Climb ICP Site Terms and Conditions of Use

About the Site

Welcome to www.climbicp.com.au (the “Site”). The Site is owned and operated by Climb ICP Pty Ltd (ACN 608 766 427) (“Climb ICP”). Thank you for using Climb ICP products and services.

Climb ICP supplies climbing walls, climbing holds (‘Products’) and services in relation to holds, route setting, load testing and route setting master classes.

The Site provides you with an opportunity to browse and purchase various products and services that have been listed for supply through the Site (‘Purchase Services’).

Your access to and use of our Site including for the supply of our Purchase Services is governed by these terms and conditions (the ‘Terms‘). By using the Site, you agree that you are bound by these Terms.

These Terms may be updated by us at any time, and by continuing to use the Site, you accept the Terms as they apply from time to time. Any changes to the Terms take immediate effect from the date of their publication on our Site.

Who may use our Site

As a condition of your use of our Site you warrant that:

▪ you are a person authorised to enter into a legally binding contract if you are purchasing our Products and services;

▪ all relevant consents have been obtained to purchase and use our Products and services.

We retain the right in our sole discretion to deny anyone access to this Site or our Products and services if you do not comply with our Terms.

Acceptance of the Terms

By registering for a Member Account through our Site, you will be required to accept the Terms by clicking the “register” button in the user interface as a condition of joining as a member (‘Member’). By clicking the “register” button you agree to all the terms and conditions listed on these Terms by Climb ICP which gives notice to you through our user interface as follows:

By Registering, you agree that you’ve read and accepted our Terms and Conditions.

You must be 18 years or older to purchase Products through our Site and use our Purchase Services. You must not register for a Member Account if you are not of legal age to form a binding contract with us or if you are a person barred from receiving the Purchase Services under Australian law or any other country in which you are a resident.

As part of the registration process for a Member Account, you will be required to provide us with personal information including but not limited to:

▪ your name

▪ email and mailing address

▪ a geographical address

▪ a telephone number

▪ a preferred username and password (‘Login Details’), and

▪ and any other information indicated as required.

(‘Registration Data’)

Registration Data includes any content that you submit to Climb ICP including the personal data that you may submit to us through the course of us supplying Purchase Services to you. Climb ICP acknowledges that by you providing us with Registration Data that you are entrusting us to treat it appropriately and in accordance with any applicable privacy laws.

After registration as a Member, you may login into your Member Account with your Login Details to gain access to the Purchase Services and by placing an order for our Products (‘Order’). A contract comes into existence for the supply of the Products once acceptance of the Order is made by Climb ICP. Any Order not accepted by Climb ICP will be regarded as having been refused by Climb ICP.

You are solely responsible for the accuracy of the information that you submit in relation to each Order for the Products and our Purchase Services. You agree that we do not control, verify, or endorse that information.

You warrant that your Registration Data is accurate, correct and up to date. You must not submit any Registration Data that is false or inaccurate. If we detect suspicious or incomplete information, we reserve the right to cancel a Member Account and any Orders for our Products and Purchase Services.

If your Registration Data changes, you must promptly update your Member Account to reflect those changes. Climb ICP may undertake additional inquiries to confirm the accuracy of your Registration Data but is not obliged to verify Registration Data. It is your responsibility to ensure that your Registration Data is accurate and that you keep your Registration Data up to date.

You retain ownership of your Registration Data. You grant Climb ICP a worldwide, royalty free license to use, reproduce, modify, adapt, create derivate works, make publicly available your Registration Data for the limited purposes of providing our Services to you and only as permitted by our Privacy Policy. This license also extends to any trusted third parties we work with to the extent necessary to provide our Services to you.

You are responsible for keeping your Login Details secure. Members acknowledge that they are entirely responsible for all activities that occur under their Login Details. Climb ICP will not be liable for any loss or damage from your failure to maintain the security of your Login Details. You agree to immediately notify Climb ICP of any unauthorised use of your Login Details or any other breach of security known to you.

You acknowledge that Climb ICP will use the email you provide as the primary method for communication and agree to receive e-newsletters from Climb ICP which will always have an unsubscribe function listed at the foot of the e-newsletter.

You are responsible for maintaining, protecting and making backups of your Registration Data. To the extent permitted by applicable law, Climb ICP will not be liable for any failure to store, or for loss or corruption to your Registration Data.

