TERMS & CONDITIONS OF BUSINESS

1. So far as they are not expressly varied in writing by Utopia Creative Solutions Ltd, these conditions shall be deemed to be incorporated into all contracts made between Utopia Creative Solutions Ltd and the Client and all work undertaken or goods supplied by Utopia Creative Solutions Ltd shall be deemed to be pursuant to a contract incorporating these conditions.

Each provision of these conditions is to be construed as a separate provision applying and surviving even if for any reason one or other of the said provisions is held inapplicable or unreasonable in any circumstances.

For the purposes of these conditions references to documents includes any map, plan, graph, design, drawing or photograph, any film, negative, tape or other device embodying visual, audio, electronic, text, images or otherwise and any disc, tape or other device or media embodying any other data.

2. The person, firm or company from whom Utopia Creative Solutions Ltd received instructions ("the Client") shall be liable to Utopia Creative Solutions Ltd as a principal for all costs, charges and expenses that shall be due to Utopia Creative Solutions Ltd in respect of work carried out or goods supplied by Utopia Creative Solutions Ltd subject to these conditions whether or not such Client purports to contract as an agent and whether or not Utopia Creative Solutions Ltd has received from the Client any purchase order number, email order or other such formal notification usually required by the Client. The Client may not assign the benefit or burden of any contract with Utopia Creative Solutions Ltd, save by express agreement.

3. (i) Work will be undertaken by Utopia Creative Solutions Ltd as expeditiously as may be possible but Utopia Creative Solutions Ltd shall not be liable in respect of any failure to meet any specified completion date.

(ii) Utopia Creative Solutions Ltd reserves the right to subcontract all or any part(s) of its services.

4. (i) Where advice is given or documents prepared Utopia Creative Solutions Ltd will use its reasonable endeavours to ensure the accuracy of such advice or documents having regard to the nature of the Client's instructions;

(ii) Where documents are provided by Utopia Creative Solutions Ltd, such documents shall be reasonably adequate for the purposes intended and disclosed by the Client;

(iii) Information supplied by Utopia Creative Solutions Ltd shall be reasonably accurate having regard to the accuracy of the source material and the nature of the Client's instructions;

(i) Utopia Creative Solutions Ltd’s services relate to the development or provision of a World Wide Web site, Web Hosting, Graphic Design, Custom Programming, Email Marketing, Internet Marketing (SEO/PPC etc) or any other service offered by our company in the future. Web site developments will be viewable by browser versions readily available at the time the services are provided to the Client by Utopia Creative Solutions Ltd.

Unless expressly agreed the services of Utopia Creative Solutions Ltd do not include: -

- providing or negotiating hosting services;

- updating, redesign or modifications of any nature of the web site to provide continuing compatibility with developments in browser versions or to take account or changes in the Clients specifications or requirements;

- Macromedia Flash, DHTML technology, QuickTime/QuickTime VR or Java Applets;

- ASP/Cld Fusion or database creation;

- maintenance of the web site; or

- advanced search engine registration or site promotion services.

Such services may be provided subject to further agreement between Utopia Creative Solutions Ltd and the Client.

6. The Client warrants:

(i) that they shall comply with all relevant laws, rules and regulations and all taxes, tariffs and similar charges relating to the service(s) or goods supplied;

(ii) that any instructions given by him will not cause Utopia Creative Solutions Ltd to infringe the law of any country;

(iii) the accuracy of all information given to Utopia Creative Solutions Ltd by the client;

where documents are supplied to Utopia Creative Solutions Ltd, that such material is free of all defamatory matter and copyright or other legal restrictions; and the Client shall fully indemnify Utopia Creative Solutions Ltd against any actions, demands, costs, charges, penalties or expenses or liability (howsoever it may arise) imposed upon Utopia Creative Solutions Ltd or its employees or agents as a result of any claim made against it or any of them in respect of the above

7. (i) The copyright in all works in whatever format or media it may appear including visual, audio and electronic work documents and reports prepared by Utopia Creative Solutions Ltd shall vest in Utopia Creative Solutions Ltd. The Client shall have the right to use such material for the purpose intended by the Client's instructions and for no other purpose.

(ii) The Client agrees that Utopia Creative Solutions Ltd may incorporate into its services design copyright and/or development credit as may be appropriate at Utopia Creative Solutions Ltd’s discretion.

