TERMS & CONDITIONS
By nature of working with Lemon Tree you agree to be bound by the following terms and conditions.
GENERAL TERMS AND CONDITIONS
These General Terms & Conditions together with any Specific Terms and Conditions for your Services and the Acceptable Use Policy form the Agreement between You and Us. If any of these General Terms & Conditions are inconsistent with any Specific Terms and Conditions for your Services, then the Specific Terms & Conditions shall prevail.
By signing up for the Services you warrant that you are capable of entering into a binding contract; or are acting with the express permission of a person or organisation and using the payment details of that person and that they also agree to be bound by the terms of this Agreement. You also agree to comply and adhere to any and all applicable laws and regulations in relation to this Agreement.
DEFINITIONS & INTERPRETATION
In these Terms of Business:
‘Acceptable Use Policy’ means the Lemon Tree policy which forms part of this Agreement and sets out the remit for your use of the Services.
‘Agreement’ means any agreement to which these General Terms & Conditions together with any Specific Terms & Conditions for your Services and the Acceptable Use Policy are incorporated.
‘Order’ means a request made by a customer for Services to be supplied pursuant to the terms of this Agreement.
‘Services” means the services and or products to be provided by Lemon Tree.
‘Us’ means Lemon Tree Limited, a company registered in England Registration number 08719109. Registered office: 3 Kensworth Gate, Dunstable, Bedfordshire, LU6 3HS
‘You’ means the person or company who purchases services from 1&1.
‘Artwork’ means the design and material described in the Brief and Schedule which will be prepared by Lemon Tree for delivery to the Client.
‘IP Rights’ means all existing and future copyright and other intellectual property rights in the Artwork including any rights to which the Designer may at some future date become entitled.
1. COMMENCEMENT OF THIS AGREEMENT
This Agreement will only commence when we provide You with written confirmation that your Order has been accepted.
2. SUPPLY OF SERVICES
2.1 We agree to supply the Services to You in accordance with the terms set out in this Agreement.
2.2 We will endeavour to supply the Services to You as soon as reasonably practicable and in the event that we become aware of any reason for delay we shall notify You.
3. DURATION AND RENEWAL OF WEBSITE RELATED SERVICES
3.1 Unless otherwise specified, Services are provided for a minimum contract term of 12 months and unless cancelled in accordance with Clause 9 below will automatically be renewed for the billing period You chose.
3.2 In the event we provide and register a domain (subject to availability) is included with the purchase of a new contract with a 12-month minimum term contract. After the contract term of the initial purchase, domains purchased through this offer will renew at the regular price and charged.
4. SERVICES OF LEMON TREE, AGREED SCOPE, PERIOD, PRICE, PROJECT DELAYS AND CLIENT LIABILITY
4.1 Lemon Tree will prepare and deliver to the Client the Artwork in accordance with a given Brief and a Schedule. Any dates for delivery stated in Estimates are estimated only and are not guaranteed. Dates for delivery can be confirmed in the when a full Brief is agreed and before commencement of work.
4.2 Any projects, services and rates supplied are limited to what is specifically set forth in the proposal and based on a set number of hours. Any additional services will require an agreed quote on additional hours. We reserve the right to adjust our hourly rates at any time. Changes and additions outside the scope of the proposal will be quoted and invoiced. You will be advised on all costs, changes and additions before commencement of the additional work. Expenses are itemised on each invoice. Any time frames or estimates that we give are contingent upon your full co-operation and complete and final content in photography for the work pages. During development there is a certain amount of feedback required in order to progress to subsequent phases. It is required that a single point of contact be appointed from your side and be made available on a daily basis in order to expedite the feedback process.
4.3 On completion of the work you will be notified and have the opportunity to review it. You must notify us in writing of any unsatisfactory points within 48 hours of such notification. Any of the work which has not been reported in writing to us as unsatisfactory within the 48 hours review period will be deemed to have been approved. Once approved, or deemed approved, work cannot subsequently be rejected and the contract will be deemed to have been completed and the 50% balance of the project price will become due. The only exception to the above is if the delays are a result of injury or illness.
4.4 If you reject any of our work within the 48 hour review period, or not approve subsequent work performed by us to remedy any points recorded as being unsatisfactory, and we, acting reasonably, consider that you have been unreasonable in any rejection of the work, we can elect to treat this contract as at an end and take measures to recover payment for the completed work.
