1) The terms of this agreement (the “Terms and Conditions”) will apply to and govern all contracts under which Mustard IT Limited, registered in England and Wales with company number 07037632 (“Mustard Ltd”) agrees to supply Goods and/or Services to you (the “client”), and shall prevail over any terms and conditions introduced by the client, whether referred to in the client’s order, or in correspondence and elsewhere, or implied by trade custom practice or course of dealing. Any purported provisions contrary to the terms of these Terms and Conditions are hereby excluded or extinguished. No variation of these terms and conditions shall be effective unless previously agreed in writing between the two parties. These Terms and Conditions incorporate the data processing terms of Mustard Ltd.
2) Mustard Ltd shall provide Goods and Services to the client in accordance with these Terms and Conditions and in consideration for timely payment of the charges which may fall due pursuant to these Terms and Conditions.
3) The client may enquire about Goods and Services by completing the enquiry form on Mustard Ltd’s website, emailing Mustard Ltd or by calling Mustard Ltd. When Mustard Ltd receives the client’s enquiry Mustard Ltd will respond to let the client know provisionally whether Mustard Ltd is able to provide the Goods and Services that the client requires. This is not an offer for goods or services capable of being accepted by the client and is considered by Mustard Ltd to be marketing material.
4) Based on the information that the client has provided and any survey Mustard Ltd will issue a formal quotation to the client. In order to proceed, a client must then within 10 business days submit an order in writing detailing the Goods and/or Services required and quoting the quotation number issued by Mustard Ltd (“Client Order”). By completing and submitting a Client Order, the client confirms that the client understands, accepts, and agrees to be bound by these Terms and Conditions.
5) The submission by the client of a Client Order will only amount to an offer which Mustard Ltd may accept in its sole discretion.
6) Subject to clause 7) if Mustard Ltd wishes to accept the Client Order, Mustard Ltd shall confirm acceptance in the form of Booking Form and only once Mustard Ltd has responded sending the client the Booking Form will there a binding contract between the Mustard Ltd and the client.
7) Subject to clause 34), Mustard Ltd may from time to time provide Goods or Services to a client without providing a Booking Form where Mustard Ltd has confirmed in writing, including without limitation by email, to a representative of the client that it will fulfil a Client Order and confirmed the price for such Client Order. For the purpose of these Terms and Conditions such confirmation shall be considered as a Booking Form. In such circumstances the client shall be considered to have:
– Agreed to the terms set out in Mustard Ltd’s confirmation;
– agreed to these Terms and Conditions;
– agreed to Mustard Ltd’s data processing terms
– agreed that the representative of the client is duly authorised to enter into the agreement with Mustard Ltd.
8) Security and data safeguarding: The client shall be solely responsible for ensuring that at all times all data which is, in the opinion of the client, important or critical to its operations has been backed up, and that recovery procedures sufficient to enable the restoration of that data in the event of loss or corruption are in place. This should be carried out by the client prior to Mustard Ltd starting work on its computer system or before the commencement of any other activity.
9) The client shall allow Mustard Ltd access to its premises, any equipment (including without limitation its servers, computer systems, peripherals or other hardware) data (including without limitation any back-up data) and documentation (including without limitation any original software installation materials) for the purpose of providing the Goods and/or Services. At all times the client shall co-operate with Mustard Ltd to enable Mustard Ltd or its Authorised Agents to provide Goods and/or Services.
10) The client shall take all reasonable precautions to ensure the safety and health of Mustard Ltd’s personnel and its Authorised Agents whilst at the client’s premises.
12) Hardware and software supply and warranty: where an order includes the supply of hardware or software products, such products shall be supplied by Mustard Ltd on the terms and conditions of use for such products as defined by Mustard Ltd at the time of delivery. Unless otherwise specified Mustard Ltd shall only deliver non-modifiable and executable run-time versions of software. The client and its affiliates must comply with the terms of all software licenses.
