Terms of Service for the use of movisensXS
- These Terms of Service (hereinafter referred to as "ToS") apply to the provision of movisensXS Services by movisens including the purchase of XS Credits that entitle Customer to upload, store, process and analyse a certain number of item results or other kind of data (e.g. GPS data or mobile sensing data) on the movisensXS web portal (hereinafter referred to as "Services"). The ToS apply in addition to the General Terms and Conditions of movisens (hereinafter referred to as "GTC"). In case of a conflict, customer-specific provisions in the offer shall prevail over the ToS; the ToS shall prevail over the GTC. Terms and conditions of Customer, e.g. as part of a purchase order issued by Customer, that conflict with or deviate from the ToS and/ or the GTC shall not apply, even if movisens provides services without objecting to them.
- movisens reserves the right to revise the provisions of these ToS, provided that the change does not have any impact on the agreement between the parties that is material for the equivalency of the contractual duties and provided that such change is reasonably acceptable for Customer. Customer will be informed of any revision of the ToS by email or by announcement displayed in the course of the next log-in of Customer. The changes will become effective, unless Customer objects to the revised version of the ToS within six (6) weeks from notification. Customer will be expressly advised of the consequences of its failure to respond at the time it is notified of the revised version of the ToS. In the event that Customer objects to the revised version during the period set forth above, the contractual relationship will be continued subject to the previous and unchanged provisions, however, movisens has the right to terminate the agreement for cause by giving two (2) week notice.
- These ToS, as amended from time to time, also apply to all future agreements on the provision of movisensXS Services including the purchase of further XS Credits entered between movisens and Customer, even if they are not explicitly referred to. The conclusion of further agreements is in the sole discretion of movisens.
2. Scope of Services
- movisensXS is a cloud-based research tool for ambulatory assessment enabling Customer to perform research studies with self-reports, behavior records, or physiological measurements of the participants. The cloud-based solution (accessible via the movisensXS web portal) in connection with mobile applications provided by movisens assists Customer in the collection, transfer, processing and analysis of personal data of the participants of its studies. The scope of the Services is described in detail on the movisensXS website ( https://xs.movisens.com ).
- During the term of the agreement, movisens shall provide Customer with access to the web portal via the Internet and with storage capacity on a virtual data server at an external data center for storing personal data of the participants of its research studies. The mobile application assists the collection and transfer of the participant data into the web portal. Furthermore, the Services include the possibility to configure studies, forms and sampling schemes according to the specific requirements of Customer and its research studies.
- movisens warrants an availability of the Services (including access to the web portal and the Customer studies and data) at the transfer point (i.e., at the router exit of the data center commissioned by movisens) of an average of 99% during any calendar year. The Services are deemed to be unavailable to Customer when the web portal is fully inaccessible due to circumstances for which movisens is responsible. In particular, the Services are not deemed to be unavailable if no connection with the web portal can be made due to
- operator errors or use of the Services by Customer in violation of the agreement and/ or the ToS,
- scheduled and announced maintenance periods,
- technical problems outside the sphere of control of movisens (e.g., Internet connection outside the data center) or
- force majeure
movisens shall attempt to announce scheduled maintenance periods to Customer by giving reasonable advance notice. The scheduled maintenance periods shall not exceed a total of 10 (ten) hours per month.
- movisens may temporarily restrict Customer's access to the Services and/ or the web portal if required for the safety of its operation, for maintaining the integrity of the network, for avoiding serious failures of or damage to the network, web portal and/or Customer data. movisens shall take the legitimate best interests of Customer into consideration when making this decision, promptly inform Customer of any measures taken and do anything that can be reasonably expected to restore access to the Services and/ or web portal as soon as possible.
- As part of the agreed Services movisens will provide remote technical support services via a contact form which is accessible on the movisensXS website. The support is basically available to Customer during the regular office hours of movisens (Monday to Friday from 9 a.m. to 5 p.m. CET, excluding public holidays in Baden-Wuerttemberg/ Germany and December 24 and 31 of each year). For certain support levels movisens additionally offers certain response times. Expert consultancy, e.g., regarding the use of the Services for certain research purposes and studies, is not included in the support services but has to be ordered and paid separately by Customer as additional service.
- movisens has the right to provide the contractually agreed Services (in whole or in part) through third parties, i.e., subcontractors. In particular, movisens will use an external data center at a location within the E.U. that will host the web portal and store Customer's data.
- In the course of ongoing improvement and further development of the Services, new functionality and services may be added and parts of the functionality or partial services may be changed or discontinued, provided, however, that Customer may be reasonably expected to accept this and the attainment of the purpose of the agreement is not jeopardized.
