obligations under this Agreement or any part of this Agreement which relates to the Service in question (as appropriate) and, in the case of a breach which is capable of remedy, fails to remedy it within thirty (30) days of being required to do so by notice in writing from the other Party;
11.4.2 is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if it has a receiver, administrator or administrative receiver appointed over it or over any part of its undertaking or assets, or if it passes a resolution for winding-up (except for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or if a court of competent jurisdiction makes an order to that effect, or if it becomes subject to an administration order, or if it enters into any voluntary agreement with its creditors, or if any similar process to any of the above is begun in any jurisdiction, or if it ceases or threatens to cease to carry on business.
11.5 Without affecting any other right or remedy available to it, Climb Online may terminate this Agreement with immediate effect by giving written notice to the Client if:
11.5.1 the Client fails to pay any amount due under the Agreement on the due date for payment; or
11.5.2 there is a change of Control of the Client.
11.6 Without affecting any other right or remedy available to it, Climb Online may suspend the supply of all or part of the Services under the Agreement or any other contract between the Client and Climb Online if the Client becomes subject to any of the events listed in Clause 11.4.2, or Climb Online reasonably believes that the Client is about to become subject to any of them.
12. CONSEQUENCES OF TERMINATION
12.1 Expiry or termination of one or more (but not all) of the Services shall not affect Climb Online’s obligation to provide the remaining Services or the Client’s obligations to pay the Fees in respect of the remaining Services. When all Services have expired or terminated, this Agreement shall terminate automatically and all outstanding Fees due to Climb Online shall become immediately due and payable.
12.2 The termination or expiry of this Agreement (howsoever caused) will not affect any rights and/or liabilities of either Party which have accrued before termination or expiry.
12.3 Any provision of this Agreement which expressly, or by implication, is intended to come into or continue in effect on or after termination or expiry (including, without limitation, Clauses 2, 4.3.2, 4.3.3, 5, 7, 8, 9, 10, 12 and 14) shall remain in full force and effect.
12.4 Upon either Party giving written notice to terminate this Agreement (in accordance with its terms) for any reason, the Client shall within sixty (60) days of such notice pay the Management Fee to Climb Online.
12.5 Upon termination or expiry of this Agreement (for any reason):
12.5.1 the Client shall immediately pay to Climb Online all of Climb Online’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Climb Online shall submit an invoice, which shall be payable by the Client immediately on receipt;
12.5.2 the Client shall (at Climb Online’s request and election) promptly return to Climb Online, or render permanently inaccessible, all Climb Online Confidential Information, together with all other materials in its possession that were disclosed to it by Climb Online under this Agreement; and
12.5.3 Climb Online’s obligations to the Client under this Agreement, and all licences granted under this Agreement by a Party, shall immediately cease.
13. FORCE MAJEURE
13.1 Neither Party shall be liable to the other for any delay or non-performance of its obligations under this Agreement (other than an obligation to pay the Fees) arising from any cause or causes beyond its reasonable control, including, but not limited to, any Services not being available due to mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems, outages from cloud providers, power shortage, network failure, server crashes, deletion, corruption, or loss or removal of data, where the Client ceases to be entitled to access the Internet or ceases to have access to the Internet for whatever reason, any act of God, fire, explosion, storm, flood, tempest, drought, earthquake, accident, epidemic or disease, war, hostilities, riots, acts of terrorism, legislative changes or any other changes by any government or authorised body in any relevant territory, failure or shortage of power supplies, failure of computer systems, non-performance by suppliers or subcontractors (other than by companies in the same group as the Party seeking to rely on this clause), labour dispute or any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency (a “Force Majeure Event”). The Party subject to a Force Majeure Event shall promptly notify the other Party of that fact and will use its reasonable endeavours to minimise the impact of such Force Majeure Event.
13.2 If a Party is prevented from performing its obligations under this Agreement in relation to any of the Services by a Force Majeure Event which continues for more than ninety (90) days then either Party will be entitled to terminate this Agreement with immediate effect, in relation to that Service (or those Services) in question only, without liability to the other Party on giving written notice of termination to the other Party.
