Terms and Conditions
The following definitions and rules of interpretation apply in these Conditions.
2.Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
3.Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and payment).
4.Commencement Date: has the meaning given in clause 2.2.
5.Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
6.Contract: the contract between Mistal and the Customer for the supply of Services in accordance with the Order and these Conditions.
7.Customer: the company or legal person who purchases Services from Mistal.
8.Customer Default: has the meaning set out in clause 4.2.
9.Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK, and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
10.Estimate: a price estimate for the supply Services.
11.Higher Value Items: any goods or items which are valued at greater than £1,000 in relation to which Services are provided;
12.Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral 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.
13.Mistal: Mistal Time Services Limited registered in England and Wales with company number 01794168.
14.Order: the Customer’s order for Services, whether in writing, via email, via online submission, or otherwise.
15.Personal Data: has the meaning given to it in the Data Protection Legislation.
16.Price List: Mistal’s standard price list as in place from time to time, the current version of which is set out in Appendix 2.
17.Services: the services set out in any accepted Order, which may include those set out in Appendix 1 or as otherwise agreed in writing between Mistal and the Customer.
Clause headings shall not affect the interpretation of these Conditions.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
The Schedules form part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions includes the Schedules.
17.1A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
17.2A reference to writing or written includes fax and e-mail.
Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
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.
18.Basis of contract
18.1The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
18.2The Order shall only be deemed to be accepted when Mistal issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
18.3Any samples, drawings, descriptive matter or advertising issued by Mistal, and any descriptions or illustrations contained in Mistal’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
18.4These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
18.5Any Estimate given by Mistal shall not constitute an offer and is only valid for a period of 90 Business Days from its date of issue.
19.Supply of Services
19.1Mistal shall supply the Services to the Customer in accordance with the Order.
19.2Mistal shall use reasonable endeavours to meet any performance dates as specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
19.3Mistal warrants to the Customer that the Services will be provided using reasonable care and skill.
19.4All goods or items which are sent to Mistal by the Customer shall be at the risk of the Customer until completion of delivery to Mistal’s premises, at which point they shall be at the risk of Mistal until completion of delivery back to the Customer.
20.1The Customer shall:
(1.a)ensure that the terms of the Order are complete and accurate;
(1.b)co-operate with Mistal in all matters relating to the Services;
(1.c)provide Mistal with such information and materials as Mistal may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
(1.d)obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
20.2If Mistal’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(2.a)without limiting or affecting any other right or remedy available to it, Mistal shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Mistal’s performance of any of its obligations;
(2.b)Mistal shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Mistal’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(2.c)the Customer shall reimburse Mistal on written demand for any costs or losses sustained or incurred by Mistal arising directly or indirectly from the Customer Default.
21.Charges and payment
21.1The Charges for the Services shall be calculated in accordance with the Price List.
21.2The Customer may request an Estimate if a fee for the supply of Services cannot be determined from the Price List. Mistal shall be entitled to charge the Customer for any expenses reasonably incurred by Mistal in providing an Estimate to the Customer (including but not limited to, postal and delivery charges).
21.3Mistal shall invoice the Customer once the Services are provided.
21.4The Customer shall pay each invoice submitted by Mistal:
(4.a)Within 30 days of the end of the month in which the invoice was sent or in accordance with any credit terms agreed by Mistal and confirmed in writing to the Customer; and
(4.b)in full and in cleared funds to a bank account nominated in writing by Mistal.
21.5Time for payment shall be of the essence of the Contract.
21.6All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Mistal to the Customer, the Customer shall, on receipt of a valid VAT invoice from Mistal, pay to Mistal such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
21.7If the Customer fails to make a payment due to Mistal under the Contract by the due date, then, without limiting Mistal’s remedies under clause 9:
(7.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 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%; and
(7.b)Mistal shall be entitled to retain any goods or other items that are due to be sent to the Customer until payment is made in full.
21.8If the Customer fails to make a payment due to Mistal under the Contract within 30 days of having been notified to do so by Mistal:
(8.a)Mistal shall immediately be entitled to sell such goods or items to third parties; and
(8.b)title shall automatically pass to Mistal, with full title guarantee, immediately before such sale.
22.Intellectual property rights
22.1All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Mistal.
22.2The Customer grants Mistal a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Mistal for the term of the Contract for the purpose of providing the Services to the Customer.
