1.1 In these Conditions, the following words and expressions shall have the meaning set out below:
‘Agreement’ means these Conditions read in conjunction with the Specification and phone/email confirmation.
‘Client’ means the individual or business requesting our services.
‘Service’ or ‘Order’ means any digital marketing work provided by Lemon Pulse and governed by this Agreement.
‘Specification’ means the Project details as discussed and agreed verbally, or by email between the Client and Lemon Pulse.
Lemon Pulse is based at 103 West Nile Street, Glasgow, G1 2SD.
1.2 The construction, validity and performance of these Conditions and this order shall be governed by the laws of Scotland.
1.3 All services provided by Lemon Pulse to the Client shall be subject to these Terms and Conditions alongside any other terms stipulated at the point of order.
1.4 If there is any conflict between these Conditions and any other agreement made between Lemon Pulse and the Client, these Conditions shall prevail.
2. Order Acceptance
2.1 Prices provided by Lemon Pulse to the Client are valid for 30 days from the date specified in the verbal or emailed order confirmation acceptance from the Client to Lemon Pulse (unless otherwise specified and agreed upon). Lemon Pulse reserve the right to withdraw the terms prior to receiving acceptance from the Client.
2.3 Subject to payment of the Fees and the provision of client content by the Client, Lemon Pulse agrees to implement the Project using reasonable endeavours and in accordance with the order confirmation and the other provisions of this Agreement.
2.4 Lemon Pulse shall notify the Client when the Project or any agreed part is available for approval. The Client shall advise Lemon Pulse of any errors in that version of the Project as soon as practicably possible but within 7 working days of notification by e-mail.
In the event that the Company distributes content or articles or places links and the Client is unhappy or dissatisfied with any aspect of such distribution or placing, or with any other aspect of the Service, it should likewise notify the Company as soon as possible. The Company will work with the Client to resolve the problem to the Client’s satisfaction where possible. Lemon Pulse will use due skill, care and diligence, reasonably expected of a competent service provider and will make reasonable endeavours to correct such errors.
2.5 If the Client notifies Lemon Pulse of any amendments to the original order, the provisions of clause 3 shall apply.
2.6 If the Client fails to notify Lemon Pulse of any errors within 7 working days of the Project being finalised, the Project will be deemed to have been completed to a satisfactory standard and payment will be due in accordance with clause 5.
2.7 The Client shall allow Lemon Pulse, for the purposes of the service to be provided,
2.7.1 Administrative and/or back office access to the Client’s website, and permission to make changes to the website, or implement any changes provided by the Company, as soon as practicably possible or within 7 days.
2.7.2 Access to all statistics, including but not limited to traffic data, which are relevant to the Service.
2.7.3 Use of the Client’s intellectual property where the Company considers it necessary to deliver the service agreed.
3. Amendments to an Order
3.1 Any amendments to the order must be sent to Lemon Pulse by the Client in writing by e-mail. Lemon Pulse will assess the amendments required and discuss with the client any amendments.
3.2 Lemon Pulse reserves the right to charge for any additional work and will provide the Client with an additional quotation for any amendment agreed and confirmed. Lemon Pulse also reserve the right to request payment for amendments to the original order before continuing work.
3.3 The Client will be required to agree the amended order in writing by email before work on the amendments can commence.
3.4 If the Client does not confirm the amended order by phone or email to Lemon Pulse within 7 working days, the Client shall be deemed not to require such amendments and the Project shall be deemed complete with payment due in accordance with clause 5.
4. Client Obligations
The Client agrees:
4.1 Lemon Pulse will not be liable for the Client’s failure to comply with any laws or taxes affecting e-commerce.
4.2 to provide any information or content required by Lemon Pulse promptly. Failure to provide required information or content within 20 working days of request of service will result in the order being cancelled.
4.3 for the work done in accordance with clause 5 and Lemon Pulse will not be liable for any failure to subsequently meet targeted dates for completion of any related task.
4.4 to keep all passwords confidential at all times.
5.1 Accounts are set as Payment Upfront with payment due within 7 days, unless otherwise discussed and agreed, verbally or in writing with the Client. Lemon Pulse reserves the right to refuse to undertake any further work for the Client if an invoice remains outstanding.
5.2 All invoices must be settled within 7 days of the invoice due date unless specific payment terms have been discussed and agreed with your Account Manager and our Credit Control Team.
5.4 All prices quoted for work are subject to VAT at the prevailing rate.
5.5 Payment methods are detailed on the invoice and payment can be made by bank transfer, credit or debit card.
5.6 We do not accept cheques as a valid payment method.
6. Outstanding Payments
6.1 Lemon Pulse reserves the right to remove any work completed from any computer systems and the internet if invoice payments are not received within the agreed terms of the order or, at the latest, by 30 days of the invoice date.
6.3 If payment is not received within 7 days of the invoice due date, a Late Payment Fee of $85 + Vat, or 10% of the total balance, whichever is higher will be charged.
