The operator is solely responsible for ensuring the functional efficiency of Touchway solutions on his/her playback systems.
The playback systems (device, operating system version, runtime software, other third party software, configuration, etc.) for Touchway solutions (server and client) must meet all specific requirements for the software versions in use. If no requirements are outlined, no playback suitability will be suggested. In this case, the operator of the playback system must evaluate the playback system's suitability on his own risk.
Even if all requirements are met, it is still not possible to guarantee functional efficiency in a specific playback environment, due to the vast number of different devices, operating systems and user-specific configurations.
Statements on the functionality of Touchway solutions always refer exclusively to playback systems, which are available at the time of commissioning. No statement be made about functional efficiency of Touchway solutions on future playback systems. Playback system updates are performed by customers or users at their own risk.
It is recommended that customers test Touchway solutions before using it with the intended playback system in order to ensure its functionality. However, a positive test does not mean that the Touchway solutions will operate properly on similar playback environments.
Playback system protection, network protection and surrounding systems protection from malware, manipulation, sabotage, cyber-espionage and data theft outside of outlined Touchway solution features are left up to the operator.
Exclusion of Liability
Use Touchway solutions at your own risk. Neither the Touchway owner nor other software manufacturers are liable for material or immaterial damages that occur in correlation with the use of Touchway solutions. Potential claims from the customer or from a third party cannot be validated.
Services are considered fulfilled when the services outlined in the order contract are made available to the customer for his/her use. Services that have not been explicitly outlined must be stipulated and remunerated separately.
Delivery of the software is deemed complete when the software and the necessary activation code have been provided to the customer either via email, as a download or as a system access. The customer himself is responsible for access to the software and for its installation on the customer's systems once the software has been made available.
Generally, hardware is delivered directly by the vendor (manufacturer, distributors, etc.). Conditions and warranty terms of respective vendors apply. The Touchway owner acts as an intermediary, partner or representative, and is responsible for evaluation, installation, billing and coordination, once this has been stipulated by the customer. The Touchway owner is not liable for any claims or responsibility regarding hardware or hardware components. Concerns must be directed to the vendor.
The operating services of playback systems, servers or server softwares guaranteed by the Touchway owner in the order contract are deemed complete when they are usable for 99% of the stipulated usage time, calculated per calendar year (for example 7x16 hours). This does not include interruptions caused by external factors (interconnection, network, third party software, attacks, viruses, etc.) or by force majeure. Services related to operating services are defined in the respective Service Level Agreement.
The SLA (Service Level Agreement) includes time-defined support and license provision and release patches for Touchway solutions.
Support services include support for productive users (publishers, administrators), but not for end users or colleagues. The support team answers questions about software functionality and the integration of contents. Support requests are placed through the ticketing system or the support mail (firstname.lastname@example.org). Support is available at office hours (CET) in English and German. The reaction time is 8 working hours.
License provision allows for the serving of licenses including the release, activation and deactivation of software licenses.
Release patches include the delivery of official software patches within the version used by the customer (eg Release 6.1.11 to Release 6.1.12), but no version updates (eg Version 6.1.x to Version 6.2.x). The customer is responsible for deploying the patches.
The SLA also grants the customer the right to download, install and use the latest publicly available player versions, even if he has licensed an older version. This does not guarantee that projects and configurations based on older versions will work on newer versions of the player. This must be tested by the customer himself.
All work that is not part of an offered project or SLA (like small orders and extensions, publishing work, updates, support, phone consulting, meetings etc.) is considered maintenance work. Maintenance work will be logged and invoiced periodically in accordance with the agreed rates. The maximum reaction time is 1 working day. The minimum time per job is 15 minutes.
Deadlines have been honored when delivery and services are available to the customer by the stipulated date, plus or minus 5 business days. In the event of delivery issues arising due to external factors (chain of delivery, transportation, infrastructure, illness, etc.), an act of God or from the customer's side, follow up appointments or deadlines are automatically postponed.
