Pupil Cloud Terms of Service
Last updated: 2024-10-10
1.1 Pupil Labs GmbH, registered with the German Commercial Register of the district court AG Charlottenburg (registration number HRB 155541), Sanderstraße 28, 12047 Berlin ("Pupil Labs"; "We") offers cloud-based data management services for use with eye tracking devices offered by Pupil Labs (Pupil Invisible, "PI", and Neon) as further specified on https://www.pupil-labs.com (the "Website") and individually offered by Pupil Labs (the "Pupil Cloud Service" or "Pupil Cloud Services").
1.2 All contractual relationships between Pupil Labs and any user using the Pupil Cloud Services offered by Pupil Labs (a "User", "Users") shall be governed by these terms of service (the "Terms of Service"). Pupil Labs may amend the Terms of Service pursuant to section 14 hereof.
1.3 The Pupil Cloud Service offerings of Pupil Labs are available to both Consumers and Business Customers (as defined below). For the purpose of these Terms of Service, (i) a "Consumer" is any individual entering into the contract for a purpose not related to their business, trade, or self-employed prerofessional activity (Sec. 13 of the German Civil Code), and (ii) a "Business Customer" is a User (whether an individual, company, or partnership vested with legal capacity) who enters into the relevant contract in the conduct of their business or self-employed professional activity (Sec. 14 (1) of the German Civil Code).
1.4 Standard business conditions and/or general terms and conditions of the User do not apply, regardless of whether or not Pupil Labs has expressly objected to them in a particular case.
2.1 Pupil Labs provides the Pupil Cloud Services as Software as a Service (SaaS). As part of the Pupil Cloud Services, system resources will be made available to the User on a server. The services include a free base version and optional paid add-ons to extend functionality.
2.2 Pupil Labs is entitled to use sub-contractors in the allocation of storage space and server resources. Currently, Pupil Labs is using Amazon Web Services Inc. (https://aws.amazon.com), but reserves the right to replace its services by similar services of third parties that are operating servers in Germany. The use of sub-contractors does not release Pupil Labs from its obligations to full compliance with its contractual obligations hereunder.
2.3 Pupil Labs makes available the Pupil Cloud Services at the router exit of the data center in which the server is located ("Transfer Point"). The User is responsible for the Internet connection between the User and the data centre and the hardware and software required for this (e.g., PC, network connection).
3.1 Any use of the Pupil Cloud Services requires prior registration in the "Pupil Invisible Companion App" ("Invisible Companion App") or the "Neon Companion App" or the web interface of Pupil Cloud service (cloud.pupil-labs.com) offered by Pupil Labs (jointly "Apps") and available via the Google Play Store, or via the Pupil Cloud Services web interface.
3.2 The use of the Pupil Cloud Services in a basic version with basic functions and within certain capacity caps (2 hours of recording per device and account) is free of charge after registering. Pupil Labs offers Users the option to purchase paid add-ons that extend the functionality of the Pupil Cloud Services, such as Unlimited Storage and Anonymisation.
3.3 Pupil Cloud Services may be accessed via a web browser (https://cloud.pupil-labs.com) and/or via the Apps. When using either of the Apps, the User is required to accept both the Terms of Use of the Invisible Companion App (https://www.pupil-labs.com/legal/invisible-companion-terms-of-use) or the Neon Companion App (https://www.pupil-labs.com/legal/neon-companion-terms-of-use) as well as these Terms of Service.
3.4 Acceptance of these Terms of Service by the User constitutes an offer by the User to use the Pupil Cloud Services, which shall be deemed to be accepted by Pupil Labs by making available the respective Pupil Cloud Service. Upon the activation of a cloud addon, a contract between the User and Pupil Labs is concluded (the "Agreement").
3.5 The User can purchase additional Pupil Cloud Services add-ons on an annual or multi-year basis. Add-ons may also be extended by purchasing follow-up add-ons.
4.1 The scope of the Pupil Cloud Services depends on the respective subscription plan or add-on chosen by the User as further described on the Website.
4.2 The Pupil Cloud Services will be offered subject to availability. Pupil Labs aims at an average service availability of 99% per calendar month. The decisive factor is the availability of the Pupil Cloud Services at the Transfer Point. Not included in the calculation of availability are (i) the regular maintenance windows, which can be up to 5 hours per week and are usually carried out between 22:00 and 4:00 Central European Time, (ii) times of unavailability due to mandatory unscheduled maintenance work that is necessary to eliminate malfunctions, (iii) times of unavailability due to circumstances beyond Pupil Labs' control, in particular force majeure.
