THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Fees: the fees payable by the Customer for the supply of the Talon.One Services in accordance with clause 6.
Commencement Date: has the meaning given in clause 2.5.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.5.
Contract: the contract between Talon.One and the Customer for the supply of Talon.One Services in accordance with these Conditions.
Customer: the person or firm who purchases Talon.One Services from Talon.One.
Customer Default: has the meaning set out in clause 5.2.
Data Protection Agreement: the agreement regarding the processing of personal data into which the Customer and Talon.One will enter at the beginning of the Contract.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer's order for Talon.One Services via an Order Form or via a Web Application Order.
Order Form: the Customer’s order for Talon.One Services via a written order.
Talon.One Services: the online and software based products and services to maintain, monitor and automate voucher codes, discounts, loyalty programs, customer referral campaigns and related products and services supplied by Talon.One to the Customer as set out in the Specification.
Specification: the description or specification of Talon.One Services in the respective service and product descriptions, special contract conditions, individual subjects of performance and/or services, order forms and/or price lists in effect at the time the Contract was concluded.
Talon.One: Talon.One UK Ltd, registered in England and Wales with company number 13473145.
Talon.One Self Service Portal: Talon.One’s online portal for which access is granted after acceptance of email invitation and provision of correct URL.
Web Application Order: the Customer's order for Services via Talon.One’s online portal (“Talon.One Self Service Portal”) by using the respective order form within the web application.
A reference to legislation or a legislative provision:
is a reference to it as amended, extended or re-enacted from time to time; and
shall include all subordinate legislation made from time to time under that legislation or legislative provision.
Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to writing or written includes fax and email.
2. Basis of contract
The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The Customer is bound by the Order for a period of two (2) weeks after making the Order.
Any samples, drawings, descriptive matter or advertising issued by Talon.One, and any descriptions or illustrations contained in Talon.One's catalogues or brochures or on its website, are issued or published for the sole purpose of giving an approximate idea of the Talon.One Services described in them. They shall not form part of the Contract or have any contractual force.
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
Any quotation given by Talon.One shall not constitute an offer, and is only valid for a period of 14 Business Days from its date of issue or until the validity date stated in the Order Form.
The Contract between Talon.One and the Customer shall come into existence (Commencement Date) either upon Talon.One confirming an Order Form in writing, upon the Customer using the Web Application Form via Talon.One’s online portal, or upon Talon.One delivering or performing Talon.One Services towards the Customer.
(a) Order Form
In order to conclude the Contract via an Order Form, the Customer must send the signed Order Form to Talon.One by fax or by email. Talon.One shall not be obliged to accept the Order Form and is entitled to reject such Order without stating reasons.
(b) Web Application Order
In order to conclude the Contract via the Talon.One Self Service Portal, theCustomer must register itself online with Talon.One. It is required for Talon.One to confirm such registration by sending a confirmation email or verbal confirmation by phone, each by using the respective contact details (email address / phone number) that was provided by the Customer. A right to registration does not exist; Talon.One expressly reserves the right to reject a registration without stating reasons. The Customer’s Talon.One user account will be activated once the Customer clicks on the activation link. The user account is non-transferable. The Customer must keep the password secret and protect it against any wrongful use by unauthorised third parties.
The Customer can order Talon.One Services via its user account. Talon.One offers subscriptions for its Talon.One Services. The details for subscriptions can be found within the Customer’s account or on the Order Form.
Unless otherwise provided in the Order Form or Web Application Order, Talon.One Services are purchased as subscriptions. Further subscriptions maybe added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and any added subscriptions will terminate on the same date as the underlying subscriptions. To order a subscription, the Customer must click on the button “Buy” (or any similar or synonymous expression) or sign the provided Order Form to make a bindingOrder for the relevant Talon.One Services. Talon.One will confirm the receipt of the Order via email. However, such confirmation does not constitute an acceptance of the Order. The Contract between the Customer and Talon.One will be concluded by Talon.One’s express acceptance of the Order in writing, via email or by making the Talon.One Services available. Talon.One is not obliged to accept the Order.
(b) Usage Limits
Talon.One Services are subject to usage limits, including, for example, the quantities specified in the Order Form or Web Application Order, unless otherwise specified or agreed. Talon.One Service may not be active for more than the respective usage limit. If the Customer exceeds a contractual usage limit, Talon.One is entitled to charge additional quantities accordingly.