8. Utopia Creative Solutions Ltd may from time to time:

(i) receive confidential information from a variety of sources which it shall not be obliged to pass on to, divulge, or use for the benefit of the Client;

(ii) disclose the Client as a client of Utopia Creative Solutions Ltd in any publicity, promotional or marketing material or otherwise including reference to the Client's name and the use of any of the Client's trade and/or service marks (but not for any other purpose). Utopia Creative Solutions Ltd agrees to consult with the Client with regard to the extent of such disclosure including reference to the nature of the work carried out, the industry, area, costs involved and date of completion of Utopia Creative Solutions Ltd's work but save where the Client expressly objects the Client is hereby deemed to have authorised and consented to such disclosure.

9. (i) Payment of all invoices rendered by Utopia Creative Solutions Ltd shall be made within 7 days from the date of the invoice. Payment shall not be withheld or deferred on account of any claim, counterclaim or set-off.

(ii) Any dispute or query with regard to an invoice must be notified to Utopia Creative Solutions Ltd in writing within 7 days of the date of the invoice. Where no such dispute or query is made the Client shall be deemed to have accepted the validity of the invoice and all matters stated therein, save in the case of manifest error or fraud.

(iii) In all cases Clients shall on demand make such payments to Utopia Creative Solutions Ltd as Utopia Creative Solutions Ltd shall reasonably require to meet Utopia Creative Solutions Ltd's anticipated charges and disbursements which have to be made by Utopia Creative Solutions Ltd in carrying out the Client's instructions. Utopia Creative Solutions Ltd shall have the right to suspend work on the Client's instructions if such requested payments on account shall not be made.

(iv) If Utopia Creative Solutions Ltd shall render an unpaid invoice to debt collection agents for collection the Client shall pay in addition to the amount due on such invoice such further sum as shall be equal to the collection agent's reasonable fees and costs.

(v) If any cheque or other negotiable instrument received by Utopia Creative Solutions Ltd in respect of any invoice is returned and marked "refer to drawer" or other such wording Utopia Creative Solutions Ltd reserves the right to charge the Client a reasonable fee to cover any fees or costs incurred in respect of such cheque together with a reasonable sum to cover Utopia Creative Solutions Ltd's administrative costs involved in dealing with the invoice.

If payment shall not have been made by any Client in accordance with condition 9 above Utopia Creative Solutions Ltd shall have the right to cancel any outstanding contracts with such Client summarily by notice in writing without compensation to the Client but with the right to be paid in respect of all work done for or goods supplied to the Client and to be reimbursed the amount of all moneys paid out on account of the Client up to the date of such cancellation.

Utopia Creative Solutions Ltd reserves the right in the event of any default by the Client in payment of any sum due to remove all web site content from the Internet.

In addition, if payment shall not have been made in accordance with condition 9 above Utopia Creative Solutions Ltd shall have the right to charge interest on a daily basis (both before and after any judgement) on any overdue and/or unpaid sums at a rate of 5% per annum above the base rate.

11. Work done and goods supplied by Utopia Creative Solutions Ltd (including experimental or other work carried out under the instructions of the Client) shall be charged at the rates currently applied by Utopia Creative Solutions Ltd and in force at the time the work was done or the goods supplied and all expenses incurred and disbursements made on the Client's account shall be reimbursed by the Client. Utopia Creative Solutions Ltd reserves the right to incur disbursements on behalf of the Client in the performance by Utopia Creative Solutions Ltd of its services where it is reasonable so to do, without any requirement to seek the Client's approval in respect of any such disbursements.

Utopia Creative Solutions Ltd may at its discretion, provide the Client with an estimate of its charges which shall at all times remain an estimate only and not a quote. Utopia Creative Solutions Ltd reserves the right to vary or amend its estimate at any time to take account of additional charges and costs incurred whether by reason of alterations to the Client's instructions (whether made by the Client or Utopia Creative Solutions Ltd) unclear or illegible instructions, expedited work or otherwise.

