T Cards Direct has developed the T Cards Online system plus certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of utilising the T Cards Online Service. The Customer wishes to use T Cards Online Service in its business operations. T Cards Direct has agreed to provide and the Customer has agreed to take and pay for the T Cards Online Service subject to these terms and conditions (“these terms”).
1.1 The definitions and rules of interpretation in this clause apply in these terms and
Anniversary: means the date of renewal of the contract between T Cards Direct and the Customer.
Applicable Laws: means:
(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
(b) To the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which T Cards Direct is subject.
Applicable Data Protection Laws: means:
(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which T Cards Direct is subject, which relates to the protection of personal data.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in 2.4(d)
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: [shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly OR the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.]
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.
Customer Data: the data inputted by the Customer, Authorised Users, or T Cards Direct on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
Customer Personal Data: any personal data which T Cards Direct processes in connection with these terms, in the capacity of a processor on behalf of the Customer.
Documentation: the documents made available to the Customer by T Cards Direct online via the website or such other web address notified by T Cards Direct to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date of these terms.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Excess Data Storage Fees: the fees for storage of Customer’s data in excess of 1 gigabyte.
Manage Account Page: means the Manage Account page on the Website to be used by the Customer to give notice to T Cards Direct of changes in User Subscriptions
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Purpose: the purposes for which the Customer data and Personal Data is processed.
Registration page: means the registration page on the Website to be completed by the Customer for registering with T Cards Direct and subscribing for the provision of the Services under these terms;
Services: the subscription services provided by T Cards Direct to the Customer under these terms via www.tcardsonline.co.uk or any other website notified to the Customer by T Cards Direct from time to time, as more particularly described in the Documentation.
Software: the online software applications provided by T Cards Direct as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to T Cards Direct for the User Subscriptions.
Subscription Period: means the period of time during which the Customer subscribes to the Services.
Subscription Term: has the meaning given in clause 14.1
T Cards Direct:means the partnership called T Cards Direct, consisting of partners: M Heine, P D Heine and S J Richetta, whose operating address is at Lillian House, Clearway, West Malling, Kent ME19 5BP.
T Cards Direct Personal Data: any personal data which T Cards Direct processes in connection with these terms, in the capacity of a controller.
Support Services Policy: T Cards Direct's policy for providing support in relation to the Services as made available athttps://www.tcardsonline.co.uk/legal/serviceagreement or such other website address as may be notified to the Customer from time to time.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with these terms.
UK GDPR: has the meaning given to it in the Data Protection Act 2018.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website: the web application and associated services operated by T Cards Direct, for the provision of the Web T Card Service, under the domain tcardsonline. or any other url address notified to the Customer by T Cards Direct from time to time during the Subscription Term.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these terms.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) [and that person's legal and personal representatives, successors or permitted assigns].
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these terms.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these terms under that statute or statutory provision.
1.9 A reference to writing or written includes faxes but not e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of these terms; references to paragraphs are to paragraphs of the relevant schedule to these terms.
2.1 The Customer shall subscribe for provision of the Services by completing the Registration Page on the Website. The Customer’s submission of the Registration Page on the Website to T Cards Direct is the Customer’s offer to be provided with the Services. T Cards Direct reserves the right to accept or reject an offer from the Customer for any reason. If T Cards Direct wishes to accept the Customer’s offer, then T Cards Direct shall issue a Subscription Confirmation email to the Customer, at which time a contract shall come into effect between T Cards Direct and the Customer (“Effective Date”) and the Customer shall be entitled to access the Services via the Website using the passwords and any other login details provided by T Cards Direct to the Customer in the Subscription Confirmation.
2.2 At the point of registration, the Customer shall be able to use T Cards Online for a trial period of up to 21 days free of charge. The Customer can then purchase the Subscriptions at any time during the trial period and the Subscription Period will then run for a calendar month and continue on a rolling basis.
