Pupil Invisible Companion App Terms of Use

Last updated: 2019-09-16

1. General

1.1. These terms of use (the “Terms”) apply to the mobile companion application “Pupil Invisible Companion App” (the “App” or “Service(s)”) provided by 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”).

1.2. Pupil Labs may amend the Terms pursuant to section 14 hereof.

1.3. The Terms apply to any user using the App (a “User”, “Users”) after having accepted these Terms by registering according to Section 3 (Registration/Sign-up) below and are a binding agreement between Pupil Labs and the User.

1.4. The Service offerings of Pupil Labs are available to both Consumers and Business Customers (as defined below). For the purpose of these Terms, (i) a „Consumer“ is any individual entering into the contract for a purpose not related to their business, trade or self-employed professional 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).

1.5. Terms and conditions provided by a User do not apply, regardless of whether or not Pupil Lab has expressly objected to them in a particular case.

2. About the App

2.1. The App enables the User to create multiple “wearers” (a “Wearer”, jointly “Wearers”) and to record, view and delete data generated by an eye tracking device offered by Pupil Labs (Pupil Invisible, “PI”). The App can only be used together with PI. A Wearer can be assigned a nickname by the User and will also automatically be assigned a unique ID (uuid).

2.2. The precise system requirements and the full scope of functions of the App are found in the product description on the distribution platform used to download the App (the “App Store”) and on Pupil Labs’ website https://www.pupil-labs.com (the “Website”).

2.3. Pupil Labs reserves the right to extend the Services and make improvements if they (i) serve technical progress; or (ii) appear necessary to prevent misuse. Further, Pupil Labs shall be entitled to change the Services if (i) applicable law, court rulings or administrative decisions require such amendments; (ii) the changes are only beneficial to the User; or (iii) the changes are of a purely technical or procedural nature with no material effect on the User. All other changes to the Services shall be subject to section 14 hereof.

2.4. Pupil Labs may also provide updates for the App free of charge in the respective App Store, which change the scope of functions of the App. The exact system requirements and the complete scope of functions of such updates and the updated version of the App can be found in the product and update description in the corresponding App Store.

3. Registration/Sign-up

3.1. The usage of the App requires the registration as well as the set-up of a user account (the “User Account”) by filling in the name and an email address as well as a password. As an alternative way to register the User may use their its existing Google account. In both cases during the initial registration by pressing an “Agree and continue” Button or checking a respective checkbox,the User submits an offer on the conclusion of the agreement to use the App according to the Terms (the “Agreement”) as well as the Privacy Policy of Pupil Labs. In order to use the App, the User must also accept our Terms of Service of Pupil Cloud (see section 5 below). Pupil Labs will accept this offer by sending the User a confirmation email or by providing the Service to the User.

3.2. The User shall take all necessary steps to ensure that the password is at all times kept confidential. The User shall notify Pupil Labs by contacting info@pupil-labs.com without undue delay if there are signs of unauthorized use of their User Account or any breach of security by a third party. The User is not authorized to grant the use of the User Account to any third party. The User is responsible for all activity that occurs on their User Account. Pupil Labs shall not be liable for loss or damages caused by any unauthorized use of the User Account or loss or unauthorized use of the data to access the User Account.

3.3. The registration is free of charge.

4. Wearer Training Service

4.1. As additional service to the Service, Pupil Labs offers its Users a personal “training”. Such training service (“Training”) offers a Wearer the possibility to perform a special routine, which consists of recording a short video while looking at a reference gaze target on the User’s mobile device. Such Training improves the individual gaze estimation accuracy.

4.2. The Training is offered as part of the free basic plan. This offer can be subject to change pursuant to the terms hereof.

5. Pupil Cloud

5.1. In addition to the functions of the App as part of the Service, Pupil Labs offers the User certain cloud based services that can be accessed via the App (“Pupil Cloud”). Pupil Cloud enables the User to manage, view and further process PI generated data more easily.

5.2. In order to use the App, the the following functions of Pupil Cloud Service are used: authentication/login, creation and synchronization of Wearers and templates. The User therefore must accept the terms of service for Pupil Cloud that can be found under https://www.pupil-labs.com/legal/cloud-terms-of-service. The uploading of User made recordings to Pupil Cloud is optional and can enabled via the App.

6. Availability

6.1. Online services provided are usually available 24 hours a day. Pupil Labs provides no guarantee that the App and the services and functions operate properly and are available without interruption and errors at all times. The User must ensure an adequate Internet connection. The User is responsible for the fulfilment of the system requirements necessary for the use of the App, particularly with respect to the operating system used by it. However, Pupil Labs shall make every effort, within the limits of what is commercially reasonable, to enable the operation of the App without interruptions or errors at all times.

6.2. Pupil Labs may restrict the availability of and access to the App, the Services and functions for the security of the network operation and the maintenance of the network integrity, especially to avoid serious disruptions of the network. Pupil Labs tries to keep these disruptions on a low level.

7. Termination

7.1. The User may terminate the Agreement, and thereby the User Account, at any time for any or no reason by sending an e-mail to info@pupil-labs.com. If the User cancels their User Account and still has a valid paid subscription for Pupil Cloud, any amount the User may already have paid for the subscription will not be refunded.

7.2. Pupil Labs shall be entitled to terminate the Agreement with a notice period of three (3) months, however, not within the first two (2) years after the purchase of PI by the User.

7.3. 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:

7.3.1. the User fails to comply with any applicable legal provisions; and/or

7.3.2. the User fails to comply with any terms of these Terms of Use, in particular section 9, and, where reasonable, Pupil Labs has given the User the opportunity to stop any misconduct but the User failed to do so.

8. IP-Rights

Subject to the Terms, and for the duration of the respective Agreement, Pupil Labs grants the User a non-exclusive, non-assignable, non-transferable, with no right to sub-license, worldwide limited right to use the App and Services. The User may grant partial or full use of the App/Services to their employees.

9. Legal Compliance and Prohibited Use

The User shall have sole responsibility and liability for any data generated by the User’s PI through its use (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 App.

9.1. The User shall use the App in accordance with the intended purpose, these Terms and in accordance with any applicable statues, laws and/or regulations. The User may not

9.1.1. make the App available in any manner to any third party for use in the third party’s business operations;

9.1.2. modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the App; or

9.1.3. access or use the App in order to build or support, and/or assist a third party in building or supporting, products or services competitive to the App;

9.1.4. use the App to distribute illegal content and/or content that infringes the rights of any third party;

9.1.5. license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the App available, to any third party.

9.2. In case of a breach of any of the provisions of this Section 9 by the User all rights granted by Pupil Labs to the User hereunder shall automatically and immediately revert to Pupil Labs and any further use of the App shall constitute an infringement of copyright.

9.3. When using the App, 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.

10. Indemnification

10.1. 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 Services; (ii) any breach by a User of any of their obligations pursuant to Section 9. 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.

10.2. In cases of an aforementioned enforcement of claims by third parties, the User will provide Pupil Labs with all the information that is needed for the examination of the claim and for the defense against it. The User provides the information immediately, truthfully, and completely.

11. Liability

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.

12. Alternative Settlements of disputes

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.

13. Privacy

Please find our Privacy Policy on our Website: https://www.pupil-labs.com/legal/invisible-companion-privacy, https://www.pupil-labs.com/legal/privacy.

14. Changes to Terms

14.1. Changes to these Terms will be communicated to the User at least by e-mail. 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.

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; 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. Applicable Law and Competent Courts

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 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 as a whole become ineffective.