D, Pendyris Street,
Cardiff, CF11 6BH
Definitions and interpretation
1.1 In these Terms the following definitions apply:
Contract the contract between Hello Starling and the Customer for the supply of Services in accordance with these Terms and the Order Form;
Customer means any person firm or company to whom Hello Starling supplies Services;
Data Protection Legislation the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Intellectual Property Rights (“IPR”) means all copyright and related rights, design rights (whether registered or unregistered), patents, rights in trade marks (whether registered or unregistered), business names, goodwill and the right to sue for passing off, database rights, rights to use, and protect the confidentiality of, confidential information and any other intellectual property rights (including all similar or equivalent rights or forms of protection in any part of the world), 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 in or relating to the Works created by Hello Starling in the course of performing the Services.
Order Form means the document issued by Hello Starling setting out (1) a description of the Services (2) the Price (3) any other relevant matters.
Price means the price for the Services as set out on the Order Form;
Services means the services to be provided by Hello Starling to the Customer in accordance with the Terms and as set out on the Order Form;
Terms means the standard terms set out in these terms and conditions of business.
1.2 Any changes to these Terms are valid only if agreed in writing between Hello Starling and the Customer.
1.3 Unless authorised in writing by Hello Starling, employees’ or agents’ representations concerning the Services are not valid.
1.4 Any error or omission in any sales brochure, quotation, price list, acceptance or offer, invoice or other material issued by Hello Starling (whether typographical, clerical or otherwise) may be corrected by Hello Starling without any liability on the part of Hello Starling.
1.5 Any samples, drawings, descriptive matter or advertising issued by Hello Starling 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.
1.6 If there is any conflict between the Order Form and the Terms, the Order Form shall prevail.
2.1 The Customer appoints Hello Starling to provide Services in accordance with the Order Form. The Terms apply to the Services set out in the Order Form. Subject to clause 1.2, no other terms will apply to the provision of the Services.
3 The Order Form
3.1 The quantity, quality and description of the Services shall be as set out in the Order Form.
3.2 It is the sole responsibility of the Customer to ensure the Services set out on the Order Form meet its requirements.
3.3 Hello Starling may make changes to the Services in order to conform with any legal requirements or which do not materially affect their quality or performance.
3.4 The Customer shall at its own expense supply Hello Starling with all necessary materials and information required by Hello Starling to provide the Services in accordance with these Terms and ensure that such information is complete and accurate in all material respects. If a failure by the Customer to provide materials or information causes Hello Starling to miss a deadline, the Hello Starling deadline shall be deemed to be extended by the period of the Customer’s delay.
3.5 Hello Starling shall use all reasonable endeavours to meet any deadlines set out on the Order Form but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4 Price and Payment
4.1 Hello Starling shall invoice the Customer for the Services as detailed on the Order Form.
4.2 Unless the subject of a genuine dispute, the Customer shall pay the Price within 14 days of the date on a valid invoice (the “Due Date”).
4.3 The Price does not include VAT which the Customer shall pay in addition to the Price at the rate prevailing on the date of the invoice.
4.4 Should the Customer fail to make any payment in full on the Due Date under this Contract, Hello Starling may charge interest on the outstanding amount. Such interest shall accrue on a daily basis at the rate of 8% above the base rate of Barclays Bank PLC from time to time from the due date until the date of payment, whether before or after judgment and may suspend all of its obligations hereunder until payment has been made in full. Hello Starling reserves the right to claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998.
4.5 If, because of a factor beyond the control of Hello Starling, the cost to Hello Starling of providing the Services increases, Hello Starling may before delivery increase the Price of the Services.
4.6 The Customer will pay the Price for the Services.
4.7 All amounts due under the Contract shall be paid in full without any deduction or withholding other than as required by law and neither party shall be entitled to assert any credit, set-off or counterclaim against the other party in order to justify withholding payment of any such amount in whole or in part.
4.8 Hello Starling reserves the right to set, remove or alter, without permission of the Customer any credit limits. Hello Starling also reserves the right to monitor the Customers credit rating with various credit bodies and also reserves the right to insure the Customer for any potential debt. Hello Starling reserves the right to request the Customer to pay the Price up front before Hello Starling commences any work.
5 Warranties and indemnities
5.1 Hello Starling warrants to the Customer that it will perform its obligations under this Contract with reasonable skill and care. All other warranties are expressly disclaimed to the fullest extent permitted by law.