2.3 Subject to the Customer purchasing the User Subscriptions in accordance with Clause 3.3 and Clause 9.1, the restrictions set out in this Clause 2 and the other terms and conditions of these terms, T Cards Direct hereby grants to the Customer (from the Effective Date) a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
2.4 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
(c) each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to T Cards Direct within five (5) Business Days of T Cards Direct’s written request at any time or times;
(e) it shall permit T Cards Direct to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at T Cards Direct’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
(f) if any of the audits referred to in Clause 2.3.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to T Cards Direct’s other rights, the Customer shall promptly disable such passwords and T Cards Direct shall not issue any new passwords to any such individual; and
(g) if any of the audits referred to in Clause 2.3.5 reveal that the Customer has underpaid Subscription Fees to T Cards Direct, the Customer shall pay to T Cards Direct an amount equal to such underpayment as calculated in accordance with the prices set out on the Website within ten (10) Business Days of the date of the relevant audit.
2.5 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
(f) causes damage or injury to any person or property; and T Cards Direct reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.6 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) and except to the extent expressly permitted under these terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to Clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2.
2.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify T Cards Direct.
2.8 The rights provided under this Clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
3. Additional Users Subscriptions
3.1 Subject to Clauses 3.2 and 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number requested on the Registration Page (or as added to during the Subscription Term by agreement between the parties) and T Cards Direct shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of these terms.
3.2 If the Customer wishes to purchase additional User Subscriptions then the Customer shall give notice to T Cards Direct:
(a) if the Customer pays using Stripe , by submitting a request on the Management Account Page. T Cards shall confirm the request by updating the customer Dashboard.
(b) if the Customer pays by invoice or Worldpay, by submitting a written request to firstname.lastname@example.org. T Cards Direct shall respond by sending confirmation to the customer by email.
3.3 The Customer shall pay to T Cards Direct the relevant fees for such additional User Subscriptions as set out on the Website and, if such additional User Subscriptions are purchased by the Customer part way through a calendar month, then the monthly Subscription Fee shall be charged and collected on a pro-rata basis for the remainder of that month.
3.4 If the Customer wishes to reduce the User Subscriptions, then the Customer shall give notice to T Cards Direct:
(a) if the Customer pays using Stripe, by submitting a request on the Management Account Page. T Cards shall confirm the request by updating the customer Dashboard.
(b) if the Customer pays by invoice or Worldpay, by submitting a written request to email@example.com. T Cards Direct shall respond by sending confirmation to the customer by email.
T Cards Direct shall make the appropriate change to the monthly Subscription Fee for the next and subsequent months until the Customers requests a further change or terminates the Subscription in accordance with clause 14.1. If notice of removal of an Authorised User and therefore reduction in the User Subscriptions occurs part way through a month then the Customer shall not be entitled to any refund of the Subscription Fee relevant to the reduced number of the User Subscriptions.
4.1 T Cards Direct shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of these terms.
4.2 T Cards Direct shall use commercially reasonable endeavours to make the Services available at all times, except for:
(a) planned maintenance carried out and notified to the Customer; and
(b) unscheduled maintenance required to be performed to ensure security of the Website, as notified to the Customer at the earliest opportunity.
4.3 T Cards Direct will, as part of the Services and at no additional cost to the Customer, provide the Customer with T Cards Direct’s standard customer support services during Normal Business Hours in accordance with T Cards Direct’s Support Services Policy in effect at the time that the Services are provided. T Cards Direct may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at T Cards Direct’s then current rates.
5. Data protection
5.1 For the purposes of this clause 5, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
5.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
5.3 The parties have determined that, for the purposes of Applicable Data Protection Laws:
5.4 Should the determination in clause 5.3 change, then each party shall work together in good faith to make any changes which are necessary to this clause 1 or the related schedules.
5.6 Without prejudice to the generality of clause 5.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful collection of Customer Personal Data to T Cards Direct for the duration and purposes of these terms.
5.8 Without prejudice to the generality of clause 5.2 T Cards Direct shall, in relation to Customer Personal Data:
(c) ensure that any personnel engaged and authorised by T Cards Direct to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to T Cards Direct), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
(f) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the contract unless T Cards Direct is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 1.8(f) Customer Personal Data shall be considered deleted where it is put beyond further use by T Cards Direct; and
(g) maintain records to demonstrate its compliance with this clause 1 [and allow for reasonable audits by the Customer or the Customer's designated auditor, for this purpose, on reasonable written notice].