4.3 However, if the Pupil Cloud Services are used free of charge, Pupil Labs shall only be obligated to make good efforts to make the Pupil Cloud Services accessible in accordance with the availability specified in section 4.2 above.
4.4 In the free version, Pupil Labs imposes storage limits of 2 hours of recording time per device and account. Once the storage limit is reached, further uploads from the companion device may be paused or access to newly uploaded recordings that exceed the quota may be blocked until sufficient storage capacity becomes available. Users may purchase the Unlimited Storage add-on to increase their storage capacity. Users may also download and delete recordings to make new storage available and gain access to blocked recordings.
4.5 The Content (as further defined below but excluding User-made recordings) generated by the User using the Pupil Cloud Services will be secured by regular backups by Pupil Labs.
4.6 Reasonable storage limits: Pupil Labs may terminate a user with the unlimited storage plan, if they excessively upload data in a way that does not represent normal single device usage.
5.1. In order to use the Pupil Cloud Services, the User must frequently check all technical details and conditions on the Website, which will be updated by Pupil Labs (“Technical Requirements”).
5.2. The User is solely responsible for the fulfilment of the Technical Requirements; Pupil Labs does not owe and/or provide any consultancy services in connection therewith if not otherwise agreed with Pupil Labs.
6.1 Purchases for add-ons are made via the website shop or by contacting Pupil Labs via email. For detailed pricing information, please visit https://pupil-labs.com/products/cloud/pricing.
6.2 The billing of subscription plans and add-ons is made on a pre-paid basis. For payment terms, please refer to the Pupil Labs Terms of Sale: https://pupil-labs.com/legal/terms-of-sale.
6.3 Pupil Labs may amend the price list of Services at any time upon observance of statutory regulations and notifying the User about the amendment.
7.1 The User may terminate the agreement from any unpaid addon without giving reason or notice by deleting the user account via the Pupil Cloud settings menu. Pupil Labs shall be entitled to terminate an unpaid account with a notice period of three (3) months, however, not within the first two (2) years after the purchase of Pupil Invisible or Neon by the User.
7.2 A paid subscription, including add-ons, may be terminated before the end of the ordered subscription period or the end of the respective renewed period by deleting the user account. To extend the duration of an add-on, the User may purchase the same add-on again and select the appropriate starting data and device during activation.
7.3 Pupil Labs reserves the right to terminate any account that attempts to circumvent the 2-hour free storage quota by creating a larger number of new accounts that are used with the same device. Such behavior is considered a violation of these Terms of Service and may lead to immediate termination without notice.
7.4 The right of termination for cause and without notice remains unaffected for both parties. A good cause for termination shall include, but shall not be limited to, any of the following events:
The User fails to comply with any applicable legal provisions.
The User fails to comply with any terms of these Terms of Service, in particular Section 8, and, where reasonable, Pupil Labs has given the User the opportunity to stop any misconduct but the User failed to do so.
The User fails to pay the fees for the ordered Pupil Cloud Services or add-ons for two consecutive dates or fails to pay a significant portion of the remuneration despite a warning by Pupil Labs.
7.5 Any termination declaration must be at least in text form according to Section 126b BGB (e.g., by letter, email) to Pupil Labs GmbH, Sanderstraße 28, 12047 Berlin or info@pupil-labs.com.
The User shall have sole responsibility and liability for any content uploaded to the Pupil Cloud Services (the „Content“). The User must ensure that the Content does not infringe any third party rights and, in particular, that the User has obtained the permission of a person depicted in the Content or having rights to objects depicted in the Content to use the Content within the Pupil Cloud Service.
8.1. The User shall use the Pupil Cloud Services in accordance with the intended purpose, these Terms of Service and in accordance with any applicable statues, laws and/or regulations. The User may not
8.1.1. make the Pupil Cloud Services available in any manner to any third party for use in the third party’s business operations;
8.1.2. modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Pupil Cloud Services; or
8.1.3. access or use the Pupil Cloud Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to either of the Apps;
8.1.4. use the Pupil Cloud Services to distribute illegal content and/or content that infringes the rights of any third party;
8.1.5. license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Pupil Cloud Services available, to any third party;
8.1.6. use the Pupil Cloud Services excessively, i.e. beyond the capacity cap offered by Pupil Labs.
8.2. When using the Pupil Cloud Services, the User shall comply with the applicable data protection laws, in particular obtain the necessary consent of the person concerned, insofar as the User collects, processes or uses personal data when using the Pupil Cloud Services and no statutory basis for permission intervenes.
