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TERMS OF BUSINESS set out below create the foundations of a trading relationship between the Boomerang Group Ltd, a UK Limited company (herein after referred to as “Boomerang”) and the purchaser (herein after referred to as the “Customer”) (The Parties)
Interpretation
As Set Out Below:
In consideration of the mutual covenants herein, the following shall apply during the term of the business relationship.
1.1 “Customer” means an end user or company, which is utilising the services provided by Boomerang or it’s agents, which have been solely authorised by Boomerang on its behalf. Any person representing the customer and who provides instructions to Boomerang Group Ltd to commence any project will be considered to be properly authorised by the Customer to do so and shall be binding and enforceable toward the Customer.
1.2 “Intellectual Property Rights” means any and all patents, patent applications, know-how, trade marks, trade mark applications, trade names, registered designs, copyright, database rights or other similar intellectual property rights (for example: Boomerang Copyrighted Code) created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future;
1.3 “Services” means any products, ministrations or consultations to be provided by Boomerang to the Customer as detailed in these terms and as amended from time to time;
1.4 “Payment(s)” means the fee(s) to be paid by the Customer to Boomerang as detailed in this Agreement as amended from time to time.
Services
2.1 Due to the nature of the services to be undertaken by Boomerang, the parties accept that it may be necessary to agree, modify or adapt the Service(s). Any additional works required may not necessarily be included in the payment(s) as detailed in any specification provided by Boomerang. Furthermore, any material changes or additions to the terms will be provided in writing by Boomerang to the Customer.
2.2 Without giving the Customer prior notice, Boomerang may at anytime be required to make changes to the Service(s) of which are deemed necessary in order to comply with any applicable statutory or other regulatory requirements. Any changes to the Service(s) will not materially affect the nature or quality of the Service(s) that are/is provided.
Project Specification(s)/Quotation(s) & Pricing
3.1 All project specifications; quotations and pricing issued by Boomerang to the customer, will be supplied on a fixed price basis and will include pre-project consultation.
3.2.1 Upon commencement of any project, up to a maximum of 8 hours consultation will be included in the contract price (travelling time to and from the place of consultation, if or when applicable, will be included within the allotted 8 hours). Further consultation will be invoiced at a set rate of £95.oo per hour (including travelling time). Furthermore, any work that is required to be carried out due to client additions, omissions and alterations (otherwise known as ‘feature creep’) which are outside of or in addition to the project specification(s)/quotation(s) & pricing, will be invoiced at a set rate of £95.oo per hour. If the customer wishes to be informed of additional costs they must inform Boomerang in writing at the time of issuing instructions for the project to commence.
3.2.2 Prices quoted to customers within the UK are subject to vat at 17.5%. Customers outside the UK and within the EU must supply a valid company vat number from their country of origin in order for their vat invoices to be zero-rated.
Payment
4.1.1 Payment(s) to Boomerang will be required in UK Pounds Sterling.
Payments are usually required prior to commencement and continuance of Boomerang’s service(s) to the Customer. In most cases, a minimum deposit equating to 50% of the total project value will be required in advance, with the balance being paid in total upon completion of the specific project or service(s) rendered and within 7 days. Payment structure(s) are dependant on the nature of the service(s) offered. Payment instalments can only be arranged and agreed by Boomerang. The Customer recognises that in the event of such arrangement Boomerang shall be entitled to charge a premium for this service.
Customers paying by standing order OR
Electronic transfer payments will be made to: Boomerang Group Limited
Barclays Bank
Wolverhampton Branch
P.O. Box 5 Queen Square
Wolverhampton
West Midlands
United Kingdom WV1 1DS
Account Number: 40201847 IBAN: GB14 BARC 2097 7840 2018 47
Sort Code: 20 – 97 – 78 SWIFTBIC: BARCGB22
Search Engine Management and Optimisation Service Levels
5.1 Boomerang will take all reasonable steps to comply with any specific timetable or other targets for progress or delivery of the whole or any agreed part of this Service, which have been agreed in writing between the parties.
5.1.1 Boomerang also will undertake all reasonable steps to achieve the above providing that the Customer has complied with all requests made by Boomerang to assist it in the effective provisions of the provided Service(s).
5.1.2 Boomerang will also provide the Customer with the necessary security name and password details to allow the Customer access to Page and Keyword/phrase reports.