4.5 Once the project has been completed, as determined by Lemon Tree Limited, we will notify you either in writing, and provide you with an opportunity to access the website if CMS access was granted. If you determine that the website does not comply with the Project Components agreed to in the proposal, Lemon Tree agrees to;
a) Perform the corrections of errors free of charge to the system Lemon Tree has developed. Lemon Tree is not responsible for errors on third party software.
b) Lemon Tree will carry out simple aesthetic changes, modifications to meet the client’s demands. These changes do not include development of new function into the website.
Any significant changes will require additional funding to complete the requirements.
4.6 Presentations will be submitted for approval and that approval is not to be unreasonably withheld or delayed subject to the presentations being compliant with the Brief and Schedule.
4.7 If the Client requests any substantial changes to the Brief or the Artwork or requests any additional services, Lemon Tree reserves the right to charge additional fees.
4.8 You have ownership of the website supplied by Lemon Tree once it is fully paid. Lemon Tree will at all times be and remain the sole and exclusive owner of any custom web development or software created in any format used or made part of the website which is not provided by you or a third party (open source). 3rd Party software such as plugins remain the property of Lemon Tree, and may not be transferred without approval from Lemon Tree. Except as expressly authorised by Lemon Tree, you will not copy, modify, distribute or transfer (by any means), display, sublicense, rent, reverse engineer, decompile or disassemble Lemon Tree’s properties.
5. CONSEQUENTIAL LOSS
We shall not be liable for any loss or damage which you may suffer which is in any way attributable to any delay in performance or completion of our contract, however that delay arises. We are not liable for any loss to a website and/or date, caused by hacking or malicious software. We are within our rights to charge at least the hourly rate for any time spent recovering a website and associated files after damage caused by hackers, or third party companies associated with us.
You are responsible for maintaining your own backups with respect to your website (unless you have purchased our maintenance agreement) and we will not be liable for restoring any client data or client websites except to the extent that such data loss arises out of a negligent act or omission by us. If you are hosting your website with Lemon Tree, we or a third party will undertake backups of your website as stated within our agreed maintenance agreement between Lemon Tree and You. Should you want a full copy of this backup, we can supply at an additional cost, a zip file of all contents.
7. OWNERSHIP OF DOMAIN NAMES AND WEB HOSTING
You will have full ownership of your domain and you will be free to move your domain name from us. Failure to pay your domain renewal, will result in the cancellation of your domain name.
If you no longer require Lemon Tree’s services for hosting, you can request a download/zip file of your website contents at an additional cost.
8. FEES AND PAYMENT
8.1 The fee payable to Lemon Tree by the Client for the Artwork is set out in the Estimate. Unless stated differently in the Estimate
– of the total amount a 50% deposit invoice is payable before commencing work on the project, 50% invoice is payable before release of final artworks to the Client.
8.2 Any expenses payable in addition to the Fee will be identified in the Schedule and will be reimbursed by the Client.
8.3 Deposit invoices are payable before commencing work on the project. Final invoices are payable 14 days from the invoice date.
8.4 Amounts quoted to the Client will include VAT at the current rate if applicable.
8.5 Failure by the Client to make any payment within 30 days of an invoice will entitle the Designer to interest at 4% per annum above the Bank of England base rate from the due date until the date of receipt of payment.
8.6 Additional requests/amends/copy changes by the Client, above and beyond the costs quoted in the design estimate will be charged at the usual hourly/daily rate. When Lemon Tree becomes entitled to additional fees, these will be calculated by reference to the rates specified in the Agreement and if no rates are specified, an estimate will be given to the Client before the additional work is commenced.
8.7 We reserve the right to suspend all Services until payment is received in full and all outstanding charges are cleared. Any non-payment of a recurring invoice may be subject to an administration charge. You are responsible for all money owed to Us under the terms of this Agreement until it is terminated. You are also responsible for any additional costs incurred by Us in taking steps to recover any sums due by You.
8.8 You will pay any Additional Charges as may be required from time to time by Us for reactivation of the Services due to disconnection.
9.1 When entering into this Agreement as a consumer (not in the course of conducting business) the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (“the Regulations”) applies. In accordance with the Regulations we must not commence the supply of our Services to You for a period ending 14 days after your order is accepted by Us, unless You expressly agree for Us to commence service sooner.
9.2 We reserve the right to cancel and/or suspend the Services at any time without prior notice if You breach any of the terms of this Agreement.
9.3 The Client shall be permitted to transfer his domain name(s) to another host other than the Company upon termination of this Agreement in accordance with Clause 9.
