Definitions

“Lyfthelm”
Lyfthelm Ltd registered in England No. 07225604. Our registered address is Edelman House, 1238 High Road, London, N20 0LH

“Customer”
the party to whom the Acknowledgement is addressed.

“Contract”
the contract between Lyfthelm and the Customer for the supply of the Goods and/or Services which is subject to these terms and conditions.

“Contract Price”
the aggregate price of all Goods and/or Services to be supplied by Lyfthelm under the Contract.

“Acknowledgement”
Lyfthelm’s signed acknowledgement of the Customer’s order confirming the Goods and/or Services to be provided subject to these terms and conditions.

“Lyfthelm Employees”
employees, consultants, contractors and sub-contractors of Lyfthelm.

“Goods”
any goods to be supplied under the Contract.

“Services”
any services to be supplied under the Contract.

“Terms”
these Terms and Conditions

“Material”
software, manuals, information, data, drawings, reports and any other documents or materials generated under the Contract.

“Proposal”
Lyfthelm’s invitation to the Customer to place an order for the supply of Goods and/or Services.

“Schedules”
the documentation provided in the Proposal including but not limited to specifications of the Goods and/or Services to be supplied under the Contract, timing of delivery, the Contract Term and Price and the licence details.

“IPR”
all patents, trade marks, trade and business names, copyright (including copyright in computer software), rights in designs, database rights, trade secrets, rights in know-how and confidential information and all other intellectual property rights (whether or not registered or capable of registration) and any similar or analogous rights to any of the above, together with all applications for registration of and rights to apply for any of the foregoing and “Intellectual Property Rights” and “Intellectual Property” shall be construed accordingly.

“Acceptable Use Policy”
the rules and guidelines governing the Customers’ use of the Good and/or Services

“Notice”
notice in writing.

