Terms And Conditions

Last modified 5th August 2009

This document sets out the terms and conditions of Spoton Corporation Limited. These terms and conditions apply to all contacts for the sale of goods or the provision of services by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms and conditions which the Buyer may purport to apply under any purchase order confirmation or similar document. If the Buyer has accepted the terms and condition of the Seller on a previous occasions, either verbally or signed any future order placed by the Buyer with the Seller this will constitute that he Buyer has a full understanding of the terms and conditions of the Seller.

1 Defined Terms

1.1 “Seller” means Spoton Corporation Limited “Spoton”

1.2 “Buyer” means the person who buys or agrees to buy the goods from the Seller.

1.3 “Goods” means articles and services, which the Buyer agrees to buy from the Seller.

1.4 “Conditions” means these conditions and any special terms and conditions agreed in writing by the Seller’.

1.5 “Price” is the price for the Goods or Services excluding carriage, packing, insurance or VAT.

2 Orders, Specifications, Estimates and Quotations

2.1 Please note that the signing of any quote/confirmation of order issued by Spoton Corporation Limited or the payment of any invoice by a Buyer constitutes an agreement with that Buyer that they have read, understand and agree to the terms and conditions of Spoton Corporation Limited. All estimates/quotes issued do not include any charges for any work, which has to be carried out due to client additions, omissions and alterations outside of or in addition to the specified information as detailed on any quote/ confirmation of order signed by the client and or their representative. If a Buyer requires to be informed of additional costs to complete their work they must inform Spoton Corporation Limited in writing at the time of signing the quote/confirmation of order. All work carried out will be charged at the applicable hourly rate at that time if no confirmation of order has been signed but work has been requested to be completed. All concept and design work is due for payment in full once accepted by the client and they have signed a design approval form issued by Spoton Corporation Limited. Completed design and artwork ready for print, display and or publication is due for payment on completion, once an artwork approval form has been signed by the client or other form of written/typed acceptance. Any expenses or materials used in the production of any such work as well as any outside suppliers costs and or expenses are due for payment in full.

2.2 All quotations or confirmation of orders accepted by the Buyer and provided by the Seller for the production of a website are based on the information provided by the client. Any function not listed in the deliverables section of any quotation or report supplied with a quotation provided by Spoton Corporation Limited will not be completed without extra charge at the applicable hourly rate. In the case where a content management system, e-commerce solution or database is required completing it is the responsibility of the client to confirm the functionality of what is required at the outset. All quotations and confirmation of orders provided to a client includes 2 hours dealing with the clients previous web designer or hosting company any hours over this may be chargeable. All e-commerce websites or solutions are quoted using Paypal as the payment process any other payment connection may require extra charges being made due to the requirements of any other payment provider.

2.3 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to and subject to these Conditions.

2.4 No order submitted by the Buyer shall be deemed to be accepted by the seller until confirmed in writing by the Seller’s representative.

2.5 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for the giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract.

3. Price and Payment

3.1 All prices quoted are strictly net, exclusive of delivery and installation unless otherwise stated. Value Added Tax will be charged at the current rate. All quotations are valid for 30 days from issue and are subject to view of the Buyer’s originals, disks, artwork, and detailed instructions. The Seller reserves the right to alter the price and terms of the quotation if, upon inspection of the client’s order, they differ significantly from the specification or time scales understood by SpotOn when the quotation was given.

3.2 The Price shall be the Sellers quoted price or where no price has been quoted the price listed in the Seller’s published price list current at the date of acceptance of the order or at the applicable hourly rate chargeable at that point in time. All prices quoted are valid for 30 days only after which time they may be altered by the Seller without giving notice to the buyer. All projects are invoiced in stages. The first stage of 25% will be invoiced usually on acceptance of the concept and design visuals but is at the Seller’s discretion and is due for payment within 7 days of the invoice date. Thereafter the balance of the project cost is invoiced in further 25% stages over the following three months whether the project is complete or not, or invoiced sooner on completion of each project section. The Seller reserves the right to request a deposit at the commencement of a project. Please remember that the Seller does not operate a client account system with any new clients first project. Please consult with the accounts department if this causes problems with payment runs. Payment terms 1st stage invoice within 7 days of invoice date — remaining stage invoices within 30 days of invoice date unless otherwise stated. Non payment of invoices within the above time scale will result in the project being put on hold. There is a cancellation fee of 25% on all labour costs before any work takes place. Once work has started a minimum of 50% of the labour cost will be due if work is cancelled or placed on hold. Print and product invoices are raised separately and are due for payment prior to print or product ordering taking place.

