Gencarda Terms and Conditions

Cookie-Policy

This page (together with our Privacy Policy) tells you information about us and sets out the legal terms and conditions on which you can use our online software, database and Card issuing services known as Gencarda.

These Terms will apply to any contract between us for your use of Gencarda and the supply of our associated Services to you.

Capitalised expressions in these Terms have the meanings set out in clause 21 at the end of these Terms.

Information about us

We operate the software and database service called Gencarda which can be accessed from our Gencarda website (our site). We are Reference Point Limited ("we", "us"), a company registered in England and Wales under company number 02156356 and with our registered office and main trading address at Shire House, West Common, Gerrards Cross, Buckinghamshire, SL9 7QN. Our VAT number is 480192843.

Contacting Us

You may contact us by telephoning our customer service team at +44 (0)1753 279927 or by e-mailing us at support@referencepoint.co.uk. If you wish to give us formal notice of any matter in accordance with these Terms, please see clause 19.

About Gencarda

Gencarda is our software and database system, hosted in the cloud, which enables card scheme operators to issue smartcards and Virtual Cards quickly and efficiently, as described in more detail below.

Gencarda comprises the following:

  • a database of Cardholders, with data fields including Cardholder forename, Cardholder surname, Cardholder number, date of birth, National Insurance number, home address, contact details, date of Card expiry and some user-configurable fields;
  • a photo sizing/cropping tool;
  • address lookup functionality;
  • a library of user-defined qualifications/occupations;
  • a simple user interface, including a dashboard giving summary statistics (such as the number of cards coming up for expiry) with a drill down facility (such as the ability to view a list of the Cardholders whose cards are about to expire);
  • the ability for users to generate certain standard reports;
  • an audit trail of all system activity;
  • an API for importing data;
  • contact management history; and
  • a notifications portal for communicating with Virtual Cardholders.

Gencarda provides users with the following features and functionality:

  • new Cards can be issued and sent to Cardholders;
  • Cards can be cancelled and reactivated;
  • Cards can be updated (for example, to add new qualifications or other items);
  • qualification or other item expiries can be managed;
  • multiple Card designs can be accommodated;
  • multiple Cards can be issued to each Cardholder;
  • Virtual Cards will be able to be issued to new Cardholders either alongside or instead of physical Cards;
  • all contacts with card applicants and Cardholders can be recorded; and
  • notifications can be sent to selected Virtual Cardholders.

Signing Authority

  • Consumers may not use our Services
  • You confirm that you have authority to bind the business or organisation on whose behalf you are signing this Contract.

When the contract is formed between you and us

The Contract between us will be formed on the Effective Date.

Our right to vary these terms

These terms may be varied by written agreement between the Parties.

How we use your personal information

We only use your personal information in accordance with our Privacy Policy. Please take the time to read our Privacy Policy, as it includes important terms which apply to you.

 

Your right to use the Services

Subject to the restrictions set out in this clause 7 and the other provisions of these Terms, we hereby grant to you a non-exclusive, non-transferable right to permit Your Users to access and use the Services during the Contract Term solely for the purposes of operating your Card scheme.

You will ensure that each of Your Users shall keep a secure password for his/her use of the Services and shall keep his/her password confidential.

During the course of your and Your Users' use of the Services you shall not, and you shall not permit any of Your Users to, access, store, distribute or transmit any Viruses or other material that:

  • is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
  • facilitates illegal activity;
  • depicts sexually explicit images;
  • promotes unlawful violence;
  • is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
  • in a manner that is otherwise illegal or causes damage or injury to any person or property;

and we reserve the right, without liability or prejudice to our other rights, to remove and / or disable your or Your Users’ access to any Card, data or other material that breaches the provisions of this clause.

You shall not:

  • except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties
    • 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 Database (as applicable) in any form or media or by any means; or
    • attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
  • access all or any part of the Services and Database in order to build a product or service which competes with the Services and/or the Database; or
  • use the Services and/or Database to provide services to third parties without our prior written agreement; or
  • license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Database available to any third party except Your Users without our prior written agreement, or
  • attempt to obtain, or assist third parties in obtaining, access to the Services and/or Database, other than as provided under this clause 7.

You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Database and, in the event of any such unauthorised access or use, promptly notify us.