6.4 Lemon Pulse’s removal of Project material does not relieve the Client of its obligation to pay the due amount. Clients whose accounts are in default agree to pay Lemon Pulse’s reasonable legal expenses and third-party collection agency fees in the enforcement of these Conditions.
7. Warranties and Liabilities
7.1 The Client’s website and its search engine acceptance or rankings may be affected by external factors including but not limited to search engine policies and changes thereto. As such, the Client acknowledges that the Company cannot guarantee that the Client’s web pages will be accepted or indexed or not blacklisted or continue to be accepted or indexed by any search engines or that they will appear or continue to appear in any particular position in any search engine results.
7.2 The Service is provided “as is” and “as available” and the Company makes no warranties or representations:
7.2.1 or guarantee of any particular result, outcome or performance;
7.2.2 whether express, implied or statutory, with respect to the Service, including, without limitation, any implied warranties of merchantability, accuracy, fitness for a particular purpose, or non-infringement. No oral or written information, results or advice given via any means by the Company or its employees shall create a warranty;
7.2.3 that optimised content provided by it will be viewable by or function correctly with all browser software;
7.2.4 that its provision of the Service will be uninterrupted or error free or will not cause any damage or corruption to any hardware, software, network, system, data or other property belonging to the Client.
7.3 The Client warrants that it has obtained and will maintain all necessary licences, authorisations and consents which are necessary for the Project, content and domain name.
7.4 The Client warrants that any and all intellectual property provided by it to the Company pursuant to this Contract is owned by the Client or the Client has the owner’s written permission to use it, and the Client will indemnify and keep indemnified the Company and its subcontractors from any liability, claim, loss, damage or expense arising out of the use of such intellectual property.
7.5 The Company accepts no liability whatsoever for any loss, claim, damage, expense or injury arising from or in connection with the provision of the Service, whether in tort, contract, strict liability or otherwise. In particular:
7.5.1 The Company shall not be liable for any result, outcome or consequence of any action taken, or failure to act, by the Client in reliance on any information, results or advice given via any means by the Company or its employees; and
7.5.2 The Client acknowledges and agrees that its sole and final remedy for the distribution or placing of content, articles or links with which it is unhappy or dissatisfied shall be the attempted removal of such item(s) from its website, and furthermore that removal of such items may be subject to the third-party website owner’s discretion and outside of the Company’s control.
7.6 The Company shall not be liable for any lost profits, lost opportunity, lost business or sales, indirect, special, exemplary, consequential, incidental or punitive damages whatsoever and how so ever arising out of or related to this Contract or the provision of the Service, even if advised of the possibility of such damages.
7.8 The Client shall be responsible for keeping its data and data files secure and for taking back-up copies of its data and data files and verifying the functionality of such back-up copies. The Company shall not be liable for the loss of, damage to, or alteration of data or data files of the Client arising out of the provision of the Service.
7.9 The Company’s liability for matters in relation to which liability by law cannot be excluded or limited shall not be excluded or limited. Except as aforesaid, any other liability of the Company under this Contract shall not in aggregate exceed the amount paid to the Company under this Contract during the calendar month preceding the first event giving rise to such liability.
7.10 The Client agrees to indemnify and hold harmless the Company, its affiliates, officers, agents, co-branders and other partners, and its and their respective employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable legal fees and disbursements and court costs) arising from or in connection with its use of the Service, its violation of this contract or its violation of any rights of any third party.
8. Termination of Service
8.1 This Agreement shall commence upon the date of signature on the Letter of Engagement and shall continue until receipt of invoice payment, unless terminated in accordance with clause 14.
8.2 Termination shall be without prejudice to any rights acquired by the parties during the term of the contract.
8.3 The Client may request in writing that Lemon Pulse cancel an order, giving 30 days’ notice. Lemon Pulse will only accept this request for termination if work on the order has not yet begun. If work has already begun on the Project, Lemon Pulse will invoice the Client for the work carried out.
8.4 Lemon Pulse reserves the right not to work with any Client who has a site which it deems is unlawful or inappropriate, contains a virus or hostile program, constitutes harassment, racism, violence, obscenity, harmful intent, spamming, contains adult content, commits a criminal offence, infringes privacy or copyright or any other questionable media at its own discretion.
8.5 Lemon Pulse reserves the right without notice to cancel, reject, refuse sale to or work with a Client without reason for such rejection or refusal.
8.6 Lemon Pulse reserve the right to cancel the Client’s email access: (a) if Lemon Pulse receive excessive spam complaints about the Client (b) it is suspected the Client is using the email account to send spam (c) Lemon Pulse suspect the Client is using the service to send pornographic, offensive or inappropriate material (d) Invoice payment is not made in accordance with these terms.
8.7 Should the Client go into compulsory or involuntary liquidation or cannot pay its debts in the normal course of business, Lemon Pulse reserves the right terminate the order.
