T Cards Direct has developed the tcardsonline system for use by Customers online, 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 tcardsonline Service. The Customer wishes to use tcardsonline Service in its business operations. T Cards Direct has agreed to provide and the Customer has agreed to take and pay for the tardsonline Service subject to the terms and conditions of this Agreement.

TCARDSONLINE TERMS AND CONDITIONS
T Cards Direct has developed the tcardsonline system for use by Customers online, 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 tcardsonline Service. The Customer wishes to use tcardsonline Service in its business operations. T Cards Direct has agreed to provide and the Customer has agreed to take and pay for the tardsonline Service subject to the terms and conditions of this Agreement.

IT IS AGREED THAT


1. Definitions and Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this Agreement: “Agreement” means the agreement between the parties, as set out in these terms and conditions and incorporating details on the Registration Page; "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 Clause 2.3.4; "Business Day" any day which is not a Saturday, Sunday or public holiday in the UK; "Confidential Information" information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 11.5; “Customer” means the customer detailed on the Registration Page, who subscribes to be provided with the Service via the Website and on these terms and conditions; "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; "Documentation" the document 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 this Agreement is entered into between the parties, as confirmed at Clause 2.1; "Normal Business Hours" 8.00 am to 6.00 pm local UK time, each Business Day; “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 Service under this Agreement; "Services" the subscription services provided by T Cards Direct to the Customer under this Agreement via the Website 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 Confirmation” means the confirmation of subscription by the Customer to be provided with the Services, as notified to the Customer by T Cards Direct, in accordance with Clause 2; "Subscription Fees" the subscription fees payable by the Customer to T Cards Direct for the User Subscriptions, as set out on the Website for the relevant Subscription Term; "Subscription Term" has the meaning given in Clause 14.1; "Support Services Policy" T Cards Direct‟s policy for providing support in relation to the Services as made available on the Website or such other website address as may be notified to the Customer from time to time; “T Cards Direct” means the partnership named as „T Cards Direct‟, consisting of partners F D Heine, M Heine, P D Heine and S J Richetta, whose operating address is at Lillian House, Clearway, West Malling, Kent ME19 5BP; "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 this Agreement; "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 website operated by T Cards Direct, for the provision of the Web T Card Service, having its url address at www.tcardsonline.co.uk, or any other url address notified to the Customer by T Cards Direct from time to time during the Subscription Term.

1.2 Clause and paragraph headings shall not affect the interpretation of this Agreement.
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 Words in the singular shall include the plural and vice versa.
1.6 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 for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

2. User Subscriptions

2.1 The Customer shall subscribe for provision of the Services by completing the Registration Page on the Website and selecting the relevant Subscription Term from 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 of fer 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 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 this Agreement, 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.
2.3 In relation to the Authorised Users, the Customer undertakes that:
2.3.1 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;
2.3.2 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;
2.3.3 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;
2.3.4 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;
2.3.5 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;
2.3.6 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
2.3.7 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.
2.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.4.2 facilitates illegal activity;
2.4.3 depicts sexually explicit images;
2.4.4 promotes unlawful violence;
2.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
2.4.6 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 tha t breaches the provisions of this clause.
2.5 The Customer shall not:
2.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
2.5.1.1 and except to the extent expressly permitted under this Agreement, 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
2.5.1.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to humanperceivable form all or any part of the Software; or
2.5.2 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
2.5.3 use the Services and/or Documentation to provide services to third parties; or
2.5.4 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
2.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2.
2.6 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.
2.7 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 User 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 this Agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall submit a request for additional Authorised Users on the Registration Page to T Cards Direct using the procedure set out at Clause 2.1. T Cards Direct shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or disapproval of the request (such approval not to be unreasonably withheld) by sending confirmation to the Customer by email.
3.3 If T Cards Direct approves the Customer‟s request to purchase additional User Subscriptions, 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 such fees shall be charged for the next full month following the month in which the additional User Subscriptions are added and deducted from the monthly Subscription Fees payable by the Customer to T Cards Direct in accordance with Clause 9.
3.4 If the Customer wishes to remove an Authorised User and therefore reduce the User Subscriptions, then the Customer shall give notice to T Cards Direct of such reduction in the User Subscriptions by submitting details to T Cards Direct on the Registration Page. 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. Services

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 this Agreement.
4.2 T Cards Direct shall use commercially reasonable endeavours to make the Services available during Normal Business Hours, except for:
4.2.1 planned maintenance carried out and notified to the Customer; and
4.2.2 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 curren t rates.

5. Customer Data

5.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 T Cards Direct shall follow its archiving procedures for Customer Data as set out on the Website, as such policy on the Website may be amended by T Cards Direct in its sole discretion from time to time and posted on the Website. In the event of any loss or damage to Customer Data, the Customer‟s sole and exclusive remedy shall be for T Cards Direct to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by T Cards Direct in accordance with the archiving procedure described in its archiving procedures on the Website. 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 and back-up).
5.3 T Cards Direct shall, in providing the Services, comply with the privacy and security measures detailed on its Website, as such information may be amended from time to time by T Cards Direct in its sole discretion.
5.4 If T Cards Direct processes any personal data on the Customer‟s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and T Cards Direct shall be a data processor and in any such case:
5.4.1 the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and T Cards Direct‟s other obligations under this Agreement;
5.4.2 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to T Cards Direct so that T Cards Direct may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer‟s behalf;
5.4.3 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
5.4.4 T Cards Direct shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
5.4.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