 

The Services

Subject to you meeting your obligations under the Contract (including without limitation paying our charges), we shall, during the Contract Term and subject to these Terms:-

  • provide you with online access to Gencarda, including the online Software comprised in it, as described in clause 2;
  • provide you with online access to the Database and the ability to add and amend Your Data to or on the Database and on to Cards;
  • consult with you about your Card layout designs and configure Gencarda and our Card issuing processes for you;
  • where we have agreed to do so in writing, supply (through our third party sub-contractor) physical Cards issued by you through Gencarda to your Cardholders;
  • supply 'Virtual Cards' issued by you through Gencarda to your Cardholders, which the relevant Cardholders can store in the 'virtual wallet' known as Vircarda (subject to the Vircarda terms and conditions which are available on the Vircarda website, vircarda.com); and
  • provide you with Third-Line Technical Support in relation to the Services in accordance with Appendix 4.

We may update the way Gencarda works at our discretion. This may include, without limitation and at our discretion, changing the data fields held in the Database; changes to our Software and/or System; adding new functionality and/or Card reading options; and/or adapting our Services for new technology.

 

The Database and Your Data

  • Normally our Database is multi-tenanted and segmented. Each Segment is private and not linked to any other Segment. Your Users can input details for your Cardholders into your Segment and can view and edit that data through the Services. Gencarda will not allow you to view or download any other Subscriber's data in their Segment, nor will it allow any other Subscriber to view or download any of Your Data in your Segment. In some circumstances, we may agree to create a unique instance of Gencarda for your use, in which case there will be no other user segments and, with our agreement, you may choose to give your instance a new name.
  • The data relating to a Cardholder included on a Card you issue will potentially be visible to anyone reading the Cardholder's Card.
  • All data insertions, changes and deletions to a Record will be logged in an audit trail attached to the Record. 
  • You or Your Users (as applicable) shall own all right, title and interest in and to all of Your Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
  • In the event of any loss or damage to Your Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged data from the latest back-up of such data maintained by us in accordance with our normal back-up procedures. We shall not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party (except those third parties sub-contracted by us to perform services related to Your Data maintenance and back-up).
  • We shall, in providing the Services, comply with our Privacy Policy, as amended from time to time by us in our sole discretion.
  • We will not transfer any of Your Data that constitutes personal data out of the UK unless the following conditions are fulfilled:
    • there are appropriate safeguards in relation to the transfer or the transfer is based on adequacy (decision or regulations) as set out in the Data Protection Legislation;
    • the Data Subject has enforceable rights and effective legal remedies; or

The transfer otherwise complies with the Data Protection Legislation.

Both you and we will comply with all applicable requirements of the Data Protection Legislation. You shall procure that Your Users comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

Without prejudice to the generality of clause 9.8, we will in relation to any personal data processed in connection with our performance of our obligations under these Terms and/or the Contract process that personal data only on your written instructions unless we are required to process the data by law. Where we are relying on a legal requirement as the basis for processing personal data, we will promptly notify you of this before performing the processing required unless we are prohibited by that law from so notifying you. We will inform you if, in our opinion, an instruction you give us infringes the Data Protection Legislation.

The scope, nature and purpose of processing by us, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation) and categories of Data Subject are set out at Appendix 3, as amended from time to time by us at our sole discretion. For the avoidance of doubt, you agree that these Terms and/or the Contract comprise your documented instructions to us (in accordance with Article 28.3(a) of the relevant Data Protection Legislation) to process any personal data that forms part of Your Data.

If we process any personal data on your behalf when performing our obligations under the Contract, you and we record our intention that you shall be the data controller and we shall be a data processor in accordance with the Data Protection Legislation and in any such case and without prejudice to the generality of clause 9.8:

  • you shall ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the relevant personal data (meaning any personal data that forms part of Your Data) to us for the duration and purposes of the Contract so that we may lawfully use, process and transfer the personal data in accordance with these Terms on your behalf including but not limited to enabling us lawfully to view Your Data for the purposes of support, investigation of potential abuse, monitoring of system performance and account management. You acknowledge and agree that we are relying on you to obtain and maintain the same and you shall fully indemnify us and our sub-processors (as defined at clause 9.12 below) in respect of any claim, loss or liability suffered or incurred by us as a result of you failing to comply with this clause 9.11.1;
  • you 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 the Data Protection Legislation and any other applicable data protection laws;
  • both you and we shall have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the personal data and against its accidental loss, destruction or damage appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any such measures (those measures may include, where appropriate, pseudonymising and encrypting the personal data, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted);
  • we will ensure that all persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
  • we will notify you without undue delay on becoming aware of any personal data breach;
  • we will provide you with all reasonable assistance in responding to any request from a Data Subject that you or we receive in connection with Your Data;
  • you will indemnify us in respect of any loss or liability which we reasonably incur in connection with any request from a Data Subject that you or we receive in connection with Your Data;
  • we will assist you ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with the Information Commissioner;
  • we will make available to you all information necessary to demonstrate compliance with the obligations set out at Article 28 of the relevant Data Protection Legislation and permit and contribute to audits, including inspections, conducted by you or another auditor of your choice for the purpose of ensuring such compliance;
  • you and we will maintain complete and accurate records and information to demonstrate compliance with this clause 9.

You consent to us appointing third party processors (collectively, “sub-processors”) to process Your Data including personal data on our behalf. The sub-processors currently engaged by us and authorised by you are set out at Appendix 5. We confirm that:

We will enter into with each third-party processor a written agreement incorporating terms substantially similar to clauses 9.7 to 9.11 and clause 17.4.3 of these Terms;

As between you and us, we will remain liable for all acts or omissions of any third-party processor appointed by us pursuant to this clause 9.12;

Should you object to the appointment of any new sub-processor on reasonable grounds relating to the processing of personal data, we shall discuss with you reasonable alternative solutions in good faith. If no resolution can be reached, we will, at our sole discretion, either not appoint the new sub-processor, or permit you to terminate the Service in accordance with the termination provisions of these Terms.

  • You agree that we may view Your Data in Gencarda solely for the purposes of support, investigation of potential abuse, monitoring of system performance and account management.
  • You have a duty of care to the Cardholders whose data you input into your Segment and you will only enter data about them you believe in good faith to be honest and reliable. You will ensure that Your Users do not enter data you know to be incorrect, misleading or invalid and if you discover that any data you have entered is incorrect, misleading or invalid, you will promptly correct it.
  • We reserve the right to deactivate any Card so that it will no longer work with our Database and/or Services at any time and without compensation to you if we consider (acting reasonably) that you or the Cardholder are in material breach of the Contract or any data on the card is incorrect or misleading; or if any Cardholder requests us to deactivate their Card.
  • You acknowledge and agree that anybody who checks a Card using compatible Card checking software and hardware will be able to view, and in some cases, save, print and transfer Your Data associated with the relevant Card.
  • You shall obtain any necessary consent, instruction or agreement from those of Your Users who are your clients to enable you to lawfully input or amend Your Data where you are doing so on their behalf.

 

Third-party providers

You acknowledge that the Services may enable or assist you to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and you do so solely at your own risk.  We make 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/or any contract entered into by you with any such third party.  Any contract entered into and/or transaction completed via any third-party website is between you and the relevant third party and not us.  We recommend that you refer to the third party’s terms and conditions and privacy policy prior to using the relevant third-party website or concluding any contract.  We do not endorse or approve any third-party website nor the content of any of the third-party website made available through the Services.