(c) Free Trial
Talon.One may offer a free trial period to new Customers. The free trial period is available only once to any one Customer. Length of the free trial will be communicated by Talon.One. The detailed terms for such free trial are available in the Customer’s account. If the new Customer does not order Talon.OneServices within the communicated trial period against payment, they will not be entitled to continue the use of the Talon.One Services after expiry of the free trial period. The Customer is aware that contractual declarations (e.g.confirmation emails, amendments to the Conditions as well as other notifications) may be sent via email.
3. Supply of Services
Talon.One shall supply the Talon.One Services to the Customer in accordance with theSpecification in all material respects.
Talon.One reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Talon.One Services, and Talon.One shall notify the Customer in any such event. Talon.One also reserves the right to make technical changes and improvements to the Talon.One Services within a reasonable scope.
Talon.One warrants to the Customer that the Talon.One Services will be provided using reasonable care and skill.
Talon.One is entitled to use third parties as agents in order to carry out and/or fulfil all or part of its contractual obligations.
4. Availability, Changes of Services
Unless expressly specified Talon.One offers the Talon.One Services on the basis of what is currently technically, economically and operationally possible and/or reasonable.
The Customer accepts that uninterrupted availability of the Talon.One Services is technically not possible and cannot be reasonably guaranteed. The Talon.One Services shall be available at least 99,9% of the annual mean. Hereof excluded are times during which Talon.One Services may be interrupted or disrupted by circumstances beyondTalon.One’s reasonable control, including but not limited to acts of third parties that do not act on Talon.One’s behalf, technical conditions of the internet that Talon.One cannot influence or force majeure events. If such circumstances interfere with the availability, quality or functionality of the Talon.One Services, this does not constitute a breach of the Contract by Talon.One.
Talon.One shall notify the Customer about planned downtimes or restrictions on the availability of the Talon.One Services within a reasonable period of time. The Customer shall have no claims against Talon.One based on such circumstances.
In case of unforeseen events, Talon.One is entitled to suspend the Talon.One Services for maintenance or repair purposes if this is necessary to ensure the proper operation of the Talon.One Services.
Taking into account the Customer’s interest in the Talon.One Services, Talon.One reserves the right to change, alter, limit or discontinue Talon.One Services, in particular if this is reasonably necessary to prevent abuse of Talon.One Services or to comply with legal requirements. Talon.One shall notify the Customer of any such measure with a notice period of three (3) weeks. In such event, the Customer is entitled to request a price adjustment or to terminate the Contract, provided that contractual use of theTalon.One Services is significantly impaired. Talon.One is entitled at any time, and without an obligation to notify the Customer, to improve, adjust, extend and/or to adapt the Talon.One Services to the technical progress, provided that the material content of the Talon.One Services is maintained.
5. Customer's obligations
The Customer shall:
keep the passwords and login data provided by Talon.One for access to theTalon.One Services confidential and inform Talon.One immediately as soon asthe Customer becomes aware of unauthorised third parties gaining access tothese passwords. If, due to the Customer’s fault, unauthorised third parties useany Talon.One Services by using the passwords, the Customer is liable toTalon.One for usage fees and damages;
not make the software provided by Talon.One available to any third parties;
not modify, translate, reverse engineer, decompile, disassemble or otherwise create derivative works from the Talon.One software or documentation;
not transfer, lend, rent, lease, distribute the software provided by Talon.One or the Talon.One Services, or use them for providing services to a third party, or grant any rights in and to the Talon.One software or documentation to a third party in any form, without Talon.One’s express prior written and unless all respective fees have been paid and all of Talon.One’s other conditions have been met;
not remove, modify or make illegible the labels, markers or designations regarding any Intellectual Property Rights of the Talon.One software or documentation;
if Talon.One has protected its Talon.One Services by technical means (e.g. security codes, firewalls, etc.), not circumvent or remove such security measures.
protect its own data by taking appropriate measures and by regularly making backups of its data;
follow Talon.One’s instructions as well as the protocols and specifications as requested by Talon.One with regard to the telecommunication/data transmission
upon receipt of the Talon.One Services, immediately notify Talon.One in writing of any obvious defects. The Customer shall provide Talon.One with all documents necessary for the analysis and debugging attempts and shall provide Talon.One with access to the Customer’s servers, if necessary.
confirm, represent and warrant that all personal as well as other relevant contractual information provided by the Customer during the conclusion of the Contract is true, complete and correct. The Customer is responsible for any disadvantages or damages incurred as a result of providing false, incorrect, incomplete or outdated information. The Customer is obliged to promptly inform Talon.One about any changes to this data and/or to update altered data in its user account.