5.2 Hello Starling shall not be liable to the Customer (whether in contract, tort, including negligence and breach of duty, or otherwise at law) for any:
5.2.1 indirect or consequential loss; and/or
5.2.2 loss of profits, revenue or goodwill of the Customer.
5.3 Hello Starling does not exclude any liability which cannot legally be excluded, including liability for death or personal injury if caused by its own negligence or for fraud. Subject to this and clause 5.2 above:
5.3.1 Hello Starling’s total liability to the Customer arising out of or in connection with this Contract is limited to the Price; and
5.3.2 Hello Starling shall not be liable in any way in respect of any failure, delay or defect in the supply or use of the Works created by Hello Starling in the course of performing the Services which is caused by the supply or specification by the Customer of unsuitable material or content.
5.4 It shall be the responsibility of the Customer to ensure that the Works comply with all local laws (whether consumer, public or civil), regulations and codes in all countries in which use is intended. It shall also be the Customer’s responsibility to ensure that the Works carry all disclaimers, warnings and public information which any competent lawyer of the Customer in any of the relevant jurisdictions would advise. Accordingly the Customer agrees to indemnify and hold harmless Hello Starling and Hello Starling’s agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including reasonable legal fees) arising from any claim, demand or action alleging that the Works or use of them are contrary to any law, code or regulation in that country.
5.5 It shall be the Customer’s responsibility to ensure that all domain names used in connection with the Works are wherever practicable properly registered and do not infringe any third party rights.
6.1 Either party may terminate this Contract immediately by notice in writing if the other party:
6.1.1 commits a material breach of any of the Terms (including without limitation late payment) and, if such breach is capable of remedy, fails to remedy the breach within 30 days of receiving notice from the terminating party specifying the breach and requiring the breach to be remedied;
6.1.2 enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of a solvent amalgamation or reconstruction);
6.1.3 becomes insolvent;
6.1.4 ceases or threatens to cease to carry on business;
6.1.5 compounds or makes any voluntary arrangement with its creditors;
6.1.6 is the subject of a notice of appointment of an administrator, or a notice of intention to appoint an administrator or liquidator;
6.1.7 is unable to pay its debts as they fall due;
6.1.8 takes any step or action in connection with its entering into administration, having a receiver appointed over its assets; or
6.1.9 takes or suffers any similar action due to debt or if the equivalent of any of the events described at clause 6.1.2 to 6.1.9 inclusive under the law of any jurisdiction occurs.
6.2 The expiry or termination of the Contract for any reason shall not affect any rights and/or obligations:
6.2.1 accrued before the date of termination or expiry; or
6.2.2 expressed or intended to continue in force after and despite expiry or termination.
6.3 The Customer shall not, following the termination of the Contract for any reason, represent itself as being connected with Hello Starling.
6.4 On termination of the Contract, all outstanding unpaid invoices shall become immediately payable and in respect of Services supplied but for which no invoice has been submitted, Hello Starling shall submit an invoice which shall be payable by the Customer immediately on receipt.
6.5 Unless a rejection fee has been agreed in advance, the Customer shall have no right to terminate the Contract, allege breach of contract or seek any cancellation, reduction or repayment of the Price on the basis of the style or composition of the Works.
7.1 In this clause 7, confidential information means all technical, commercial and financial information, product information, trade secrets, know-how and all information relating to the plans, intentions, market opportunities, transactions, affairs and/or business of a party and its associated companies and/or its or their customers and/or suppliers (“Confidential Information”);
7.2 Each party shall keep secret and confidential all Confidential Information of the other and shall not (and shall procure that its employees and/or officers shall not) copy, use or disclose any such information to any third party, other than as may be necessary to comply with its obligations under these Terms.
7.3 The obligation of confidence shall not apply where the Confidential Information:
7.3.1 is required to be disclosed by operation of law;
7.3.2 was in the possession of the recipient prior to disclosure by the other party without restriction on disclosure or use;
7.3.3 is subsequently acquired from a third party without being in breach of and not subject to any obligation of confidence;
7.3.4 is or becomes generally available to the public through no act or default of the recipient; or
7.3.5 is disclosed on a confidential basis for the purposes of obtaining professional advice.
7.4 This clause 7 shall continue in force notwithstanding the expiry or termination of the Contract, whatever the reason for such termination.