Our obligations

  • We undertake that:
    • we shall perform and make available the Services with reasonable skill and care; and
    • where we have supplied the Card, Cards issued through your use of the Services will be of satisfactory quality.
  • The undertakings in clause 1 shall not apply to the extent of any non-conformance which is caused by any use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than us or our duly authorised contractors or agents.
  • We:
    • do not warrant that your use of the Services will be uninterrupted or error-free; or that the Services, the Database and/or the information obtained by you through the Services will meet your requirements but we shall meet the service levels in Appendix 4; and
    • are 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 you acknowledge that the Services and Database may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  • You acknowledge that the Database is populated with information supplied to us by Your Users and, as such, we cannot guarantee the accuracy of such information. We do not monitor the information uploaded into the Database, nor do we take any steps to verify its accuracy. You are entirely responsible for the accuracy of all Records you or Your Users input (or supply to us for inputting on your behalf) into the Database and/or issue on Cards.
  • You acknowledge that we have no control over the internet or the services supplied by our internet service provider and cannot guarantee uninterrupted or error free access to the Services or Database.
  • These Terms shall not prevent us 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.
  • We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under these Terms.
  • We shall not be liable to you under the above warranties to the extent that any failure of, or defect in, the Services is caused by the Services (or any part of them) having been used outside these Terms; or having been subjected to damage or abuse by you or any third party authorised by you; or having been altered, modified or changed other than by us or with our written consent.
  • It is your responsibility to ensure that all computer equipment or software which you or Your Users use to access the Services and the Database is adequate for such purpose and we will not be responsible for any failure caused by the same being inadequate in any way.
  • In return for the benefit of the above warranties, you agree that save as expressly accepted by us in these Terms all other warranties, express or implied, including but not limited to all warranties, conditions or other terms implied by statute, common law, custom, trade, usage, course of dealing or otherwise are excluded to the fullest extent permitted by the law applicable to the Contract.
  • We will provide a replacement Card free of charge should a Card supplied by us malfunction within 12 months of its first issue upon the return and receipt by us of the original Card and provided that such malfunction was not caused by misuse of the Card or other accidental damage to it.

Your obligations

You shall:

  • provide us with all necessary co-operation in relation to the Contract; and all necessary access to such information and material as may be required by us for us to provide the Services, including but not limited to:
    • Your Data;
    • appropriate layout designs for the Cards you want to issue using the Services;
    • language for the Card carrier (i.e. the letter to be sent to a Cardholder with a physical Card) where appropriate;
  • comply with all applicable laws and regulations with respect to your activities under these Terms;
  • carry out all your responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, we may adjust any agreed timetable or schedule as reasonably necessary;
  • ensure that Your Users use the Services and the Database in accordance with these Terms and any relevant data protection legislation and you shall be responsible for any breach of these Terms by Your Users;
  • obtain and maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform our / their obligations under the Contract, including without limitation rights to use Your Material in the provision of the Services;
  • be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our System and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
  • Where using the notifications module to send or instigate the sending of electronic mail for the purposes of direct marketing to Cardholders you and Your Users will comply with the Privacy and Electronic Communications (EC Directive) Regulations 2003 including without limitation in the provision to the recipient of a simple (and free) means of refusing the use of his contact details for the purposes of such direct marketing, at the time his details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.
  • You will provide First-Line Technical Support and Second-Line Technical Support to Cardholders and you will provide them with a telephone helpline in relation to the same. Where we investigate Third-Line Technical Support enquiries and ascertain that the relevant problem or issue is not caused by us or does not exist, we will charge for the time spent on such investigations at our then current daily rates.

 

