General Terms and Conditions for modalyzer (“GTC”)

Last updated: April 2015 (translated Mai 2016)

Section 1 Scope of Application

We, InnoZ GmbH, EUREF-Campus 16, 10829 Berlin (Germany), acting under the name modalyzer (hereinafter referred to as “we” or “modalyzer”) are providing you with the website www.modalyzer.com (hereinafter referred to as “website”) as well as a smartphone tracking application (hereinafter referred to as the “app”), with which you (hereinafter also referred to as the “user”) can track your movements and your mobility free of charge during your everyday activities within the framework of these General Terms and Conditions, as well as take advantage of other services from modalyzer (hereinafter referred to in general as the “service”). The following General Terms and Conditions shall be exclusively valid for the app and the use of the website, as well as for all agreements and business relationships between modalyzer and yourself. No differing conditions shall be recognized, unless modalyzer expressly agrees to their validity in writing.

Section 2 Registration, additional voluntary information

  1. To be able to use the service, you must first register for free through the website or the app, thereby creating an account. You will select a user name and password to register, and provide your valid e-mail address. By clicking on the “register now” button, you are requesting the conclusion of an agreement regarding the use of our service. In doing so, you also consent to the modalyzer General Terms and Conditions and Data privacy statement valid at the time of your registration.
  2. modalyzer accepts this request by sending a confirmation e-mail to the e-mail address you provide at the time of your registration. We declare our acceptance under the condition precedent that you click on the activation link included in the confirmation e-mail. By clicking on the activation link, you conclude an agreement between yourself and modalyzer regarding the use of the service (hereinafter referred to as a “usage agreement“). We reserve the right to reject your registration without providing grounds for doing so.
  3. In our screener survey, you can complete your registration data on a voluntary basis by adding your year of birth, sex, driver’s license, and zip code for your residence. Filling out the screener survey is a requirement for using the app to support the research projects of our clients. We will explain how you can take part in these research projects below, in section 6.
  4. You may register if you are legally capable of concluding contracts without restrictions. If you are not legally capable of concluding contracts without restrictions, for instance because you are still a minor, you may only register if you have the written approval of your legal representative (e.g. your parents, your guardian, your caretaker, etc.). Upon request, you must send us this written approval to info@modalyzer.com. Your legal representatives are responsible for your behavior under this usage agreement. We reserve the right to delete your account if you have not sent us a written confirmation despite our requests to do so.
  5. You may only hold one account at a time. If you do register multiple times and possess multiple accounts at once, we will delete all of your accounts except for your oldest account.
  6. You may only register as a natural person. Legal entities are not allowed to open an account.
  7. We reserve the right to delete your account if you have not used the service for a period of at least six months, or if we can no longer reach you through the e-mail address you have provided.

Section 3 Completeness, Obligation to Truthfulness

  1. All information you provide in your account must be complete and truthful. If your information or data changes during the term of this usage agreement, you must adjust the information and data in your account promptly.
  2. If there are any changes to your information or data which seem unusual or conspicuous to us, or if we believe your account is being misused, we are entitled to contact you through e-mail and investigate the change.

Section 4 Confidentiality and Security

  1. The confidentiality and security of your data is important to us. We use encryption technologies based on state of the art technology in order to provide your data the best possible protection, and store it on a domestically-located server. We collect, process, and store your data exclusively in accordance with the provisions of German data privacy law. You can find more information on how we handle your data in our Data privacy statement.
  2. You should also treat your login information as confidential, especially your password, and protect it from access by third parties. You may not provide any third party access to your account. If you know or suspect that your account has been misused by a third party or if a third party knows your password, you should inform us of this promptly at info@modalyzer.com.

Section 5 Movement Data

  1. After registering successfully, you can start recording your personal movement diary using the app. To do so, the app on your smartphone will collect your movement data (hereinafter referred to as “movement data“). After waypoints have been transmitted to our server, the app automatically analyzes which modes of transportation you are using to travel (e.g. walking, biking, driving, or riding the subway, train, etc.) The app shows you your trips, which it determines using these waypoints (“stages“). You can view a geographical representation of the individual stages on a map.
  2. The smart app also summarizes your personal movement data using statistics, which provide information on the number of types of transportation you have used, on what percentage of the time you use each one, and on your CO2 emissions and environmental footprint.
  3. You decide when and for how long the app records your movement data. You are free to start, interrupt, or end the recording at any time.
  4. You can learn about how our app reads your movement data in our Data privacy statement.
  5. Although our technology is precise, it is possible that the app may create incorrect stages in some individual cases. You can and should correct these incorrect stages through your account. Our statements in Sec. 3 above shall be valid with regards to the completeness and correctness of a change in your information.

