General Terms & Conditions
These general terms and conditions were adopted by Touchtech AB on 2022-10-24.
These Terms apply to our Customers’ access and use of the Touchtech online platform. Some of the information is included due to legal requirements, or merely because we believe it to be good to settle some things before you start using the Platform. They might feel a bit long and complicated but do not hesitate to contact us if you have any questions.
Background
Touchtech AB (“Touchtech”, “we” or “our”) provides online commerce and productivity tools on our platform, providing you the ability to collaborate and communicate with colleagues, partners and customers (the “Platform”).
These terms (the “Terms”) describes the legal terms and conditions applicable to the company or organization (the “Customer”) that governs a brand workspace or account (the “Brand Workspace”) on the platform. A Brand Workspace can be created by an individual user with a registered user profile who is acting on behalf of a legal entity (the “User”). The User’s access and use of the Platform is governed by the separate Terms of Use.
The Customer and Touchtech are sometimes referred to individually as the “Party” or jointly as the “Parties” in these Terms.
The agreement between Touchtech and the Customer is formed by these Terms, any documents referred to in these Terms and the more specific details agreed to between the Customer and Touchtech (the “Agreement”). Such specific details are set out in the contractual arrangement between the Customer and Touchtech, normally a web form at Touchtech’s website where the Customer has provided its credentials and signed up to use the Platform including information about prices and Customer specific details (the “Main Agreement”). The Main Agreement may also be constituted by a contract document signed by the Customer, an offer accepted by the Customer or a confirmed email including for example information about agreed add-ons.
The documents together forming the Agreement have priority in the following order: 1) the Main Agreement, 2) these Terms and 3) any appendices that the Agreement may include and such appendices shall take precedence due to the matter they intend to govern, if nothing else has been agreed in the Main Agreement. For example, and regardless of what has been stated above, the DPA shall always have first priority regarding questions related to personal data processing.
The Customer is always a company or organization. The individual representing the Customer warrants that he or she has authority to conclude the Agreement with Touchtech and to use the Platform according to these Terms. Touchtech do not provide the Platform to consumers.
The Platform
The Platform is provided as an online access service where the Customer’s employees, customers, partners and prospects can communicate, collaborate and do business with each other. The Customer creates a Brand Workspace through which sets of features (the “Tools”) become available. When a User of the Platform creates or gets invited to a Brand Workspace on the platform, the User establishes a relation to that Brand Workspace (the “Role”), for example as an administrator. Each Role is authorized to use a certain set of Tools for interaction with Users.
The Platform includes the functions that Touchtech provides from time to time, as described on the platform and during the use of the Platform. The Platform is offered to the Customer as a cloud-based Software-as-a-Service (SaaS) subscription.
The Customer has the right to use the specific Brand Workspace and the Tools connected to it during the term of the Agreement. The Customer’s right to use the Platform is non-exclusive, time-limited and non-transferable and applies to the specific Brand Workspace agreed on according to the Agreement. The Customer has this right provided that the Customer fulfils its payment obligations and other obligations under the Agreement.
The Customer may purchase consultancy services and additional services as agreed upon, provided by Touchtech from time to time. Such consultancy services and additional services may be subject to separate terms and prices.
Touchtech’s Obligations
Touchtech shall provide the Platform to the Customer in accordance with the Agreement. Touchtech shall also provide support and make sure the Platform is available as detailed under “Availability”.
Touchtech shall make the Platform available in a qualified, technically competent and professional manner and according to what is stated in the Agreement.
Touchtech is always trying to improve the Platform and will sometimes make developments, additions and changes to the Platform. In case Touchtech has built or provided integrations to the Customer, Touchtech does not take responsibility for the continued functionality of such integrations and does neither take responsibility for any claims from any third-party provider.
Availability
The Platform is provided online and shall be considered to have been made available when the Customer can access the Brand Workspace over the internet.
Touchtech’s intention is that the Platform shall be fully available at all times. Unless the Parties have agreed otherwise, Touchtech shall make the Platform available according to the agreed service levels, as further described in Touchtech’s service level agreement (the “SLA”).
