Terms & Conditions
The Client has agreed to engage My Mustard to provide the Services (as set out in the Order Form) and My Mustard has agreed to accept such engagement on the terms and conditions hereinafter contained. The Order Form and these Terms form a binding contract between the parties.
In these Terms, unless the context otherwise requires, in addition to the terms set out in the Order Form, the following expressions have the following meanings:
“Confidential Information” means these Terms and all information obtained by one party from the other pursuant to these Terms which is expressly marked as confidential or which is manifestly confidential or which is confirmed in writing to be confidential within 7 (seven) days of its disclosure
“Consultants” means those employees and sub-contractors of My Mustard engaged from time to time in providing the Services
“Google” means Google Ireland Limited or any holding company or subsidiary of Google Ireland Limited, or associated company of such holding company or subsidiary company
“Google Terms” means the terms and conditions of Google [as materially set out in the Annex to these Terms] OR [a copy of which has been supplied to and read by the Client] (and any variations to such terms as shall be notified to the Client by My Mustard and/or Google from time to time)
“Order Form” means the Order Form attached to (and forming part of) these Terms which set(s) out the scope of the Services and the applicable fees and charges, and any other defined terms
“Services” means the services to be provided by My Mustard as set out in the Order Form and as agreed by the parties.
2.1. My Mustard shall provide the Services in accordance with the Order Form and these Terms. Unless otherwise agreed in writing as a specific variation to these Terms, these terms and conditions shall apply to the provision of all Services by My Mustard.
3.1 These Terms shall commence with effect from the Commencement Date and shall continue for the Initial Minimum Term (as stated in the Order Form) for the relevant Service, and shall automatically renew for subsequent periods of one month, unless and until terminated earlier under Clause 3.2, Clause 7.3 or Clause 11.
3.2 In addition to termination in Clause 7.3 and Clause 11, either party shall be entitled to terminate these Terms by such period of notice as is stated in the Order Form or 30 days’ notice (whichever shall be the longer period) in writing to the other party given at any time, provided that, in the event of termination by the Client, it shall pay My Mustard for all the Services provided up to the date of termination.
4. MY MUSTARD’S UNDERTAKINGS
4.1 My Mustard warrants and undertakes to the Client that:
4.1.1 My Mustard and the Consultants will have the necessary skill and expertise to provide the Services on the terms set out in these Terms; and
4.1.2 the Services will be provided in a timely and professional manner with reasonable skill and care
4.2 Unless expressly provided in these Terms all other warranties implied by law or otherwise in respect of the Services, the Developed Works and/or any deliverables are hereby expressly excluded.
5. CLIENT’S OBLIGATIONS
5.2 The Client shall:
5.2.1 make available to My Mustard such office, computer, telecommunication, administrative support services and internet access as may be necessary for the provision of the Services under these Terms;
5.2.2 ensure that its employees and any sub-contractors co-operate fully and promptly with My Mustard and the Consultants in relation to the provision of the Services;
5.2.3 promptly provide My Mustard with such information and documents as it may reasonably request for the proper performance of its obligations and be responsible for ensuring that such information is true, accurate, complete and not misleading in any material respect; and
5.2.4 obtain all third party consents, licences and rights reasonably required in order to allow My Mustard and the Consultants to perform the Services;
5.2 Should the Client fail to perform any of its obligations under these Terms then My Mustard will not be responsible for any delay, cost increase or other consequences arising from such failure, and the Client shall indemnify My Mustard for any losses incurred due to such failure.
The parties shall each appoint a representative who shall have full authority to take all necessary decisions regarding the provision of the Services including the written variation of these Terms.
7. GOOGLE – VERY IMPORTANT
7.1 The Client hereby authorises My Mustard, acting as its agent, to agree to and enter into the Google Terms on behalf of the Client. The Client expressly acknowledges and agrees that it has read, understands and agrees to the Google Terms, and that the Client is primarily liable to Google for the payment of all Google fees and charges, and the performance of all of the obligations identified as those of “the Customer” in the Google Terms.