6. THIRD PARTY PROVIDERS

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. T Cards Direct makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not T Cards Direct. T Cards Direct recommends that the Customer refers to the third party‟s website terms and conditions and privacy policy prior to using the relevant third-party website. T Cards Direct does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7 SUPPLIER’S 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‟s instructions, or modification or alteration of the Services by any party other than T Cards Direct or T Cards Direct‟s 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. Notwithstanding the foregoing, T Cards Direct:
7.2.1 does not warrant that the Customer‟s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer‟s requirements; and
7.2.2 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.
7.3 This Agreement 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 this Agreement.
7.4 T Cards Direct warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

8 CUSTOMER’S OBLIGATIONS

The Customer shall:
8.1.1 provide T Cards Direct with:
8.1.1.1 all necessary co-operation in relation to this agreement; and
8.1.1.2 all necessary access to such information as may be required by T Cards Direct; in order to render the Services, including but not limited to Customer Data, security access information and configuration services;
8.1.2 comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.1.3 carry out all other Customer responsibilities set out in this Agreement 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;
8.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement, including (but not limited to) procuring the secure and safe keeping of the Authorised Users‟ passwords and login details on the Website for accessing the Services, and shall be responsible for any Authorised User‟s breach of this Agreement;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for T Cards Direct, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
8.1.6 ensure that its network and systems comply with the relevant specifications provided by T Cards Direct from time to time; and
8.1.7 be solely responsible for procuring and maintaining 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.

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 Worldpay or by way of standing order) and any other relevant valid, up-todate 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 Worldpay account or bank account of the Customer:
9.2.1 on the Effective Date for the initial Subscription Fees; and thereafter
9.2.2 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.
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:
9.3.1 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
9.3.2 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 this Agreement:
9.4.1 shall be payable in pounds sterling;
9.4.2 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 Subscr iptions purchased pursuant to Clause 3.3 and/or the excess storage fees payable pursuant to Clause 9.5, on each anniversary of the Effective Date upon ninety (90) days‟ prior written notice to the Customer.

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, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (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 owns or has been granted relevant licences in 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 thi s Agreement.

11 CONFIDENTIALITY

11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party‟s Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2 was in the other party‟s lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
11.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other‟s Confidential Information in confidence and, unless required by law, 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 this Agreement.
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 this Agreement.
11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
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 This Clause 11 shall survive termination of this Agreement, however arising.

12. Indemnity

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:
12.1.1 the Customer is given prompt notice of any such claim;
12.1.2 T Cards Direct provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer‟s expense; and
12.1.3 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 the Services or Documentation infringes (as from the Effective Date) any copyright, trade mark, 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:
12.2.1 T Cards Direct is given prompt notice of any such claim;
12.2.2 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
12.2.3 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 this Agreement 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:
12.4.1 a modification of the Services or Documentation by anyone other than T Cards Direct; or
12.4.2 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
12.4.3 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 Subject to the provisions of Clause 12, this Clause 13 sets out the entire financial liability of T Cards Direct (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
13.1.1 any breach of this Agreement;
13.1.2 any use made by the Customer of the Services and Documentation or any part of them; and
13.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
13.2 Except as expressly and specifically provided in this Agreement:
13.2.1 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;
13.2.2 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 this Agreement; and
13.2.3 the Services and the Documentation are provided to the Customer on an “as is” basis.
13.3 Nothing in this Agreement excludes the liability of T Cards Direct:
13.3.1 for death or personal injury caused by T Cards Direct‟s negligence; or
13.3.2 for fraud or fraudulent misrepresentation.
13.4 Subject to Clauses 13.2 and 13.3:
13.4.1 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 this Agreement; and
13.4.2 T Cards Direct‟s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement 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.

14. Term and Termination

14.1 This Agreement shall, unless otherwise terminated as provided in this Clause 14, commence on the Effective Date and shall continue unless:
14.1.1 either party notifies the other party of termination, in writing, on at least thirty (30) days notice; or
14.1.2 otherwise terminated in accordance with the provisions of this Agreement, being the "Subscription Term".
14.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:
14.2.1 the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing of the breach; or
14.2.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
14.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
14.2.4 a receiver is appointed of any of the other party‟s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party‟s assets; or
14.2.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
14.2.6 the other party ceases, or threatens to cease, to trade; or
14.2.7 there is a change of control of the other party within the meaning of section 840 of the Income and Corporation Taxes Act 1988; or
14.2.8 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
14.3 On termination of this Agreement for any reason:
14.3.1 all licences granted under this Agreement shall immediately terminate;
14.3.2 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;
14.3.3 T Cards Direct may destroy or otherwise dispose of any of the Customer Data in its possession unless T Cards Direct receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. T Cards Direct shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) 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 returning or disposing of Customer Data; and
14.3.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

15. Force Majeure

T Cards Direct shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, 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 or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

16. Waiver

16.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
16.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

17. Severance

17.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

18. Entire Agreement

18.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
18.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

19. Assignment

19.1 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 this Agreement.
19.2 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 this Agreement.

20. No Partnership or Agency

Nothing in this Agreement 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).

21. Third Party Rights

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

22. Notices

22.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid firstclass post or recorded delivery post to the other party at its address set out in this Agreement, 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 this Agreement.
22.2 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).

23. Governing Law and Jurisdiction

23.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims) are governed by, and construed in accordance with, the laws of England and Wales.
23.2 The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

 

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