9.4 If the Client wishes to cancel the Agreement before the finished Artwork is delivered to the Client, a cancellation fee will be payable as follows:
100% of any costs incurred up to the point of cancellation during any Stage of the project.
Please note Stages may not run in exact sequence shown in this Estimate as some stages may run in parallel.
9.5 If the Client wishes to exercise his cancellation rights, he must do so in writing. The Client may use Artwork supplied up to the point of cancellation when fees up to the point of cancellation have been settled.
10.1 All fees are payable in advance and are non-refundable.
10.2 If we choose to cancel the Services we provide to You for any reason other than a breach of the terms of this Agreement by You, we will refund You on a pro rata basis.
10.3 In the event that Services are suspended temporarily or that any features, applications, scripts or programs are deactivated in order to ensure the stable operation and integrity of the Services You will not be entitled to a refund.
11. INTELLECTUAL PROPERTY
11.1 Copyright and all other intellectual property rights in the Artwork will be retained by Lemon Tree. Subject to the Client paying all amounts becoming due to the Designer under the Agreement, the Designer grants to the Client an irrevocable royalty-free license to use the completed Artwork in the Client’s business for the purposes for which it is to be provided.
Lemon Tree asserts his/her moral rights to be identified as the author of the Artwork in accordance with the law.
12. DESIGNER WARRANTIES
12.1 Lemon Tree confirms and warrants to the Client that the Designer is the sole owner of the IP Rights in the Artwork to be supplied under the Agreement and has full authority to assign them to the Client in accordance with the Agreement.
12.2 Lemon Tree confirms that none of the Artwork will infringe the rights of any third party and that all the Artwork to be prepared by Lemon Tree will be created by Lemon Tree and will not have been previously published elsewhere.
13. CLIENT OBLIGATIONS
13.1 The Client will respond promptly to any communications or requests for information from the Lemon Tree during the course of the Agreement.
13.2 The Client has indicated to Lemon Tree the reasons for commissioning the Artwork and the Client will not, unless otherwise agreed, use the Artwork for any purposes wholly unrelated to those reasons.
13.3 The Client will not include the Artwork or any reference to Lemon Tree in any publication that is illegal, obscene or pornographic.
13.4 Unless a separate agreement is created such as an NDA, the Client agrees that Lemon Tree will be entitled to include an illustration of the Artwork in any portfolio, website or publicity material concerning the business of Lemon Tree whether or not the IP Rights are assigned to the Client. Any use of the Client’s brand in such material will be subject to Lemon Tree requesting prior permission from the Client, such permission not to be unreasonably withheld or delayed.
13.5 The Client will not sell or dispose of the Artwork to any third party.
14.1 Either the Client or Lemon Tree may terminate the Agreement if:
14.1.1 the other party becomes insolvent or, in the case of a company, has a receiver, administrative receiver or liquidator appointed
The Client and Lemon Tree will keep the terms of the Agreement confidential and will not allow disclosure to any third parties. In addition, any trade secrets and other confidential information obtained by either party from the other will be kept confidential and will not be disclosed to any third party. The obligations in this clause will survive termination.
The Agreement is between the Client and Lemon Tree only and neither the Client nor Lemon Tree will assign or transfer any rights or obligations under the Agreement without the prior written consent of the other.
Any notice to be given under this Agreement must be in writing and sent to the address of the recipient shown in the Form of Agreement (or to any new address of which notice has been given under this clause). You agree that any notice or communications required or permitted to be delivered under this Agreement by Us to You shall be deemed to have been given if delivered by email, in accordance with the contact information You have provided.
18. LAW AND DISPUTES
18.1 The Agreement is governed by English Law.
18.2 If a dispute occurs, the parties will endeavour to settle it through direct negotiation. If it is not settled, the dispute may be referred to mediation on the request of either party in which case the mediation will be conducted in accordance with the CEDR (Centre for Effective Dispute Resolution) Mediation Rules then in force.
18.3 Any dispute which cannot be resolved through direct negotiation or mediation will be finally determined by the Courts of England.
19. APPROPRIATE USE OF THE SERVICES
19.1 We reserve the right to refuse to provide any and all Services or access to servers at any time at our discretion.
19.2 We do not allow any content to be stored on our servers which contravenes our Acceptable Use Policy. We reserve the right to; remove such content, suspend and/or cancel the Services immediately if we consider that such content breaches the Acceptable Use Policy.
