predict.io Terms of Service
These Terms of Service are a legal agreement between you (referred to as “you”, “your”, or “Licensee”) and predict.io GmbH (referred to as “we”, “our”, “us”, or “Provider”), a limited liability company under German law, for use of the predict.io Service. The Provider and the Licensee hereinafter collectively referred to as the “Parties” and each of them as a “Party“.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “you”, “your” or “Licensee” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Service.
You may not access the Services if you are a predict.io GmbH competitor, except with our prior written consent. In addition, you may not access or use the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
We reserve the right to update and change the Agreement from time to time without notice for new customers. This Agreement was last updated on May 3, 2016, and is effective as of the date of your acceptance of this Agreement.
- The Provider is engaged in the development and programming of software and provision of services for the purposes of real-time trip detection via mobile electronic devices and has developed a software which allows to detect when a user has arrived, and when a user has departed. This technology is marketed as predict.io.
- The Provider has developed a software development kit (“SDK”) for iOS and Android, which can be used for developing and programming software applications. The SDK contains application programming interfaces (“APIs”) which can be used to integrate the SDK into applications. The APIs are programmed to enable certain Data Services (as defined below in Section 6 of this Agreement).
- Whereas the Licensee wishes to use the SDK and the APIs for the programming of software applications. For these purposes the Provider wishes to license the SDK and the APIs to the Licensee subject to the terms and conditions set forth in this Agreement.
Scope of This Agreement
- The purpose of this Agreement is to permit the Licensee to use the SDK for the development of and to integrate the “Detection API” as well as the “Data API”.
- The Application will be distributed on the following platform(s) to end users of the Application (“End Users”):
• Google Play Store
• iTunes Appstore
- For the purpose of this Agreement “Data API” describes an API which allows to transmit the Trip Data available in the Provider’s Database from and to the Application. “Trip Detection API” describes an API which allows to provide the Application with trip detection status based on device intrinsic sensors and calculations. For the development of and the integration into the Application the Licensee is granted the License for the SDK, the Data API and the Trip Detection API following the terms and conditions of this Agreement.
- The Data API and the Trip Detection API are licensed for the sole purpose of accessing the Platform Services as defined in Section 6 of the Agreement.
SDK & API License
- The Provider hereby grants the Licensee and the Licensee hereby accepts a non-exclusive, non-transferable, non-sublicenseable, limited and revocable and royalty-free license to use the SDK, the Data API, and the Trip Detection API during the term and in accordance with the conditions set forth in this Agreement (the “License”). The License is limited to the object code form of the SDK, the Data API and the Trip Detection API only.
- The Provider grants the License to the Licensee solely for the purposes of developing, testing, debugging, running, using and distributing the Application.
- The License shall include the following rights:
- the right to install and use any number of copies of the SDK, the Data API and the Trip Detection API in object code form on the Licensee’s devices;
- the right to reproduce a reasonable number of copies of the SDK, the Data API and the Trip Detection API which are necessary to produce the Application;
- the right to make the Data API and the Trip Detection API available to the public, either by wire or wireless means only in object code form as part of the Application.
- Sections 2.1 to 2.3 shall also apply to updates and fixes of the SDK, the Data API and the Trip Detection API provided by the Provider to the Licensee from time to time.
- The License is granted under the condition that the Licensee only uses the SDK and integrates the Data API and the Trip Detection API into the Application as described in the applicable documentation delivered by the Provider.
- The Licensee shall not be entitled to
- adapt, modify or transform the SDK, the Data API and the Trip Detection API;
- circumvent or bypass any technical restrictions or limitations of the SDK, the Data API and the Trip Detection API;
- reverse-engineer, disassemble, decompile or otherwise attempt to discover the source code of the SDK, the Data API and the Trip Detection API, except and only to the extent permitted by Section 69e of the German Copyright Act, or create, modify or promote any derivative works of the SDK, the Data API and the Trip Detection API;
- distribute or make available the SDK, the Data API and the Trip Detection API to third parties;
- grant third parties access to the SDK, the Data API and the Trip Detection API unless required for the development of the Application.