Climb ICP may without notice terminate your Member Account and your access to the Purchase Services and our Products including any Registration Data in it or associated with it:

▪ at any time for a breach of these Terms in the sole discretion of Climb ICP, or

▪ if there is no account activity associated with your Member Account for over 12 months.

We may also from time to time by notice on our Site vary our catalogue of available Products, the prices for our Products and offer additional products or services.

Purchase of Products and Purchase Services In using the Purchase Services to purchase our Products and services, you agree to the payment of the purchase price listed on the Site for the Products and any of our services from time to time (the ‘Purchase Price‘).

Our fees for the Purchase Price are in Australian Dollars (AUD).

Payment of the Purchase Price may be made through the third-party payment provider listed on our Site (‘Payment Gateway Provider‘). In using the Purchase Services, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by Payment Gateway Provider. You acknowledge that the Payment Gateway Provider will be your default payment gateway and it is your sole responsibility to:

▪ keep the Payment Gateway Provider Account active, and

▪ to deactivate the Payment Gateway Provider Account if you do not wish to keep the account active.

Payment must be made in full at the time of placing an Order. We will not hold Products against your Order if payment is not made in full or if payment is declined by your bank or credit card issuer. Members are responsible for ensuring their credit card details are accurate and up to date when purchasing our Products.

When we confirm payment of the Purchase Price and accept your Order, you will be issued with a receipt to confirm that your payment has been received. You agree that Climb ICP may electronically store your Registration Data and your purchase details for future use.

You are responsible for any use, activities and the payments associated with your Order. Climb ICP reserves the right to cancel, suspend or reject an Order for the purchase of Products and services on the following grounds:

▪ the inability to authorise or process any payment including a credit card payment;

▪ where Climb ICP suspects or confirms a breach of intellectual property rights; or

▪ if any misuse of your Member Account is detected.

Climb ICP may in its sole discretion elect not to accept an Order from you. If your credit card has been charged and we have rejected your Order, we will issue a credit to your credit card account within 14 calendar days.

Postage and Shipping

You must make payment for the Products in full before we will dispatch the Products.

Postage and shipping costs are at your expense. The Purchase Price on our Site for Products is not inclusive of shipping and handling charges unless otherwise depicted.

You acknowledge that our Products integrate delivery (the ‘Delivery Services‘) through third-party delivery companies (the ‘Delivery Service Providers‘).

In supplying the Products, we may provide you with a variety of delivery and insurance options offered as part of the Delivery Services. You agree that Climb ICP is not the provider of these delivery and insurance options and merely facilitates your interaction with the Delivery Service Providers in respect to providing the Delivery Services.

In the event that your Product is lost or damaged during the Delivery Services, Climb ICP asks that you contact us by sending an email to our contact details below outlining in what way the Products were damaged in transit, so we can contact the Delivery Service Provider directly to make a claim and to determine if the Delivery Service Provider should be removed as a supplier.

The cost of any delivery and shipping will be automatically calculated for you at checkout on our Site.

Sales tax (GST) will be applied for shipping addresses based in Australia. You will be responsible for any sales tax, customs duty or any other taxes and charges levied on the supply by any government and regulatory authority in Australia or worldwide. You accept that any delivery or re-delivery fees you pay are non-refundable except where required by law. You are responsible to make all arrangements necessary to take delivery for the Products otherwise Climb ICP will be entitled to charge a reasonable fee in the event that redelivery is required. Some carriers may require a signature for delivery and you will be responsible to arrange for signature at the delivery premises and for collection of any notices for re-delivery or other collection arrangements. You will bear the liability of and cost for any additional charges to carry out re-delivery or multiple delivery attempts.

You are liable for any postage and shipping costs associated with a refund unless you are legally entitled to claim reasonable postage or transportation costs.

Title and Risk

Title to the Products shall remain with Climb ICP until you have paid the full invoice price for the Products.

The risk in the Products will pass from Climb ICP to you at the earlier of:

▪ time of payment of Climb ICP’s tax invoice in full, or

▪ time of delivery of the Products to the point of delivery in the Order.

From that time on, you assume all risk of loss and damage to the Products including without limitation all loss or damage in the course of unloading the Products following delivery.

Returns and Refund Policy

Climb ICP Products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the Product. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure.