8 Intellectual Property Rights
8.1 Ownership of the IPR in or arising out of the Works (other than the IPR in any materials provided by the Customer) shall remain vested in Hello Starling and the Customer shall not obtain any rights therein unless and until any assignment or other disposition of the IPR is agreed between the parties in writing.
8.2 Hello Starling hereby grants the Customer, or shall procure the grant to the Customer, of a royalty free, fully paid up, exclusive, non-transferable worldwide licence, coming into effect on payment in full of all of the invoices in connection with the Services, to use the Rights in the Works to the extent necessary to make use of the Works for the purposes as contemplated by this Contract. Such licence shall be automatically terminated if the Customer either:
8.2.1 does not pay the Price in full by the Due Date; or
8.2.2 (being a company) passes a resolution for winding up (otherwise than for the purpose of a solvent amalgamation or reconstruction) or a court makes an order to that effect;
8.2.3 (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
8.2.4 becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with is creditors; or
8.2.5 has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
8.2.6 ceases, or threatens to cease, to carry on business.
8.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 8.2.
8.4 The Customer grants Hello Starling a fully paid up, non-exclusive, royalty free, non-transferable licence to copy and modify any materials provided by the Customer for the term of the Contract for the purpose of providing the Services to the Customer.
8.5 Where the Works are supplied to the Customer on computer disks or other electronic storage method, then Hello Starling remains the owner of this storage media and reserves the right to require immediate return of them.
9. Data Protection
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 9, Applicable Laws means (for so long as and to the extent that they apply to Hello Starling) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the Data Protection Legislation from time to time in force in the UK and any other law that applies in the UK.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and Hello Starling is the processor.
9.3 Without prejudice to the generality of clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Hello Starling for the duration and purposes of the Contract:
(a) process that personal data only on the documented written instructions of the Customer unless it is required by Applicable Laws to otherwise process that personal data;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) either party has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Hello Starling complied with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) Hello Starling complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
9.4 Either party may, at any time on not less than 30 days’ notice, revise this clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract
10.1 Time is not of the essence in relation to the performance of the obligations of Hello Starling under this Contract.
10.2 Notices between the Customer and Hello Starling relating to these Terms shall be in writing. Notices shall either be delivered personally or sent by first class post to their registered office or principal place of business. Notices if delivered by hand shall be treated as received when delivered, if sent by first class post 48 hours after posting, if sent by air-mail post 72 hours after posting.
10.3 These Terms, the Order Form and any other changes to the Terms agreed in writing between Hello Starling and the Customer pursuant to clause 1.2 are the entire agreement between the Customer and Hello Starling and replace all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to the same subject matter. 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 that is not set out in the Contract.
10.4 Neither the Customer nor Hello Starling shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract as a result of circumstances which are beyond its reasonable control, provided that as soon as is reasonably practicable it gives notice to the other party. For these purposes, acts or omissions by the employees, sub-contractors, developers, agents and representatives of either party are within that party’s control.
10.5 Unless these Terms provide otherwise, nothing in it creates a partnership or employment relationship between the Customer and Hello Starling or makes one party the agent of the other.
10.6 Hello Starling 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 but the Customer may not assign, transfer 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 but under it without the prior written consent of Hello Starling.
10.7 The Customer and Hello Starling confirm that they do not intend any third party to have the right to enforce any provision of the Contract under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
10.8 If any provision or part provision of the Contract is found under the laws of any jurisdiction to be 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 not affect the validity, legality or enforceability of the rest of the Contract.
10.9 All terms of this Contract which by their nature ought to survive termination will continue to be effective after this Contract has expired or been terminated.
10.10 Notwithstanding the licence described in clause 9 above or any other disposition of the IPR agreed between the parties, Hello Starling shall have a continuing right to use the Works for the purpose of advertising or otherwise promoting Hello Starling’s work. The Customer shall unless otherwise agreed mark all design work supplied as part of the Works with the phrase: “Design by Hello Starling” (or appropriate as agreed) in a suitable place. Hello Starling reserves the right to request the non-appearance or removal of this credit in any particular case. The Customer shall comply with any such request within 30 days, but shall not thereby be obliged to make changes to material already produced or published.
10.11 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. 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
10.12 The laws of England and Wales shall govern this Contract and any dispute or claim arising out of or in connection with its subject matter or formation. The Customer and Hello Starling agree to submit any dispute or claim arising out of or in connection with the Contract or its subject matter or formation to the exclusive jurisdiction of the courts of England and Wales.