- The Licensee will not remove, obscure or alter any proprietary rights notices such as copyright or trademark notices that may be affixed to or contained within the SDK, the Data API and the Trip Detection API.
Requirements for the Application
- The Application and the Licensee’s use of the Platform Services as defined in Section 6.2 of the Agreement must comply with the following criteria and requirements:
- the Application will be developed and used in compliance with this Agreement and any applicable law or regulation, including without limitation, any intellectual property or other proprietary rights, rights of privacy, or any right of any person.
- the Application does not and will not, to the best knowledge of the Licensee, violate, misappropriate, or infringe any copyright, patent, trademark, trade secret, rights of privacy or other proprietary or legal right of any third party or of the Provider.
- the Application must not contain nor transfer any viruses, files, code malware or any other malicious software programs that may harm or disrupt the normal operation of the device or network.
- the Application must identify the nature and provider (including contact details) of the Application, function as promoted and not contain any false, fraudulent or misleading information or representations.
- the Licensee will clearly communicate to End Users (e.g. in the Application user interface) that the use of the Application creates data traffic which may result in costs to End Users, if applicable.
- the Application shall not send any push notifications without first obtaining End Users’ consent, (e.g. unsolicited messages, advertising, promotions, or direct marketing of any kind) and the Application will include easy settings to disable any such notifications.
- the Application shall not distribute or post spam, unreasonably large files, chain letters, pyramid schemes, any malicious code, viruses or any other technologies or content that may harm the Platform Services, other users, servers or networks or send any messages for the purpose of phishing or spamming, or enable anonymous or prank phone calls or SMS/MMS messaging.
- The Licensee may freely market and distribute the Application free of charge or for consideration.
- The Platform Services must not be analyzed and used for disadvantageous decisions against any End User requesting Platform Services with the Application (e.g. negative scoring for insurance tariffs because of lieu of location).
Third Party Content
- The Licensee may use its own content or content licensed from a third party (“Third Party Content“) in creation of the Application in conjunction with use of the SDK, the Data API and the Trip Detection API.
- Notwithstanding anything to the contrary, the Licensee may not (and the Licensee agrees that it will not) integrate or use the SDK, the Trip Detection API and the Data API with any Viral Open Source Software or otherwise take any action that could require disclosure, distribution, or licensing of all or any part of the SDK, the Trip Detection API and the Data API in source code form, for the purpose of making derivative works or at no charge. For the purposes of this Section 5.2, “Viral Open Source Software” shall mean software licensed under the GNU General Public License, the GNU Lesser General Public License, or any other license terms that could require, or condition the Licensee’s use, modification or distribution of such software on, the disclosure, distribution or licensing of any other software in source code form, for the purpose of making derivative works or at no charge. Any violation of the foregoing provision shall immediately terminate the License and any other rights to the SDK, the Data API and the Trip Detection API and Platform Services granted under this Agreement. The Licensee will pay all damages incurred by the Provider as a result of this violation.
- The Provider hereby grants the Licensee and the Licensee hereby accepts a non-exclusive, non-transferable, non-sublicenseable limited license to use during the term and in accordance with the conditions set forth in this Agreement the Platform Services as defined in Section 6.2.
- The “Platform Services” shall mean Trip Detection Services and shall be made available to the Licensee in accordance with the conditions set forth in this Agreement.
Trip Detection Services
The Licensee chooses to use the following Trip Detection Service:
The Trip Detection API will send requests and receive trip detection status information based on device intrinsic sensors and calculations. The Trip Detection Services are bundled with the Data Transfers via the Data API as described below and the data will be stored in the Provider’s Database.
Application ID, app version, app build no., API key, SDK version, access token, session ID, SSL certificate, OS version, device vendor, device model, device ID, GAID/IDFA, IP (last figures hashed), hidden checksum.
Activity type with Arrived and Departed, timestamp of submission, timestamp of activity, lat/long of activity, battery details, battery status.