Touchtech provides support as described in the SLA and in the Main Agreement.
The Customer´s Obligations
The Customer shall comply with the Agreement and with such other terms and conditions, instructions and provisions governing the use of the Platform as Touchtech may specify at any given time in the Platform, in instructions and in other documentation that Touchtech provides to the Customer at any time (the “Documentation”).
The Customer is responsible for any content that is provided to, published in or used in the Platform, by or on behalf of the Customer, e.g. graphic content, logotypes, videos, pictures, texts provided at the Brand Workspace (“Customer Content”). The Customer is responsible for ensuring that such Customer Content and its publication is complying with applicable laws, regulations and guidelines issued by a competent authority. The Customer is also responsible for having the right to use the brand name, logos and similar signs that are presented as part of the use of the Platform and that any Customer Content is not used in a way that is harmful for the Platform or any third parties.
Unless the Parties have agreed otherwise, the Customer is responsible for the following:
To maintain the equipment and software (such as a web browser) required to use the Platform, maintain the security of its IT-environment and to always use the Platform in accordance with the Documentation;
To provide Touchtech with information about the Customer and its use of the Platform reasonably required by Touchtech to be able to provide the Platform and make improvements, additions and changes to the Platform;
To notify Touchtech if the Platform is unavailable;
To use the Platform in accordance with all applicable laws, regulations and guidelines issued by a competent authority; and
Any act of its employees, consultants or other persons appointed by the Customer to use the Platform.
The Customer shall not use, copy, modify or give access to the Platform to a greater extent than has been agreed on or is considered within the intended use of the Platform.
Touchtech is not responsible for changes in the Platform that occur because of the Customer’s actions.
If the Customer does not comply with the terms of the Agreement and does not rectify within thirty (30) days of Touchtech notifying the Customer of the non-compliance, Touchtech is entitled to suspend the Platform until rectification is made. Furthermore, Touchtech shall have the right to immediately suspend the Platform if the Customer’s use of the Platform loads the Platform to an extent that hampers the functionality of the Platform. The Customer shall indemnify Touchtech for any costs or claims by a third party based on the Customer´s use of the Platform in violation of the terms of the Agreement.
Prices and Payment
To use the Platform, the Customer shall pay the prices for the Platform as set out in the Main Agreement or in accordance with Touchtech´s from time to time applicable and published prices. All prices are exclusive of VAT and similar taxes.
Touchtech has the right to adjust the prices for the Platform at any time by giving notice to the Customer in writing. Such changes shall have effect three months after such notice is given. The Customer always have the right to terminate the Agreement in case of price changes, according to section “Term and Termination”.
Unless otherwise agreed, all fees shall be paid retrospectively. Payment shall be made within thirty (30) days from the notification of payment is issued, unless the Parties have agreed otherwise in writing.
If a payment is late or incomplete, Touchtech is entitled to interest on overdue payment in accordance with the Swedish applicable interest act and a late payment charge and/or a debt collection fee according to applicable laws.
If full payment is not received by Touchtech and the Customer has not on reasonable grounds disputed the claim of payment, Touchtech has the right to (i) immediately suspend the use of the Platform, and/or (ii) terminate the Agreement in accordance with the section “Term and Termination”.
Term and Termination
The Platform is provided for the term specified in the Main Agreement.
The Agreement becomes effective when a Brand Workspace is created or when the Main Agreement has otherwise been concluded. If nothing else is agreed between in the Main Agreement the Agreement can be terminated by giving written notice at the latest three (3) months before the term specified in the Main Agreement. If no term is specified, the Agreement will remain in force for an indefinite term and may be terminated with three (3) months’ notice.
During the term of the Agreement, the Customer can at any time end the use of a specific Brand Workspace as part of the Platform by asking Touchtech to remove the Brand Workspace. However, a removal of a specific Brand Workspace does not entail a termination of the Agreement and does not affect the Agreement as such, for example the Customer’s obligations in accordance with section “Prices and Payment”.
