Terms of Engagement

Agreed terms

By moving forward with your project, we will take it that you are agreeing to the terms of engagement set out below.

1. Interpretation.

1.1 Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services by the Supplier, as set out in the Fee Schedule.
Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 9 (General) (inclusive).
Contract: the contract between the Customer and the Supplier for the supply of the Services in accordance with these Conditions and any Schedules.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: means you, the user of the Services.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.
Data Protection Laws: means the Data Protection Act 2018 or any applicable statutory or regulatory provisions in force from time to time relating to the protection and transfer of personal data.
Deliverables: all documents, products and materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (but shall not include drafts).
Fee Schedule: the fee schedule prepared by the Supplier and given to the Customer with the Proposal.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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.
Proposal: the proposal of works to be completed by the Supplier for the benefit of the Customer.
Schedules: the Fee Schedule, the Proposal and any other variations to the Services as agreed in writing.
Services: the services, including without limitation any Deliverables, to be provided by the Supplier pursuant to the Contract, as described in the Proposal.
Supplier: BOOSTBERY LIMITED, a company registered in England and Wales (company registration number 10527433) whose registered address is at 7 Carey Down, Telscombe Cliffs, Peacehaven, England, BN10 7LF.
Supplier IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.

1.2. Interpretation:

(a) Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:

(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.

(b) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Commencement and term.

2.1 The Contract shall commence on the date the Customer accepts these terms and shall continue, unless terminated earlier in accordance with clause 12, until all obligations under this Contract have been properly completed.

2.2 Where Services are provided on a monthly, retainer, hosting, maintenance, support or ongoing basis, either party may terminate those Services by giving not less than 60 days’ written notice, unless a different notice period has been agreed in writing.

2.3 For monthly billed Services, notice shall take effect from the end of the calendar month in which the notice is received. The following full calendar month shall then be treated as the final month of Services and will be invoiced in the usual way. The Customer shall remain liable for all Charges due during the notice period, including the final month of Services.

3. Supply of Services.

3.1 The Supplier shall supply the Services to the Customer from the date of this Contract.

3.2 In supplying the Services, the Supplier shall:

(a) perform the Services with reasonable care and skill;

(b) use reasonable endeavours to perform the Services in accordance with the service description set out in the Proposal;

(c) ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;

(d) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Supplier may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract; and

(e) appoint free-lancers, agents or third parties to assist in the performance of the Services in its absolute discretion.

3.3 Once the Services have been performed in the reasonable opinion of the Supplier, meaning that the website build is complete and ready for content to be applied before entering the final stages of testing and go-live, the Supplier shall notify the Customer and render any final charges under clause 9 of this Contract. Final payment will be due upon this notification, and any delays in content provision by the Customer will not affect the payment timeline.

3.4 Until the Customer has made payment of the Supplier’s charges in full, the Supplier shall retain ownership of the key logins and user information for all domain / hosting / content management details.

3.5 If the Customer requests changes, alterations or additions to the Services Deliverables and/or after the final design or a section of works has been approved by the Customer or deemed to have been approved by the Customer, additional charges will be incurred unless otherwise provided for in the description of services.

3.6 The Customer may commission additional services beyond the scope of the service description set out in the Proposal which may include registering domain names, analysing Customer needs and current business obstacles, identifying projects, scoping potential business solutions and improving sales by way of brand campaigns, social, paid search, search-engine-optimisation, video, and similar services. Additional services do not form part of the Services and shall be recorded by the parties in writing.

4. Supplier’s warranties.

4.1 The Supplier warrants and confirms that:

(a) it owns the rights given under the Contract or have secured such rights to any third-party content incorporated into any final design;

(b) the work does not violate the patent, copyright or other property rights of any person, company or entity;

5 Customer’s obligations.

5.1 The Customer shall:

(a) co-operate with the Supplier in all matters relating to the Services;

(b) The Customer shall provide feedback on the Services within 20 working days of Deliverables being received unless otherwise agreed in writing. If feedback is not received within this period, the Customer is deemed to agree and approve the Deliverables, and the Supplier is permitted to move onto other sections of works and/or finalise the Deliverables. If this feedback is not received within the stated period, the Supplier reserves the right to invoice the remaining balance earlier than initially agreed to avoid project delays.

(c) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by the Supplier;

(d) provide, in a timely manner, such information as the Supplier may require, and ensure that it is accurate and complete in all material respects; and

(e) for the purposes of registering a domain name provide accurate and up-to-date data and, when asked to do so by the Supplier, verify the details and data given.

5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall:

(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;

(b) be entitled to payment of the Charges despite any such prevention or delay; and

(c) be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.

6. Customer’s warranties.

6.1 The Customer warrants and confirms that:

(a) by signing this Contract, it agrees to the timelines, specifications and payment terms outlined herein;

(b) the proposal of Services includes all works to be commissioned, explains the timelines and requirements of each party during the process, as well and payment terms of upfront design, consulting, copywriting and any other services required to deliver the Services;

(c) it has the rights to use any material given to the Supplier and that by using that material there will be no breach or violation of patent, copyright, trade secret or other property rights of any person, company or entity;

(d) it agrees that until the Suppliers charges are paid in full it will retain the key logins and user information for all domain / hosting / content management details, and that a list of this information will only be available to the Customer on receipt of final payment.