Sensor Summary Data:
25%, 75% quantile, and mean, median, min, max of: gyroscope, accelerometer, barometer, magnetometer, humidity, ambient temperature
Sensor Status Data:
Proximity sensor, activity recognition data, WiFi connection (on/off), WiFi networks (hashed names), charger / docking connection (on/off), Bluetooth connection (on/off), headphones connection (on/off), phone call (on/off), screen (on/off)
With the Service improvements over time, the transmitted data might change. The Provider will communicate those changes to the Licensee with the distribution of new releases.
- The data in the Provider’s Database remains sole property of the Provider. Notwithstanding Sections 6.1 and 6.2 the Licensee will not have any title to the data in the Provider’s Database unless set forth otherwise in this Agreement.
- With the use of the Trip Detection Services, the Licensee informs the End Users that the End User’s positioning data will be collected and transmitted to the Provider’s Database in anonymous or anonymized form and will become part of the Provider’s Database. The Licensee will not contribute to the Provider’s Database or make available to the Provider in any other way any data of End Users that might be considered as personal data according to Section 3 Para 1 of the German Federal Data Protection Act unless otherwise agreed with the Provider and/or consented to by the End User.
- The Licensee acknowledges that the Data Services are server-based and that an availability of 100% cannot be guaranteed. As the Provider uses third party servers, server downtimes cannot be excluded.
- The Provider will maintain an availability of 99.9 % per month (“Standard Service Level”). If availability falls below the specified Standard Service Level, the Provider shall use reasonable commercial efforts to restore operation. The Provider will use commercially reasonable efforts to notify the Licensee by email or other commercially reasonable means at least 5 calendar days before any scheduled maintenance is performed on its systems if the maintenance is reasonably expected to cause any material Platform Services degradation or drop in availability below Standard Service Level.
- The Provider will use commercially reasonable efforts to coordinate scheduled maintenance to coincide with anticipated periods of lower usage of the Data Services on a global scale. The Provider will endeavor to keep the Data Services fully operational during all scheduled maintenance.
- In case availability is below Standard Service Level, as the Licensee’s sole remedy the Licensee may reduce the license fees according the then applicable pricing.
- When the Application uses the Platform Services, the Licensee is required to display to the End Users either
- If the Application enables the Licensee, the Provider or any third party to collect, use, transfer, store or gain access to information about End Users, including but not limited to personally identifiable information, non-personally identifiable usage information or location information (” Information“), the Licensee must provide End Users with notice about what Information is accessible and how such Information will be used or disclosed so that End Users may make informed decisions about whether or not to use the Application.
- The Licensee will obtain the consent of the End Users for the collection, use, transfer and storage of Information by way of Double Opt-In. The consent will also include the transfer of Information to and the collection, use and storage of Information by the Provider.
- The Parties may use each other’s trade name, trademarks, logos, company and product descriptions and similar information as reference for marketing and promotion purposes.
- Such reference will only be made after previous mutual consultation and upon the other Party’s approval.
Fees & Payment
- For the License for the Platform Services the Licensee will pay the fees according to the then applicable pricing as listed in Section 9.6.
- The License Fees of this Agreement are exclusive the then applicable value added tax (VAT).
- Invoices shall be payable within thirty (30) days upon receipt of the invoice. If the Licensee is in default of payment, the outstanding amount shall bear interest at the rate of eight percent over the then current basic rate of interest of the Central Bank of the Federal Republic of Germany (Deutsche Bundesbank). The Provider expressly reserves the right to exercise any other extensive rights or claims.
- The Licensee shall have no right to set-off against any claims of the Provider under or in connection with this Agreement or to exercise any right of retention, except to the extent that the counterclaim is undisputed by the Licensee or has been determined by a final and binding court decision.
- If, after a determination by foreign tax authorities, any taxes are required to be withheld on payments made by the Licensee to the Provider, the Licensee may deduct such taxes from the amount owed the Provider and pay them to the appropriate taxing authority; provided however, that the Licensee will promptly inform the Provider on such determination and the amount the Licensee has been requested to withhold. The Licensee will make certain that any taxes withheld are minimized to the extent possible under applicable law. Upon request from the Provider the Licensee will secure and deliver to the Provider an official receipt for any such taxes withheld or other documents necessary.