For defective merchandise, you must contact us within 14 calendar days of delivery to report any discrepancies or faults to make a claim.

This clause does not apply to any defect in the Products arising from:

▪ Fair wear and tear

▪ Incorrect assembly or not installed or maintained in accordance with accompanying documentation

▪ Inadequate storage

▪ Inappropriate cleaning

▪ Misuse

▪ Lack of maintenance

▪ The Product has been modified in anyway

▪ Product used in a manner or purpose for which the Product was not intended

▪ Repaired or serviced by someone other than Climb ICP

▪ Damage to Products due to events out of our control including Force Majeure once the Products are delivered to you.

You are responsible for maintaining all documentation required to produce a warranty claim for the Products. In order to make a warranty claim during the warranty period, you must provide proof of purchase to Climb ICP showing the date of purchase of the Products, provide a description of the Products and the price paid for the Products by sending the Product and written notice to Climb ICP at our contact details below.

Returns will only be accepted in original condition. Products that have been modified or excessively handled will not be accepted as a return.

Where the warranty claim is accepted then Climb ICP will, at its sole discretion, either repair or replace any defective Products or part thereof with a new or remanufactured equivalent during the warranty period at no charge to you for parts or labour.

The warranty shall be the sole and exclusive warranty granted by Climb ICP and shall be the sole and exclusive remedy available to you in addition to other rights and under a law in relation to the Products to which this warranty relates.

All implied warranties including the warranties of merchantability and fitness for use are limited to the warranty period.

The warranty does not apply to any appearance of the supplied Products nor to the additional excluded items set forth below nor to any supplied Products where the exterior of which has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or which has been altered or modified in design or construction.

Save for those express warranties provided in these Terms and to the maximum extent permitted by law, Climb ICP does not give any other express warranty or representation of any kind in relation to any Products supplied under these Terms.

You agree that the Products are provided “as is” and specific results cannot be guaranteed. It is your sole responsibility to determine that the Product meets your needs or is otherwise suitable for the purposes for which it is used.

Except as required by the Australian Consumer Law, we will only facilitate a refund if our Products or services are defective or faulty or if we determine, in our discretion, that it is reasonable to do so.

Representations

All information provided by us on this Site pursuant to these Terms is provided in good faith. You accept that any information provided by us is general information only.

We derive our information from sources which we believe to be accurate and up to date as at the date of publication. We nevertheless reserve the right to update, change, modify, add or remove these Terms at any time. We do not warrant that product or services descriptions or other content on this Site is accurate, complete, reliable, current, or error-free. In addition, we do not make any representations or warranties that the information we provide is reliable, accurate or complete or that your access to the information, products or services on our Site will be uninterrupted, timely or secure. We are not liable for any loss resulting from any action taken or reliance made by you on any information or material posted by us. You should make your own inquiries and seek independent advice from relevant industry professionals before acting or relying on any information or material which is made available to you on our Site or pursuant to our information service. It shall be your own responsibility to ensure that any products or services or information offered through this Site meets your specific requirements.

Your use of the Site

You must not engage in potentially harmful acts that are directed against our Site. You must not attempt to gain unauthorised access to any portion or feature of the Site or any other systems or networks connected to the Site. You must not scan or test the Site by hacking, password mining or any other illegitimate actions attempting to violate any security features of the Site. You must not use software, scripts, robots, spiders, viruses, worms, Trojan horses or other harmful code on our Site or network. You agree not to use any device or software to interfere with the functionality of our Site. You must not scrape, robot or use spiders to copy any portion of the Site or the content contained within it.

Our Copyright and Intellectual Property

The intellectual property rights in or related to the Products and Purchase Services or any of its documentation vest in Climb ICP or Climb ICP has the right to use the intellectual property rights.

The Site and all of the related products and services of Climb ICP are subject to copyright protection. The material on the Site is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the website (including text, graphics, logos, button icons, video images, audio clips and software) (the ‘Content’) are owned or controlled by Climb ICP or its contributors. You may not, without the prior written permission of Climb ICP and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content for any purpose. Climb ICP retains all rights, title and interest in and to the Site and all related Content and our Products and Purchase Services. The Site or any part of it (including, without limitation, any content or images) must not be copied, reproduced, adapted, publicly displayed, duplicated, translated or distributed in any way (including mirroring) to any other device, server, site or other medium for publication or distribution, without our express prior written consent.