3.3 In the case of design work the Seller will give a written estimate of charges for the work to the Buyer. The parties recognise the difficulty of providing any fixed price quotation for work of this nature. The Price is calculated by reference to an hourly-charging rate, which will be notified to the Buyer by the Seller at the commencement of the work. A deposit representing 50% of the anticipated cost of the work will be payable by the Buyer on acceptance of the estimate unless otherwise agreed in writing. The Buyer will pay interim accounts in respect of charges incurred. The Seller reserves the right to terminate the contract in the event that any interim account remains unpaid for more than 14 days.

3.4 The Price is exclusive of VAT which is to be paid in addition at the prevailing rate, unless specifically itemised on the invoice.

3.5 Unless otherwise agreed in writing all payment of the Price for all goods shall be made in pounds sterling at the time of order and no goods shall be dispatched or collection allowed until paid for in full.

3.6 Where payment is agreed to be on delivery of an invoice payment of the Price and VAT in pounds sterling is due within 14 days of the date of the invoice.

3.7 In no circumstances shall the Buyer be entitled to make any deduction or withhold payment for any reason at all. Time for payment is of the essence.

3.8 Without prejudice to any other remedy available to the Seller, interest is payable by the Buyer on overdue invoices from the date when payment becomes due for each month or part of a month from that date until the date of payment at the rate of 2% for each such period, compounding at the end of each such month.

3.9 In the event of unpaid invoices or termination of any agreements the Seller reserves the right to use the services of any 3rd party Agencies, Solicitors or data based Bureaus to recover any sums of money that falls due including all expenses and costs with interest.

3.10 The Seller reserves the right to immediately temporarily suspend or permanently remove hosted web pages and images, and to terminate any other service provided, in the event that the customer is in arrears with any payments.

3.11 The Seller reserves the right to claim a right, equivalent to a lien, over web space and or domain names purchased on behalf of the customer in respect of any customer debt.

4 Delivery

4.1 Acceptance of delivery of the Services shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.

4.2 If Goods are collected by the Buyer, from the Seller, risk passes when the Goods are taken by the Buyer. If the Seller delivers, risk passes on delivery to the place directed by the Buyer.

4.3 Failure to deliver all the Services does not affect the liability of the Buyer to pay for the services that have been delivered.

4.4 The Seller is under no liability to the Buyer in respect of late or non-delivery of any Goods.

4.5 Dates for delivery are not of the essence of this contract. The Buyer has to contact the Seller within 24 hours of any delivery if there is a problem with any goods supplied whether it be under or over supply or faults with any of the goods supplied. Any faulty goods returned will not be replaced if the manufacturer of the goods determines that the goods cannot be replaced for what ever reason they determine.

4.6 If the purchaser shall be in breach of any of their obligations under the contract the Seller may (without prejudice to the Seller’s rights subsequently to determine the contract for the same cause should it so decide) suspend further deliveries of goods without notice until any defaults by the purchaser are remedied.

4.7 The Buyer will take delivery of and accept Goods purchased by bulk notwithstanding that the quantity delivered is up to 5 % different from that ordered.

4.8 All service times and delivery dates quoted are from the receipt of the Buyer’s orders and origination in the Seller’s studio. The Seller reserves the right to alter these, if on inspection of the Client’s order they differ significantly from the specification understood by us when the quotation was issued. The Seller will use its best endeavours to ensure that orders are completed within the times quoted but will not accept any liability for damages in the event of failure to comply. Delivery instructions will be adhered to closely but no responsibility can be accepted for delays. The Seller cannot accept any claim for consequential loss no matter how caused.

5 Defects

5.1 The Buyer will inspect the Goods after delivery and should there be any defect failure to comply with sample or lack of quantity the Buyer agrees that he will raise the matter with the Seller within 3 working days (only Sunday is not a working day and Christmas Day, Boxing Day, Good Friday, Easter Monday and New Years day). The Seller will be under no obligation to the Buyer in respect of any matter not reported to the Seller within that time.

5.2 If the Goods are not in accordance with the contract for any reason the Buyer’s sole remedy is limited to the Seller making good any shortage replacing the Goods or the defective parts of the Goods ordered and delivered or (at the Seller’s election) refunding a proportionate part of the price.