5.1.3 Any agreement relating to this service shall commence from the date of the Customer’s signature that is published on the last page of the search engine optimisation agreement. The services shall be provided by Boomerang for a minimum period of twelve months from that date. The twelve months services that are provided by Boomerang exclude any further expense relating to the sponsored listings other than the initial tab, which is provided and stated within the specified Boomerang Search Engine Package, chosen by the Customer. If so required, the Customer will have the option to further engage its awareness relating to the sponsored listings. The related tariffs can only be made available to the Customer by Boomerang as, when and if such expiry of the sponsored listings occurs.
Duration and Termination
6.1.1 Any agreement made between Boomerang and the Customer shall terminate if either party goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
6.1.2 Boomerang cannot be held responsible for suspension of Service(s) if:
6.1.3 The Customer is in default of any agreed payments and fails to remedy that default within 14 days of receiving a written demand from Boomerang. Boomerang will then be entitled to seek recompense for the full remaining amount in a court of law.
6.1.4 The Customer fails to accord Boomerang reasonable access to premises, equipment, personnel or other information required in order for Boomerang to complete the Service(s).
6.2 Boomerang is entitled to charge interest to the Customer on any outstanding amounts at the rate of 8% above the Barclays Bank base-lending rate under the Late Payment of Commercial Debts (Interest) Act 1998. Such interest will begin to accrue from 30 days after the date agreed for payment and will continue to accrue until judgement or sooner payment.
6.3 In the event that the Customer defaults on payment(s), postpones or terminates an agreement before the completion of the Service(s) and/or whereupon the Customer is paying Boomerang under an instalment payment arrangement, Boomerang shall be entitled to full payment that would have been due or to any outstanding instalment payment(s) that would have been due by the Customer for the remaining period of the term.
6.4 If a postponed Service(s) is returned to without substantial alteration within the period of one year from the date of postponement or termination, any fees paid or due in accordance with paragraph 5.4 shall rank as payment on account towards the completion of work. Where a service has been postponed or terminated for a period exceeding one year and then resumed, any fees paid shall be regarded as final payment for the service(s) originally rendered. The resumed commission shall be deemed to constitute a separate agreement for which fees shall be renegotiated.
Customer’s Obligations
7.1 The Customer shall at its own expense, provide Boomerang with all documents or materials and data or other information necessary for the completion of the Service(s) and in sufficient time to enable Boomerang to provide the Service(s) in accordance with any timetable or other target for progress or completion agreed in writing between the parties.
7.2 The Customer shall, at its own expense, retain duplicate copies of all documents or other material and data or other information provided to Boomerang and shall insure against its accidental loss or damage. Boomerang shall have no liability for any such loss or damage, howsoever caused.
7.3 The Customer shall ensure that Boomerang is accorded sufficient access to any of the Customer’s premises, information, data or personnel and use of any equipment that is reasonably necessary for the completion of the Service(s). Where Boomerang requires access to any third party premises, information, data and personnel, the Customer will make all reasonable efforts to arrange this for Boomerang.
Boomerang’s Obligations
7.1 Boomerang will take all reasonable steps to ensure that the Service(s) are completed in accordance with any timetable or other targets or any Schedule as amended from time to time subject to the contents of paragraph 6 and subsections.
Conflicts of Interest
8.1 The Customer understands and accepts that Boomerang is entitled to seek, apply for, accept and perform contracts to supply goods and services to third parties. However, in situations where the customer is reselling Boomerang products or services, Boomerang shall not accept contracts from known clients of the customer for the duration of the trading relationship between Boomerang and the Customer. The trading relationship can be terminated either by the customer or by Boomerang, the customer or both ceasing to trade.
Warranties
9.1 Boomerang warrants to the Customer that the Service(s) will be provided using reasonable care and skill and, as far as is reasonably possible, and in accordance with any timetables or other targets agreed.
9.2 Where, in connection with the provision of Service(s), Boomerang supplies any goods supplied by a third party, Boomerang does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to Boomerang.
9.3 For the avoidance of doubt, Boomerang does not give any warranties (whether implied or otherwise) that the Service(s) will increase the level of interest in the Customer’s web site by any minimum amount nor that using the Service(s) will materially increase the Customer’s business.