19.3 You accept that your use of our web hosting services with limited web space shall be subject to the terms of the Acceptable Use Policy and You warrant that You will comply with this policy.
19.4 Packages with limited web space are initially configured with 50 GB of available web space. The available web space capacity for limited web space will be checked once daily and, in the event the customer’s usage approaches the limits of the available web space, Lemon Tree will contact You to increase the webspace configuration in increments of 20 gigabytes at a cost to the customer. Lemon Tree reserves the right to move clients to servers which are more suited for that client’s usage, in Lemon Tree’s sole discretion, and the client agrees and understands that during any such move some or all of the Lemon Tree services may be unavailable or inaccessible. In the event that the client’s usage approaches the limits of the available mail space, Lemon Tree does not guarantee additional services will be available and has the discretion to cancel services with immediate effect.
19.5 We shall notify You if we become aware of any alleged breach by You of the Acceptable Use Policy.
19.6 We reserve the right to move your data to a different server without prior notice to You or any third parties.
19.7 Should Your use of the Services result in an overly high load on Our systems, then we may suspend Your account at our sole discretion until the cause of any such overload (legitimate or otherwise) is determined.
19.8 You shall indemnify Us against all damages, losses and expenses arising as a result of any action or claim relating to any breach of this Agreement by You.
19.9 In the event that we remove your data or content and/or suspend all or any Services and later reinstate such content and/or resumes the Services, You shall indemnify Us against all damages, losses and expenses arising as a result of any action or claim arising out of your breach of the Acceptable Use Policy.
20. SCHEDULED MAINTENANCE
20.1 We will provide the Services to You using reasonable skill and care but at all times this will be subject to any downtime caused by scheduled or emergency maintenance or repair. We will use our best endeavours to ensure that any disruption to the Services is minimal and any scheduled work takes place during off-peak hours when possible. We will not be liable to You or any third party for losses whatsoever caused by any such downtime; whether emergency or scheduled.
20.2 We reserve the right to deactivate individual features, applications, scripts or programs as necessary in the interests of technical progress, security, availability of technical support on the provider or manufacturer side, to ensure the stable operation and integrity of the Our systems or in order to comply with Our responsibility to provide technically up-to-date solutions.
20.3 We shall take reasonable steps to ensure that any deactivation of individual features, applications, scripts or programs will not result in changes to a core function of the Services we provide You and to offer technical alternatives (including upgrades and updated versions of software and website) as and when such alternatives become available.
20.4 In the event that such changes result in changes to a core function of the Services or website we provide You and no viable alternative is available, You will be entitled to a pro-rated refund.
20.5 In the event of changes of features, applications, scripts and programs pursuant to above, You agree to cooperate and be responsible for managing any adjustments to your Services and website if requested to do so. We will endeavour to communicate any changes to You as soon as possible.
21. THIRD PARTY USERS
21.1 All Services provided by Us to You are intended for your use only. You agree that any decision to resell, store or give away any of the Services to third parties is undertaken on the basis that You accept sole responsibility for ensuring compliance with this Agreement and the terms and conditions relevant to any chosen Services by third parties. You agree to indemnify and hold Us harmless against any losses caused or damage suffered as a result of a breach by any third parties.
21.2 We accept no liability to You or any third parties for losses arising from third party use of your Services as set out above.
Where a Service is not provided with unlimited usage as standard, you will be liable to pay any charges incurred by exceeding the agreed data use limits in relation to those Services. Any additional charges will be at the rate set out in your original package.
23.1 All data created or stored by You within our websites and servers are your property. We make no claim of ownership of any web server content, email content, or any other type of data contained within your server space or within applications on servers owned by Us.
23.2 We maintain backups of our servers and infrastructure for archiving and to ensure continuity of the Services. In the event of loss of or damage to your data arising out of your actions or actions undertaken on your behalf, we will not provide You with access to any data stored by Us for archiving or backup procedures except at our sole discretion.
23.3 In the event of loss of or damage to your data relating to a failure in our services or servers, we will make reasonable commercial efforts to assist You with restoring your data. Notwithstanding this, however, You accept full responsibility for maintaining adequate backup copies of all your data.
23.4 You shall indemnify Us and hold Us harmless against all damages, losses and expenses arising out of a third party claim of intellectual property infringement in respect of your content or data.
24.1 It is your responsibility to keep all passwords safe, to ensure they are secure (with reference to accepted best practices) and to change passwords regularly. We are not responsible for any data losses or security compromises arising as a result of compromised passwords or as a result of You giving a third party access to your password.