5.3 It is the responsibility of the Buyer to check all design, illustrations, photography, technical information, artwork and proofs by the Seller, for omissions, copy or clerical errors, colour values or corrections. All final proofs must be certified by the Buyer as being correct prior to commencement of production or distribution and the Seller will incur no liability for any errors not corrected by the Buyer. By their nature goods do not have a redeemable value and no refunds or credits will be payable by the Seller for goods correctly supplied to the Buyer. Due to the differences in equipment, paper, ink and environmental conditions between colour proofing and print production, a reasonable variation in colour between proofs and finished print is to be expected. Customers alterations and additional proofs necessitate thereby shall be charged extra. Production will not continue until all proofs have been approved. By signing off the contract proof you are hereby agreeing to our terms and giving notice to Spoton to proceed with your print order. If Spoton is instructed to complete without the final proofs being checked, they cannot be held responsible for the quality of reproduction and or consequential losses arising as a result of any errors, omissions or incorrect colour reproduction.

5.4 All goods should be unpacked and carefully checked for defects upon receipt. If the Buyer should find the goods are faulty please inform the Seller within 7 days of receipt of order. If the Buyer finds the product is simply not suitable it may be returned subject to a 20% restocking fee. Monies will be credited upon the safe return of the goods which need to be in the condition in which they were sent out. The buyer is responsible for all additional delivery fees.

6 Cancellation

6.1 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

6.2 The Seller may at any time and for any or no reason cancel this contract at any time before delivery of the Goods and if the Seller does so the Seller shall in no case incur any liability to the Buyer, save for the obligation to repay any money paid by the Buyer to the Seller in connection with the contract unless retained by way of set off against other liability of the Buyer to the Seller. There is a cancellation fee of 25% on all labour costs before any work takes place. Once work has started a minimum of 50% of the labour cost will be due if work is cancelled or placed on hold.

6.3 If the Buyer chooses to cancel any exhibition/display order within seven days of making the order, the following procedure applies: The Buyer will receive a full refund once any goods have been returned and inspected (less any delivery expenses and acceptable costs). Any item specially manufactured from information or files supplied will have to be paid for in full, as these are bespoke items and costs cannot be recovered.

7 Retention of Title

7.1 In spite of delivery by the Seller to the Buyer, property in the Goods remains in the Seller until the Price and VAT is paid to the Seller and interest in addition if due.

7.2 The Seller is entitled to recover the Price and VAT from the Buyer notwithstanding that property has not passed to the Buyer.

7.3 After the time for payment has expired the Seller has the right to collect the Goods from the Buyer wherever the Goods may be situated without giving any prior notice to the Buyer. The Seller may take this action even if the Goods have been intermingled with other Goods, and may in addition or instead take Goods previously bought from the Seller by the Buyer for which payment has been paid.

8 Colour Matching

8.1 All orders are accepted on the understanding that it is not always possible to guarantee an accurate colour balance and SpotOn will not be liable for failure to do so. Without special instructions or colour guide, colour reproduction will be at the discretion of our experienced technicians. Colour matching cannot be guaranteed between prints from the same origin printed at different times.

9 Exlcusions of Liability

9.1 The Seller will incur no liability for any errors not corrected by the Buyer. By their nature goods do not have a redeemable value and no refunds or credits will be payable by the Seller for goods correctly supplied to the Buyer.

9.2 All terms, conditions and warranties (whether implied or made expressly) whether by the Seller or its servants or agents or otherwise relating to the quality or fitness for purpose are excluded.

9.3 Goods are sold by the Seller to the Buyer without any warranty or condition or representation as to the fitness of any Goods for any particular purpose.

9.4 The parties recognize and accept that owing to the variations in equipment, paper, ink and environmental conditions between laser colour print, colour proofing and print production some variation in colour between proofs can be expected. The Seller shall not be deemed to be in breach of the contract provided that the Goods substantially correspond with the proofs provided.

9.5 In the event of any breach of contract by the Seller the remedies of the Buyer are limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.

9.6 All warranties and conditions whether implied by statute or otherwise are excluded from this contract provided that nothing in this contract restricts or excludes liability for death or personal injury caused by the negligence of the Seller or affect the statutory rights of a Buyer dealing as a consumer.

10 Buyer’s Indemnity

10.1 The Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the buyer or where any designs or artwork have been supplied by the Buyer, the buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Sellers use of the Buyer’s design, artwork or specification.

