General Terms and Conditions of Service

General Terms and Conditions of Service

All software and services (together referred to hereinafter as « the Solution ») are delivered by « The App Lab », a french société par actions simplifiées with a share capital of 274.070, registered with the Nanterre Trade and Companies Register under number 512 978 875, whose registered office is located at 738 rue Yves Kermen, 92100 Boulogne-Billancourt, whose trade name is Touch & Sell (hereinafter « T&S »), and which can be reached by telephone on +33 (0)1.84.19.51.80 and by email « [email protected] ».

These general terms and conditions of service (hereinafter the « GTCS ») prevail over all other conditions and constitute the only conditions applicable to the provision of the T&S Solution. Acceptance by the customer (hereafter the « Customer ») of any offer from T&S constitutes full and complete acceptance of all the conditions expressed in these GTCS, to form the « Contract » uniting the « Parties » (T&S and the Customer).

The GTCS apply to all services. Consequently, the placing of an order by the Customer implies the latter’s unreserved acceptance of the GTCS.

Any document other than the GTCS, with the exception of the quotation or order form, and in particular catalogues, prospectuses, advertisements, notices and the website are for information purposes only and are not contractual. The GTCS take precedence over any of the Client’s documents, in particular any general terms and conditions of purchase.

  1. Definition of the T&S Solution subscription offer

The purpose of the Contract is the provision by T&S of a subscription to the T&S Solution which includes :

  1. A user interface called Touch & Sell Performance, accessible via the web or via a mobile application for any type of PC, tablet, smartphone and hybrid PC, with an operating system running on the following operating systems (it being understood that these operating systems must be up to date with the latest updates offered by their editors): Windows, iOS, Android, all up to date with their respective latest version. Since Touch & Sell Performance is only accessible on the latest update offered by the Publisher and on its previous version, compatibility with older versions of operating systems is not guaranteed by T&S ;
  2. An online storage space, called « administration interface, or studio », accessible from a web browser (Chrome, Safari, Firefox and Edge are supported and must be up to date with their respective latest version) on a hardware (PC or MAC type computer recommended), which allows the Customer to administer its application and its users independently and in particular :

-create and organise a tree structure;

-Upload and manage content (PDF, interactive PDF, Office Pack, JPG/PNG, HTML 5, MP3 and MP4);

-Graphically customise the appearance (theme, wallpaper, folder and file thumbnails) ;

-control access and use rights through user groups;

-create and send notifications to users ;

-create forms and collect information ;

-access usage statistics.

 

  1. Electronic assistance by e-mail only to the Client’s main administrator, from 10:00 am to 6:00 pm, Monday to Friday, excluding French public holidays. Depending on the offer chosen, this electronic assistance may be accompanied by telephone assistance or even individualised follow-up by a CSM (« Customer Success Manager »), in charge of the direct relationship with the Customer;

 

  1. Corrective and evolutionary maintenance of the Customer’s application, in particular for :

-ensure present and future compatibility with the 3 existing operating systems currently in the T&S universe, namely : Windows 10 and above, iOS 11 and above, Android 6 and above, all up to date with their respective latest versions;

-provide and make available new versions of the T&S Solution, so that the Customer can benefit from any new functionality, technological developments, bug fixes and security fixes. In order to benefit from this service, a user must have a T&S licence issued by T&S and Customer hardware in accordance with the software specifications indicated in point « a », bearing in mind that T&S recommends brands of consumer hardware in order to guarantee a high level of reliability, performance and after-sales service (e.g. Apple, Samsung and Microsoft, without this list being exhaustive).

 

A T&S licence includes simultaneous access to the application on a tablet or smartphone or a hybrid PC for one and the same person, on one and the same session, from one and the same terminal. In addition to this access, if the selected offer allows it, a second access to the application of strictly identical nature from a second terminal.

  1. Offer – Contract

Any commercial offer from T&S will be subject to these T&Cs and will be valid, unless a specific deadline is indicated in the offer, for a period of sixty (60) calendar days from the date of issue of the offer.

Any Contract will consist of the Customer’s order, namely a T&S quotation signed, stamped and dated, optionally accompanied by the Customer’s internal order form and these GTCS duly initialled. The quotation may also mention special conditions, in addition to the T&S GTCS. Any Contract will be deemed to be immediately formed and definitive between T&S and the Client, upon receipt of the signed, dated and stamped quotation, without it being open to question for either Party, provided that it has not undergone any modification after it has been issued by T&S.

Any handwritten mention made in the quotation must be validated by T&S by return e-mail to the Customer, otherwise it will be null and void.

If the Customer places an order with T&S without having paid for the previous order(s), T&S may refuse to honour this order, without the Customer being able to claim any compensation for any reason whatsoever.

  1. Duration – Termination – Reversibility

The Contract is concluded for a fixed term of one year from the date hereof. The Contract is tacitly renewable for periods of one year, unless terminated by either of the Parties by registered letter with acknowledgement of receipt, giving three (3) months’ notice before renewal.

The Parties undertake to meet each year, before the renewal of each contractual period, in order to take stock of the terms and conditions of their contractual and financial relations.

All sums paid by the Customer will remain the exclusive, definitive and entire property of T&S. In the event of failure by either of the Parties to comply with one of its obligations under the Contract, the other Party may terminate the Contract by operation of law, without any formality being required, with immediate effect, thirty (30) calendar days after a formal notice sent by registered letter with acknowledgement of receipt which has remained unsuccessful.

Termination of the Contract shall not affect the rights and remedies which the Party that requested the termination of the Contract may have had against the other Party prior to such termination.

In the event of termination of the contractual relations for any reason whatsoever, T&S will provide, at the request of the Customer and without additional costs, a copy of the last status of the data belonging to the Customer, provided that this request is made within 30 days at the latest from the date of termination of the said contractual relations for any reason whatsoever. However, T&S will not become the owner of the Customer’s data and will have to certify their destruction as soon as possible after the Customer has validated their correct recovery.

The Contract expires with the termination of its object, in other words with the termination of the subscription by the Customer or by T&S, subject to the payment of all T&S invoices by the Customer.

  1. Price – Payment

The subscription to the T&S Solution taken out by the Customer is composed of a quantity of licence(s), a unit price per licence and a commitment period (12 months minimum), all grouped together in a quotation issued by T&S.

At any time, the Customer may acquire new licences during the year, at the same price as defined in this Agreement.

Any new additional licence taken during the year will be subject to additional invoicing, starting on the 1st day of the month of subscription and ending on the last day of the commitment period of this Agreement. Under no circumstances is it possible to reduce the number of licences subscribed by the Customer throughout its commitment period (12 months minimum).

If the Customer wishes to reduce the number of licences subscribed, it can only do so at the end of its commitment period. In such a case, T&S reserves the right to increase the price of the licences subscribed.

At the same time, the overall price of the subscription to the T&S Solution can be revised at the end of each commitment period and will result in an overall increase in the price of the T&S subscription of 3%. At the start of this Contract and on each anniversary date – i.e. each full 12-month period – an invoice, including all additional contracts established during the said period, will be issued for a new 12-month period.

This invoice is payable annually in advance and will start according to the conditions indicated in the quotation. The invoiced amount (net price excl. VAT or other taxes/duties) will be due no later than thirty (30) calendar days after the invoice date. Payments shall be made in the currency indicated on the invoice.

 

The Customer is not authorised to suspend payments to T&S or to deduct any sum whatsoever that He considers to be due to it for any reason whatsoever. In case of late payment, a contractual penalty corresponding to three times the legal interest rate in force is applied. This penalty runs from the due date of the invoice and is payable upon request by T&S. In this case, the Customer will also owe a lump-sum indemnity of 40 euros, without prejudice to the possibility for T&S to claim additional compensation, if the collection costs actually incurred are higher than the amount of this lump-sum indemnity, upon justification. Finally, T&S reserves the right to cut access to the Customer’s administration interface in case of non-payment.

  1. Setting up – Delivery

T&S will indicate the delivery date, i.e. the date on which access to the T&S Solution begins, on the quotation and on the Customer’s invoice. The Customer will notify T&S in writing or by e-mail ([email protected]) of any non-conformity at the latest within 30 calendar days from the delivery date. Failing this, the delivery will be considered definitively effective and the Customer waives any claim for any non-conformity.

The Client acknowledges that his cooperation is necessary for the respect of the agreed deadlines and the proper execution of the services.

  1. Access to the Touch & Sell Solution

T&S will provide the Customer’s main administrator with the download address of its application, the address of its administration interface, as well as an identifier and an access code (personal and confidential) to access it.

The use and preservation of identifiers and passwords are the sole responsibility of the Customer. Any loss or involuntary disclosure of any element likely to allow a third party to become aware of the Customer’s identifiers and/or passwords must be immediately reported to T&S, so that T&S can proceed with the reset of the accesses, as T&S does not possess the Customer’s passwords. T&S and the Customer agree that the use of the Customer’s account will serve as proof between them, in particular of the date and duration of use of the T&S Solution. All the elements relating to the use of the Customer’s account will be kept and archived by T&S, which may avail itself, in particular for evidential purposes, of any act, file, recording, follow-up report, statistics on any medium.

  1. Hosting – Backup – Maintenance

T&S hosts the Customer’s data on European territory, with redundancy and backup, in order to ensure the Customer a high level of service and optimal availability. T&S undertakes not to store the Customer’s data outside Europe. The costs of changing the location of the data and the costs of changing the hosting provider will be borne exclusively by T&S. T&S will ensure the daily backup of the Customer’s data, each backup being kept for one week. In the event of accidental loss or deletion of the data by the Customer, the Customer may ask T&S to restore these data, it being specified that this restoration may not concern data dating more than one week from the date of the Customer’s request for restoration. This service will be invoiced by T&S to the Customer, on presentation of an estimate which must be accepted and signed by the Customer before any intervention by T&S.

  1. Processing of the Client’s data

The data exploited, processed, hosted, saved or stored by T&S on behalf of the Customer are and remain the property of the Customer, and T&S refrains from using them for any other use not provided for in this Contract. Each of the Parties will be responsible for the CNIL declarations necessary for its activity.

Within the framework of the execution of the GTCS, T&S may be required to process personal data of the Customer or its employees, agents or co-contractors. The processing of this data is necessary for the management of orders and the execution of services.

T&S undertakes to comply with the applicable legislation on the protection of personal data. T&S undertakes not to export or transfer such data outside the European Economic Area without appropriate guarantees. The data will not be kept for a longer period of time than necessary for the performance of the services, and will not be used for other purposes.

The rights of the data subjects relating to their personal data can be exercised by email at the following address: [email protected]

The Parties recall that, in accordance with the regulations in force, personal data may be processed by a processor, a person acting under the authority of the controller or the processor, only on the instructions of the controller. Within the framework of this Contract, the only personal data processed will be: the contact and identification data of the Customer’s employees who will use the T&S solution as well as the contact data of the Customer’s end customers. These data will be kept only for the sole duration of the Contract and then transmitted to the Customer in a clear and interoperable language before deletion by T&S. T&S reserves the right to monitor the use of the Customers and the T&S Solution for statistical purposes. These statistics will be communicated to the Customer and will include data on their own customers.

T&S undertakes to take all precautions, in view of the nature of the data and the risks presented by their processing, to preserve the security of the data and, in particular, to prevent them from being lost, modified, damaged or accessed by unauthorised third parties. It is also reminded that T&S can only act on the instructions of the Customer with regard to operations carried out on personal data files.

T&S undertakes in particular to comply with the applicable French and European regulations relating to the protection of Personal Data, in particular French Law No. 78-17 of 6 January 1978, known as the « Informatique & Libertés » law as amended and its implementing texts, European Regulation EU 2016/679 of 27 April 2016 and the deliberations/recommendations of the CNIL (Commission Nationale de l’Informatique et des Libertés):

  1. a) to process personal data only on the basis of documented instructions from the Customer, including with regard to transfers of personal data to a third country or to an international organisation, unless the Customer is required to do so by Union law or the law of the Member State to which T&S is subject; in this case, T&S informs the Customer of this legal obligation before processing, unless the law concerned prohibits such information for important reasons of public interest;
  2. b) ensure that persons authorised to process personal data undertake to respect confidentiality or are subject to an appropriate legal obligation of confidentiality ;
  3. c) take all measures required under Article 32 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
  4. d) not to collect data relating to the data subjects who have opposed the collection of their Personal Data;
  5. e) comply with the conditions referred to in Article 28(2) and (4) of the above-mentioned Regulation for recruiting another subcontractor, namely :
  • Not to recruit another subcontractor without the prior written, specific or general authorisation of the Customer. In the case of a general written authorisation, T&S informs the Customer of any planned changes concerning the addition or replacement of other subcontractors, giving the Customer the possibility to object to these changes.
  • To impose on any processor the same data protection obligations as those laid down in this Contract by the signing of a contract or by means of another legal act under Union law or the law of a Member State, in particular as regards presenting sufficient guarantees as to the implementation of appropriate technical and organisational measures so that the processing meets the requirements of the above-mentioned Regulation. When this other sub-contractor does not fulfil its data protection obligations, T&S remains fully responsible to the Client for the performance by the other sub-contractor of its obligations.

 

  1. f) take into account the nature of the processing, assist the Customer, by appropriate technical and organisational measures, as far as possible, in fulfilling his obligation to comply with requests made by data subjects to exercise their rights under Chapter III of the above-mentioned Regulation;

 

  1. g) to help the Customer to ensure compliance with the obligations set out in articles 32 to 36 of the above-mentioned Regulation, taking into account the nature of the processing and the information available to T&S ;

 

  1. h) at the Client’s choice, delete all personal data or return them to the Client on completion of the provision of services relating to the processing, and destroy existing copies, unless Union law or the law of the Member State requires the retention of personal data; and (i) make available to the Client all information necessary to demonstrate compliance with the obligations under Article 28 of the abovementioned Regulation and to allow audits, including inspections, to be carried out by the Client or another auditor commissioned by the Client, and to contribute to such audits. With regard to this point, T&S immediately informs the Client if, in its opinion, an instruction constitutes a breach of this Regulation or of other provisions of Union law or of the law of the Member States relating to data protection.

 

T&S undertakes to communicate to the Customer any request concerning the processing of personal data carried out, which would have been made directly to him, whatever the authority or person from which it emanates and including when it emanates from a natural person concerned. T&S will proceed as soon as possible following receipt of the said request, in order to allow the Customer to comply with its legal obligations as data controller, in particular in terms of response time.

 

T&S also undertakes to pass on within the legal time limits any requests from the Customer to exercise the right of access, deletion, rectification, limitation, portability or opposition relating to the processing of personal data carried out within the framework of the present contract.

T&S certifies that it will not keep any copy of the personal data processed on behalf of the Customer within the framework of the present contract, and undertakes, at the Customer’s choice, to delete or restore the said data when they are no longer necessary for the proper performance of the operations incumbent on T&S.

 

  1. Protection, Integrity and Accessibility of Customer Data

T&S certifies that it has sufficient guarantees in terms of security and confidentiality of personal data.

T&S undertakes to take all useful precautions to preserve the security of the data, and in particular, to prevent it from being distorted or damaged, and to prevent any access that is not previously authorised by the Customer. T&S undertakes to take all measures to prevent any misappropriated, malicious or fraudulent use of the data and files.

To this end, T&S implements all appropriate measures taking into account the state of knowledge, the costs of implementation, the nature, scope, context and purposes of the processing, and the risks to the rights and freedoms of data subjects (which vary in probability and seriousness).

T&S undertakes to notify the Customer of any security flaw or violation affecting personal data (destruction, loss, alteration, disclosure or unauthorised access to personal data, whether accidental or illicit), as soon as possible after said violation.

T&S undertakes not to allow any access to the Customer’s data without the Customer’s express authorisation, except where there is a legal or support requirement requested by the Customer. T&S will notify the Customer, without delay, in the event of unauthorised access by the Customer. T&S undertakes to refrain from any access to the Customer’s data and from any use of this data which is not necessary for the execution of the service between the Parties. T&S will make its best efforts to ensure the best security of the Customer’s data and to achieve improvements in the quality and levels of service. This includes regular security tests and audits, as well as regular technological updates. T&S guarantees that access to the administration interface of the Solution is accessible 99.9% of the time of the year, from 7am to 10pm – French time -, except in the case of exceptional maintenance for which T&S will warn the Customer at least 24 hours in advance. In the event of non-compliance, T&S undertakes each month to issue a credit note to the Customer, in the event of an express and written request from the Customer, up to 5% of the total amount of the monthly subscription, for each 30 minutes of unavailability, up to a limit of 100% of the total amount of the monthly subscription. The Customer’s request must be made within 60 days of the observed unavailability; after this period, T&S will not be able to respond favourably.

 

  1. Obligations of the Client

The Client will appoint at least one person from within the Client, responsible for ensuring communication with T&S, called the principal administrator. Any change of principal administrator must be notified without delay and in writing to T&S, in order to ensure continuity of communication with the Customer. The Customer undertakes not to process, disseminate, download or transmit information or data via the T&S Solution and any other type of means of communication established between the Customer and T&S, the use of which would violate an intellectual property right or another private right, or would even constitute the commission of a criminal offence.

Likewise, the Customer will not use any content containing computer viruses or any other code, file or programme whose purpose or effect is to interrupt, destroy or limit the functioning of the T&S Solution and more generally the hardware and software of the T&S company. Finally, the Customer authorises T&S and grants the latter, throughout the duration of the Contract, the right to reference him as a Customer of T&S on its website, social networks, any computer and printed media, by using the Customer’s logo and the logo of the Customer’s application, as well as the right to reproduce and represent on any computer and printed media, the information and data appearing on the opening/homepage of the Customer’s application, for demonstration and commercial canvassing purposes only. T&S guarantees that, in this precise context, no personal data of the Customer will be shown, communicated or disclosed without his agreement.

The Customer is aware of the importance of implementing, during the duration of the Contract, the necessary and sufficient means for T&S to perform the services. Consequently, he undertakes to provide T&S with the information and documents necessary for the performance of the services, and to appoint a competent and available interlocutor to deal with T&S.

The Customer also undertakes not to misappropriate, copy or use any files, documents or other elements provided by T&S outside the scope of the GTCS.

  1. Privacy

T&S and the Customer acknowledge that the technical, commercial and financial data to which either of the Parties may have access during the execution of the Contract are confidential information. The Parties undertake not to disclose any confidential information of this Contract to any third party and not to use any confidential information for any purpose other than that agreed between the Parties and otherwise than in accordance with the transaction envisaged in this Contract. Confidentiality obligations shall survive for three (3) years from the date of termination of the Agreement for any reason whatsoever.

  1. Limitation of liability and cases of force majeure

Each Party shall be liable to the other Party for any direct damage, which excludes losses, costs or expenses of an indirect nature (such as, in particular, loss of profit, business, contract, use or data). Unless mandatory provisions to the contrary, the total liability of each of the Parties towards the other Party for any type of claim (in particular, any form of compensation) incurred in application of or in relation to a Contract cannot exceed the amount actually received by T&S under the said Contract, over the last year. The Parties agree that this limitation does not apply to breaches of articles 8 and 9 hereof and, more generally, of the applicable provisions on the protection of personal data, for which the total liability of T&S vis-à-vis the Customer will be limited to the ceiling of its insurance cover.

Neither of the Parties shall be held liable for any failure or delay in performance if such failure or delay is due to force majeure, with the exception of financial obligations. « Force Majeure » means any situation qualified as such by French case law and any fact or event beyond the control of one of the Parties as a result of which one of the Parties cannot reasonably be required to perform its obligations under a Contract. These facts or events include, in particular, natural disasters, war, civil war, uprisings, strikes, fires, floods, earthquakes, epidemics / pandemics, transport embargoes, the impossibility of obtaining transport, facilities, fuel, energy, labour, materials or components. The Time for Completion shall be extended by the time reasonably necessary to overcome the effect of the delay in performance due to Force Majeure. If the Force Majeure continues for more than ninety (90) calendar days, either Party may terminate the Contract, without either Party being liable.

  1. Intellectual Property Rights and Peaceful Enjoyment Guarantees

The Solution provided by T&S to the Customer will be provided in object code only, that is to say without the sources, which remain the exclusive and unique property of the T&S publisher. T&S only hereby grants the Customer, throughout the duration of the Contract, the non-exclusive, non-transferable and non-sub-licensable right to use the T&S Solution throughout the world.

The Customer benefits, in the contractual offer of T&S, from a non-exclusive right to use the T&S Solution, made available by T&S, which formally excludes the possibility of translating, adapting, arranging or modifying all or part of the T&S Solution.S Solution, to export them, to merge them with other computer applications, to make any copy of all or part of the Solution, and to modify – in particular by decompiling -, alter, adapt – in particular by translating -, arrange and, more generally, make any modification to all or part of the T&S Solution. In the event of a breach by the Customer of the above-mentioned obligations, T&S may automatically obtain compensation for the prejudice suffered as a result of the violation of its intellectual property rights by the Customer. Consequently, T&S cannot under any circumstances be held liable for any damage occurring or resulting from any illegal and/or fraudulent and/or non-compliant use of all or part of the T&S Solution by the Customer or by any third party. If the T&S Solution has been used in accordance with its intended purpose and has not undergone any alteration and/or modification that has in itself led to the violation of the rights of third parties, T&S – subject to the Customer informing T&S without delay and in writing – of the intellectual property dispute between T&S and a third party, guarantees the Customer against any judicial or extrajudicial action, whatever the grounds for such action may be, originating from the guarantee commitments described herein. T&S undertakes to indemnify, if necessary, the Client against all claims and all expenses, damages and/or costs that would result from the appeals and/or actions referred to in the previous paragraphs, whether these result from a final and enforceable court decision, an arbitration tribunal or a transaction. In any action brought against a third party against the Customer, due to the Solution provided by T&S, T&S will assist the Customer in his defence and any transaction must be validated beforehand by T&S. In the event that the present article is applicable, T&S may choose one of the following solutions according to the feasibility of each one: modify all or part of the T&S Solution to remove or stop the infringing nature, or replace all or part of the latter by any other non-infringing product with equivalent functionalities and performance, or obtain from the third party the right to use all or part of the latter, or, if none of the preceding solutions is possible, terminate the Contract. The Customer may also decide unilaterally and at any time during the procedure, to terminate the said Contract, without any costs or charges, nor any obligation of notice, while benefiting from the reimbursement by T&S of the pro rata amount of the sums already received for the current calendar year, corresponding to the period of non-provision of the T&S Solution, consequently from the effective date of end of service, which will start on the first day of the month following the receipt of the LRAR ending the commercial relationship between T&S and the Customer.

  1. Applicable law

Any Contract shall be interpreted and executed in accordance with French law.

The Commercial Court of Nanterre shall have exclusive jurisdiction to settle any dispute relating to, or arising from, any Contract that the Parties are unable to resolve amicably.

  1. Non-transferability of the Contract

The Customer may not transfer its rights or obligations under the Contract without the prior written agreement of T&S, bearing in mind that if it wishes to initiate a claim or even a procedure against T&S, the Customer may only do so within a period of twelve (12) months following the date of delivery of the T&S Solution. After this period, any claim made will be deemed null and void. For its part, T&S may, however, transfer its rights or obligations under the Contract, without the prior agreement of the Customer, or subcontract the execution of any of its obligations under any Contract to any third party, but will remain, in the latter case, primarily responsible for the obligations thus subcontracted.

  1. Partial nullity and non-waiver

The failure of one of the Parties to enforce any provision of the Contract or to require the other Party to enforce any of the provisions of the Contract shall in no way be construed as a current or future waiver of such provisions, nor shall it affect in any way the ability of each Party to enforce any of the provisions. Any waiver by a Party to avail itself of a provision of the Contract must be in writing, signed by a duly authorised representative and communicated to the other Party. If any provision of the Contract is found to be invalid, illegal or unenforceable, the validity and enforceability of the remaining provisions of the Contract shall nevertheless not be affected.