23.Data protection and data processing
23.1Both parties acknowledge that for the purposes of the Data Protection Legislation and in relation to any Personal Data that is collected by Mistal in the provision of the Service to the Customer, the Customer is the data controller and Mistal is the data processor (where data controller and data processor have the meanings as defined in the Data Protection Legislation).
23.2Without prejudice to the generality of clause 7.1, Mistal shall, in relation to any Personal Data processed in connection with the performance by Mistal of its obligations under the Contract:
(2.a)process that Personal Data only on the written instructions of the Customer unless Mistal is required by any applicable laws to otherwise process that Personal Data;
(2.b)ensure that it has in place appropriate technical and organisational measures appropriate to the level of risk in order to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data; and
(2.c)notify the Customer without undue delay on becoming aware of a Personal Data breach.
23.3Mistal shall be entitled to share the Customer’s data (including Personal Data) with third party providers in order to allow it to provide the Services to the Customer.
23.4Mistal shall be entitled to use the Personal Data in an anonymised, statistical and/or aggregated manner in order to analyse the data and carry out research. Mistal shall be entitled to share such anonymised and/or statistical and/or aggregated data with third parties.
23.5Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer and processing of the Personal Data to Mistal for the purposes of the Contract.
24.Limitation of liability
24.1Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(1.a)death or personal injury caused by negligence;
(1.b)fraud or fraudulent misrepresentation; and
(1.c)breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
24.2Subject to clause 8.1, Mistal’s total liability under or in connection with the Contract, whether arising in contract, negligence or other tort or otherwise howsoever arising will not under any circumstances cumulatively exceed the lesser of:
(2.a)100% of the Charges paid to, and received by, Mistal from the Customer relating to the Contract; and
24.3Subject to clause 8.1, Mistall shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(3.a)loss of profits;
(3.b)loss of sales or business;
(3.c)loss of agreements or contracts;
(3.d)loss of anticipated savings;
(3.e)loss of use or corruption of software, data or information.
(3.f)loss of or damage to goodwill; or
(3.g)indirect or consequential loss.
24.4This clause 8 shall survive termination of the Contract.
25.1Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(1.a)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), 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(1.b)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.
25.2Without affecting any other right or remedy available to it, Mistal may terminate the Contract with immediate effect by giving written notice to the Customer if:
(2.a)the Customer fails to pay any amount due under the Contract on the due date for payment;
(2.b)the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 28 days of the Customer being notified in writing to do so;
(2.c)the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
(2.d)the Customer undergoes a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010).
25.3Without affecting any other right or remedy available to it, Mistal may suspend the supply of Services under the Contract or any other contract between the Customer and Mistal if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2(a) to clause 9.2(d), or Mistal reasonably believes that the Customer is about to become subject to any of them.
26.Consequences of termination
26.1On termination of the Contract the Customer shall immediately pay to Mistal all of Mistal’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Mistal shall submit an invoice, which shall be payable by the Customer immediately on receipt
26.2Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
26.3Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
27.1Force 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.
27.2Assignment and other dealings.
(2.a)Mistal may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(2.b)The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Mistal.
(3.a)Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).
(3.b)Each party may disclose the other party’s confidential information:
(3.b.i)to its employees, officers, representatives, 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, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(3.b.ii)as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(3.c)Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
(4.a)Unless expressly agreed otherwise between the parties, 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.
(4.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.
27.5Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
(6.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.
(6.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.
27.7Severance. 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 shall not affect the validity and enforceability of the rest of the Contract.
(8.a)Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(8.a.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
(8.a.ii) sent by fax to its main fax number or sent by email to the following addresses:
(8.a.ii.A)for Mistal: email@example.com; and
(8.a.ii.B)for the Customer: the email address provided by the Customer in the Order or otherwise in writing.
(8.b)Any notice shall be deemed to have been received:
(8.b.i)if delivered by hand, on signature of a delivery receipt [or at the time the notice is left at the proper address;
(8.b.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 at the time recorded by the delivery service; and
(8.b.iii)if sent by fax or 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 11.8(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.
(8.c)This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
27.9Third 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.
27.10Governing 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.
27.11Jurisdiction. 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.
APPENDIX 1 – Services
[INSERT SERVICES DOCUMENTS]APPENDIX 2 – Price List
[INSERT PRICE LIST]