Each Party has the right to terminate the Agreement with immediate effect if:
The other Party has committed a material breach of the Agreement and does not take full correction of such breach within thirty (30) days of the other Party giving written notice thereof; or
The other Party is declared bankrupt, enters into liquidation, is the subject of corporate reorganisation, cancels its payments or can otherwise reasonably be assumed to have become insolvent.
Touchtech has the right to terminate the Agreement with thirty (30) days’ notice if:
A third-party supplier or subcontractor terminates the agreement with Touchtech and there is no other corresponding supplier on the market, and it is therefore not possible for Touchtech to continue to provide the Platform in accordance with the Agreement;
If Touchtech cannot meet the Customer’s change request of the documented instructions regarding processing of personal data; or
In the event of the Customer´s breach of any of its obligations pursuant to the section “Prices and Payment” or the clause just below.
When the Agreement has been terminated, the Customer shall immediately cease to use the Platform and both Parties shall return or delete such information that is covered by confidentiality in accordance with the section “Confidentiality”, including Documentation.
Touchtech shall, upon the Customer´s written request, remove or return the Customer Content in a generally accepted format chosen by Touchtech, in accordance with these Terms. The Customer must reimburse Touchtech for the reasonable costs Touchtech has for the return.
Personal Data
For fulfilling the obligations under the Agreement, Touchtech will process personal data forming part of the Customer Content on behalf of the Customer. Within the scope of such processing, the Customer is the controller for personal data and Touchtech is the processor. For this purpose, Touchtech and the Customer hereby enters into a data processing agreement, see Appendix 1.
The Customer is responsible for complying with data protection regulations, the supervisory authority’s binding decisions, recommendations and guidelines, data protection case law as well as supplementary local adaptions and regulations as well as sectoral laws in respect of data protection. This obligation includes the responsibility to provide necessary privacy information to the data subjects and collect any necessary consents.
Touchtech collects, and processes in other ways, personal data as data controller for purposes related to the provision of the user profile and subscription to the Users and the Customers, as well as in order to improve the Touchtech Platform.
The Customer’s use of the Platform means that personal data is shared between the Parties whereas the Parties are independent controllers. Touchtech and the Customer are responsible for the processing of their personal data respectively, and for that such processing is compliant with the Data Protection Rules. The Parties shall cooperate to the extent necessary in order to fulfil their obligations according to the Data Protection Rules and according to these Terms. For the avoidance of doubt, nothing in the Agreement shall be construed as the Parties being joint controllers.
The Customer is responsible for
Only processing the personal data for purposes relating to the use of the Platform;
Keeping Touchtech updated regarding any communication with data protection supervisory authorities, data subjects and third parties as far as concerns the relevant personal data processing and is not inconsonant with legislation or a decision from a public authority;
Process personal data confidentially, unless the Customer is required by mandatory legislation to disclose the personal data, in which case the Customer shall, unless prohibited to do so by mandatory legislation or a decision from a public authority, inform Touchtech about such disclosure; and
Return or erase the personal data according to Touchtech’s instructions upon the termination of the Agreement.
Confidentiality
Both Touchtech and the Customer agree not to, without the other Party’s prior written approval, publish or otherwise disclose to third parties any information relating to the other Party’s business which is or can be reasonably presumed to be confidential, with the exemption for:
Information that is or becomes publicly known, except through a breach of this Agreement by the receiving Party;
Information from a third party that is public to the receiving Party without obligation of confidentiality;
Information that was known to the receiving Party prior to receipt from the disclosing Party, without obligation of confidentiality; or
The disclosure or use of information is required by law, regulations or any other regulatory body. In the event of such disclosure, the disclosing Party shall, if possible, notify the other Party before such disclosure takes place.
Specifically, Touchtech shall keep any Customer Content secret and ensure that employees only have access to such information if it is necessary to perform the services, e.g. support- and maintenance (“need to know basis”).
Each Party is responsible for compliance with this confidentiality undertaking by its respective subcontractors, consultants and employees. The confidentiality undertaking under this section applies during the term of the Agreement and for a period of three years after the Agreement has expired. The confidentiality undertaking for Customer Content applies for an indefinite period of time.