Limitations of Liability
10.1 The Service(s) have been negotiated and agreed by Boomerang with the Customer in the context of information provided by the Customer as to the Customer’s particular needs and requirements. The Service(s) have been prepared and cost scheduled accordingly. Therefore:
10.2 Boomerang shall have no liability to the Customer for any delay, loss, damage, costs, expenses or other claims for compensation arising from any information or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Customer;
10.3 Boomerang shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from the Customer making use of the Service(s) for any purposes not clearly disclosed to Boomerang or from the Customer allowing a third party to make use of the Service(s);
10.4 Except in respect of death or personal injury caused by Boomerang’s negligence, or as expressly agreed in writing between the parties, Boomerang shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of this document, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Boomerang, its servants, agents or otherwise) which arises out of or in connection with the provisions of the Service(s) or its use by the Customer.
10.5 Except in respect of death or personal injury caused by Boomerang’s negligence, or as expressly agreed in writing between the parties, the entire liability of Boomerang under or in connection with the Service(s) provided shall not exceed the amount of Boomerang’s charges for the provision of the Service(s) in the previous six months.
Intellectual Properties
Unless otherwise agreed in writing between the Customer and Boomerang:
11.1 The Customer shall retain the ownership of all Intellectual Property Rights of whatever nature, whether registered or not, in the documents or other materials and data or other information provided to Boomerang. For the avoidance of doubt, the Customer shall not be deemed to have granted Boomerang any licence to use the documents or other material and data or other information other than for the purpose relating to the customer’s project(s).
11.2 Boomerang shall retain ownership of all Intellectual Properties of whatever nature, whether registered or not, in all documents or other material and data or other information and devices or processes used or provided by Boomerang or created by Boomerang in the provision of the Service(s) save that Boomerang shall be deemed to have granted the Customer a non-exclusive and non-assignable licence to make use of any such documents or other material or data or other information and devices or processes in the context of the Service(s)
11.3 Where appropriate, Boomerang shall be deemed to have asserted its moral rights over any documents or other material provided or created by Boomerang in the provision of the Service(s)
11.4 The Customer warrants to Boomerang that no documents or other material and data or other information and devices or processes will be provided by the Customer to Boomerang for use in the provision of the Service(s) which infringe any third party Intellectual Property Rights.
11.5 In the event that a claim for the infringement of third party Intellectual Property Rights is made or intimated against Boomerang in relation to documents or other material, data and other information or devices and processes provided to Boomerang by the Customer for use in the provision of the Service(s) or which the Customer dictated should be used by Boomerang in the provision of the Service(s), the Customer shall indemnify Boomerang against any and all costs, expenses, damages or other losses suffered or payments made by Boomerang in connection with the claim and any associated judgement or settlement.
Confidentiality
12.1 Both parties will take all reasonable steps to ensure that any documents or other materials and data or other information, which are supplied to the other party in the provision of the Service(s) and are clearly marked as confidential or are of a confidential nature, shall remain confidential to the parties. The parties will only make such information available to those personnel that have a reasonable need to know of it and the documents or other materials and data or other information or copies thereof will not be made available to any third parties. Either party is entitled to demand the return of all copies of any such documents or other materials and data or other information within 14 days by giving the other party written notice.
12.2 In particular, the Customer shall not reveal any password(s) and other information that has been provided to the Customer by Boomerang (including and relating to clause 5.1.2) to any third party nor allows any third party use of or access to such information without the prior permission of Boomerang.
12.3 This obligation of confidentiality will remain in force for two years beyond the cessation or other termination of the business relationship.
12.4 This clause shall not apply to any documents or other materials and data or other information which are already in the public domain at the time when they are provided by either party, and shall cease to apply where either party is required by law to make a disclosure or if at anytime the information becomes public knowledge through no fault of the other party.
12.5 Both parties undertake that any information, which is received from the other party in the provision of the Service(s), will only be used for the mutual purpose relating to Customer and Boomerang.
General
Boomerang shall not be liable to the Customer or be deemed to be in breach by reason of any delay in performing, or any failure to perform, any of Boomerang’s obligations in relation to the Service(s), if delay or failure was due to any cause beyond Boomerang’s reasonable control.
These terms of Business are governed and construed according to the laws of England and Wales and the parties submit to the non-exclusive jurisdiction of the English Courts.