Charges and payment

  • You shall pay our charges in accordance with this clause 13.
  • We will not charge you for:
    • providing you with access to use our site;
    • storing 'Virtual Cards' in Vircarda (subject to the Vircarda terms and conditions which are available on the Vircarda website, www.vircarda.com).
  • Our charges comprise:
    • an account set-up charge, in the amount we have agreed with you, to cover our configuration of your Card designs in Gencarda and, if you enable them for use with Cards you issue, Vircarda, our compatible card reading software and our other compatible software and systems;
    • a production set-up charge, in the amount we have agreed with you, covering our setting up and testing the processes around production of physical Cards, including third party charges incurred by us from our Card printing and personalisation sub-contractor, where applicable; and
    • Card/Cardholder charges we have agreed with you in writing.
  • Our charges include a charge for storage of attachments up to a limit of an average of 10mb per Cardholder. This limit may be increased at our discretion and we reserve the right to make a small additional charge for any such increase.
  • We reserve the right to charge for the use of new, optional functionality we may from time to time add to Gencarda, Vircarda and/or our relevant card reading software.
  • If you ask us to provide software development kits (SDKs) to any third party so as to enable that third party to read Cards using their own software and/or hardware packages, we reserve the right to charge for providing those SDKs.
  • If you ask us to supply replacement Cards (for example if a Card is lost or stolen) we will charge for such Cards at our full Card issue charge rates. We will not give any refunds for cancelled Cards.
  • You shall on the Effective Date provide us with your valid, up-to-date and complete contact, billing and payment details acceptable to us.
  • We shall invoice you:
    • for your account set up charge and production set-up charge, once we have provided the relevant set-up services; and
    • for physical Card issue charges and Virtual Card issue charges, monthly in arrears. A physical card shall be deemed to have been issued (and a charge will arise) on the date it is posted to the Cardholder; a Virtual Card shall be deemed to have been issued (and a charge will arise) on the date it is issued by one of Your Users in Gencarda.
  • You shall settle each invoice within 30 days after the date of such invoice.
  • If we have not received payment of any invoice by its due date, and without prejudice to any other rights and remedies of ours:
    • we may, without liability to you, suspend or terminate (at our absolute discretion) your use of and access to all or any part of the Services and cease issuing Cards;
    • we may disable your and Your Users' password and account;
    • we may disable and/or cancel any or all of the Cards issued through your use of the Services;
    • interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of HSBC Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
  • All amounts and fees stated or referred to in these Terms:
    • shall (unless you and we agree otherwise in writing) be payable in pounds, Sterling;
    • are, subject to clause 4.2 and any other express provisions of these Terms to the contrary, non-cancellable and non-refundable;
    • are exclusive of value added tax, which shall be added to our invoice(s) at the appropriate rate.
  • We shall be entitled to increase our charges on an annual basis with effect from each anniversary of the Effective Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period, and the first such increase shall take effect on the first anniversary of the Effective Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
  • In addition to our rights under clause 13.13, we shall be entitled to increase our charges from time to time to take account of any increase in our costs arising due to any change to the laws and regulations which apply to the Services and/or our obligations under these Terms.

 

Proprietary rights

  • Except for Your Materials and the data and materials belonging to other Users, you acknowledge and agree that we and/or our licensors own all intellectual property rights in the Services and the Database. Except as expressly stated herein, the Contract does not grant you any rights to, or in, patents, copyright, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Database.
  • You agree that we are permitted to use your trade name and trademarks (whether registered or unregistered) to the extent necessary to deliver the Services including, without limitation, reproducing the same on Cards issued by you.
  • We confirm that we have all the rights in relation to the Services and the Database that are necessary to grant all the rights we purport to grant under, and in accordance with, these Terms.

 

Indemnity

  • You shall defend us, indemnify us and hold us harmless 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 (i) your use or Your Users’ use of the Services and/or (ii) our processing and/or use of Your Material as permitted under these Terms. We will give you:
    • prompt notice of any such claim;
    • our reasonable co-operation in the defence and settlement of such claim, at your expense.
    • if we consider it appropriate in our sole discretion, authority to defend or settle the claim.
  • We shall, subject to clause 4, defend you against any claim that the Services (other than Your Material) infringe any United Kingdom patent, copyright or trademark effective as of the Effective Date and we shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that you give us:
    • prompt notice of any such claim;
    • your reasonable co-operation in the defence and settlement of such claim, at our expense; and
    • sole authority to defend or settle the claim.
  • In the defence or settlement of any claim, we may procure the right for you 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 the Contract on notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
  • In no event shall we, our employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
    • any use of Your Materials;
    • a modification of the Services or Database by anyone other than us, our agents or sub-contractors; or
    • your use of the Services or Database in a manner contrary to the instructions given to you by us; or
    • your use of the Services or Database after notice of the alleged or actual infringement from us or any appropriate authority.
  • The foregoing and clause 4.3 state your sole and exclusive rights and remedies, and our (including our employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark or other intellectual property right.

 

Limitation of liability

  • This clause 16 sets out our entire financial liability of (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:
    • arising under or in connection with these Terms;
    • in respect of any use made by you of the Services and Database or any part of them; and
    • in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
  • Except as expressly and specifically provided in these Terms:
    • you assume sole responsibility for results obtained from the use of the Services and the Database by you, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your direction;
    • 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
    • the Services are provided to you on an "as is" basis.
  • Nothing in these Terms excludes our liability:
    • for death or personal injury caused by our negligence; or
    • for fraud or fraudulent misrepresentation.
  • Subject to clause 2 and clause 16.3:
    • we 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 the Contract;
    • our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in any Year in connection with the performance or contemplated performance of the Contract, excluding only our liability under the indemnity at clause 2, shall be limited to an amount equal to 200% of the total charges paid by you to us for the issue of Cards during that Year; and
    • our total aggregate liability under the indemnity at clause 2 shall be limited to £1 million (one million pounds).
  • You shall ensure that you maintain adequate insurance with reputable insurance companies having regard to your obligations under this Contract and in connection with any risks associated with it and you shall promptly produce to us on demand proof of such insurance together with the receipt for the then current premium.