11. Improper Use

11.1 The Sellers services may only be used for lawful purposes. It is the Buyers responsibility to ensure that material is not in contravention of applicable legislation such as, but not limited to: pyramid selling schemes, material judged to be obscene, threatening or racially prejudiced in the following countries:

a. The United Kingdom, where Spoton is situated.

b. The country where the customer’s domain is registered.

c. The country where the web server resides.

d. Countries where the customer’s services/products are available.

11.2 The Seller reserves the right to immediately temporarily remove hosted web pages and or images on sites which the Seller controls if it has reason to believe the pages or images may be illegal or in breach of intellectual property laws pending further investigation. No reimbursement will be made for any period when pages or images are unavailable for this reason. No charge will be made for restoring any pages or images, which are found, after investigation, to be non-infringing.

11.3 The Seller reserves the right to immediately permanently remove hosted web pages and or images on sites which the Seller controls if it has reason to believe the pages or images are illegal or in breach of intellectual property laws. No reimbursement will be made for pages or images, which are removed. Replacement of infringing pages or images by non-infringing pages or images will incur further charges at our standard Web Maintenance rates.

11.4 The Seller reserves the right to immediately permanently remove, in whole or in part, any web site hosted by which repeatedly exceeds the agreed bandwidth limitations in the case that the customer refuses to make changes to the site to bring the bandwidth requirements within the agreed limits or purchase more bandwidth. No reimbursement will be made in this case.

11.5 The Buyer may not use, nor permit the use of, the services for the sending of unsolicited and/or bulk e-mail. The Seller reserves the right to disable e-mail services without notice upon learning of such activity. The Seller reserves the right to seek legal remedy if such activity impacts the Seller’s ability to provide services to other customers.

12 Ongoing Services

12.1 The Seller reserves the right to give one month’s notice not to renew any contract for ongoing services. No reason need be given for this termination. Internet services are provided on an ongoing basis with all payments due in advance of service. All charges are deemed contracted for a period of 12 months from the initial installation or setup. Cancellation of service may be made by giving 3 months’ notice in writing. The initial term will start on the first day of service following the end of any agreed trial period or the date the Buyer receives access information where no trial has been requested. If the Buyer terminates this contract before the end of the initial period, then the Seller will debit the customer’s account with a sum equal to the charges otherwise due for the remainder of that initial period. Termination and transfer of any website hosting to another company will result in an administration transfer cost of £60. Termination of any editable website to another hosting company will result result in the loss of the editability function of that site. There will be no compensation for the loss of any such functionality. If, after the period, the Buyer terminates this contract without giving the required notice, then the Seller will debit the customer’s account with a sum equal to the charges otherwise due for the notice period. Licensed code and copyright (HTML programming), scripting (CGI, JavaScript or otherwise) as well as graphics created for the Buyer by the Seller or an outside contractor remains the property of the Seller and may not be distributed, modified or re-licensed without the express written consent of the Seller. The Buyer will obtain all the necessary permission and authorities in respect to the use of all copy, graphic images, registered company logos, names and trademarks or any other supplied material. Every contract for service shall be regarded as a guarantee by the Buyer to the Seller, that all such permission and authorities have been obtained and evidence of such may be requested. The Buyer agrees to indemnify and hold harmless the Seller from any and all claims resulting from the Buyer’s negligence or inability to obtain proper copyright permission. Access Requirements in the event, the Seller is contracted to place authored code and/or graphics onto the Buyer’s web space, the Seller must be granted read/write access to the Buyer’s storage directories and those directories must be accessible via FTP. Depending on the project, other resources may need to be configured on the Buyer’s Server (scripts, image maps etc.). Buyers are granted additional authored code and/or graphics once every month only, on an agreed time by the Seller and the Buyer. The Buyer agrees to provide the Seller, on demand access to the storage directories and the right to remove authored code and/or graphics for failure to adhere to the terms and conditions of this agreement. If additional authored code and/or graphics are required by the Buyer more than once every month, the Seller reserves the right to charge the Buyer accordingly.

12.2 All effort will be made by the Seller to maintain a web site hosting presence on the internet for the Buyer’s websites using web servers provided by a credible third party website hosting supplier. Under no circumstances can the Seller be held responsible for any Buyers website that fails to have an internet presence due to failure of any web server or code problem within the Buyers website. As the Buyers sites are fully editable and e-commerce websites have editable administration systems faults caused by the Buyer and their staff are the fault of the Buyer and will rectified as soon as possible and be charged at an applicable hourly rate at that time.