13) Mustard Ltd does not warrant that any product is free from minor errors not materially affecting performance. Such errors shall not be rectified, and Mustard Ltd shall be under no duty to rectify them, in the absence of a prior written agreement to the contrary.
14) Products are not sold on a trial basis. The return of a product shall be at the sole discretion of Mustard Ltd. Mustard Ltd will not accept the return of an opened software package unless it is faulty. By breaking the seal, the client accepts the licence between client and the manufacturer.
15) Software licences cannot be exchanged, returned or refunded.
16) Risk in any product that the client is returning to Mustard Ltd remains with the client.
17) Before returning any product or related equipment to Mustard Ltd, it is the client’s responsibility to back up, save or otherwise secure any data. Mustard Ltd accepts no liability for the loss or corruption of any data.
18) Mustard Ltd shall supply its choice of branded hardware and system software unless otherwise specified by the client and agreed by Mustard Ltd.
19) Mustard Ltd gives no warranty to the client in respect of a product or services that are purchased by Mustard Ltd from another supplier or vendor for resale to the client. It shall be the client’s sole responsibility to pursue warranty claims against the manufacturer, vendor or the other supplier. Mustard Ltd may in its discretion provide assistance in the pursuit of such claims but shall be under no obligation to do so.
20) All warrantees are provided by the manufacturer, vendor or the other supplier unless otherwise stated and are on a Return to Base basis.
21) Mustard Ltd will conduct any ‘Return to Base’ procedure at its then current hourly rates. The client accepts that software vendors may change and update their packages to correct errors or update their pricing on an ongoing basis and agrees to accept and comply with such changes.
22) Mustard Ltd will not guarantee the performance of any software which it has installed, shall have no responsibility for any errors occurring in any software provided by a third party, and shall not have any responsibility for any open-source software or software elements. While Mustard Ltd shall aim to resolve issues specified by the vendor, such services shall be chargeable at Mustard Ltd’s then current hourly rate.
23) The client acknowledges that it shall acquire no ownership of any software provided to it pursuant to agreements subject to these Terms and Conditions and that all such software shall be supplied on a licenced basis. Mustard Ltd makes no warrant that it can fix or repair all errors that may arise in client’s systems, arising in hardware, software or otherwise.
24) Maintenance of Protection: It is the client’s responsibility to ensure that the effectiveness of any software supplied by Mustard Ltd is maintained, by acquisition from the original developer of such database files, programme patches or other revisions, as may become available from time to time. Mustard Ltd may request that the client updates any critical patches required within any timeframe that it may specify, and client shall be responsible for any loss or damage which may occur as a result of its failure to comply. While Mustard Ltd will take reasonable precautions to avoid disruption to client’s business, Mustard Ltd accepts no responsibility for any errors in software developed by third parties and/or for any disruption, loss or damage that such software may cause.
25) Changes: Where changes to product specifications significantly alter the price or fitness for purpose of any products Mustard Ltd and the client shall agree upon such changes in writing or arrange for the supply of alternative products. Changes to product specifications shall not provide grounds for cancellation of an Order unless such cancellation is agreed to in writing by Mustard Ltd and the client.
26) Delivery: Unless it is agreed otherwise delivery shall be to the address as specified in the Booking Form. In circumstances where Mustard Ltd has attempted to physically deliver products but either the client is unable or unwilling to accept such delivery, the client will be charged for the cost of the failed delivery in addition to any and all subsequent attempts. If the client is unable to accept delivery, a new date shall be set by mutual agreement of the parties. If the client is unwilling to accept delivery, the parties shall seek to vary the contract as appropriate by mutual agreement or Mustard Ltd may terminate the contract immediately and the client shall unless agreed otherwise by Mustard Ltd be liable for all reasonable costs incurred by Mustard Ltd.
27) The client will not permit any changes or modifications to be made to any of its software or hardware by any party other than those changes or modifications authorised by, and notified to, Mustard Ltd in writing. If such changes or modifications are carried out without such authorisation and appropriate notification, Mustard Ltd reserves the right to review these Terms and Conditions, amend any agreement and make adjustments accordingly. The client shall create regular data backups in such a manner as to minimise any potential data loss and to ensure that these are made available to Mustard Ltd as required.