- At its sole discretion movisens may offer and provide to Customer additional services, e.g., configuration of customer-specific studies, development of custom item formats, adaptions of the web portal or the mobile application, etc. Customer will be granted a non-exclusive right to use any customer-specific modifications and/ or extensions of the Services. movisens may at its sole discretion integrate such customer-specific modifications and/ or extensions of the Services in its standard products and may make them available to other customers, e.g., in connection with a generally available update of the Services.
3. Customer Duties and Responsibilities
- To enter the web portal and use the Services Customer has to create an account on the movisensXS website. Customer is not permitted to pass on his personal login data for the Services to unauthorized third parties. Login data shall be stored in a safe place to prevent third party access. Customer shall inform movisens promptly if there is reason to suspect that unauthorized third parties may have become aware of this information. Customer is responsible for all unauthorized activities that occur under its account due to a culpable non-compliance of Customer with the provisions in this subsection.
- If not agreed otherwise, Customer will provide the participants of its studies with the mobile devices and applications necessary for the collection of participant's data. Customer shall ensure that the minimum system requirements regarding its IT infrastructure (including the utilized mobile devices) and Internet connection are met which are needed for the contractual use of the Services. The minimum system requirements are set forth on the movisensXS website. In addition, within the scope of its duty to minimize damage Customer shall take reasonable precautions for the event of a data loss (e.g., by regular data backups). Customer shall be responsible for the proper archiving and backup of its data by making regular backup copies at such intervals that are appropriate based on the risk involved.
- Customer shall comply with any applicable statutory provisions, in particular, with respect to data protection laws. Customer will ensure that the storage and processing of personal data by movisens on behalf of Customer does not infringe on any third party rights, e.g. by seeking the express consent from the affected participants whose personal data is transferred to the web portal. In any case, Customer will notify the participants that their personal data is being acquired and processed by movisens and subcontractors of movisens, if the case may be. Without limiting the foregoing, Customer will take the necessary measures to avoid that participants of its studies might be identified by movisens or any third party, in particular, by anonymizing the data before initiating the transfer to the web portal.
- Customer agrees that it will use the Services in compliance with all applicable local, state, national, and international laws, rules and regulations. Customer shall not, shall not agree to, and shall not authorize or encourage any third party to:
- use the Services to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene or contains viruses or other malware;
- use or exploit the Services for any inappropriate purposes outside the scope of the agreement;
- use any robot, spider, other automated device, or manual process to monitor or copy any content from the Services.
- Customer acknowledges that movisens owns all right, title and interest in and to the Services and the underlying software, including without limitation all intellectual property rights. Customer will not copy, reproduce, distribute, make available, alter, modify, or create derivative works from the Services and the software. Material (in particular, data of participants) that is uploaded on the web portal by Customer remains the sole property of Customer; movisens has the right to use such material to fulfill its contractual duties.
- Customer shall indemnify and hold movisens harmless from and against any third party claims arising from or in any way related to Customer's use of the Services contrary to the agreement, including, but not limited to the upload of infringing material and personal data of third parties. Customer shall defend movisens against any such claim and shall pay all litigation costs, reasonable attorney´s fees, settlement payments and any judgments for damages incurred by movisens as result of any such claim. This shall not apply to the extent that Customer is not liable for the violation of the third party rights. Any other claims of movisens remain unaffected.
4. Fees and Terms of Payment
- The service fees are set forth in the offer submitted by movisens. They are subject to the number and price of XS Credits purchased by Customer that entitle Customer to upload, store, process and analyse a certain number of item results or other kind of data (e.g. GPS data or mobile sensing data) on the movisensXS web portal during the term of the agreement. After activation of the purchased XS Credits within the Customer account Customer will be issued an advance invoice for the full amount of the service fees. The service fees are neither refundable nor transferable to another account. XS Credits not redeemed during the term of the agreement will automatically forfeit without substitution or refund.
- If not agreed otherwise, additional services in the sense of para. 2 subsections 5 and 8 shall be remunerated by Customer on a time and material basis applying the then current hourly rates of movisens and will be invoiced by movisens at the beginning of the month following the provision of such additional services.
- movisens has the right to reasonably increase the service fees/ prices for XS Credits (including by changing the number or volume of data comprised by a XS Credit) upon thirty (30) days advance notice (e.g. by email or announcement displayed in the course of the next log-in of Customer on the web portal) with effect for future purchases of XS Credits by Customer.