- The fees for the Trip Detection Services as part of the SDK are based on the number of registered Devices. The following Prepaid Device Packages are available:
|Number of Registered Devices
||Prepaid Device Packages
|10.000 to 1.000.000
||EUR 0,21 € / Device
- With the initial acceptance of this Agreement, the Licensee is instantly granted 10.000 licenses free of charge according to the pricing in Section
- When the number of registered Devices exceeds the number for which the Prepaid Device Package has been acquired or free licenses have been granted, the Licensee will book an additional Prepaid Device Package, which covers the exceeding number of registered Devices. Several Prepaid Device Packages can be booked cumulatively.
- In case the number of registered Devices exceeds the number for which the Prepaid Device Package has been acquired and (i) the Licensee has not booked a new Prepaid Device Package within 10 days of exceeding the number of registered Devices and (ii) the Agreement has not been terminated according to Section 13 of the Agreement, the Licensee will be contacted to purchase a Prepaid Device Package for at least 10.000 registered Devices. No new licenses can be activated until a new Package is purchased by the Licensee.
- For the Trip Detection Services the Licensee must transfer Inbound Data from its Devices to the Provider’s Database in compliance with Section 6.4 of the Agreement.
- An end user’s device is determined by generating a random unique identifier upon installation. Upon installation on the same device a new identifier would be generated in order to not allow tracking of individual users.
- The Provider holds the right to change the standard pricing laid out in Section 9.6 and will communicate changes to the Licensee. The Licensee will pay for new Prepaid Device Packages the price applicable at the time of purchase
- During the term of this Agreement the Licensee may not utilize the SDK, Data API, Trip Detection API as well as the Platform Services (including Data Services and Trip Detection Services) to create own location based products or services that are competitive to the Provider’s Platform Services.
- In case the Licensee breaches its obligations under Section 10.1 it shall pay to the Provider for each culpable infringement a contractual penalty which will be determined by the Provider at equitable discretion, and in case of dispute by a competent court.
- The Provider represents and warrants that it is not aware of any circumstances that the SDK, the Data API, the Trip Detection API or the Platform Services have become public domain, or have no commercial value, or that confidentiality has been broken.
- “Confidential Information” for the purpose of this Agreement shall mean the SDK, the Data API, the Trip Detection API, the Provider’s Database, the documentation, all information, documents, details and data related thereto, including oral information given by the Provider before, during or after the term of this Agreement. Confidential Information shall further include all information, documents, details and data which is marked as such or is to be seen as confidential because of its nature in particular information concerning internal company affairs such as methods, order processing structures, customer sales figures and corporate data of the respective other Party, as well as information about the respective organization and the employees as well as any other information exchanged before or during or after the term of this Agreement and any knowledge gained of fundamentals, functions, production, manufacturing, new development.
- The Licensee acknowledges that the SDK, the Data API and the Trip Detection API contain valuable information and trade secrets of the Provider. Accordingly, the Licensee undertakes to maintain the Confidential Information in confidence and not to disclose the Confidential Information or provide access thereto to any third party or permit or authorize any other person to do so. The Licensee undertakes in relation to the Confidential Information
- to use the Confidential Information only for the purposes of this Agreement and for no other purpose and in particular, but without prejudice to the generality of the foregoing, not to make any further commercial use thereof and not to use the same for the benefit of itself or of any third party; and
- not to copy, reproduce or reduce to writing any part of the Confidential Information except as may be reasonable for the use of the SDK, Data API and Trip Detection API as set forth in this Agreement.
- The Parties shall keep all Confidential Information which becomes known to them during the term of the Agreement strictly confidential and only use Confidential Information for the contractually agreed purpose. The Parties shall not, without the prior written consent of the other Party, in any manner whatsoever disclose or communicate to any third party any Confidential Information disclosed to such Party hereunder. The Parties shall not seek to or assist any third party to register intellectual property rights in respect of Confidential Information of the other Party.
- The duties of confidentiality shall apply during the term of this Agreement and beyond termination of this Agreement.
- In case the Licensee breaches its obligations under Sections 11.3 to 11.5 it shall pay to the Provider for each culpable infringement a contractual penalty which will be determined by the Provider at equitable discretion, and in case of dispute by a competent court.