Specific non-disclosure Agreements shall, upon request from the Customer, be signed by Touchtech’s employees and suppliers and its employees, before any work is conducted.
Publicity and Marketing
Touchtech may publicly state that the Customer is a customer of Touchtech. The Customer grants Touchtech the right to include the Customer’s name, trademark, logo or similar identifying material in a listing of customers on Touchtech’s website and/or promotional material in relation to the Platform. The Customer may at any time ask Touchtech not to include information about the Customer in any publicly available material and Touchtech shall in such case stop doing so within thirty (30) days and as far as is reasonably possible delete any already published information about the Customer.
Intellectual Property Rights
Touchtech or its licensors hold all rights, including intellectual property rights, to the Platform and the Documentation (including, without limitation to, such development or improvements specifically performed on behalf of the Customer) including software and source code. Touchtech has made a substantial investment in the obtaining and presenting of data in the Platform and the database included in the Platform. You agree to respect such rights. Nothing in the Agreement shall be construed as a transfer of such rights, or any part thereof, to the Customer.
The Customer may not copy, modify, create derivative work, reverse engineer or otherwise attempt to discover any source code of, or assign, sub-license or transfer any right in, the Platform, data in the Platform or part thereof.
The Customer holds all rights, including intellectual property rights, to the Customer Content. During the term of the Agreement, Touchtech may use the Customer Content and data related to the Customer´s use of the Platform (personal data excluded) in order to provide the Platform to the Customer and to Users successfully.
After the termination of the Agreement, or if the Customer remove Customer Content or a Brand Workspace from the Platform, Touchtech shall retain the right to use data and information abstracted from the Customer Content and any content generated by the Customer via the Tools, such as presentations and comments (“Customer Generated Content”), in aggregated form, for purposes related to analysis, product development and business management. Touchtech may keep and use Customer Content and Customer Generated Content in unaggregated form, in whole or in part, if the Parties have agreed so in writing.
Regardless of what has been stated in the section just above, Touchtech holds all rights to any layouts, templates and other design elements generated by the Customer via the Tools. These rights will remain with Touchtech after the termination of the Agreement, as well as if the Customer Generated Content is deleted from the Platform by the Customer.
The Parties shall, subject to the limitation of liability, compensate the other Party for damage suffered as a result from claims from third parties regarding infringement of such third Party´s intellectual property rights.
Touchtech’s obligation to indemnify the Customer pursuant to this section “Intellectual Property Rights” applies only provided that the Customer:
Without undue delay notifies Touchtech in writing of claims made against the Customer;
Allows Touchtech to control the defence and make decisions alone in all related settlement negotiations; and
Acts in accordance with Touchtech’s Documentation and cooperates with and assists Touchtech to the extent that Touchtech reasonably request.
If it comes to Touchtech’s knowledge or is finally settled that there is an infringement of a third party´s intellectual property rights, Touchtech may choose to either:
Ensure the Customer a continued right to use the Platform;
Change the Platform so that the infringement no longer exists;
Replace the Platform, or any part thereof, with any other non-infringing equivalent service; or
Terminate or temporarily cease to provide the Platform and, after deducting the Customer´s reasonable benefit, repay the Customer´s fee paid for the Platform, without interest.
Touchtech has the right to freely use the know-how, professional knowledge, experience and skills that Touchtech acquires through or in connection with providing the Platform.
Touchtech’s obligations under this section “Intellectual Property Rights” are conditional upon the Customer’s use of the Platform exclusively in accordance with the terms of the Agreement.
This section “Intellectual Property Rights” constitutes Touchtech’s total liability towards the Customer for infringement of third parties´ intellectual property rights.
Limitation of Liability
Touchtech’s responsibility for the provision of the Platform is limited in accordance with what is stated in these Terms.
Touchtech is, with the limitations set out below, liable towards the Customer for damages caused due to Touchtech’s negligence.