28) The client acknowledges that Mustard Ltd shall be entitled to disclose to the relevant authorities any and all data or information which it may discover that it considers to be unlawful, and that Mustard Ltd requires such rights in order to enable it to comply with UK Law.
29) Privacy: The client shall be solely responsible for compliance with all applicable civil liberties and data protection legislation when using software supplied by Mustard Ltd. Mustard Ltd makes no warranty that any such software shall guarantee any form of compliance, nor that the client’s use of such software shall be compliant with such statutes. Further, the client shall be solely responsible for its compliance with any privacy, data protection or confidentiality obligations which it may have taken on as part of any contract or agreement entered into with third parties.
30) Mustard Ltd records all calls made to it in accordance with Data Protection Laws. By agreeing to these Terms and Conditions the client confirms it has obtained the necessary authorisation from its staff and any other third party whose Protected Data may be processed by Mustard Ltd.
31) The parties agree that the client is a Controller and that Mustard Ltd is a Processor for the purposes of processing any Protected Data pursuant to these Terms and Conditions. The client shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The client shall ensure all instructions given by it to Mustard Ltd in respect of Protected Data (including without limitation these Terms and Conditions) shall at all times be in accordance with Data Protection Laws. Mustard Ltd shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of these Terms and Conditions.
32) The client shall indemnify and keep indemnified Mustard Ltd against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the client of its obligations in respect of Data Protection Laws.
33) At the end of the provision of the Services relating to the processing of Protected Data, at the client’s cost and the client’s option, Mustard Ltd shall either return all of the Protected Data to the client or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law permits Mustard Ltd to store such Protected Data. This clause 33) shall survive termination or expiry of these Terms and Conditions.
34) Payment: Subject to clause 35) the price for the Services and any relevant Goods shall be as agreed in the Booking Form. Payment of all such charges shall be due on the dates specified in the Booking Form. Unless otherwise specifically stated prices charged on any quotation shall be exclusive of VAT and delivery. Payment for Goods shall become due on the date of delivery of those Goods or completion of works, unless credit facilities have been approved in writing or other arrangements have been specified in the Booking Form. Time shall be of the essence in respect of the client’s obligation in respect of Mustard Ltd’s payment terms. In the event of late payment, interest will accrue at the base rate of Barclays Bank plc plus two per cent. We reserve the right to suspend all services on customer accounts that are overdue for payment. The time of payment shall be of the essence of these Terms and Conditions.
35) Mustard Ltd may set and vary credit limits and payment terms from time to time and has the right to withhold all supplies of Goods and Services without liability to the client if the client exceeds such credit limit or payment terms.
36) If performance of the contract is suspended at the request of or delayed through default of the client including (without limitation), but without prejudice to the generality of the foregoing, incomplete or incorrect instructions, or refusal to accept delivery of the Goods or Services for a period of 14 days, Mustard Ltd shall be entitled to payment at the then prevailing rates for the Services already performed, Goods supplied or ordered and any other additional costs thereby incurred and the client shall pay such sums upon receipt of invoice, or according to agreed credit terms.
37) Out of hours service: The client agrees that, unless otherwise specified in the Booking Form, where a fee is agreed for the provision of Services outside of UK office hours (09:00 – 17:00), that fee is provided in consideration of Mustard Ltd providing available staff to service out of hours requests. The client agrees that it shall pay for any staff time actually incurred providing out of hours service at Mustard Ltd’s then current hourly rates.
38) Further charges: Where any services are provided by Mustard Ltd that do not fall within the scope of the Services, the client agrees that Mustard Ltd shall be entitled to charge the client for any and all staff time incurred in the provision of such services at its then current hourly rates. Invoices for such time shall be raised monthly in arrears and, unless otherwise specified by Mustard Ltd, shall be due for payment within thirty days.
39) Changes: If the client wishes to vary any details of the specification of Goods or Services it must notify Mustard Ltd in writing as soon as is reasonably possible. Mustard Ltd shall use all reasonable endeavours to make any required changes and any additional costs thereby incurred shall be separately invoiced to the client. If, due to circumstances beyond the client’s control, Mustard Ltd has to make any change in the arrangements relating to the provision of the Goods and/or Services it shall notify the client forthwith. Mustard Ltd shall endeavour to keep such changes to a minimum and shall seek to offer the client arrangements as close to the original arrangements as is reasonably possible in the circumstances.
40) Delivery: Mustard Ltd shall use its reasonable endeavours to comply with any day or dates for despatch or delivery of Goods and for the supply of Services. Unless agreed otherwise in the Booking Form, such dates shall constitute only statements of expectation and shall not be binding. If Mustard Ltd, having used its reasonable endeavours fails to despatch or deliver the Goods, or to supply or complete the Services by such date or dates whether or not binding, such failure shall not constitute a breach of contract. The client shall not be entitled to treat the contract as thereby repudiated or to rescind it or any ancillary contract in whole or in part or claim compensation for such failure or for any consequential loss or damage resulting therefrom. Save for obligations relating to payment by the client, time shall not be of the essence of agreements made pursuant to these Terms and Conditions and the dates for delivery of Goods or execution of activities mentioned in any quotation or acknowledgement of orders shall be approximations only. Delivery may be made in whole, or in part, at the discretion of Mustard Ltd, and, where Goods are delivered by instalments shall be invoiced separately and seen as separate contracts. If, in the case of the contract or any order involving more than one delivery, default is made in payment on the due date, Mustard Ltd shall have the right to suspend any further deliveries or activities pending payment, or to terminate the contract in its entirety. Delivery charges will be levied for all deliveries and is door to door only. Any further requirements will be met by Mustard Ltd engineering staff at our then current rates.
41) Provision of Services: The client agrees that Mustard Ltd may, from time to time, appoint Authorised Agents to perform some or all of its obligations under the terms of agreements concluded pursuant to these Terms and Conditions. The client agrees to the Services being provided by Authorised Agents in this fashion and agrees to extend all such cooperation and assistance to such Authorised Agents as is reasonably necessary to enable those parties to provide the Services in such fashion, as well as to comply with any instructions issued by such Authorised Agents as if such instructions originated directly from Mustard Ltd. Mustard Ltd may sub-contract to third parties all or any part of the Services to be carried out. The client shall not assign to a third party any or all of its rights or obligations without the prior written consent of Mustard Ltd.
42) Intellectual Property: All intellectual property rights (including without limitation, copyright), inherent in all material originated and/or provided by Mustard Ltd to the client, either in the form of pre-contract documentation, site documentation or as text, images, research papers or electronically stored code for the manipulation, transmission and presentation of information, shall remain the property of Mustard Ltd. Mustard Ltd reserves the right to, by way of separate negotiation and upon payment in full, transfer, assign or licence copyright (or any other intellectual property) to the client.
43) Title to Goods: No title in Goods shall pass to the client until payment in full of all sums owing or due to Mustard Ltd, whether under contract or otherwise. Until such payment is rendered the client shall store the goods in such a way as to clearly indicate that they are the property of Mustard Ltd.
44) Risk: Without prejudice to clause 43), risk and title in Goods shall pass upon delivery of Goods to the client’s premises. Where material is transmitted electronically, risk will be deemed to have passed to the client, upon the moment of transmission – not of receipt.
45) Term: Unless otherwise specified in the Booking Form and subject to clause 47) the agreement between Mustard Ltd and the client shall commence on the date the Services commence (or Goods are to be supplied) unless specified otherwise in the Booking Form and run for a period of 12 months (the “Initial Term”) thereafter the agreement shall be automatically renewed for a further period of 12 months (each such term a “Renewal Period”) at the end of the Initial Period and at the end of each Renewal Period until terminated pursuant to the terms of these Terms and Conditions.