Deliveries and services outlined in the order contract or in publications only apply to technical, content-specific, chronological or legal circumstances specified in the requirement specifications or in the order contract, and only if they were communicated to the Touchway owner at the time the order was placed. Should the circumstances deviate from those in actual effect, or should the circumstances change at a later date, then functionality as outlined in the order contract can no longer be guaranteed. Any rectifications or upgrades are at the customer's expense, and fulfillment conditions thereof must be negotiated anew.
Any complaints regarding deliveries and services must be made in writing within 10 days; otherwise the deliveries and services in question are to be considered executed satisfactorily.
For time-dependent services such as hosting, services, opreration, rent, subscriptions, SLA, SaaS and ASP the following modalities apply, unless otherwise defined in the order contract or tariff: Minimum duration/period: 12 months; Renewal: automatically for next period; Notice: 1 month before next renewal.
For deliveries and services the following payment terms apply, unless otherwise defined in the order contract or tariff: Hardware and software: 100% at order; Project work: 100% at delivery; Maintenance work: 100% half-yearly according to log; Time-dependent services: 100% yearly at order/renewal; Payment period: 10 days.
The Touchway owner may obtain access to personal information about individuals and companies due to its supervision of playback systems and servers. The Touchway owner will not look at, analyze, reproduce, copy or distribute this data without the customer's consent, nor will it forward this data to a partner or a third party. This excludes backup processes within standard security measures.
The Touchway owner has the exclusive rights to use the Touchway wordmark, the Touchway logo and all Touchway visuals, texts, videos, communication materials and documents - as a whole called "Touchway brand material". Touchway brand material may only be used with express permission and in compliance with the specifications of the Touchway owner. Any modification, adaptation or interpretation as well as any misuse or unauthorized use of the Touchway brand material is prohibited and will be prosecuted.
Touchway solutions use software belonging to the Touchway owner, as well as software by other manufacturers: e.g. authoring programs, help programs, software libraries and screening platforms, for example. Each software comes with its own legal rights that may only be applied within the context of their specific license terms.
Rights to specific methods of resolution and functions, as well as to specific programming codes of Touchway solutions, belong to the Touchway owner. Rights to software by other manufacturers belong to those manufacturers. Only the license terms of these manufacturers can grant the use of their software. By using Touchway solutions the customer agrees to the license terms of the Touchway owner and those of other manufacturers.
Transfer of Usage Rights
Usage rights for the Touchway owner's software are outlined in the order contract, and are granted once payment of the stipulated amount has been made. Usage rights only apply to the temporal and geographic usage described in the order contract, and to the defined purpose of use and order size. Usage rights may be transferred to a successor company by the customer, but may not be transferred to sister companies, subsidiaries, parent companies or third parties. The transfer of usage rights of Touchway's owner does not include the transfer of usage rights of other manufacturers or third parties.
The Touchway owner has the right to verify software usage by online requests to the license server, and to limit or deny usage if this license term has been violated, once a warning via email has been sent and a waiting period of 30 days has expired, or to request the cessation of the usage that is in violation of the contract, and to verify that it has indeed ceased. If there is no way to verify usage online, the customer obligates himself to allow the Touchway's owner or a third party stipulated on both sides to conduct a physical verification within 30 days of receiving written notice.
Should a customer use the software in a way that is unlawful or if he enables a third party to use the software, he is then liable for the resulting increased usage and/or for the wrongful use in accordance with the sections stipulated in the order contract and/or in accordance with the current rates, both retroactively and continuously, covering the entire period of increased usage and/or wrongful use, plus a surcharge of 50%. Additionally, the Touchway owner can demand compensation for any wrongful use, for any possible material or immaterial damages. The customer is also responsible for any costs incurred in order to defend or satisfy legal rights on the part of other manufacturers or third parties.
The term «customer» includes sales partners, suppliers, publishers, agencies and customer representatives.
The Touchway owner reserves the right to adjust these general terms and conditions anytime. The provisions stipulated in the signed order contract published on the www.touchway.com website apply.
These general terms and conditions are subject to Swiss law. Place of jurisdiction: Meilen, Zurich.
October 1st, 2017, Zollikerberg Zurich, Switzerland