The Platform is provided as a service “as is” without any express or implicit promises or guarantees, except what it explicitly stated in the SLA or otherwise has been agreed by the Parties in writing. It does not include integrations to other systems or applications that the Customer may want to use together with the Platform.
Regardless of what is stated above, Touchtech shall under no circumstance be liable for indirect damages (Sw. indirekt skada), including damages caused by loss of profit, revenue, anticipated savings or goodwill, loss of information, data or Customer Content, loss due to operational, business, power or network interruptions, loss due to modifications of the Platform made in accordance with Customer´s instructions or performed by anyone other than Touchtech, as well as any claims due to the Customer´s possible liability to third parties; without prejudice to the last paragraph in “Intellectual Property Rights”.
Touchtech’s total and aggregated liability under the Agreement regardless of the number of incidents, is limited to the amount paid by the Customer according to the Agreement during the six (6) months prior to the time the damage occurred.
The Customer shall, in order to not lose its right, submit a claim for compensation in writing no later than forty-five (45) days after the Customer noticed or should have noticed the actual damage or loss, however in no case later than three (3) months from when the loss arose.
In case of a claim from a third party, the Party responsible for such claim shall indemnify and hold the other Party harmless.
Force Majeure
Each Party shall be relieved from liability for damages for a failure to perform any obligation under the Agreement to the extent that the due performance is prevented by reason of any circumstance beyond the control of the Party. Such as internet limitation or slow connection, power outages, network intrusion, lawsuits, pandemics, labour disputes, loss of communications, mobilisation or large-scale military recruits, ordinances, rationing of fuel, goods or energy, and defects and delays in deliveries from subcontractors caused by any party outside the Party´s control provided that the other Party is notified immediately.
The Parties have the right to terminate the Agreement if force majeure continues or will obviously continue for more than sixty (60) days.
Miscellaneous
Touchtech has the right to amend and change these Terms at any time due to changes in law, constitution, by authority decision or changes in other circumstances outside of Touchtech’s control, by giving the Customer one (1) month’s prior written notice.
Touchtech may otherwise amend and change these Terms prior to a new contractual period between the Parties. Upon such change, the Customer may terminate the Agreement if the Customer has a reasonable explanation for not accepting the new Terms by giving notice at the latest one (1) month before the new Terms will enter into force.
Touchtech is entitled to assign subcontractors to accomplish its obligations under the Agreement. Touchtech is liable for the work of the subcontractors as well as its own.
The primary means of communication between the Parties concerning the Platform shall be via the contact channels that Touchtech makes available in the Platform or otherwise via e-mail.
The content of the Agreement and its appendices shall supersede all previous written or oral commitments and undertakings regarding the Platform.
The failure of a Party to exercise any right under the Agreement or the failure to point out any condition attributable to the Agreement shall not constitute a waiver by a Party of such right.
The Parties’ obligations under the Agreement may not be transferred to a third party without the other Party´s prior written consent. However, each Party may, by giving notice to the other Party, transfer the Agreement in a situation of transferring its operation or a part thereof to a third party or to a company within the same corporate group, providing that the Party takes responsibility for ensuring the obligations under the Agreement if the new party does not comply with the Agreement.
Sections that by their nature are applicable after the termination of the Agreement shall continue to apply. Such sections includes, but are not limited to, section ”Term and termination” (in applicable parts), section “Confidentiality”, section “Intellectual Property Rights”, section “Limitation of Liability”, and section “Governing Law and Disputes”.
Governing Law and Disputes
The Agreement shall be governed by and construed in accordance with the laws of Sweden.
If you are not satisfied with us or the Platform we provide please contact us and we will solve the problem together. In case we would not be able to solve a specific conflict any dispute arising out of or in connection with the Agreement shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC Institute”).
The Rules for Expedited Arbitrations shall apply, unless the SCC Institute, considering the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
The place of arbitration shall be Stockholm. The language of the proceedings shall be Swedish and Swedish law shall apply to the dispute. Regardless of what has just been stated shall Touchtech always have the right to apply for an injunction to payment or bring an action regarding non-payment in a general court.