5.9 The Customer hereby provides its prior, general authorisation for T Cards Direct to:
(a) appoint processors to process the Customer Personal Data, provided that T Cards Direct:
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on T Cards Direct in this clause 5;
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of T Cards Direct; and
(iii) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to T Cards Direct's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify T Cards Direct for any losses, damages, costs (including legal fees) and expenses suffered by T Cards Direct in accommodating the objection.
5.10 Either party may, at any time on not less than 30 days' notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to these terms).
5.11 To the extent the parties act as joint-controllers in respect of personal data pursuant to these terms, the parties have agreed to allocate responsibility for each of their controller obligations under Applicable Data Protection Laws.
5.12 Subject to clause 13.2 and 13.3 and notwithstanding any other terms of these terms], T Cards Direct's total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of these terms or any collateral contract insofar as it relates to the obligations set out in this clause 1, or Applicable Data Protection Laws shall be limited to the total Subscription Fees paid for the User Subscriptions during the six (6) months immediately preceding the date on which the claim arose.
Third party providers
7. T Cards Direct obligations
7.1 T Cards Direct undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to T Cards Direct instructions, or modification or alteration of the Services by any party other than T Cards Direct or T Cards Direct duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, T Cards Direct will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
7.3 T Cards Direct:
(a) does not warrant that:
(i) the Customer's use of the Services will be uninterrupted or error-free; or
(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
(iii) the Software or the Services will be free from Viruses.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 These terms shall not prevent T Cards Direct from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these terms.
7.5 T Cards Direct warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these terms.
7.6 T Cards Direct shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by T Cards Direct to perform services related to Customer Data maintenance for which it shall remain fully liable.
8. Customer's obligations
8.1 The Customer shall:
(a) provide T Cards Direct with: (i) all necessary co-operation in relation to these terms; and (ii) all necessary access to such information as may be required by T Cards Direct; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under these terms, comply with all applicable laws and regulations with respect to its activities under these terms;
(c) carry out all other Customer responsibilities set out in these terms in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, T Cards Direct may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of these terms, including (but not limited to) procuring the secure and safe-keeping of the Authorised User’s passwords and log-in details on the website for accessing the Services, and shall be responsible for any Authorised User's breach of these terms;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for T Cards Direct, its contractors and agents to perform their obligations under these terms, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by T Cards Direct from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in these terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to T Cards Direct's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
8.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
9. Charges and payment
9.1 The Customer shall pay the Subscription Fees to T Cards Direct for the User Subscriptions in accordance with this clause 9.
9.2 The Customer shall on the Effective Date provide to T Cards Direct valid, up-to-date and complete details required to enable T Cards Direct to set up a payment mechanism (through Stripe or by way of a monthly standing order) and any other relevant valid, up-to-date and complete contact and billing details and, in providing such information, the Customer provides authorisation under these terms and conditions for T Cards Direct to deduct the agreed Subscription Fees from the Stripe account or bank account of the Customer:
(a) on the Effective Date for the Subscription Fees; and thereafter
(b) subject to Clause 14.1, on the same day (or next Business Day) of each calendar month for the Subscription Fees payable in advance in respect of that calendar month.
(c) where a Customer wishes to pay in advance, then T Cards Direct may, at its discretion, accept such payment and will invoice the Customer for 6 or 12 months in advance.
9.3 If T Cards Direct has not received payment within seven (7) days after the due date, and without prejudice to any other rights and remedies of T Cards Direct:
(a) T Cards Direct may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and T Cards Direct shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of T Cards Direct’s bankers in the UK at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in these terms:(a) shall be payable in pounds sterling;(b) are exclusive of value added tax, which shall be added to T Cards Direct’s invoice(s) at the appropriate rate (if applicable).
9.5 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation (or in the Subscription Confirmation), T Cards Direct shall charge the Customer, and the Customer shall pay, T Cards Direct’s then current excess data storage fees.
9.6 T Cards Direct shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to Clause 3.3 and/or the excess storage fees payable pursuant to Clause 9.5, on renewal of the contract upon giving thirty (30) days’ prior written notice to the Customer before renewal date.
10. Proprietary rights
10.1 The Customer acknowledges and agrees that T Cards Direct and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, these terms do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 T Cards Direct confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these terms.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of these terms.
11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these terms.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute T Cards Direct's Confidential Information.