8.8 Lemon Pulse reserves the right to terminate an order with the Client at any time without prior notification if it deems the Client to be in breach of these Conditions. Lemon Pulse shall be the sole arbiter in deciding what constitutes a breach. The Client shall not be entitled to refunds of any payments made to Lemon Pulse.
8.9 If the order is terminated by either party then Lemon Pulse will be entitled to payment for work done to that date. The invoice for such work must be paid by the Client within 30 days of receipt failing which Lemon Pulse shall be entitled to payment of the full price of the order forthwith.
9.1 The Client agrees to keep Lemon Pulse fully indemnified on demand against any liability, damage, expense, claim or cost (including legal costs and expenses) suffered by Lemon Pulse as a result of the Client’s breach of any clause of this Agreement
9.2 The Client agrees that Lemon Pulse is not liable for any claims, losses, costs incurred or damages due to any failure to carry out services within a given delivery timescale.
9.3 The Client agrees that Lemon Pulse is not liable for absence of service as a result of illness or holiday.
9.4 The Client agrees that Lemon Pulse shall not be liable for the website content.
9.5 The Client agrees that Lemon Pulse shall not be liable for any infringement of copyright or proprietary rights, misinformation or delivery of defective products or services
9.6 The Client will indemnify Lemon Pulse in relation to any liability arising in respect of the matters at 9.2. 9.4 and 9.5.
10. Limitation of Liability
10.1 Notwithstanding anything contained in these Conditions or the Specification, Lemon Pulse liability to the Client in respect of the order, in contract, tort (including negligence or breach of statutory duty) or howsoever otherwise arising, shall be limited to the price for the Project specified in the Order.
10.2 Notwithstanding anything contained in these Conditions or the Specification, in no circumstances shall Lemon Pulse be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof (i) for any loss of profit, business, contracts, revenues or anticipated savings, or (ii) for any special indirect or consequential damage of any nature whatsoever.
11. Force Majeure
11.1 Lemon Pulse shall not be under any liability for any failure to perform any of its obligations under the order due to ‘Force Majeure’. Following notification by Lemon Pulse to the Client of such cause, Lemon Pulse shall be allowed a reasonable extension of time for the performance of its obligations.
11.2 For the purposes of this condition, ‘Force Majeure’ means fire, explosion, flood, lightening, Act of God, act of terrorism, war, rebellion, riot, sabotage, telecommunication problems, software failure, hardware failure, third party interference, official strike or similar official labour dispute, or events or circumstances outside the reasonable control of the party affected thereby.
12. Confidentiality and Data
12.1 The Client is responsible for keeping the password and username that may be assigned on registration confidential. The Client is fully responsible for all action and activities that take place under the Client account.
12.2 If the Client believes there has been unauthorised use of the account or suspects that confidentiality has been compromised, the Client must contact Lemon Pulse immediately at [email protected] or by phone.
12.3 In the event of termination or expiration of this Agreement, each party shall return or, if requested, destroy the confidential information of that party.
12.4 Each party will comply with its obligations pursuant to the Data Protection Act 1998.
12.5 Lemon Pulse and any third-party associates agree that it will not disclose any confidential information relating to the Client without the Client’s express permission.
12.6 The Client agrees that it will not disclose any confidential information relating to Lemon Pulse.
12.7 Lemon Pulse shall use information provided by the Client: (a) to identify the Client in communication by phone, email, postal mail or Skype; and (b) to contact the Client from time to time to offer them services or products which may be of interest to or benefit the Client.
13. Service Provision
13.1 Lemon Pulse cannot guarantee correct functionality with all browser software across all different operating systems.
13.2 No warranty is provided by Lemon Pulse in relation to the performance of third parties engaged to perform part of the order and Lemon Pulse shall not be liable for any failure, action, omission or error on the part of a third-party provider.
13.3 The Client agrees that Lemon Pulse is unable to guarantee that the Client’s website will achieve a favourable position, or any position, within a particular search engine and as such, shall not be liable for failure to achieve a particular position.
13.4 The Client agrees that Lemon Pulse shall not be liable for any website URLs dropped or excluded by a search engine for any reason.
13.5 The Client agrees that no liability will be attributable to Lemon Pulse in the event of website downtime or the inability to operate the web pages or website.
15. Entire Agreement
Each party agrees that this Agreement sets out the entire agreement between the parties and supersedes all previous agreements.
The failure by Lemon Pulse to enforce any of these Conditions at any time or for any period will not release or exonerate or in any way affect the liability of the Client or be a waiver of:
16.1 These Conditions.
16.2 The right of Lemon Pulse at any time afterwards to enforce each and every clause of these Conditions; or
16.3 Any penalty attached to their performance.
If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement and shall not in any way affect any other circumstances of or the validity or enforcement of this agreement.
This Agreement shall be binding upon the parties and their respective successors and permitted assignees, and references to a party in this agreement shall include its successors and permitted assignees.
19. Governing Law
This Agreement shall be governed by and interpreted in accordance with Scottish Law and the Scottish courts shall have jurisdiction to resolve any disputes between the parties.