1. GENERAL
   1. Lyfthelm’s Proposal is an invitation to the Customer to make an offer to Lyfthelm and is subject to Lyfthelm’s acceptance by means of an Acknowledgement. Any Contract between the parties resulting from such acceptance shall be on the basis of these terms and conditions and in particular subject to the conditions and limitations described in the Schedules.
   2. The headings to the clauses of these Terms, and headings to other parts are included for ease of reference only and shall not affect the interpretation of these Terms.
2. TERM
   1. The Contract will start upon the Customer’s receipt of Lyfthelm’s Acknowledgement and will continue in perpetuity unless otherwise specified in the Schedules or unless terminated by either party in accordance with the termination clauses in the Terms.
3. PRICE
   1. The Contract Price will be specified in the Schedules and shall unless otherwise expressly specified be deemed to be exclusive of all duties and taxes in respect of the Goods and/or Services and exclusive of any export and/or import duties, all of which taxes and duties shall be for the Customer account and will be invoiced in addition.
   2. Periodic user fees for the Goods and/or Services, shall be payable on the relevant renewal date, which shall be computed from the date of entering into the Contract.
   3. Lyfthelm reserve the right to increase any periodic fees by at least 28 days advance notice to the Customer prior to the relevant renewal date.
4. PAYMENT
   1. Lyfthelm shall be entitled to invoice the Customer in accordance with the associated Schedules and/or as otherwise agreed in writing between the parties. Payment of all valid invoices shall be made by the Customer, in all cases in full without deduction or set off, within 15 days of the date of invoice unless otherwise agreed in writing.
   2. Without prejudice to Lyfthelm’s rights under clause 14, Lyfthelm shall be entitled to charge interest at the rate set under the Late Payments legislation on the amount of any late payment calculated on a day to day basis until the actual date of payment.
   3. In the event that the Customer fails to make any payment on the due date to Lyfthelm under the Contract or under any other contract between the Customer and Lyfthelm then without prejudice to any other remedy or right available to Lyfthelm, including the right of termination under clause 14, Lyfthelm shall be entitled to suspend any further deliveries of Goods and/or Services to the Customer
5. CUSTOMER SUPPLIED ACCESS, INFORMATION ETC.
   1. To enable Lyfthelm to carry out its obligations under the Contract, the Customer undertakes to provide Lyfthelm with access to its personnel, premises, accommodation, office facilities, documentation, data and any other material set out in its Proposal within the timescales set out therein or otherwise upon the reasonable request of Lyfthelm. Any failure in this respect shall render the Customer liable to Lyfthelm for any loss or cost arising there from or for any defect or otherwise which results in consequence.
   2. Lyfthelm Employees will observe the Customer’s reasonable site regulations, as advised in writing to Lyfthelm.
6. SERVICE ALTERATIONS
   1. Lyfthelm may upgrade, add to, improve or make other amendment, variation or modification to the Goods and/or Services (subject to there being no material detriment suffered by you as a result).
   2. Lyfthelm will endeavour to make reasonable efforts to give prior notice to the Customer of any change if the service level detailed in the Schedules is affected.
7. SERVICE SUSPENSION
   1. Lyfthelm shall be entitled to suspend provision of the whole or part of the Services in the event that:
      1. provision of the Customer’s Service adversely affects, in any way, the ability of Lyfthelm to provide its Services to other customers or the security of the technical infrastructure provided by Lyfthelm; or
      2. it is required for operational purposes (such as repairs, maintenance or installation of upgrades).
   2. Lyfthelm will endeavour to provide as much notice as possible of any such suspension.
8. INTELLECTUAL PROPERTY RIGHTS AND LICENCE
   1. All IPR in any Material generated under the Contract shall be the exclusive property of Lyfthelm unless otherwise agreed in the Schedules. Any licence for the Customer to use such IPR shall be subject to the agreement of Lyfthelm and specified in the Schedules.
   2. Any software delivered to the Customer under the Contract shall, subject to the rights of third parties, remain the property of Lyfthelm and shall be subject to the terms of Lyfthelm’s applicable software licence as detailed in the associated Schedule/s or the third party software licence as the case may be.
   3. Lyfthelm acknowledges that the Intellectual Property Rights to the Client Content and Data shall belong to the Client or its licensors.
9. DISCLAIMERS
   1. Nothing in the Contract shall oblige Lyfthelm to validate or vet (for usability, legality, content or correctness) any material communicated by the Customer or hosted by us through the use of the Goods and/or Services and the Customer acknowledges that Lyfthelm shall not be liable and shall bear no responsibility for any such material.
10. WARRANTY
    1. GOODS
       1. Lyfthelm warrants that the Goods will be free from defects in design, workmanship and material and comply in all material respects with its published specification. In the event of a breach of this warranty then Lyfthelm shall at its cost and option, repair or replace the Goods (or part thereof) or refund that part of the Contract Price attributable to the defective Goods (in which case the defective Goods shall be returned to Lyfthelm if appropriate). Lyfthelm’s liability hereunder shall be conditional upon:
          1. the Customer submitting a written claim to Lyfthelm within seven days after the date upon which it discovers or ought reasonably to have discovered the defect; and
          2. the defect not being attributable to alteration or repair of the Goods without Lyfthelm’s prior consent, or misuse or neglect of the Goods, or the use of a technical infrastructure other than specified in the Schedules; and
          3. the Goods being returned, if appropriate and if Lyfthelm so requires, by the Customer to Lyfthelm carriage paid (such amount to be refundable by Lyfthelm if the Customer’s claim is substantiated) within two weeks after Lyfthelm’s request to that effect.
    2. SERVICES
       1. Services will be provided by such Lyfthelm Employees as it considers suitably qualified to undertake the work. Lyfthelm also warrants that Services will be undertaken using reasonable skill and care and any Material generated as a result thereof will be free from material errors or omissions. Lyfthelm’s liability is limited to the provision of Services of the same nature as those originally provided to correct such errors or omissions subject to Lyfthelm being notified accordingly within 3 months from completion of the Services.
       2. Where use of our Services involves storing or processing data that falls under GDPR, our GDPR Data Processing Addendum applies to these Terms and Conditions.