24.2 You are responsible for any and all actions arising out of the use of your account password.
25. DISCLAIMERS AND WARRANTIES
25.1 We do not back up your data for data recovery purposes and whilst we will use our commercial endeavours to assist You in the event of data loss arising out of hardware failure, we do not guarantee we will be able to replace lost data. It is your sole responsibility to ensure your data is backed up for data recovery purposes.
25.2 The Services are provided on an “as is” basis. We do not warrant or represent that any Services will be uninterrupted or error-free. You accept that all Services are provided warranty-free.
25.3 Insofar as permitted by law, and with particular regard to the rights of business customers, all implied conditions, warranties and terms (whether express or implied by statute, common law, custom or otherwise) including, but not limited to, those relating to the exercise of reasonable care and skill, fitness for purpose and satisfactory quality (where applicable) are hereby excluded in relation to the Services to the fullest extent permitted by law.
26.1 We shall not be liable for any loss or damage of any nature suffered by You arising out of or in connection with any breach of this Agreement by You or any act, misrepresentation, error or omission made by You or on Your behalf.
26.2 We will not be liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by You or for any wasted management time or failure to make anticipated savings or liability You incur to any third party arising in any way in connection with this Agreement or otherwise whether or not such loss has been discussed by the parties pre-contract or for any account for profit, costs or expenses arising from such damage or loss.
26.3 No matter how many claims are made and whatever the basis of such claims, our maximum aggregate liability to You under or in connection with this Agreement in respect of any direct loss (or any other loss to the extent that such loss is not excluded by other provisions in this Agreement) whether such claim arises in contract or in tort shall not exceed a sum equal to the fees paid by You for the specific Services in relation to which Your claim arises during the 6 month period prior to such claim.
26.4 Nothing in this Agreement shall operate to exclude or limit our liability for:
26.4.1 death or personal injury caused by our negligence; 26.4.2 any breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982; 26.4.3 fraud; or 26.4.4 any other liability which cannot be excluded or limited under applicable law.
26.5 Neither party shall be liable to the other under or in connection with this Agreement or any collateral contract for any:
26.5.1 loss of revenue;
26.5.2 loss of actual or anticipated profits;
26.5.3 loss of contracts;
26.5.4 loss of business;
26.5.5 loss of opportunity;
26.5.6 loss of goodwill;
26.5.7 loss of reputation;
26.5.8 loss of, damage to or corruption of data; or
26.5.9 any indirect or consequential loss, however arising regardless of whether such loss or damage was foreseeable or in our mutual contemplation and whether arising in or caused by breach of contract, tort, breach of statutory duty or otherwise.
27. FORCE MAJEURE
We shall not be responsible for any failure to provide any Services or perform any obligation under this Agreement because of any act of God, strike, lock-outs or other industrial disputes (whether our employees or any other party) or compliance with any law of governmental or any other order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers, work stoppage, war, riot or civil commotion, equipment or facilities shortages which are being experienced by providers of telecommunication services generally, or other similar force beyond our reasonable control.
Our failure to require You to perform any of your obligations under this Agreement shall not affect our right to require such performance at any time in the future and nor shall the waiver by Us of a breach of any provision be taken or held to be a waiver of the provision.
The provisions, terms, conditions representations, warranties, covenants, and obligations contained in or imposed by this Agreement which by their performance after the termination of this Agreement, shall be and remain enforceable notwithstanding termination of the Agreement for any reason. However, neither we nor You shall be liable to one another for damages of any sort resulting solely from terminating this Agreement in accordance with its terms.
30. LEGAL FEES
If any legal action or proceedings, including arbitration, relating to the performance or the enforcement of any provision of this Agreement is commenced by either You or Us, the prevailing party shall be entitled to recover reasonable legal fees, costs and disbursements from the other party, in addition to any other relief to which the prevailing party may be entitled.
31. VIRUSES, HACKING AND OTHER OFFENCES
You must not misuse the Website by knowingly introducing Viruses, Trojans, Worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Website, the server on which the Website is stored or any server, computer or database connected to the Website. You must not attack the Website via a denial-of-service attack or a distributed denial-of service attack.
By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990 and/or any replacing legislation. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Website will cease immediately but without prejudice to any claim we and all others concerned may have against you.
We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Website or to your downloading of any material posted on it or on any website linked to it.