- If applicable, the statutory value added tax shall be added to all prices and fees. Payments shall be made by Customer within fourteen (14) calendar days from the invoice date with no deductions. Customer shall pay, in addition to all other amounts payable under the agreement, all fees incurring due to payment initiated through a payment service provider (e.g. PayPal) as well as all state, federal, sales or other taxes, however designated, which are levied or imposed by reason of the provision or use of the Services provided by movisens, except for taxes imposed by German tax authorities on movisens income.
- In the event that Customer is in default with its payment of a material portion of the service fees, movisens has the right to deactivate Customer's access to the Services and the web portal (in whole or in part) after a reminder in which it threatens to block access until all outstanding and due claims have been settled. Any other rights of movisens based on the default in payment remain unaffected.
5. Warranty and Liability
- movisens warrants that the Services comply with the product and/or service description on the movisensXS website and are free from any third party propriety rights that prevent or restrain their contractual use. movisens does not warrant that: (i) the Services will meet the requirements or expectations of Customer, (ii) the Services will operate in every IT environment and/ or in combination with any third party hardware, software, system or data, and (iii) the mathematical calculations performed by the Services are accurate. Customer agrees to be solely responsible for the results of any studies obtained by the use of the Services.
- In the event of a material impairment of the Services resulting in a material cause for Customer, Customer has the right to terminate the agreement for cause if movisens fails to remedy such material impairment within a reasonable period of time following a written warning of Customer. Customer is not entitled to withdraw from the agreement resulting in an unwinding of contractual transactions.
- As far as rental contract law applies to certain elements of the Services (e.g. for the provision of web space), contrary to the statutory provisions of section 536a of the German Civil Code (BGB), movisens will only be liable for defects that already existed at the contract date if movisens is liable for such defects. In the event that movisens provides the Services to Customer without charge, e.g. the provision of the Services during a test period, movisens will only be liable for the intentional and grossly negligent violation of its duties. For the rest, the applicable liability clauses of the GTC shall apply.
6. Term and Termination
- The agreement will be valid for an indefinite term. Customer may terminate the agreement at any time without notice. The agreement automatically expires six (6) months after the last XS Credit has been redeemed by Customer or four (4) years after the last XS Credits have been purchased and added to the account of Customer, whichever occurs first.
- movisens may terminate the agreement at any time by giving three (3) months' advance notice if movisens decides in its sole discretion to finally cease the operation of its Services in its entirety. In this case Customer may request a refund for all XS Credits purchased in the twelve (12) months preceding the termination notice and not redeemed until termination of the agreement.
- The right of either party to terminate the agreement for cause and without notice remains unaffected. Cause exists for movisens, in particular, if legal or regulatory changes (e.g. referring to data protection laws) result in the impossibility or material aggravation to render the Services in a lawful manner, if insolvency proceedings are instituted against the assets of Customer or rejected for a lack of funds, if Customer is in default with a material portion of the service fees or with another amount payable to movisens under the agreement for more than two (2) months or if Customer violates any other material contract duty in any other manner and if it fails to cure this breach within two (2) weeks from the corresponding notice given by movisens. In the event that the agreement is terminated by movisens for cause, movisens will remain entitled to the full remuneration, i.e. remaining XS Credits will not be refunded. Further claims of movisens remain unaffected.
- Upon expiration or termination of the agreement movisens is entitled to deactivate the account of Customer and to delete the data stored by Customer on the web portal. movisens will notify Customer of the deletion at least two (2) weeks in advance so that Customer is able to transfer the data on its own equipment outside the web portal. Upon expiration or termination of the agreement, Customer shall cease use of the Services including the web portal and the mobile application. Customer shall immediately return or destroy any software provided by movisens as well as any other confidential information in its possession as directed by movisens and, if requested by movisens, confirm in writing the fulfilment of this obligation.
7. Final Provisions
- The agreement shall exclusively be governed by and construed in accordance with the laws of Germany. The conflict-of-law rules of International Private Law and the UN Convention on the International Sale of Goods are excluded. The exclusive venue for all disputes arising out of or in connection with the agreement shall be the competent court in Stuttgart, Germany. However, movisens may bring action against Customer before any other national or international court having competence.
- If any provision of these ToS and/ or other parts of the agreement is or should become invalid or if there are any gaps, the remaining provisions shall remain in full force and effect. The invalid or missing provision shall be replaced by such a valid provision that most closely reflects the economic and business intention of the parties at the time the agreement was concluded.
- March 24, 2016: Complete rewrite of Terms of Service.
- April 27, 2014: Added Data privacy requirements.
- July 30, 2013: Restricted TOS to movisensXS and removed Cancellation and Termination paragraph.
- April 18, 2012: Created Terms of Service.