If Talon.One's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
without limiting or affecting any other right or remedy available to it, Talon.One shall have the right to suspend performance of the Talon.One Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Talon.One's performance of any of its obligations;
Talon.One shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Talon.One's failure or delay to perform any of its obligations as set out in this 75.2; and
the Customer shall reimburse Talon.One on written demand for any costs or losses sustained or incurred by Talon.One arising directly or indirectly from theCustomer Default.
6. Fees, Payment
The Fees for the Talon.One Services are set out in the applicable Order Form, WebApplication Order or Talon.One’s current valid price lists. All Fees are in pound sterling, unless another currency is explicitly agreed. Unless explicitly stated otherwise, all Fees are quoted exclusive of the statutory value-added tax (VAT) applicable at the time. Talon.One will invoice the Customer in advance and otherwise in accordance with the relevant Order Form. If the Customer places a Web Application Order via its customer account in the Talon.One Self Service Portal, Talon.One accepts the payment methods as shown in the customer account (e.g. payment by credit card). When paying by credit card, the credit card on file will be charged with the amount indicated on theOrder.
Invoices will be sent to the Customer via mail or in electronic form, unless expressly agreed otherwise.
The Customer shall pay each invoice submitted by Talon.One:
within 14 days of the date of the invoice (unless stated differently in the applicable Web Application Order or Order Form); and
in full and in cleared funds to a bank account nominated in writing by Talon.One, and
without deductions created by bank charges using SWIFT payment instruction“SHA” or “BEN” (i.e. Customer shall choose “OUR”), and time for payment shall be of the essence of the Contract.
If the Customer fails to make a payment due to Talon.One under the Contract by the due date, then, without limiting Talon.One's remedies under clause 10., the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.4 will accrue each day at 84% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
All amounts due under the Contract shall be paid in full without any set-off, counter claim, deduction or withholding (other than any deduction or withholding of tax as required bylaw).
Further claims and rights to which Talon.One may be entitled in this respect shall remain unaffected.
Even if the Customer does not use the provided Talon.One Services, the Customer is still obliged to pay the agreed fees.
As long as Talon.One carries out its Talon.One Services during the term of the Contract,Talon.One is entitled to change the Fees at any time with a six (6) week notice to the beginning of each calendar month by notifying the Customer in writing. If such changes exceed 10% of the agreed fees for the Talon.One Services provided under the Contract, the Customer has the right to terminate the Contract within four (4) weeks from the date of notification of Fee increase. In case the Customer terminates the Contract, Talon.One is entitled to revoke the proposed increase at its sole discretion. If the Customer does not terminate the Contract within four (4) weeks from the date of notification of the Fee increase, the higher Fees are deemed to be accepted.
Any complaints relating to an invoice must be submitted to Talon.One in writing or by email to firstname.lastname@example.org within four (4) weeks upon receipt of the respective invoice. If no such complaint has been made within four (4) weeks upon receipt of invoice, the invoice is deemed to be accepted. Talon.One will notify the Customer in the invoice about the consequences of failing to submit a timely complaint.
7. Intellectual property rights
All Intellectual Property Rights in or arising out of or in connection with the Talon.One Services, as well as other services that are provided under the Contract, including source codes, databases, hardware and/or any other material (e.g. documentations, developments, functions, report templates, preparatory material, etc.), shall be owned by Talon.One.
Talon.One grants to the Customer the simple and non-exclusive, non-transferable and non-sub licensable right to use the Talon.One Services during the term of the Contract, insofar as this is necessary to use the Talon.One Services according to the respectiveOrder Form or Web Application Order. The right of use shall expire with the termination of the Contract for whatsoever reason.
Information which may require to achieve interoperability with other programs created independently can be purchased from Talon.One for a fee based on the current price list upon request.
The Customer undertakes to not violate any applicable laws, in particular third party rights (e.g. copyrights, personality rights, intellectual property rights) or the terms of the Contract while using the Talon.One Services. Insofar, the Customer shall indemnify Talon.One regarding any and all third party claims (including but not limited to all costs and expenses, incl. reasonable legal fees) that are being asserted against Talon.One.