7.2 The Client will indemnify My Mustard in respect of all losses resulting from any claim or alleged claim made by or on behalf of Google which results from any action or inaction by the Client.
7.3 In the event that the Client fails to make payment of any of the Google fees and charges or is in breach or alleged breach of any of the Google Terms, My Mustard shall be entitled to terminate the Terms (including the Order Form) on written notice with immediate effect.
7.4 The Client acknowledges and agrees that it is the Client’s responsibility to check online at https://adwords.google.co.uk/select/tsandcsfinder from time to time whether the Google Terms have been amended or updated. My Mustard will pass on to the Client any notification that it receives of any change in such terms.
7.5 The Client acknowledges and agrees that the Google Terms form an independent contract between the Client and Google and that My Mustard is not responsible for the performance or breach of any obligations by Google under the Google Terms, and that My Mustard’s fees are payable notwithstanding any failure by Google under the Google Terms.
7.6 The Client agrees to make it’s own due diligence research as to the suitability and reliability of the Google AdWords Service for the Client. My Mustard makes no warranties or representations as to Google Adwords and expressly excludes any liability for any failure by Google to perform Google’s obligations under the Google Terms.
8. FEES AND EXPENSES
8.1 The Client shall pay My Mustard the fees for the Services at such rates as specified in the Order Form.
8.2 Unless otherwise specified in the Order Form, My Mustard shall be entitled to vary annually any or all of such rates, provided that no such variation shall have effect unless and until 30 days’ written notice thereof is given to the Client.
8.3 Unless otherwise specified in the Order Form, My Mustard shall render monthly itemised invoices to the Client in respect of the said fees and shall show any Value Added Tax separately on such invoices.
8.4 All fees payable by the Client shall, subject as aforesaid, be paid within 7 days from the date of My Mustard’s invoice.
8.5 The Client shall reimburse My Mustard for all reasonable travelling, subsistence and any other expenses properly incurred in providing the Services in accordance with the Order Form.
8.6 The charges payable under these Terms are exclusive of Value Added Tax which shall be paid by the Client at the rate and in the manner for the time being prescribed by law.
8.7 If any sum payable under these Terms is not paid by the due date, then (without prejudice to My Mustard’s other rights and remedies) My Mustard reserves the right to suspend the provision of the Services with immediate effect and without notice and/or charge interest on such sum on a day to day basis (as well after as before any judgement) from the date or last date for payment thereof to the date of actual payment (both dates inclusive) at the rate of 15 per cent, compounded quarterly. Such interest shall be paid by the Client on demand by My Mustard.
9. CONFIDENTIAL INFORMATION
9.1 Neither party shall use or divulge or communicate to any person (other than those whose province it is to know the same or with the authority of the other party) any Confidential Information of the other party which may come to that party’s knowledge in the course of providing the Services.
9.2 The provisions of this Clause shall survive the expiration or termination of these Terms but the restrictions contained in sub-clause 9.1 shall not apply to any Confidential Information which:
9.2.1 comes into the public domain otherwise than through unauthorised disclosure by the disclosing party, its employees, agents or sub-contractors;
9.2.2 is already known to the disclosing party prior to the commencement of the Services;
9.2.3 is independently developed by the disclosing party;
9.2.4 is lawfully acquired from a third party who owes no duty of confidence to the disclosing party; or
9.2.5 is required by any court of competent jurisdiction or by a governmental or regulatory authority to be disclosed or where there is a legal right, duty or requirement to disclose.
10.1 Save as provided in Clause 10.2 below, neither party shall be entitled to assign or sub-contract any of its rights or obligations under these Terms without the consent in writing of the other party, not to be unreasonably withheld or delayed.
10.2 My Mustard shall be entitled to engage the services of independent contractors of its own to assist it with its duties hereunder.
11.1 These Terms may be terminated forthwith by either party on giving notice in writing to the other if the other party shall have a receiver or administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.
11.2 These Terms may also be terminated forthwith by either party on giving notice to the other if the other party is in material breach of the terms of these Terms and has failed to rectify such breach (in the case of a breach capable of being remedied) within 7 (seven) days of receiving a written notice requiring it to do so.