46) Termination: Unless otherwise specified in the Booking Form either party may terminate the agreement governed by these Terms and Conditions by providing the other with written notice no less than three months prior to the end of the Initial Term or the then current Renewal Term; such notice shall cause the relevant agreement to terminate at the end of the Initial Period or the then current Renewal Period. 47) Further to the terms of clause 46) either party may terminate the agreement made pursuant to these Terms and Conditions immediately on the basis that the other (a) is in material or persistent breach of any of its obligations under these Terms and Conditions and has failed to remedy such breach within 30 days of receiving written notice from the affected party requiring it to do so, (b) if the other party is unable to pay its debts as they fall due (within the meaning of section 123 of the Insolvency Act 1986), becomes insolvent, is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, or similar officer appointed over all or any substantial part of its assets, or enters into any composition or arrangements with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction. In the event of termination under clause
47) Mustard Ltd shall retain any sums already paid to it by the client without prejudice to any other rights that either party may have whether at law or otherwise and the client shall immediately pay to Mustard Ltd all sums due to it.
48) Indemnity: The client will indemnify and hold harmless Mustard Ltd, its Authorised Agents, staff, contractors and agents for any loss or damage suffered or incurred as a result of any failure by the client to obtain any necessary license or consent to enter any premises, or suffered as a result of any relevant premises being unsafe or unsuitable, or any damage to any equipment of Mustard Ltd caused by the client or its systems, or any failure of the client to comply with any conditions imposed by any other party (including without limitation for the avoidance of doubt any breach by the client of any third party’s intellectual property).
49) Liability: to the maximum extent permitted by law neither Mustard Ltd, nor any of it’s Authorised Agents, shall under any circumstances be liable for any breach by it of any of these Terms and Conditions or breach by it of any implied warranty, condition or other term of the agreement, or any negligent or innocent misrepresentation, or any negligence or other duty at common law for any indirect or consequential loss, damage, expense or injury of any kind. Nor shall Mustard Ltd be responsible for any loss or damage arising from loss of profits, loss of savings, loss of business opportunity, loss or corruption of data, interruption to business, loss of revenue, loss of goodwill, or any form of special damages, whether direct, consequential or otherwise, and whether or not either party to this agreement foresaw the possibility of such loss or damage.
50) Subject to clause 49) and to the maximum extent permitted by law, Mustard Ltd’s total aggregate liability to the client in respect of this agreement and all other agreements entered into between the two parties, shall not exceed the total fees paid by the client to Mustard Ltd in the 12 months preceding the relevant claim.
51) The parties acknowledge and agree that the limitations contained in these Terms and Conditions are reasonable in the light of all the circumstances. The limitations shall apply cumulatively, and shall apply regardless of the form of action, whether under statute, in contract or tort, including without limitation negligence, or any other form of action.
52) Nothing in these Terms and Conditions is intended to or will exclude or limit Mustard Ltd’s liability for death or personal injury caused by Mustard Ltd’s negligence, or for fraud or fraudulent misrepresentation by Mustard Ltd.
53) Non-solicitation: In order to protect the legitimate business interests of Mustard Ltd, during the Restricted Period the client shall not without the prior written consent of Mustard Ltd, either directly or indirectly, by or through itself, its affiliate, its agent or otherwise, or in conjunction with its affiliate, its agent or otherwise, whether for its own benefit or for the benefit of any other person:
a. solicit, entice or induce, or endeavour to solicit, entice or induce, any Restricted Person with a view to employing or engaging the Restricted Person, or
b. employ or engage, or offer to employ or engage a Restricted Person.
54) In the event of a breach of clause 53) the client shall pay to Mustard Ltd by way of liquidated damages an amount equivalent to the higher of either 80% of the annual salary of the Restricted Person or a sum representing the equivalent of the cost of the Services for a 6-month period.
55) The provisions in clause 54) shall be without prejudice to Mustard Ltd’s ability to seek damages or claim injunctive relief.