12.3 Transfer of sites and e-mails. All effort will be made to complete a smooth transfer from the Buyers present hosting company to the Sellers servers. The Seller however cannot be held responsible for any activities of the Sellers previous hosting/domain company that cause problems with such transfers. Time taken to resolve such issues may incur charges at an applicable hourly rate at that time. Where possible the Seller will make every effort to assist the buyer with the set up of their e-mail accounts. The Seller however cannot be responsible for the outgoing connection from the Buyers computer to the internet for e-mail use.

12.4 Force Majeure for all websites Supplied or provided by the Seller. IN NO EVENT WILL WE, THE SUPPLIERS OFFICERS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, AGENTS, AFFILIATES, SUBSIDIARIES, SUCCESSORS OR ASSIGNS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, OR OTHER CONSEQUENTIAL LOSS FOR ANY USE OF ANY WEBSITE PROVIDED BY THE SELLER, OR USE OF ANY OTHER LINKED WEBSITE, EVEN IF THE SELLER ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS. THE TERM “LOSS” INCLUDES, WITHOUT LIMITATION, LEGAL FEES, ANY LOST PROFITS, BUSINESS INTERRUPTION AND LOSS OF PROGRAMMES OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM.

13 Intellectual Property

13.1 The designs, artwork and specifications of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller unless otherwise agreed in writing. Any designs produced by the Seller cannot be reproduced by the Buyer or his Agents without written permission of the Seller. Where any designs, artwork or specifications have been supplied by the Buyer the copyright, design right or other intellectual property in them shall remain the and property of the Buyer and the Buyer warrants that the use of the designs, artwork and specifications for the manufacture, processing, printing or supply of the Goods shall not infringe any third party right.

13.2 Copyright or intellectual property rights for any web sites, copywriting, design, artwork, photography, illustration, film, video, flash or multimedia files, supplied or provided by the Seller and or its associate, affiliate companies or trading partners are the property of the Seller. The Buyer is charged only for the production costs not the ownership of copyright and or intellectual property rights. It is the responsibility of the Buyer to verify that all images, photographs, text, illustrations, video or multi media content used in any project or work carried out for them can be used and does not contravene copyright or intellectual property right laws. This also applies to any finished web site project where a client updates their own web site with images or text they supply or use. NO IMAGES, TEXT, GRAPHICS, ILLUSTRATIONS, LOGOS, DEVICES, VIDEO, FILM, MULTIMEDIA CONTENT USED WITH ANY PROJECT, WORK SUPPLIED TO A BUYER CAN BE USED OTHER THAN FOR THE USE IT WAS SUPPLIED. NO ITEM CAN BE GIVEN SUPPLIED OR SOLD TO ANY THIRD PARTY FOR THEIR USE. Any code adapted, developed or used to construct a database or computer program for any person, client, customer, company, business, organization, charity, government or local council is the property of the person, company or business that developed it or Spoton corporation Limited and will not be assigned to any client, customer, company, business, organization, charity, government or local council. Ownership of any copyright or intellectual property rights assigned by Spoton Corporation to a client will revert back to Spoton Corporation Limited if a client has outstanding debts at any time with Spoton Corporation Limited. All orders placed with any supplier for goods or services are placed under with the full agreement of the supplier that the ownership of such goods, services, copyright and intellectual property rights provided by the supplier are passed on in full to Spoton Corporation Limited.

14 Waiver

14.1 Waiver by the seller of any breach of the contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

15 Assignment

15.1 Neither party may assign the benefit of this contract to any other.

16 Notices

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

17 Variation

17.1 No statement, description, information, warranty or recommendation contained in any catalogue, price list, advertisement or other promotional material or made verbally by any of the agents or employee of the Seller shall operate to vary these conditions.

18 Force Majeure

18.1 The Seller shall not be liable for failure to carry out any contract owing to an act of God, war strikes, lockouts, fire, storm, breakdown of machinery or any other cause above and beyond our control or owing to inability to procure materials or services except at increased prices.

19 Validity

19.1 If any provision of these terms and conditions is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and conditions and the remainder of the terms and conditions in question shall not be affected and shall remain in full force.

20 Changes to Terms and Conditions

20.1 Any changes to our terms will be placed on the Seller’s website and will supersede any printed version of these terms. The Seller will take reasonable steps to draw the Buyer’s attention to any changes in terms. It is suggested that the Buyer reads the terms posted on the Seller’s website regularly to ensure that they still meet with approval.

21 Governing Law

21.1 This contract is governed by the law of England and Wales and the parties submit to its exclusive jurisdiction.