(1) BOOSTX GLOBAL LIMITED incorporated and registered in England and Wales with company number 10100526 whose registered office is at 5 Gleneagles Road, Alwoodley, Leeds, West Yorkshire, United Kingdom, LS17 7TA (BoostX).
(2) Customer wishes to obtain certain marketing services for its business and has engaged with BoostX to provide such services on the terms of this Agreement.
The following definitions and rules of interpretation apply in this agreement.
Deliverables: all Documents, products and materials developed by BoostX or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.
Pre-existing Materials: all Documents, information and materials provided by BoostX relating to the Services which existed prior to the commencement of this agreement, including computer programs, data, reports and specifications.
Services: the services to be provided by BoostX under this agreement as set out in Clause 3 and customer order form signed by the customer at the time of sale.
1.2 The headings and index in this Agreement are for convenience only and shall not affect its interpretation.
1.3 References in this Agreement to Clauses, Sub-clauses or Schedules are references to Clauses, Sub-clauses or Schedules to this Agreement.
1.4 In the event of any inconsistency between the terms and conditions set out in this Agreement and any Schedule to this Agreement, the former shall prevail.
1.5 Words importing the singular shall include the plural and vice versa and Words importing gender shall include all genders.
2. Commencement and duration
2.1 BoostX shall provide the Services to the Customer from the date specified on the purchase order signed by the customer, for a period of initial contract term specified on the order form. And after that, shall continue to provide the Services unless this agreement is terminated by one of the parties giving to the other not less than 2 months’ notice, such notice not to expire before the end of the Initial Term, unless this agreement is terminated in accordance with clause 12.
3.1 The Services shall be agreed in the following manner:
(a) the Customer and BoostX will jointly agree a document setting out the requirements and specifications of the Services which BoostX will provide to the Customer, including a description of what work is to be done, dates (if any) by which it is requested to be started and finished and such other information as may be necessary to clearly define the scope of Services; and
(b) the parties shall, within 14 days or such other time as mutually agreed between the parties in writing after entering into this agreement, draft a document setting out the scope of Services agreed in accordance with Clause 3.1(a) above.
4. BoostX’s obligations
4.1 BoostX shall provide the Services in accordance with services stated on the customer order form in all material respects.
4.2 BoostX shall meet any performance dates specified in customer order form, but any such dates shall be estimates only and time for performance by BoostX shall not be of the essence of this agreement.
5. Customer’s obligations
5.1 The Customer shall:
(a) co-operate with BoostX in all matters relating to the Services;
(b) provide, in a timely manner any information as BoostX may reasonably require to provide the Services, and ensure that it is accurate in all material respects; and
(c) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services.
5.2 If BoostX’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, BoostX shall 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.
5.3 The Customer shall not, without the prior written consent of BoostX, at any time from the date of this agreement to the expiry of 12 months after the termination of this agreement, solicit or entice away from BoostX or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of BoostX in the provision of the Services.
6. Change control
6.1 If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
6.2 If either party requests a change to the scope or execution of the Services, BoostX shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any necessary variations to BoostX’s charges arising from the change;
(c) the likely effect of the change on the Services; and
(d) any other impact of the change on this agreement.
6.3 If the Customer wishes BoostX to proceed with the change, BoostX has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services and any other relevant terms of this agreement to take account of the change and this agreement has been varied in accordance with clause 15.
6.4 Notwithstanding clause 6.3, BoostX may, change the Services in order to comply with any applicable laws, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If BoostX requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
7. Charges and payment
7.1 In consideration of the provision of the Services by BoostX, the Customer shall pay the charges as set out in the order form signed by the customer at the point of sale and notified in writing then after in relation to services provided.
7.2 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the customer order form, as amended from time to time in accordance with clause 7.4. The Customer shall pay the total price to BoostX (without deduction or set-off) in such manner as set out in the customer order form.
7.3 The fixed price set out in the order form excludes the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom BoostX engages in connection with the Services. Such expenses, materials and third party services shall be invoiced by BoostX and payable by the Customer at cost.
7.4 The parties agree that BoostX may review and increase the charges set out in the customer order form, provided that such charges cannot be increased more than once in any 6 months period unless there is change in the scope of service provided to the client and cost increase has been directly agreed with the customer. BoostX shall give the Customer written notice of any such increase 1 month before the proposed date of that increase. If such increase is not acceptable to the Customer, it may, within 1 month of such notice being received or deemed to have been received in accordance with clause 22, terminate the agreement by giving 2 months written notice to BoostX.
7.5 The Customer shall pay each invoice submitted to it by BoostX, in full and in cleared funds, within 14 days of receipt, to a bank account nominated in writing by BoostX.
7.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay BoostX on the due date:
(a) the Customer shall pay interest on the overdue amount at the rate of 5% per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
(b) BoostX may suspend all Services until payment has been made in full.
7.7 All sums payable to BoostX under this agreement shall become due immediately on its termination.
7.8 All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding.
8. Intellectual property rights
8.1 As between the Customer and BoostX, all Intellectual Property Rights in the Deliverables and the Pre-existing Materials shall be owned by BoostX. Subject to clause 8.2, BoostX licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services. If this agreement is terminated for any reason, this licence will automatically terminate.