The intellectual property in our Products and Purchase Services including any trade marks, service marks, trade names and any other proprietary designations are owned, registered or licensed by us. Any other trade marks, service marks, logos, trade names and any other proprietary designations are the trade marks or property of the respective parties. Your obligations under this clause survive termination or expiry of these Terms.

General Disclaimer

To the maximum extent permitted by applicable law, we exclude all representations and warranties relating to the subject matter of this Site. This exclusion includes without limitation:

▪ the completeness, truth, suitability, quality or accuracy of the information or product and service descriptions published on our Site (including third-party material and advertisements);

▪ that the information on the Site is up to date; or

▪ any product or service or the Site will remain available.

We take responsibility for any error or omission relating to the material published on this Site. You expressly understand and agree that we, our affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability by any information on the Site and any decisions based on such information are your sole responsibility.

Limitation of Liability

You expressly understand and agree that Climb ICP, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss. You accept that we take no responsibility for any error or omission relating to the content on the Site.

▪ This exclusion of liability includes without limitation:

▪ the completeness, truth, suitability, quality or accuracy of the information or Products descriptions published on our Site (including third-party material and advertisements);

▪ that the information on the Site is up to date; or

▪ any of the Products on the Site will remain available.

You accept that we take no responsibility for any error or omission relating to the Content on the Site.

These Terms are to be read subject to any legislation that prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible we limit our liability as follows, at our option:

▪ for any claims relating to these Terms, to the Purchase Price of the Products;

▪ in the case of products including any digital products (a) the replacement of the products or the supply of equivalent products; (b) the repair of the products; (c) the payment of the cost of replacing the products or of acquiring equivalent products; or (d) the payment of having the products repaired; or

▪ in the case of services, the supply of the services again or the payment of the cost of having the services supplied again.

Climb ICP total liability arising out of or in connection with the Purchase Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms or where you have not paid the Purchase, then the total liability of Climb ICP is the resupply of information or Purchase Services to you.

Climb ICP is not responsible or liable in any manner for any content or material on the Site (including the Content and third-party) posted on the Site or in connection with the Purchase Services, whether posted or caused by Members or users of the Site or by any other third parties.

You acknowledge that Climb ICP does not provide the Delivery Services to you and you agree that Climb ICP will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Delivery Services. This clause survives the termination or expiry of these Terms for whatever reason.

Indemnity

You agree to indemnify Climb ICP, its affiliates, employees, agents, contributors, third party content providers and licensors from and against any breach by you of these Terms.

Governing Law

The Terms are governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia, without reference to conflict of law principles, notwithstanding mandatory rules.

Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed, and the rest of the Terms shall remain in force.

Waiver

The failure of Climb ICP to exercise or enforce any right or provision under these Terms shall not constitute a waiver of such right or provision.

Force Majeure

We accept no liability for any delay or failure to perform our obligations under these Terms if such a delay or failure is due to circumstances beyond our reasonable control.

Trade Marks

The trademarks used on the Site are a trade mark or registered trade mark of Climb ICP or licensed by Climb ICP (the ‘Trade Marks’). You must not use the Trade Marks: (a) in or as the whole or part of your own trademarks; (b) in connection with any business, products or services which are not ours; (c) in a manner which may be confusing, misleading or deceptive to any person; or (d) in a manner that disparages us or the Site.

Advertising and Links

The Site may contain links and other pointers to Internet websites or applications operated by third parties. We do not control these linked websites and are not responsible for the contents of any linked website. The links are provided solely for your convenience and do not indicate, expressly or impliedly, any endorsement by us of the site or the products or services provided at those sites. Your access to any such website is entirely at your own risk. You should contact the relevant third-party directly to enquire on that information prior to entering into a transaction in relation to the third-party products and services.

Our Details

This Site is owned and operated by Climb ICP Pty Ltd (ACN 608 766 427). Our principal place of business is at 4/259 Cullen Avenue East, Eagle Farm, QLD Australia.

You can contact us:

▪ by post, using the postal address given above;

▪ by email, using the email address published on our Site from time to time.

© 2020 Climb ICP. All Rights Reserved.

Terms last updated 17 June 2019