Section 6 Participation in research projects

  1. Due to its reliability and high standards, the movement data generated through the app for yourself and other users is useful as the basis for research projects by third party clients (hereinafter referred to as a “project”). During a project, we process the stages collected by the app and transmit them to the client in question in an anonymized fashion.
  2. If you are interested in taking part in a project yourself, you can fill out the screener survey in your account. You can read about the information we will need from you for this purpose above in Section 2 no. 3. We need the information from the screener survey to determine whether you are suited for participation in the various projects.
  3. You can find the current projects on our website and through the app. There, you will also receive more detailed, project-specific information on the client, the concrete purpose of the research, and the duration and scope of the investigation. It is also possible that as a participant, a client could consider you for a special incentive for participating in its project (e.g. in the form of giving away a gift certificate to all participants in the project) (hereinafter referred to as an “incentive”).
  4. You must fill out the screener survey to apply to take part in the project of your choice. If the information you provide indicates you are suitable for a project, we can inform you of this via e-mail and make you a non-binding offer of participation.
  5. Your participation in a project will depend on your suitability based on the information you provide and on the needs, criteria, and capacity of the project in question. Therefore, we cannot promise you participation in a project. If you are under consideration to participate in a project, you can confirm your binding participation by clicking on the button “participate now” and agreeing to the project specifications.
  6. If you decide to take part in projects by our clients, you will be an important part of a research project and will obligate yourself to strict honesty in the sense of the search for truth under scientific principles. Our statements in Sec. 5 no 5 and Sec. 3 above shall be valid with regards to the completeness and correctness of information provided by you during a project and a change in your information.

Section 7 Premature discontinuation

  1. You are free to discontinue your participation in a project prematurely at any time. You can manage your participation in projects through the project tab on the website when you are logged in.
  2. modalyzer is entitled to end your participation in a project prematurely if the information or data you provide for the project in question is incomplete or incorrect, or if we have reason to believe that you have falsified the movement data.
  3. modalyzer is entitled to end a project prematurely if the client ends the project prematurely.
  4. If your participation in a project or the project itself is discontinued prematurely, you will receive no incentives.

Section 8 Forbidden Use

  1. You must conform to the provisions of these General Terms and Conditions and to valid statutory regulations during your use of the service provided by modalyzer. Any use which is contradictory to these provisions or to valid statutory regulations is forbidden. In particular, the following are forbidden:
    1. providing incomplete or untrue statements;
    2. changing or falsifying information and movement data in an untruthful manner;
    3. opening an account in the name of a third party;
    4. entering information or data pertaining to another person;
    5. transferring your account to a third party;
    6. providing your login information and account to other persons or granting other persons access to these;
    7. changing, manipulating, subverting, overloading, hacking, attacking with viruses or malware, or intervening in any other manner with the service, the website, or the app and the software and security measures upon which they are based;
    8. using the service to spy on other people;
    9. installing and using the app on a mobile telephone designated for use by another person without their consent.
  2. modalyzer reserves the right to block or remove access to your account temporarily or permanently or to delete your account at its own discretion if we have reason to suspect that you are using your account in a forbidden manner. Before we block or delete your account, we will contact you through e-mail and provide you an appropriate opportunity to make a statement. If we do permanently block or delete your account because of a forbidden use, you will not be allowed to re-register.

Section 9 Liability and Responsibility of the User

  1. The user hereby indemnifies modalyzer from all claims third parties may bring against modalyzer, insofar as the reason for the claim is the responsibility of the user. In this case, the user will also accept the costs incurred by modalyzer as part of any required legal defense, including court and attorney’s fees at statutory rates.
  2. In case of use by a third party as described above, the user is obligated to provide modalyzer all information that could be necessary to review the claims and for defense promptly, truthfully, and completely.