 

Term and termination

The Contract shall commence on the Effective Date and shall continue unless and until:

  • either you or we give the other 12 months' written notice of our or (as the case may be) your intention to terminate, in which case these Terms and the Contract shall terminate upon the expiry of such notice, provided that such notice shall expire no earlier than the last day of any Minimum Term you and we have agreed; or
  • otherwise terminated in accordance with the other applicable provisions of these Terms.

Without affecting any other right or remedy available to you or us, either you or we may terminate the Contract with immediate effect by giving written notice to the other party if:

  • the other party fails to pay any amount due under the Contract on the due date for payment and remains in default on the date falling 60 days after the due date;
  • the other party commits any other material breach of the Contract which is either irremediable or, if remediable, which that party fails to remedy within a period of (in the case of a breach by you) 5 days or (in the case of a breach by us) 30 days after being notified in writing to do so;
  • the other party repeatedly breaches any of the terms of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms;
  • 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 ;
  • 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;
  • 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;
  • 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;
  • the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
  • 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;
  • 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 14 days;
  • 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 2.4 to clause 17.2.10 (inclusive);
  • the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

In addition to our above rights, we reserve the right to cease providing the Services and/or Database and/or terminate your Contract on notice to you if we reasonably consider that we will incur additional costs as a consequence of any change to any laws and regulations which apply to the Services and/or our obligations under these Terms. Our obligation in clause 4.3 is the only obligation or liability we shall have to you in respect of such termination.

On termination of the Contract for any reason:

  • all licences and rights granted to you under these Terms shall immediately terminate;
  • you shall make no further use of the Services and Database;
  • unless required by law to store the personal data, we will within a reasonable period after receipt of your written direction to do so, delete or return Your Data and copies thereof. Should you fail to provide such written direction within 90 days of termination of the Contract, we will permanently delete Your Data from the Database. Encrypted back-ups of Your Data will be kept for a maximum of 3 years after termination of the Contract or of such deletion. You shall pay all reasonable expenses incurred by us in returning or deleting Your Data;
  • we will disable the Services from processing your Cards but you acknowledge that unexpired Cards may continue to be readable offline on some smartcard readers;
  • to the extent that any of these Terms is expressly or impliedly intended to survive the termination of the Contract, such Term shall continue in force and effect; and
  • any rights, remedies, obligations or liabilities of ours or yours that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

 

Events outside our control

  • We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in clause 2.
  • An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster, measures of any governmental authority, or failure of public or private telecommunications networks, or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
  • If an Event Outside Our Control takes place that affects the performance of our obligations under a Contract:
    • we will endeavour to contact you as soon as reasonably possible to notify you; and
    • our obligations under a Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control or for the period during which we are affected by it, whichever is later. Where the Event Outside Our Control affects our delivery of Services to you, we will endeavour to recommence those Services as soon as reasonably possible after the Event Outside Our Control is over.

 

Communications between you and us

  • When we refer, in these Terms, to "in writing", this will include e-mail.
  • Any notice or other communication given by you to us, or by us to you, under or in connection with the Contract shall be in writing and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service or e-mail or, in the case of a notice by us to you only, by posting a notice on our site.
  • A notice or other communication shall be deemed to have been received: if delivered personally, when left at our registered office; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or if sent by e-mail, one Business Day after transmission; or if sent by posting a notice on our site, 10 days after the posting appears on our site.
  • In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post; or in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee and no error message was returned.
  • The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

 