7. Data Protection.

The parties and any third parties engaged by the Supplier to perform Services shall comply with all Data Protection Laws and any information provided is solely for the purpose of providing the Services.

8. Intellectual Property.

8.1 Nothing in this Contract affects either party’s rights in and to any Intellectual Property Rights that existed prior to the date of this agreement (including pre-existing Intellectual Property Rights of either party).

8.2 Subject to the Customer having paid the Supplier in accordance with clause 9, the Customer shall own and retain all rights, title and interest in and to the Deliverables.

8.3 The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials. The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.

8.4 The Customer acknowledges that the Supplier shall own and retain all rights, title and interest in draft documents, draft products and draft materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form including without limitation computer programs, data, reports and specifications.

9. Charges and Payment.

9.1 In consideration for the provision of the Services, the Customer shall pay the Supplier the Charges in accordance with this clause 9.

9.2 The Charges provided for in the allow for a maximum of three sets of Customer amendments after which additional charges may be incurred.

9.3 The Supplier reserves the right to submit invoices for the Charges earlier than as set out in the Fee Schedule if feedback is not provided in accordance with clause 5.1(b).

9.4 The final invoice shall be issued upon completion of the website build and readiness for content insertion, before the final testing and go-live phases. The payment is due upon receipt of the invoice, and any content delays from the Customer will not impact the payment schedule.

9.5 All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.

9.6 The Supplier shall submit invoices for the Charges plus VAT if applicable to the Customer at the intervals specified in the Fee Schedule or where appropriate at the start of every month. Each invoice shall include all reasonable supporting information required by the Customer.

9.7 Where monthly billed Services are terminated in accordance with clause 2.1, the Supplier shall be entitled to invoice for all Charges falling due during the notice period, including the full final calendar month of Services. The Customer shall not be entitled to cancel, reduce, set off or withhold payment for Services during the notice period on the basis that notice has been given.

9.8 The Customer shall pay each invoice due and submitted to it by the Supplier, within 14 days of issue, to a bank account nominated in writing by the Supplier. If payment is not received within 14 days of issue, a reminder will be sent. If payment is not received within 14 days of the reminder, the Supplier reserves the right to take further action without further reminder to the Customer.

9.9 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 12 (Termination):

(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

(b) the Supplier may suspend all Services until payment has been made in full.

9.10 All amounts due under the Contract from the Customer to the Supplier shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10. Limitation of Liability.

10.1 References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

10.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

10.3 Nothing in this clause 10 shall limit the Customer’s payment obligations under the Contract.

10.4 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation; and

10.5 Subject to clause 2 (No limitation in respect of deliberate default), clause 10.3 (No limitation on customer’s payment obligations) and clause 10.4 (Liabilities which cannot legally be limited), the Supplier’s total liability to the Customer:

(i) for loss arising from the Supplier’s failure to comply with its data processing obligations under clause 7 (Data protection) shall not exceed the price paid for the Services; and

(ii) for all other loss or damage shall not exceed the price paid for the Services.

10.6 Subject to clause 2 (No limitation in respect of deliberate default), clause 10.3 (No limitation on customer’s payment obligations) and clause 10.4 (Liabilities which cannot legally be limited), this clause 10.6 sets out the types of loss that are wholly excluded:

(a) loss of profits;

(b) loss of sales or business;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; and

(g) indirect or consequential loss.

10.7 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

11. Indemnity.

11.1 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable and professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with:

(a) any breach of the warranties made by the Customer,;

(b) any Customer’s breach or negligent performance or non-performance of this Contract;

(d) any claim made against the Supplier by a third party arising out of or in connection with the provision of the Services to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Contract by the Customer.

12. Termination.

12.1 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

12.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

12.3 On termination of the Contract for whatever reason:

(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice in respect of inter alia its time and expertise provided to date, which shall be payable immediately on receipt;

(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and

(c) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

13. Website Hosting & Maintenance Fees.

13.1 Hosting Service Terms:

(a) The Supplier provides website hosting services that commence once the website is hosted on the development site, as this constitutes a live environment.

(b) Hosting fees are determined by the size of the website and are charged on a monthly subscription basis, payable one month in advance. These fees must be paid in advance to prevent service interruptions.

(c) The first hosting invoice will be issued alongside the Final Project invoice and includes an initial 12-month commitment. A 30-day cancellation notice is required after the initial term.

14. General.

14.1 Force majeure.

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

14.2 Assignment and other dealings.

(a) The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Supplier’s prior written consent.

(b) The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

14.3 Confidentiality.

(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 3.

(b) Each party may disclose the other party’s confidential information:

(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 3; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.

14.4 Entire agreement.

(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

14.5 Variation.

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14.6 Waiver.

(a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

(b) A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

14.7 Severance.

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 13.7 shall not affect the validity and enforceability of the rest of the Contract.

14.8 Notices.

(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by email to the address recorded in this Contract.

(b) Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c) This clause 8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

14.9 Third party rights.

Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

14.10 Governing law.

The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.

14.11 Jurisdiction.

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Agreed terms

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