56) Force Majeure: Mustard Ltd shall not be liable to the client for any loss or damage which may be suffered by the client as a result of the delivery of goods, materials or the execution of a contract being delayed prevented hindered or made uneconomic by reason or circumstances or events beyond Mustard Ltd control including, but not limited to:
(a) Act of God, or riot, strike, lock-out, trade dispute, act of terrorism, labour disturbance, restriction or ban on overtime, accident, fire, flood or storm difficulty or increased expense or;
(b) Failure by the client to give adequate instructions or supply the necessary information in due time or
(c) Failure by any third-party to carry out their part of the work or otherwise perform their obligations when required.
57) Claims: All claims in respect of material, Goods or non-execution of the contract must be made in writing and received by Mustard Ltd no later than fourteen (14) days of the date of delivery to the client, the client’s premises or the client’s vehicle, or in the case of electronic transmission, from the date of transmission. The parties to this agreement specifically exclude the rights of any third parties to make any claim under its terms pursuant to the Contracts (Rights of Third Parties) Act or otherwise.
58) Entire Agreement: These Terms and Conditions and the Booking Form constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral, in respect of its subject matter.
59) Each party acknowledges that it has not entered into these Terms and Conditions and Booking Form in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these Terms and Conditions and the Booking Form, except in the case of fraudulent misrepresentation. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Terms and Conditions and the Booking Form.
60) Waiver: Any waiver by Mustard Ltd of any breach of any term of these Terms and Conditions shall be valid only if given in writing.
61) Severance: Mustard Ltd and the client believe that these Terms and Conditions are reasonable. If any provision shall be held to be contrary to applicable law, such provision shall be severed from the remainder, and the remainder shall continue in full force and effect.
62) Notices: Any notice hereunder shall be deemed to have been duly given if sent pre-paid first-class post, fax or e-mail to the party concerned at the address specified.
63) Law: All contracts to which these Terms and Conditions apply shall be governed and construed in accordance with the laws of England and Wales, and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.
Definitions: In this agreement the following terms shall have the following meanings:
1. Authorised Agent, means a third party appointed by Mustard Ltd that shall perform Mustard Ltd’s obligations under this agreement in Mustard Ltd’s stead.
2. Booking Form, means the form titled ‘booking form’ which appears immediately above these Terms and Conditions.
3. Controller, Data Subject, Personal Data, Processor and processing shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly) and international organisation and Personal Data Breach shall have the respective meanings given to them in the GDPR;
4. Data Protection Laws means, as binding on either party or the Services: ¥ the Directive 95/46/EC (Data Protection Directive) and/or Data Protection Act 1998 or the GDPR; ¥ any laws which implement any such laws; and ¥ any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
5. GDPR means the General Data Protection Regulation (EU) 2016/679
6. Goods, means the goods and/or materials set out in the Booking Form, as well as any other goods or materials which may be provided by Mustard Ltd to the Client in the course of performing the Services.
7. Protected Data means Personal Data received from or on behalf of the client in connection with the performance of Mustard Ltd’s obligations under the Terms and Conditions
8. Relevant Period, means the term of this agreement or during any previous engagements of Mustard Ltd by the client in the last 12 months.
9. Restricted Period, means the term of this agreement and a period of six months after its completion, expiry or termination.
10. Restricted Person, means: a. any person employed, engaged, utilised or contracted by Mustard Ltd whether as an employee, contractor, sub-contractor, agent, worker, officer or as Authorised Agents at any time during the Relevant Period and who has or had contact or dealings with the client; or b. any person employed, engaged, utilised or contracted by Mustard Ltd whether as an employee, contractor, sub-contractor, agent, worker, officer or as Authorised Agents at any time during the Relevant Period in relation to the provision of the Services and who has or had contact or dealings with the client.
11. Return to Base, means that the client shall be responsible for returning the relevant Goods to Mustard Ltd or its Appointed Agent in order to enable that party to attempt repair of those Goods from its own premises.
12. Services, means the services to be provided by Mustard Ltd and/or its Authorised Agents as specified in the Booking Form.
Company Reg. 7037632 VAT No. 979054282