9.1. A User will indemnify, defend, and hold harmless Pupil Labs and its officers, directors, employees for any and all claims, suits, litigation, causes of action, losses, damages, expenses, costs (including court costs and attorneys’ fees) and liabilities (“Losses”) that arise out of, or in connection with (i) the User’s use of the Website and/or Services; (ii) any breach by a User of any of their obligations pursuant to Section 8 hereof; (iii) any claim that the User’s Content caused damage to a third party. If the User is Consumer, such obligations shall not apply if the User is not responsible for the infringement resulting in any Losses.
9.2. In cases of an aforementioned enforcement of claims by third parties, the User will provide Pupil Labs with all his information that is needed for the examination of the claim and for the defence against it. The User provides the information immediately, truthfully, and completely.
Consumers have a statutory right of withdrawal when concluding a distance contract, about which Pupil Labs informs in accordance with the statutory model below.
Instructions on withdrawal
Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of the contract.
To exercise the right of withdrawal, you must inform us,
Pupil Labs GmbH Sanderstraße 28 12047 Berlin
Email address: info@pupil-labs.com
of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or email). You may use the attached model withdrawal form at the bottom of this page, but it is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event no later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.
End of instructions on withdrawal
11.1. We are unrestrictedly liable for damages that have been caused by deliberate intention or by gross negligence.
11.2. In cases of slight negligence, we are only liable if we have infringed a fundamental duty and if the purpose of the contract is threatened thereby or if we have infringed duties that have to be fulfilled for the duly contract implementation and if the User generally relies on the fulfilment of these duties. In the aforementioned cases, we are only liable for foreseeable damages to the Business Customer at the time the respective service was performed.
11.3. In all other cases our liability, and towards Business Customers including our liability for consequential damage and lost profit, is excluded.
11.4. We will not be liable hereunder by reason of any failure to timely perform our duties hereunder due to an event beyond our reasonable control, including acts of God; acts of terrorism; civil unrest; war; fires; power cuts; epidemics.
11.5. If our liability is excluded or restricted, this also applies to the personal liability of our employees, representatives, and agents.
11.6. The aforementioned restrictions of liability do not apply to cases of damages to life, body, or health, to cases of warranting for the condition of a product, and to cases of fraudulent concealment of defects by us, our legal representatives or assistants in performance or under the German Product Liability Act.
11.7. We are not liable for the User’s Content.
The European Commission provides a platform for an online settlement of disputes which can be accessed under http://ec.europa.eu/consumers/odr/. Pupil Labs is neither obliged to take part in alternative dispute resolutions before a consumer dispute settlement commission or will do so voluntarily.
Please find our Privacy Policy on our Website: https://www.pupil-labs.com/legal/invisible-companion-privacy, https://www.pupil-labs.com/legal/neon-companion-privacy, https://www.pupil-labs.com/legal/privacy.
14.1 Changes to these Terms of Service, including changes related to paid add-ons, will be communicated to the User at least by email. If the User does not object to such changes within four (4) weeks of receipt of the notification, the changes shall be deemed agreed. The User will be informed of the right of objection and the legal consequences of silence in the event of a change to the Terms of Services use of the cloud services after reception of new updates terms means the user agrees to the new terms.
14.2 In the event of an objection to the changes in time, the original provisions shall remain unaffected and apply instead of the amended Terms of Service; in this case, both the User and Pupil Labs shall be entitled to terminate the Agreement extraordinarily within two weeks after Pupil Labs' receipt of the User's objection within the scope of a special right of termination.
15.1. Any contracts entered into between Pupil Labs and the User shall be governed by the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG), without prejudice to any mandatory conflict of laws provisions. If the User is a Consumer and has their habitual residence in another country, the User shall, however, continue to have the protection afforded to them by provisions that cannot be derogated from by agreement by virtue of the law applicable in the state of the User’s habitual residence.
15.2. If the User is a corporation, limited liability company or commercial partnership or otherwise operates a commercial business (Kaufmann within the meaning of Sec. 1 (1) BGB (German Commercial Code)) or is a legal entity or special fund organized under public law, the courts in Berlin, Germany, shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with the relevant contract.
15.3. Should any provision of these Terms of Service be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provisions shall be deemed replaced by statutory provisions. As far as this would represent an unreasonable hardship for a contracting party, the Terms of Service as a whole become ineffective.
Model withdrawal form (complete and return this form only if you wish to withdraw from the contract.)
To
Pupil Labs GmbH
Sanderstraße 28
12047 Berlin
info@pupil-labs.com
I/we (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*) /for the provision of the following service (*) __________
Ordered on (*) / received on (*) ,
Name of consumer(s)
Address of consumer(s)
Signature of consumer(s) (only if this form is notified on paper) Date(*) Delete as appropriate.