8.2 The Customer acknowledges that, where BoostX does not own any of the Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on BoostX obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle BoostX to license such rights to the Customer.
9.1 Each party undertakes that it shall not at any time during this agreement, and for a period of two years after termination of this agreement, disclose to any person technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the other party, its employees, agents, consultants or subcontractors and any other confidential information concerning the disclosing party’s business or its products which the Customer may obtain, except as permitted by clause 9.2.
9.2 A party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 9; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 All materials, equipment and tools, drawings, specifications and data supplied by BoostX to the Customer (including Pre-existing Materials) shall, at all times, be and remain the exclusive property of BoostX, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to BoostX, and shall not be disposed of or used other than in accordance with BoostX’s instructions or authorisation.
10. Limitation of liability
10.1 Nothing in this agreement limits or excludes a party’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, neither party shall be liable to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information;
(g) any indirect or consequential loss.
10.3 Subject to clause 10.1 and clause 10.2, each party’s total liability to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to and amount equivalent to the total charges paid by the Customer in the 12 months preceding the date of a claim.
10.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
11. Data protection
11.1 The parties agree to comply with applicable data protection laws when handling personal data belonging to either party.
11.2 The Supplier shall:
(a) implement appropriate technical and organisational measures to protect personal data of the Customer against unauthorised or unlawful processing and accidental loss or damage; and
(b) only transfer such personal data to countries outside the European Economic Area where an adequate level of protection is ensured.
11.3 The Customer acknowledges that the Supplier will be acting as a data processor, rather than as a data controller, in respect of all such data processing activities which the Supplier carries out under this agreement.
12.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified to make such payment;
(b) the other party commits a material breach of any term of this agreement 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;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party; or
(g) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.2 For the purposes of clause 12.1(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this agreement over the term of this agreement.
13. Consequences of termination
13.1 On termination or expiry of this agreement:
(a) the Customer shall immediately pay to BoostX all of BoostX’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, BoostX may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall, return all of BoostX’s equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then BoostX may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping;
(c) the following clauses shall continue in force: clause 8 (Intellectual property rights), clause 9 (Confidentiality and BoostX’s property), clause 10 (Limitation of liability), clause 13.1, clause 22 (Notices), clause 24 (Dispute resolution) and clause 25 (Governing law and jurisdiction).
13.2 Termination or expiry of this agreement shall not affect any 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 agreement which existed at or before the date of termination or expiry.
14. Force majeure
14.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation, acts of God, flood, drought, earthquake or other natural disaster; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; any law or any action taken by a government or public authority, including (without limitation) imposing an export or import restriction, quota or prohibition; any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause); or non-performance by BoostXs or subcontractors.
14.2 Provided it has complied with clause 14.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
14.3 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
14.4 If the Force Majeure Event prevails for a continuous period of more than 2 months, either party may terminate this agreement by giving 1 months’ written notice to all the other party. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.
Subject to clause 3 and clause 6, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.1 If any provision or part-provision of this agreement 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 shall not affect the validity and enforceability of the rest of this agreement.
18. Entire agreement
18.1 This agreement 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.
18.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
18.3 Nothing in this clause shall limit or exclude any liability for fraud.
19. Assignment and other dealings
19.1 This agreement is personal to the Customer and the Customer 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 this agreement.
20. No partnership or agency
20.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
20.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21. Third party rights
No one other than a party to this agreement shall have any right to enforce any of its terms.
22.1 A notice given to a party under or in connection with this agreement:
(a) shall be in writing and in English or accompanied by an accurate translation into English;
(b) shall be sent to the party for the attention of the contact and at the address listed in clause 22.2;
(c) may be sent by a method listed in clause 22.3; and
(d) is deemed received as set out in clause 22.3 if prepared and sent in accordance with this clause.
22.2 The parties’ addresses and contacts are as set out in this table:
|BoostX||5 Gleneagles Road, Leeds, United Kingdom, LS17 7TA.|
|Customer||As specified on the customer order form|
22.3 This table sets out:
(a) delivery methods for sending a notice to a party under this agreement ; and
(b) for each delivery method, the corresponding delivery date and time when delivery of the notice is deemed to have taken place provided that all other requirements in this clause have been satisfied:
|Delivery method||Deemed delivery date and time|
|Delivery by hand.||On signature of a delivery receipt.|
|Pre-paid first class post or other next working day delivery service.||1pm on the second working day after posting.|
|Pre-paid airmail providing proof of postage.||1pm on the fifth working day after posting.|
22.4 This clause 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.
23.1 This agreement may be executed in any number of counterparts, each of which when executed [and delivered] shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
24. dispute resolution procedure
24.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, a director of each party shall attempt in good faith to resolve the Dispute;
(b) if the director of each party is for any reason unable to resolve the Dispute within 30 days of it being referred to them, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 26 in this Agreement.
25. Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date when customer order form is signed.