Other important terms

  • These Terms and any documents referred to in them constitute the whole contract between you and us and supersede any previous arrangement, understanding or agreement between you and us relating to the subject matter they cover. You acknowledge and agree that in entering into the Contract you do not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of these Terms, other than as expressly set out in these Terms.
  • We may transfer our rights and obligations under a Contract to another organisation, but this will not affect your rights or our obligations under the Contract. We will always notify you in writing or by posting on this website if this happens.
  • You may only transfer your rights or your obligations under a Contract to another person if we agree in writing.
  • This Contract is between you and us. Except as expressly and specifically referred to in these Terms, no other person shall have any rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
  • Each of the provisions of the Contract operates separately. If any court or relevant authority decides that any of them (or any part of any of them) is unlawful or unenforceable, the remaining provisions will remain in full force and effect. If any unlawful or unenforceable 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 your and our commercial intention.
  • If we fail to insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
  • Nothing in these Terms is intended to or shall operate to create a partnership between the you and us, or authorise either you or us to act as agent for the other, and neither you or we 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).
  • The Contract 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.
  • You and we both irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

 

Interpretation

  • The definitions and rules of interpretation in this clause apply in these Terms.
  • In these Terms the following expressions have the following meanings:

“Business Day" means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

"Card"   means a smartcard or Virtual Card that is compatible with the Services, Software, System and Database.

"Cardholder" means the person to whom the data on a Card refers.

"Contract" any contract between us for your use of Gencarda and the supply of our Services to you, which is made under these Terms or incorporates these Terms.

"Contract Term" means the period during which the Contract remains in force in accordance with these Terms.

"Database" means our database of Cardholder data within Gencarda. For the avoidance of doubt, this does not include the data in the Database which belongs to you or Your Users (as applicable) as stated in clause 9.4.

“Data Protection Legislation” means the Retained Regulation (EU) 2016/679 (UK GDPR), the Data Protection Act 2018 and any regulations and secondary legislation made thereunder, as amended or updated from time to time, in the UK.

“Data Subject” has the meaning ascribed to it in the Data Protection Legislation.

"Effective Date" means the date you and we execute a hard copy or electronic copy written agreement incorporating these Terms.

“First-Line Technical Support” means responding to basic enquiries such as a Card not having been received or a lost pin.

"Gencarda" means our software and database system described in clause 2 and on our site.

"Minimum Term" means any minimum term of the Contract agreed between you and us in writing.

"Privacy Policy" means our privacy policy which is available on our site, as we may update that policy from time to time by posting an updated version on our site.

“personal data” means data subject to protection under data protection law in any jurisdiction.

"Record" means the data relating to an individual Cardholder held on a Card and/or the Database from time to time.

"Retail Prices Index" means the index of retail prices (RPI) as published by the UK Office for National Statistics from time to time, or failing such publication, that other index as we may determine (acting reasonably and in good faith) most closely resembles such index.

"Segment" means a segment of the Database allocated to a User and in which that User’s data is stored.

“Second-Line Technical Support” means responding to technical enquiries other than enquires covered by Third Line Technical Support.

"Services" means our online software, database and Card issuing services known as Gencarda provided by us to you under these Terms, as more particularly described in clause 8.

"Software" means the online software application provided by us as part of the Services.

"System" means our computer system on and through which the data in the Database is stored and made available to you.

"Terms" means these legal terms and conditions.

“Third-Line Technical Support” means providing support in relation to enquiries requiring in depth investigation such as the Services not working or bugs in applications each rendering the Services substantially unusable.

"User"   means anyone who is authorised to access the Services and Database.

"Vircarda" means our smartphone software application that holds "Virtual Cards".

"Virus"   means any device or thing (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.

"Virtual Card" means a virtual equivalent of a physical smartcard stored on a smartphone or tablet in Vircarda.

"Year" means a period of 12 months commencing on the Effective Date or any anniversary of the Effective Date.

"Your Data" means data which you or Your Users or we (on your behalf) input into the Database.

"Your Material" means Your Data and any other information or materials which you or Your Users supply to us in connection with the Contract and/or Services, including, without limitation, the information and materials referred to in clause 12.1.1 and your trade name and trademarks (whether registered or unregistered).

"Your Users" means your employees, agents and independent contractors who are authorised by you to use the Services and the Database and those of your members and/or clients who are authorised by you and by us to use the Services and the Database.

  • Clause headings shall not affect the interpretation of these Terms.
  • A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
  • A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  • Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
  • 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.
  • 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.
  • A reference to writing or written includes, without limitation, faxes and e-mail.
  • References to clauses are to the clauses of these Terms.