Warranty & Liability
- Statutory liability of the Provider, its legal representatives and assistants for damages to life, body or health and liability under the German Product Liability Act (Produkthaftungsgesetz) and for damages which result from intent or gross negligence on side of the Provider, its legal representatives and assistants or from the assumption of a guarantee or a procurement risk shall remain unaffected from the following limitation.
- If the damages result from light or normal negligence of the Provider, its legal representatives and assistants, but relate to a breach of an essential contractual obligation which makes the due performance of the contract initially possible and on the fulfilment of which the contractual partner may regularly rely (Kardinalpflicht in the sense of German law), The Provider shall only be liable for those damages which are typically foreseeable. The same shall apply for damages asserted as substitution of the original performance ( Schadensersatz statt der Leistung in the sense of German law).
- The Provider shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken by the Licensee.
- Notwithstanding Sections 12.1, 12.2 and 12.3 above, all other liability of the Provider shall be excluded.
- The Licensee shall hold harmless, defend and indemnify the Provider from and shall compensate and reimburse the Provider for, any claims, damages, liabilities, losses, costs, suits or expenditures incurred by the Provider and its affiliates as a direct or indirect result of any infringement or alleged infringement of intellectual property or other rights of any third party caused by the Licensee’s use of the SDK, the Data API and the Trip Detection API, any Application developed by the Licensee or any breach of this Agreement by the Licensee.
Term & Termination
- This Agreement shall come into effect on the date of acceptance by the Licensee to this Agreement and is concluded for an indefinite term with a minimum contract term of one year.
- After the minimum contract term of one year, either Party may terminate this Agreement by giving three months’ prior written notice.
- Either Party may terminate this Agreement for good cause upon written notice to the other Party. Such good cause shall be deemed in but not be limited to the event the other Party has breached a material provision of this Agreement, in particular:
- in case the Licensee breaches in a material respect its duty to pay undisputed License Fees; or
- in case the breach has a material adverse effect on the terminating Party and the other Party does not heal such breach after being requested to do so within a reasonable cure period of 30 days.
- Immediately upon termination of this Agreement
- the License terminates automatically;
- any right of the Licensee in Platform Services terminates automatically;
- The Licensee shall cease all use of the SDK, the Data API, the Trip Detection API and Platform Services and any other materials provided by the Provider or any information derived therefrom and shall use reasonable effort to uninstall, return or destroy the SDK, the Data API, the Trip Detection API and all related software, backup copies and all other materials provided by the Provider on the Licensee’s own devices and will use reasonable efforts that the Applications will be deleted by its End Users.
- This Agreement and the Schedules thereto comprise the entire Agreement and understanding between the Parties concerning the matter hereof and supersede and replace all oral and written declarations of intention made by the Parties.
- The rights and obligations of each Party under this Agreement may not be transferred or assigned directly or indirectly without the prior written consent of the other Party, which will unreasonably withheld consent. For purposes of this Section.
- A change in control of the Licensee shall be regarded as an assignment. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assignees, executors and administrators of the Parties.
- Amendments or additions to this Agreement must be made in writing to be effective. This shall also apply to amendments of this written form requirement.
- This Agreement shall be governed by and be construed in accordance with the laws of the Federal Republic of Germany ( Bundesrepublik Deutschland) excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- The sole place of jurisdiction for all disputes arising under or in connection with this Agreement and any subsequent amendments of this Agreement shall be Berlin, Germany.
- In the event that one or more current or future provisions of this Agreement shall be, or shall be deemed to be, fully or partly invalid or unenforceable, the validity and enforceability of the other provisions of this Agreement shall not be affected thereby. The same shall apply in the event that the Agreement contains any gaps. The invalid or unenforceable provision shall be replaced by such appropriate provision that, to the extent legally permissible, comes closest to the actual or assumed intention of the Parties, in case they had taken such issue into account.
- The Parties acknowledge that any new features developed jointly are not automatically becoming property of the Provider. The Licensee shall inform the Provider when requesting new feature design it is seeking Intellectual Property clarification for.