11. LIMITATION OF LIABILITY
    1. Save as set out in clause 10 above, all warranties, conditions, guarantees or representations as to satisfactory quality or fitness for a particular purpose or other warranties, conditions, guarantees or representations, whether express or implied by statute or otherwise, oral or in writing except as expressly stated herein are hereby excluded. Except as expressly stated herein Lyfthelm has no obligation, duty or liability in contract, tort (including negligence) or otherwise.
    2. Lyfthelm shall in no circumstances be liable for any indirect, special or consequential loss or loss of profits or business howsoever arising in connection with or arising out of the supply of Goods and/or Services even if Lyfthelm shall have been advised of the possibility of such potential loss and shall not be liable for any loss except as provided herein.
    3. Lyfthelm accepts unlimited liability for death or personal injury resulting from its negligence and for any other liability that cannot be excluded by law and clauses 11.2 and 11.4 do not apply to such liability.
    4. Lyfthelm’s maximum liability to the Customer whether in contract or tort (including negligence) is limited to the value of the Contract.
12. IPR INDEMNITY
    1. Subject to clause 11, if the Customer is threatened with any action alleging that the Goods and/or Services infringe any IPR then provided that the Customer promptly informs and fully co-operates with Lyfthelm and in cases where Lyfthelm so requests allows Lyfthelm to defend any action on the Customer’s behalf and have the sole control of any and all negotiations for settlement, then Lyfthelm will indemnify the Customer against any award of damages and costs against the Customer arising from such action. Further, if such event occurs the Customer agrees that Lyfthelm shall have the right at its option and its own expense either to:
       1. modify any Goods or Services so that they do not infringe; or
       2. replace any Goods or Services with non-infringing Goods or Services; or
       3. procure for the Customer the right for the Customer to continue its use of any Goods or Services.
    2. Lyfthelm shall have no liability in respect of claims for infringement or alleged infringement of any third parties’ IPR arising from the execution of the Contract in accordance with the Customer’s designs plans or specifications and the Customer shall indemnify Lyfthelm against all losses, damages, expenses, costs or other liability arising from such claims.
13. INDEMNITY
    1. The Customer agrees to indemnify Lyfthelm from any and all claims by any third party which arise as a result of the wilful reckless or negligent act or omission of the Customer or its employees, agents or sub-contractors or as a result of a breach by the Customer or its employees, agents or sub-contractors of any of its obligations under the Contract.
14. TERMINATION
    1. Either party may terminate the Contract immediately on notice, if the other party:
       1. commits a material breach of the Contract, that is capable of remedy, and fails to remedy the breach within 30 working days from written notice to do so; or
       2. commits a material breach of the Contract, which cannot be remedied;
       3. is repeatedly in breach of the Contract; or
       4. is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into either voluntary (otherwise than for reconstruction or amalgamation), or compulsory liquidation or a receiver or administrator is appointed over their assets.
    2. Any termination, suspension or withdrawal of Goods and/or Services provided by Lyfthelm does not constitute the cancellation of outstanding charges.
15. CONSEQUENCES OF TERMINATION
    1. The Goods and/or Services shall cease to be provided as from the point in time of termination of the Contract.
    2. Immediately on termination the Customer shall:
       1. Return to Lyfthelm all equipment, manuals, software, storage media, property, documents or information provided by Lyfthelm on loan or hire to enable the Customer to use the Goods and/or Services (and for this purpose shall provide access to Lyfthelm or our representatives or agents to any premises where any such items may be located);
       2. Remove or arrange for the removal from any computer in the Customer’s possession custody power or control, of any software provided by us
16. ASSIGNMENT
    1. The Customer shall not assign, pledge, charge or deal in or make over in any way the benefit of the Contract nor the Schedules without prior written consent of Lyfthelm.
    2. Lyfthelm may assign its rights and obligations under the Contract by giving prior written notice to the Customer.
    3. The Contract shall be binding on and inure to the benefit of and be enforceable against the parties and their respective successors and assigns.
17. WAIVER
    1. No waiver by Lyfthelm of any breach of any provision of the Contract shall be held to be a waiver of any other or subsequent breach and the failure of Lyfthelm to enforce any provision shall not be a waiver of any right subsequently to enforce any other provision.
    2. No failure or delay by either party to enforce its rights under the Contract shall constitute a waiver of those rights nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing. The remedies provided in the Contract are cumulative and not exclusive of any remedies provided by law.
18. FORCE MAJEURE
    1. Notwithstanding any other provision of the Contract, Lyfthelm shall not be liable to the Customers for any delay or failure in its performance of any of its obligations under the Contract to the extent that such delay or failure is a result of circumstances beyond its reasonable control.
19. SEVERABILITY
    1. If any of the words or provisions of these terms and conditions or the Schedules shall be deemed invalid, illegal or unenforceable for any reason, then the Contract shall be read as if the invalid, illegal or unenforceable words or provisions had to that extend been deleted and the validity of the remaining provisions shall not be affected.
20. THE CONTRACTS (Rights of Third Parties) ACT 1999
    1. The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract and no person who is not a party to the Contract shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
21. ENTIRE AGREEMENT
    1. The content of these Terms and the Proposal contain the whole agreement between the parties relating to their subject matter and supersedes all previous conditions, understandings, agreements or representations whatsoever, whether oral, by conduct or written.
22. VARIATION OF AGREEMENT
    1. Lyfthelm shall be entitled to vary the Terms upon giving 28 days notice on its website.
    2. Except as otherwise provided in the Terms and/or the Schedules no other variation, amendment or waiver to the Contract shall be effective unless by written agreement of each of the parties.
23. GOVERNING LAW AND JURISDICTION
    1. The Contract will be governed by and interpreted in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.

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