14.1 The Client shall not during the Term, nor for a period of twelve (12) months following the termination or expiry of this Agreement for any reason, on its own behalf or on behalf of any third party, directly induce, or attempt to induce, any person employed by Climb Online who has been engaged in the provision of the Services to the Client to leave the employment of Climb Online or employ or engage in any capacity any such employee, provided that this restriction shall not apply to any such person who makes an unsolicited reply to a bona fide public advertisement, including by the Client on its website, or solicitations conducted by an entity that is acquired by or merged with the Client, so long as such solicitations were conducted prior to the date of such acquisition or merger.
14.2 Climb Online may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.
14.3 The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of Climb Online.
14.4 If a dispute arises out of, or in connection with, this Agreement or the performance, validity or enforceability of it (a “Dispute”) then except as expressly provided in this Agreement, the Parties shall follow the procedure set out in this clause:
14.4.1 either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the Main Client Contact and Climb Online Contact shall attempt in good faith to resolve the Dispute;
14.4.2 if the Main Client Contact and the Climb Online Contact are for any reason unable to resolve the Dispute within fourteen (14) days of service of the Dispute Notice, the Dispute shall be referred to a senior management representative of the Client and an Authorised Management Representative of Climb Online who shall attempt in good faith to resolve it; and
14.4.3 if the senior management representative of the Client and the Authorised Management Representative of Climb Online are for any reason unable to resolve the Dispute within fourteen (14) days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator shall be nominated by CEDR. To initiate the mediation, a Party must serve notice in writing (“ADR Notice”) to the other Party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than thirty (30) days after the date of the ADR Notice.
14.5 The commencement of mediation under Clause 14.4.3 shall not prevent the Parties commencing or continuing court proceedings in relation to the Dispute under Clause 14.6 which Clause shall apply at all times.
14.6 This Agreement shall be governed by the laws of England and Wales whose courts shall have exclusive jurisdiction in the event of a failure to resolve any dispute (including non-contractual disputes) arising between the Parties.
14.7 This Agreement constitutes the entire agreement between the Parties relating to the matters provided for herein and supersedes all previous agreements, understandings or arrangements between the Parties relating to these matters and each of the Parties acknowledges and agrees that in entering into the Agreement it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether Party to the Agreement or not) other than as expressly set out in the Agreement. Nothing in this Clause shall limit or exclude any liability for fraud.
14.8 The Parties may propose changes to the Fees, and add, remove or make changes to the Services, from time to time during the Term. If Climb Online agrees to any such changes:
14.8.1 Climb Online’s Authorised Representative shall ask the Client to confirm its agreement to such changes by sending an email in the form set out in Annex A to this Agreement;
14.8.2 the Main Client Contact shall confirm their agreement to their same (in accordance with the requirements of Annex A) by return email; and
14.8.3 the changes will come into effect on the date specified in the notice.
If Climb Online wishes to vary the terms of this Agreement in any respect other than the Fees and/or the Services as above, it will notify the Client of such variation(s), and require the Client to accept such variation(s) before continuing to use the Services. Climb Online reserves the right to suspend or terminate this Agreement (including the provision of the Services) with immediate effect if the Client does not accept any such variation(s).
14.9 The waiver by either of the Parties of any breach of any of the provisions of this Agreement shall not prevent the subsequent enforcement of that provision and shall not be deemed a waiver of any subsequent breach. The rights of either of the Parties shall not be prejudiced or restricted by any time, indulgence or forbearance extended to the other.
14.10 Any notices to be given under this Agreement shall, unless otherwise expressly stated, be in writing and shall be given by sending the same by email (if to the Client, to the Main Client Contact specified on the Order Form of this Agreement, or such other email address as the Client may notify to Climb Online in writing from time to time during the Term; if to Climb Online, to the Climb Online Contact specified on the Order Form to this Agreement or such other email address as Climb Online may notify to the Client in writing from time to time during the Term). Any notice by email shall be deemed to have been delivered on the same day (if sent before 17:00) and with a valid read receipt that is successfully returned to the sender. If a return read receipt is not received by the sender, the email shall not be deemed to be received. This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
14.11 A person who is not a Party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
14.12 This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
14.13 The invalidity or unenforceability of any provision, part-provision or any right arising under this Agreement shall not affect the validity or enforceability of any other provisions or rights. If any provision or partprovision is adjudged to be invalid or unenforceable, but would be adjudged valid or enforceable if any part(s) of their wording were deleted or modified, the relevant provisions shall apply with such deletions or modifications as may be necessary to make them valid and effective.