11.3 Any termination of these Terms (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
12. EFFECT ON TERMINATION
On the expiration or termination of these Terms:
12.1 all rights and obligations of the parties under these Terms shall automatically terminate except for such rights of action as shall have accrued prior thereto and any obligations which expressly or by implication are intended to come into or continue in force on or after such expiration or termination;
12.2 the Client shall pay My Mustard for all unpaid fees and expenses accrued up to the date of expiration or termination;
12.3 each party will return to the other any property of the other that it then has in its possession or control.
13. LIABILITY AND INDEMNITY
13.1 Except in respect of injury to or death of any person or any other liability which cannot be limited or excluded by law (for which no limit applies), the aggregate liability of My Mustard under these Terms for all claims shall not exceed the total amount of all sums paid to My Mustard by the Client in the 12 months preceding the date of any claim.
13.2 In any event My Mustard shall have no liability to the Client unless My Mustard shall have received notice of the same within 1 years of such cause of action accruing.
13.3 Notwithstanding anything else contained in these Terms My Mustard shall not be liable to the Client for loss of profits or contracts, loss of goodwill, data, revenue, opportunity, or other special, indirect or consequential loss whether arising from negligence, breach of contract or howsoever.
13.4 The Client shall indemnify and defend My Mustard and Consultants from and against any claims, losses, liabilities, expenses, damages and settlement amounts (including legal fees and costs) incurred by My Mustard and Consultants arising out of the performance of the Services by My Mustard in accordance with the Client’s instructions, to include, without limitation, any breach by the Client of the Google Terms.
14. FORCE MAJEURE
Not withstanding anything else contained in these Terms, My Mustard shall not be liable for any delay in performing its obligations hereunder if such delay is caused by circumstances beyond its reasonable control (including, without limitation, any delay caused by any act or omission of the Client, any failure to access the Internet or of any third party service provider).
15.1 The parties will attempt in good faith to resolve any dispute or claim arising out of or in relation to these Terms through negotiations between the respective representatives of the parties having authority to settle the matter.
15.2 In the event that the dispute or claim is not then resolved by negotiation within fifteen (15) days of referral to the respective representatives of the parties set out above then the parties shall attempt in good faith to resolve the dispute through mediation or another Alternative Dispute Resolution (“ADR”) procedure, whereby a neutral independent mediator is appointed by the parties to achieve a settlement of the dispute.
15.3 If the matter has not been resolved by an ADR procedure within twenty one (21) days of the initiation of such procedure (or such other period as may be agreed between the parties in writing) or if either party will not or ceases to participate in an ADR procedure, the parties agree that all disputes shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of the English Courts for such purpose.
16. POACHING OF CONSULTANTS
The Client undertakes that for the term of these Terms and for a period of 1 (one) year thereafter, it will not, without the prior written consent of My Mustard, employ, contract independently with, attempt to solicit or entice away from My Mustard any personnel who at any time have been engaged in the provision of the Services.
18. The Client agrees to act as a reference for My Mustard and authorizes My Mustard to include the Client’s name and logo on My Mustard’s website and on a general list of clients for marketing or promotional purpose, and the Client agrees to link its website to that of My Mustard.
19. My Mustard is an independent contractor and, save as expressly provided in these Terms nothing in these Terms shall render it an agent or partner of the Client and My Mustard shall not hold itself out as such. Save as permitted by these Terms, unless authorised by the Client to do so, neither My Mustard nor the Consultants shall have any right or power to bind the Client to any obligation.
19.1 These Terms constitute the entire understanding between the parties concerning the subject matter hereof. No variation to these Terms shall be effective unless agreed in writing and signed by the authorised representatives of the parties.
19.2 In the event of conflict between the terms of these Terms & the Order Form, the terms of the Order Form shall prevail.
19.3 These Terms shall be governed by and construed in accordance with the laws of England.
20. THIRD PARTIES
The parties confirm their intent not to confer any rights on any third parties by virtue of these Terms and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms.