General terms and conditions
Article 1 – Definitions
In these General Terms and Conditions, the following definitions apply:
- ‘User’: a natural of legal person or the intermediary or representative acting on this person’s behalf, who enters into an Agreement with Touchpix.
- ‘Services’: offering the Touchpix app and offering events that can be used to set up a photo booth.
- ‘Agreement’: the legal relationship between the User and Touchpix, in the broadest sense.
- ‘Website’: https://touchpix.com.
- ‘Account’: the personal section the User creates and manages in the Website or app.
- ‘Event’: a personalized photo booth the user creates and manages on a device.
Touchpix is a private limited liability company with its registered office in Ede (Chamber of Commerce number: 75570726) whose objective is to offer a free app, called Touchpix, which allows the User to purchase Events.
Article 2 – Applicability of the General Terms and Conditions
- These General Terms and Conditions apply to all offers and agreements from Touchpix and/or between the User and Touchpix.
- The applicability of any general terms and conditions of the User is explicitly excluded.
- If one or more provision(s) of these General Terms and Conditions are contrary to a statutory provision or other regulations, the other provisions will remain in effect.
Article 3 – Duration of the Agreement
- The Agreement is entered into for the term as agreed for the subscription between User and Touchpix.
- The Agreement ends by operation of law as soon as the term agreed on lapsed.
- The duration of the Agreement for a definite period of time, will be extended by the period of time originally agreed on or by the time as agreed on in the subsequent Agreement.
Article 4 – Performance of Services
- Touchpix performs its Services with care to the best of its ability. All Services provided by Touchpix are performed on the basis of a bestefforts obligation unless and insofar as Touchpix has explicitly promised a result in the written Agreement and the result concerned has been described in the Agreement in a sufficiently precise manner.
- Touchpix is not liable for any damage suffered or costs incurred as a result of the use or misuse that is made of access or identification codes or certificates or any other security means unless the misuse is the direct result of any intent or deliberate recklessness on the part of Touchpix’s management.
- If the Agreement has been entered into with a view to it being performed by one specific person, Touchpix is always entitled to replace this person by one or more persons who have the same and/or similar qualifications.
- The risk of loss, theft, misappropriation or damage of goods, information (including user names, codes and passwords), documents, software or data files that are created for, delivered to or used by User in the context of the performance of the Agreement pass to User at the moment these are placed under the actual control of User or an auxiliary person of User.
- Touchpix does not guarantee that the Service is free of errors and functions without any interruptions. Touchpix makes every effort to repair any errors in the underlying software within a reasonable period of time if and insofar as underlying software is concerned that has been developed by Touchpix itself and the User has provided Touchpix with a detailed, written description of the relevant errors.
- User ensures that it has the facilities required to use the Service.
- Touchpix may continue to provide the Service using a new or modified version of the underlying software. Touchpix is not obliged to maintain, modify or add particular features or functionalities specifically for User.
- Touchpix may temporarily put the Service or part of the Service out of service for preventive, corrective or adaptive maintenance services or other forms of service. Touchpix ensures that the period of time during which the SaaS is out of operation does not take longer than necessary and ensures, where possible, that the service takes place at times when the Service is usually used least intensively.
Article 5 – Use of the app by the User
- Use of the app of Touchpix by the User is initially free of charge. The User may start a trial event, being an Event with default settings. The photos and videos taken during the trial Event will have a “DEMO” watermark, and the generated files cannot be shared through the application.
- The User downloads the app and thereby accepts these General Terms and Conditions. The User also accepts the privacy statement of Touchpix.
- Touchpix confirms registration to the User by e-mail, also providing the login details for the personal User account. With this confirmation, the Agreement is concluded which is governed by these General Terms and Conditions, among other things.
- The User may choose to purchase an Event, which allows for installing and executing a photo booth on a device, in accordance with Article 6 of these General Terms and Conditions.
- User is fully responsible for all content that can be seen on the photos and/or videos taken, including any further modifications of these photos and videos.
- The User is responsible for the storage and/or distribution of the photos and/or videos.
- User is responsible for providing clear and correct instructions to users of User’s photo booth or video booth. This includes, but is not limited to, the fact that users of the photo booth or video booth are informed about the automatic synchronization, to the Touchpix Server, of the photos and/or videos taken to the app and the Agreements regarding privacy.
- User is responsible for choosing the accurate settings for the app regarding the applicable national and international privacy legislation, including but not limited to that the checkbox for processing the e-mail address has not been ticked in advance.
- User’s Account is strictly personal and may not be shared or transferred to any third party.
- If Touchpix has a reasonable suspicion (based on IP usage, device name and/or missing branding) that the User’s Account is being shared or transferred between multiple users, without a White Label construction being active, Touchpix will immediately inform the User to this effect and disable the account. Article 14 does apply.
Article 6 – Event
- The User can use an Event to set up a photo booth on a iOS or Android device.
- The User guarantees Touchpix that information provided during the application is correct, complete and up to date. The User is responsible for providing correct and complete information and for adjusting and/or supplementing information if it is no longer correct. The User acknowledges and understands that the correctness, actuality and completeness of the information provided is of the essence in order for the Services to function optimally.
- Any purchase of an Event in someone else’s name is forbidden.
- The User can load an Event via the personal User account on the Website, after which the purchase is completed in the app by scanning a QR code.
- An Event starts within a reasonable period of time after the Agreement has been entered into and the payment is done.
- After purchasing and creating the Event, the photos and/or videos that were taken in that Event, are automatically synchronized to the cloud. The User can directly access these photos and/or videos.
Article 7 – Payment
- All amounts stated in the app are in euros or dollars and inclusive of VAT, unless stated otherwise.
- All prices must be paid in the currency in which they are stated.
- If the User consists of several natural persons and/or legal persons, each of these persons is jointly and severally liable for the performance of the Agreement.
- Touchpix does not guarantee that all additional costs are stated, nor can it be held liable if any additional costs need to be paid at a later time.
- The User pays to obtain a valid license, which will be required to the later activation of an Event.
- Payment is made via Credit Card or Paypal. The User is free to select either option. Touchpix is not otherwise involved in the payment.
- Touchpix may retain all information, documents, software and/or data files received or created in the context of the Agreement, despite an existing obligation to hand these over or transfer them, until User has paid all sums due to Touchpix.
- Touchpix is entitled to require an advance payment before performing. If an advance payment is not made or is not made in time, Touchpix will be entitled to suspend her performance, without prejudice to its other rights. Touchpix will not be liable for any loss arising for the User as a result of such suspension.
- If the User has not paid within the applicable payment period, the User will be in default by operation of law and the Contractor will be entitled to charge statutory (commercial) interest from that time.
- If the User has not paid within the applicable payment period, the User will be required to reimburse all judicial and extrajudicial (collection) costs actually incurred by the Contractor. Reimbursement of the costs incurred will not be limited to any order of costs pronounced by a court.
Article 8 – Liability
- Touchpix is not liable if the User in any way suffers damage or loss as a result of improper functioning of the Event or loss of photographs.
- Touchpix does not guarantee that the app and/or Services are always accessible without any interruptions or failures. Touchpix is in no way liable, or liable for compensation, towards the User for any damage or loss arising or resulting from the app and/or Services being (temporarily) unavailable, breaking down and/or functioning improperly.
- Touchpix is not liable for any damage or loss resulting from non-receipt or late receipt of electronic messages or other sharings.
- Touchpix is not liable for any indirect damage or loss, including – but not limited to consequential damage, loss of profit, lost savings and loss due to business interruption.
- Touchpix is not liable for non-performance or late performance of its obligations if this is caused by force majeure as referred to in Article 9 of these General Terms and Conditions.
- Any and all of the User’s claims due to failure on the part of Touchpix will lapse if they have not been filed with Touchpix in writing, stating reasons, and within 3 months after the User had become aware, or could reasonably have become aware, of the facts the User bases his claims on.
- The User indemnifies Touchpix against any third-party claims related to the Services.
- Limitation of liability does not apply in case of intent or deliberate recklessness on the part of Touchpix.
- This provision does not exclude liability insofar as liability cannot be limited or excluded by law.
- Touchpix is not liable for any distribution of photos and/or videos from an Event by the User.
- Touchpix is not liable for the storage of photos and/or videos from an Event by the User.
- Touchpix is not liable for all content that is captured on the photos and/or videos.
- Touchpix is not liable for the failure, late or incomplete provision of clear and correct instructions by the User to users of the photo booth or video booth.
- Touchpix is not liable for the User not setting the app in accordance with applicable national and international (privacy) legislation.
- The liability of Touchpix is at all times limited to the compensation of direct loss that is directly the result of a (connected series of) attributable failure(s) in performing the Agreement. This liability is limited to the amount paid out by Touchpix’ liability insurer in the particular case, plus any excess to be borne by Touchpix on the basis of the insurance.
- If, for whatever reason, the liability insurer does not proceed to pay, Touchpix’ liability will be limited to the amount of the fee charged for the Agreement.
- Under no circumstances will the total compensation of the loss under this paragraph amount to more than $ 2499.99 per attributable failure.
Article 9 – Force majeure
- Force majeure is understood to be all external causes, beyond the control or through no fault of Touchpix, causing a timely, complete or correct performance of its Services to be impossible.
- Force majeure as referred to in the previous paragraph includes but is not limited to: non-performance by a third party, illness of staff of Touchpix itself or a third party, abnormal weather conditions, disruptions in the supply of water and energy, strikes, serious failures in the systems of Touchpix as well as any other breach of contract by third parties engaged, fires, floods, natural disasters, riots, war or other internal civil commotion.
- In a situation of force majeure, the performance of the Services will be suspended for as long as this situation continues.
- If a force majeure situation lasts for more than thirty days, either party has the right to terminate the Agreement, in writing, for breach. In such event, all that has already been performed under the Agreement must be paid for on a proportional basis, without anything else being due by either party to the other party.
Article 10 – Server
- User’s photos and videos will be kept and saved by Touchpix for a period of 6 (in words: six) months from their initial upload date, even if the agreement has concluded. Throughout the initial 3 (in words: three) months, all the recorded content will remain accessible via the Touchpix gallery viewer. Subsequently, the files will be put into a single zip file and stored until the end of the mentioned period.
- Touchpix will remove User’s photos and/or videos taken, from an online server provided by Touchpix, after the term referred to in the previous paragraph has lapsed.
- Touchpix receives and processes the original files for both photo-AI and video-AI sessions within its servers. The original and processed files are deleted within 5 hours of their receipt and are not shared with third parties.
- Data concerning User’s payment will be kept and saved by Touchpix for a period of 82 months (in words: eightytwo) following the end of the agreement.
- The Agreement does not include making and/or keeping any backups of User’s photos and videos by Touchpix.
Article 11 – Transfer of rights and obligations
- User’s subscription is strictly personal and should be kept confidential. It can not be transferred to any other individual and/or company.
- User is not entitled to sell, transfer or pledge its rights and obligations under any Agreement with Touchpix to a third party.
- Touchpix is entitled to sell, transfer or pledge any claims it has to payment of any sums due to a third party.
Article 12 – White Label
- Touchpix offers various ‘White Label’ subscriptions in the shop on its website. This subscription is linked to the User’s Account. With this subscription, the Event can be activated on any iOS or Android device, regardless of the Apple account.
- The White Label subscription is strictly personally linked to the User and is not transferable.
- In the case of a White Label subscription, the branding – including but not limited to logo and company name – of the User’s company must be displayed at all times. All activity on the Account that does not use the same branding is not allowed and will be regarded by Touchpix as abuse of the Account.
Article 13 – DuoPass and PhotoPass
- Touchpix offers various ‘DuoPass’ and ‘PhotoPass’ subscriptions on its Website shop. Any of both subscriptions are linked to the User’s account.
- With a DuoPass or PhotoPass subscription, the Events can be activated on any iOS and Android device. The subscription is limited to 4 (four), or any other number of agreed, simultaneous Event activations mentioned in the Agreement.
- Necessary device data, such as the device’s fingerprint, will be stored allowing Touchpix to monitor the number of ongoing activations/slots. This data will be deleted from the Touchpix server once the specific device closes the active Event.
- The DuoPass or PhotoPass subscription is exclusively associated with the User and cannot be transferred to another User, individual or company.
- With a DuoPass or PhotoPass subscription, the branding – including but not limited to logo and company name – of the User’s company must be displayed at all times. All activity on the Account that does not use the same branding is not allowed and will be regarded by Touchpix as abuse of the Account.
- The duration of the purchased subscription will be determined by the type of subscription chosen, commencing at the time of purchase and concluding at the corresponding time within the subscription period
Article 14 – Account sharing
- If Touchpix has a reasonable suspicion (based on IP usage, device name and/or missing branding) that the User’s Account and/or Apple account subscription is being used, shared and/or transferred by or between multiple users, without a White Label and/or DuoPass and/or PhotoPass construction being active, Touchpix will immediately inform the User to this effect and disable the account.
- If Touchpix has a reasonable suspicion (based on IP usage, device name and/or missing branding) that the DuoPass or PhotoPass subscription is being used, shared and/or transferred by or between more than 4 Events and/or multiple Users, Touchpix will immediately inform the User to this effect and has the right to disable the account.
- When the User does not refute Touchpix’ reasonable suspicion and/or evidence that any third party is still using or has been using the account and/or DuoPass subscription, Touchpix has the right to terminate the User’s Account, White Label, DuoPass subscription, Event and/or Services with immediate effect, without the User being entitled to any refund of amounts already paid or amounts still to be paid for the relevant subscription.
- In such cases, the User will also be legally in default as a result of the continuation of the abuse. Touchpix will charge a penalty of €1,500.00 per finding and €500.00 for each day on which the abuse continues, if appropriate, without prejudice to Touchpix’s other rights under the law or the present Agreement, such as Touchpix’s right to terminate the Agreement.
- Touchpix white label subscriptions are non-refundable. The online storage of the photos and videos that is included with User’s subscription is only for the length of the subscription, even if the User decides to cancel it.
Article 15 – Privacy and data
- User is fully responsible for the data that it processes in an Event and/or when making use of a Service provided by Touchpix. User guarantees vis-à-vis Touchpix that the content, use and/or processing of the data are not unlawful and do not infringe any third party’s right. User indemnifies Touchpix against any claims by a third party instituted, for whatever reason, in connection with these data or the performance of the Agreement.
- User indemnifies Touchpix against any claims by persons whose personal data are or have been processed and for which processing User is responsible pursuant to the law, unless User proves that the facts on which a claim is based are attributable to Touchpix.
- If, further to a request or a lawfully issued order by a public authority or in the context of a statutory obligation, Touchpix should perform activities with relation to any data of User, User’s employees or users, any costs involved in this may be charged by Touchpix to User.
- If Touchpix performs activities for User as a processor as meant in the rules and regulations pertaining to the protection of personal data, the following paragraphs also apply.
- Touchpix processes the personal data on User’s behalf.
- User, or User’s User, is the controller in the sense of the General Date Protection Regulation (GDPR), has control over the processing of personal data and has established the purpose of and the means for the personal data processing.
- Touchpix is processor in the sense of the GDPR and, for that reason, has no control over the purpose of and the means for the personal data processing and, therefore, does not take any decisions on, amongst other things, the use of the personal data.
- User guarantees vis-à-vis Touchpix that it acts in compliance with the GDPR, that its systems and infrastructure are at any time appropriately secured and that the content, the use and/or the processing of the personal data are not unlawful and do not breach any third party rights.
- Within one month of the moment the processing Agreement ends, Touchpix deletes all personal data received from User that it has in its possession in such a way that they can no longer be used and are rendered inaccessible.
Article 16 – Confidentiality
- User and Touchpix ensure that confidentiality is observed with respect to all information received from the other party of which information the receiving party knows it is confidential. This prohibition does not apply if and insofar as the information concerned must be provided to a third party in compliance with a judicial decision, a statutory requirement, a statutory order by a public authority or for the proper performance of the Agreement. The party that receives the confidential information may only use it for the purpose for which it has been provided. Information is in any case deemed confidential if it has been designated as such by either party.
- User acknowledges that software made available by Touchpix is always confidential in nature and that this software contains trade secrets of Touchpix and its Touchpix’s or of the producer of the software.
Article 17 – Intellectual property
All intellectual property rights to the software, websites, data files, databases, hardware, training, testing and examination materials, as well as other materials such as analyses, designs, documentation, reports, offers, including preparatory materials for these materials, developed or made available to User under the Agreement remain exclusively vested in Touchpix, its licensors or its Touchpix’s. User is solely granted the rights of use laid down in these general terms, in the Agreement entered into by parties in writing and in the applicable mandatory legal provisions. A right of use granted to User is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.
Article 18 – Purchase of hardware and virtual products
- Touchpix sells the hardware and/or goods according to the nature and number as stated in the Agreement.
- Touchpix does not guarantee that the hardware and/or goods are suitable, on delivery, for User’s actual and/or intended use unless the intended purposes have been clearly specified, without caveats, in the Agreement.
- Touchpix’s obligation does not include assembly and installation of the hardware, materials, software, consumer items and articles, batteries, stamps, ink and ink cartridges, toner articles, cables and accessories.
- Touchpix does not guarantee that the assembly, installation and operating instructions that come with the hardware and/or goods are free of errors and that the hardware and/or goods have the features stated in these instructions.
- The hardware and/or goods sold by Touchpix to the User are delivered to User ex warehouse. If this has been agreed on in writing, Touchpix delivers the goods at an agreed on location to be designated by User, or has these goods delivered at this location.
- The purchase price of the hardware and/or goods does not include the costs of transportation, insurance, hauling and hoisting, the hiring of temporary facilities and the like. If applicable, User is charged for these costs.
- Touchpix is always entitled to perform the Agreement in partial deliveries.
- User ensures an environment that meets the requirements specified for the hardware and/or goods, regarding temperature, humidity, technical requirements etcetera.
- User ensures that activities to be performed by third parties, such as constructional work, are performed adequately and on time to be able to use the hardware properly.
- Touchpix makes every effort to repair defects in the hardware and/or goods sold, as well as defects in parts delivered by her within the scope of the guarantee, within a reasonable period of time and free of charge if these defects are reported, in detail, to Touchpix within a period of three months following delivery. If, in Touchpix’ reasonable opinion, the defects cannot be repaired or repair would take too long, or if repair would entail disproportionately high costs, Touchpix is entitled to replace the hardware and/or goods free of charge with other, similar, though not necessarily identical, hardware and/or goods. The guarantee does not include any data conversion that should be required because of any repair or replacement. All replaced parts are Touchpix property. The guarantee obligation no longer applies if defects in the hardware, goods or parts are entirely or partly caused by incorrect, careless or incompetent use or by external circumstances such as fire or water damage, or if User modifies the hardware or parts delivered by supplier under the guarantee, or has these modified, without Touchpix’ permission. Touchpix does not withhold such permission on unreasonable grounds.
- User is charged for any costs incurred by activities and repairs performed outside the scope of this guarantee at Touchpix’ applicable rates.
- Products that are purchased from Touchpix’ webshop can be returned to Touchpix within 21 days from the reception, and will be refunded within 14 days after Touchpix did receive the Product. Any costs regarding the return of a Product to Touchpix are at User’s expense. Virtual products are non-refundable.
Article 19 – Termination
- Either party is exclusively entitled to terminate the Agreement for breach following an imputable failure of the other party to meet its obligations under the Agreement if the other party, in all cases after a written notice of default has been served that is as detailed as possible and in which the other party is granted a reasonable period of time to remedy the breach, should still imputably fail to meet any of its essential obligations under the Agreement. User’s payment obligations and all obligations of User or a third party contracted by User to cooperate and/or to provide information apply in all cases as essential obligations under the Agreement.
- If, at the time of the termination for breach, User has already received goods or Services regarding the Agreement, this performance and the relevant payment obligations cannot be undone unless User proves that Touchpix is in default with respect to the essential part of the performance due. With due regard to the provisions of the preceding sentence, sums invoiced by Touchpix prior to the termination for breach in connection with what has already been properly performed or delivered in the performance of the Agreement remain due in full and become immediately payable at the time of the termination for breach.
- User is not entitled to terminate an Agreement for Services that has been entered into for a definite period of time before the end of the term; User is not entitled either to terminate an Agreement that ends by completion before it has been completed.
- Either party may terminate the Agreement in writing, in whole or in part, without notice of default being required and with immediate effect, if the other party is granted a suspension of payments, whether or not provisional, a petition for bankruptcy is filed against the other party or the company of the other party is liquidated or dissolved other than for restructuring purposes or for a merger of companies. Touchpix may also terminate the Agreement, in whole or in part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the decisive control of User’s company. Touchpix is never obliged to repay any sum of money already received or pay any sum of money in compensation because of termination as referred to in this paragraph. If User is irrevocably bankrupted, its right to use the software, websites and the like made available to User ends, as does its right to access and/or use Touchpix’s services, without Touchpix being required to cancel these rights.
Article 20 – Miscellaneous
- Touchpix reserves the right to amend or supplement these General Terms and Conditions at any time. Touchpix will inform the User to this effect.
- Any complaints about the Services provided by Touchpix can be submitted by sending an e-mail to [email protected].
Article 21 – Governing law and competent court
- The legal relationship(s) between Touchpix and User is/are governed by Dutch law. Applicability of the Vienna Convention 1980 (The United Nations Convention on Contracts for the International Sale of Goods (CISG)) is excluded.
- All disputes arising between Touchpix and User are settled by the competent court in the district where Touchpix has its registered office.