Section 10 Liability of modalyzer

  1. Incentives will be granted at the sole discretion and under the sole responsibility of the client in question. modalyzer accepts no liability or warranty for the incentives considered by a client. modalyzer is not obligated to provide the website and app, nor to offer the service. The user shall have no claim to registration.
  2. modalyzer shall undertake appropriate efforts and measures to offer you a secure and reliable service. However, interruptions due to technical errors or maintenance work are possible.
  3. modalyzer reserves the right to change the service at its own discretion. Any liability of modalyzer for damages resulting from and in conjunction with the exercising of rights and duties resulting from this agreement is hereby excluded. This shall not be valid for
    1. damages resulting from an injury to life, limb, or health, damages resulting from a negligent breach of duty by modalyzer, or damages resulting from an intentional or negligent breach of duty by a legal representative or agent of modalyzer;
    2. damages resulting from a breach of duty by modalyzer or a legal representative or agent of modalyzer related to essential contractual rights and obligations which are required for the orderly execution of the agreement and which endanger the implementation of the purpose of the contract (cardinal duties);
    3. damages resulting from an intentional or grossly negligent breach of duty by modalyzer or from an intentional or grossly negligent breach of duty by a legal representative or agent of modalyzer;
    4. liability in accordance with the Product Liability Act.
  4. An exclusion and/or limitation of liability of modalyzer shall also apply to legal representatives and agents of modalyzer.

Section 11 Blockage, Deletion

  1. Through your website account, you may delete individual pieces of data, motion data, or your entire account on the website at any time. To do so, go to your profile page on modalyzer.com.
  2. If you or modalyzer delete your account, this usage agreement will be terminated automatically.
  3. If your account is deleted, we will delete all of your data we have saved. If your data is included in an assessment of raw data sets for a specific research project which has already begun, your data will continue to be included in the research data sets in an anonymized form. Of course, your data will be removed from the live system, meaning it will not be included in further assessments.
  4. You may change your data from the screener survey, but you may not delete individual pieces of data. It will be fully removed from our system only when you delete your account.

Section 12 Transfer of contract, acceptance of contract

modalyzer is a project developed by employees at InnoZ GmbH. modalyzer developers are planning to spin off and outsource the project to a legally separate company.

You hereby already agree that Innoz GmbH may transfer its usage agreement with you in full to an outsourced company, and that this company will accept all rights and duties arising from this usage agreement, with the continued application of the other provisions of these General Terms and Conditions and the data privacy protections (“Contract transfer”).

You have the option of revoking the contract transfer within a term of four weeks.

If the contract is transferred, we will inform you of the contract transfer at least four weeks in advance by e-mail. We will provide you with specific information on your opportunity to object and on the meaning of the deadline if the contract transfer takes place. If you make use of your right to object, we will delete your account, effective as of the time of the contractual takeover. We will also provide you with a separate notification of this deletion.

Section 13 Miscellaneous

  1. These General Terms and Conditions and the usage agreement regulated by them is subject to German law, excluding the UN Sales Convention.
  2. modalyzer reserves the right to change these Terms and Conditions at any time, insofar as these changes are not unreasonably detrimental to the user. We will notify you of changes to the General Terms and Conditions by e-mail at least four weeks before they come into effect. Changes will be determined as accepted if you do not object to said changes within four weeks after our notification by sending an e-mail to info@modalyzer.com. We will provide you specific information on your opportunity to object and on the meaning of the deadline if we change our General Terms and Conditions. If you take advantage of your right to object, we have the right to delete your account, effective as of the deadline upon which the changed General Terms and Conditions are to take effect. We will also provide you with a separate notification of this deletion.
  3. If you do not have a general domestic place of jurisdiction, if you move your residence or habitual abode out of the country after conclusion of the contract, or if we do not know your place of residence or habitual abode at the time of a complaint, Berlin (Germany) shall be the exclusive place of jurisdiction for all disputes between modalyzer and yourself.
  4. Headings serve only to provide clarity and have no meaning for the interpretation of this agreement.
  5. Insofar as a provision of these General Terms and Conditions is invalid, this shall not affect the validity of the remaining provisions.

The following parties provided us with support:

LACORE Rechtsanwälte LLP
www.lacore.de