11.6 T Cards Direct acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 The above provisions of this clause 11 shall survive termination of these terms, however arising.
12.1 The Customer shall defend, indemnify and hold harmless T Cards Direct against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) T Cards Direct provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.
12.2 T Cards Direct shall, subject to clause 12.5, defend the Customer, its officers, directors and employees against any claim that that the Customer’s use of the Services or Documentation in accordance with these terms infringes any (as from the Effective Date) any copyright, trademark, database right or right of confidentiality in the United Kingdom, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) T Cards Direct is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to T Cards Direct in the defence and settlement of such claim, at T Cards Direct’s expense; and
(c) T Cards Direct is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, T Cards Direct may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these terms on two (2) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall T Cards Direct, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than T Cards Direct; or
(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by T Cards Direct; or
(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from T Cards Direct or any appropriate authority.
12.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and T Cards Direct’s (including T Cards Direct’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. Limitation of liability
13.1 Except as expressly and specifically provided in these terms:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. T Cards Direct shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to T Cards Direct by the Customer in connection with the Services, or any actions taken by T Cards Direct at the Customer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these terms; and
(c) the Services and the Documentation are provided to the Customer on an "as is" basis.
13.2 Nothing in these terms excludes the liability of T Cards Direct:
(a) for death or personal injury caused by T Cards Direct's negligence; or
(b) for fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.1 and clause 13.2:
(a) T Cards Direct shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these terms; and
(b) T Cards Direct's total aggregate liability in contract [(including in respect of the indemnity at clause 12.2)], tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these terms shall be limited to the total Subscription Fees paid for the User Subscriptions during the six (6) months immediately preceding the date on which the claim arose.
13.4 Nothing in these terms excludes the liability of the Customer for any breach, infringement or misappropriation of T Cards Direct’s Intellectual Property Rights”.
14. Term and termination
14.1 These terms shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue thereafter unless:
(a) either party notifies the other party of termination, in writing, on at least 30 days; or
(b) otherwise terminated in accordance with the provisions of these terms;
14.2 Without affecting any other right or remedy available to it, either party may terminate these terms with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any other term of these terms and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within  days;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2(b) to clause 14.2(j) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(l) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of these terms is in jeopardy; and
(m) there is a change of control of the other party[ (within the meaning of section 1124 of the Corporation Tax Act 2010).
14.3 On termination of these terms for any reason:
(a) all licences granted under these terms shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) T Cards Direct may delete or otherwise dispose of any of the Customer Data in its possession unless T Cards Direct receives, no later than ten days after the effective date of the termination of these terms, a written request for the Customer data to be disabled. T Cards Direct shall use reasonable commercial endeavours to delete the Customer data within 14 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by T Cards Direct in disabling or deleting Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these terms which existed at or before the date of termination shall not be affected or prejudiced.
(e) In the event that a Customer ceases trading, all Customer Data shall be deleted within 14 days unless T Cards Direct receives a request in writing not to delete the Customer Data.
15. Force majeure
T Cards Direct shall have no liability to the Customer under these terms if it is prevented from or delayed in performing its obligations under these terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of T Cards Direct or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic including Covid 19 or default of T Cards Directs or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of these terms and the Schedules, the provisions in the main body of these terms shall prevail.
No variation of these terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under these terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. Rights and remedies
Except as expressly provided in these terms, the rights and remedies provided under these terms are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of these terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these terms.
20.2 If any provision or part-provision of these terms is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Entire agreement
21.1 These terms constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in entering into these terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms.
21.4 Nothing in this clause shall limit or exclude any liability for fraud.
22.1 The Customer shall not, without the prior written consent of T Cards Direct, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms.
22.2 T Cards Direct may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms.
23. No partnership or agency
Nothing in these terms is intended to or shall operate to create a partnership between the parties or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24. Third party rights
These terms do not confer any rights on any person or party (other than the parties to these terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25.1 Any notice required to be given under these terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in these terms, or such other address as may have been notified by that party for such purposes or sent by fax to the other party's fax number as set out in these terms.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
26. Governing law
These terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms or its subject matter or formation (including non-contractual disputes or claims).
You agree that you have read, understood and agree to abide by these terms.