Unless otherwise agreed between the parties, Talon.One is entitled to refer to the collaboration with the Customer and the Talon.One Services and to depict the Customer’s logo for self-promotional purposes.
The Customer shall not sub-license, assign or otherwise transfer the rights granted in 7.2.
8. Data protection
The Customer shall comply with the applicable data protection law and the Data Protection Agreement when using the Talon.One Services.
9. Limitation of liability:
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Talon.One does not assume any liability for any damages resulting from a usage other than the intended use of the Talon.One Services. The same applies to any damages resulting from a usage that is not in accordance with Talon.One’s instructions and recommendations or any other unauthorised usage.
Talon.One does not assume any liability for any disturbances, limitations, interruptions or disruptions of the Talon.One Services which are caused by circumstances beyondTalon.One’s reasonable control.
Nothing in this clause 9 shall limit the Customer's payment obligations under the Contract.
Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; and
breach of the terms implied by section 2 of the Supply of Goods and ServicesAct 1982 (title and quiet possession).
Subject to clause 9.5 (No limitation in respect of deliberate default), and clause 9.6 (Liabilities which cannot legally be limited), Talon.One's total liability to the Customer for all loss or damage shall not exceed £25,000.00 per incident of damage and £50,000.00 per Contract.
Subject to clause 9.5 (No limitation in respect of deliberate default), clause 9.2 (No limitation of customer's payment obligations) and clause 9.6 (Liabilities which cannot legally be limited), this clause 9.8 sets out the types of loss that are wholly excluded:
loss of profits.
loss of sales or business.
loss of agreements or contracts.
loss of anticipated savings.
loss of use or corruption of software, data or information.
loss of or damage to goodwill; and
indirect or consequential loss.
Talon.One has given commitments as to compliance of the Talon.One Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
Unless the Customer notifies Talon.One that it intends to make a claim in respect of an event within the notice period, Talon.One shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
This clause 9 shall survive termination of the Contract.
The term of the Contract is determined in the Order Form or Web Application Order. Each party has the right to terminate the Contract by giving 30 days’ notice to the end of the agreed term. If such notice is not given, the Contract will be automatically renewed for the same term as agreed, unless terminated or ended otherwise under this clause 10.
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so.
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Without affecting any other right or remedy available to it, Talon.One may terminate the Contract with immediate effect by giving written notice to the Customer if:
the Customer breaches its obligations under clauses 5.1, 7.4 or 12.3;
the Customer fails to pay any amount due under the Contract on the due date for payment; or
the Customer publishes racist, pornographic, immoral or illegal content on its website and/or content which glorifies or trivialises violence.
Without affecting any other right or remedy available to it, Talon.One may suspend the supply of Talon.One Services under the Contract or any other contract between the Customer and Talon.One if:
the Customer fails to pay any amount due under the Contract on the due date for payment;
the Customer becomes subject to any of the events listed in clause 10.2(c) or clause 10.2(d), or Talon.One reasonably believes that the Customer is about to become subject to any of them; and
Talon.One reasonably believes that the Customer is about to become subject to any of the events listed in clause 10.2(b).
11. Consequences of termination
On termination of the Contract:
the Customer shall immediately pay to Talon.One all of Talon.One's outstanding unpaid invoices and interest and, in respect of Talon.One Services supplied but for which no invoice has been submitted, Talon.One shall submit an invoice, which shall be payable by the Customer immediately on receipt;
the Customer shall delete all copies of the codes that were provided by Talon.One.
Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2. Assignment and other dealings.
Talon.One may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Talon.One.
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.3(b).
Each party may disclose the other party's confidential information:
to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12.3; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
12.4. Entire agreement
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
Nothing in this clause shall limit or exclude any liability for fraud.
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives)
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.If any provision or part-provision of this Contract deleted under this clause 12.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Unless stated otherwise in these Conditions, any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address provided to the other party.
Any notice or communication shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the proper address;
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 fax or email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.8(b)(iii),business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
This clause 12.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
12.9. Third party rights
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.10. Governing law
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Wiener Strasse 10
41 Church Street
B3 2RT Birmingham
One Boston Place, Suite 2600
02108 Boston, MA
1 Scotts Road, #21-10 Shaw Centre