No order or instruction which has been accepted by Utopia Creative Solutions Ltd may be cancelled by the Client except with the prior agreement in writing of Utopia Creative Solutions Ltd. Where there is an agreed cancellation the Client shall forfeit any deposit paid and in addition pay to Utopia Creative Solutions Ltd a proportionate amount of the contract price representing the amount of work carried out and costs and expenses incurred by Utopia Creative Solutions Ltd up to the date of the agreed cancellation (less any deposit forfeited).

Alterations may only be made by the Client with the prior consent of Utopia Creative Solutions Ltd. Where any alterations are made (whether by the Client or Utopia Creative Solutions Ltd) such alterations will be deemed to form the basis of a new and separate contract subject to these conditions. The Client shall remain liable to pay for all work and materials prior to such alteration. Further work shall be charged at Utopia Creative Solutions Ltd’s then current charge rates.

Utopia Creative Solutions Ltd reviews its charge rates annually. The Client will be informed of any new rate which will apply to all work done after the date on which the new rates come into effect and the Client will be deemed to have accepted these unless he shall inform Utopia Creative Solutions Ltd otherwise.

12. (a) Utopia Creative Solutions Ltd will perform the services required for the Client with all reasonable diligence and skill. If however, any liability to the Client shall arise on the part of Utopia Creative Solutions Ltd, its employees or agents (whether under express or implied terms of the contract or in negligence or in any other way) for any damage or loss sustained or incurred by the Client, such liability shall in all cases whatsoever (save in relation to death or personal injury) be limited at the sole discretion of Utopia Creative Solutions Ltd to Utopia Creative Solutions Ltd or some other third party on Utopia Creative Solutions Ltd’s behalf either replacing or repairing any defective goods or services or reimbursing to the Client the price paid by the Client for such defective goods or services (or if appropriate any proportionate part). Utopia Creative Solutions Ltd’s charges are determined on the basis of this limit of liability.

(b) Except as provided in clause 12(a) above, Utopia Creative Solutions Ltd shall not be liable to the Client or any other third party for loss of profits, loss of contracts, or other loss or damage arising indirectly or consequentially from negligence or breach of contract by Utopia Creative Solutions Ltd in the performance of its services or the provision of any goods.

(c) Where instructions or advice are received or given orally by the Client Utopia Creative Solutions Ltd shall have no liability to the Client for any misunderstanding or misinterpretation that may arise in relation thereto whether on the part of Utopia Creative Solutions Ltd or the Client.

(d) The Client undertakes with Utopia Creative Solutions Ltd that the Client shall within 14 days of receipt of any goods supplied or following completion of works undertaken by or on behalf of Utopia Creative Solutions Ltd or such longer period as may be reasonable having due regard to the nature and extent of the goods or work examine and inspect such goods or work for the purpose of determining whether any defect or default exists or may arise and that the goods or works as the case may be are suitable in all regards for the Client's purpose.

(e) Utopia Creative Solutions Ltd shall have no liability for any claim made by the Client arising out of the provision of any goods or services by Utopia Creative Solutions Ltd unless written particulars thereof (giving full details of the specific matter in respect of which such claim is made) is received by Utopia Creative Solutions Ltd within the period of 3 months after the date of Utopia Creative Solutions Ltd's invoice for such goods or services.

(f) Utopia Creative Solutions Ltd shall not be liable to the Client or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of Utopia Creative Solutions Ltd's obligations if the failure or delay was due to any cause beyond Utopia Creative Solutions Ltd's reasonable control.

(g) The Client shall be responsible for and shall indemnify Utopia Creative Solutions Ltd against:-

(i) all liabilities relating to any loss or damage suffered by any third party arising as a result of work undertaken or goods supplied by Utopia Creative Solutions Ltd to or at the request of the Client; and

(ii) all liabilities relating to any loss or damage in respect of which this clause 12 states that Utopia Creative Solutions Ltd has no or restricted liability.

(h) Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

13. (i) Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may as the relevant time have been notified pursuant to this provision to the party giving the notice.

(ii) These conditions and any Schedule to it set out the whole agreement between the parties and supersede any prior written or oral agreement. It may not be varied except by agreement in writing signed by the parties.

(iii) English law shall apply to the contract, and the parties agree to submit to the exclusive jurisdiction of the English Courts.

(iv) No provision or term of this contract may be relied upon or enforced by any person not a party to the contract.

 

©Utopia Creative Solutions Ltd 2009. All rights reserved.