Your app service (subsequently “App”) has contracted mHealth Pioneers GmbH (subsequently “Thryve”, “We” or the “Company”), a limited company under German law, to provide access to end users’ data from a wide range of health and fitness trackers (subsequently “Services”). Thryve is the developer and owner of the exclusive rights to the Thryve health API(s), Thryve health monitoring SDK(s) and other software parts that allow the recording, harmonization and distribution of health and wellness related data derived from digital devices (collectively the “System”). To enable this transfer of data to your app service, you have to consent to terms of use as outlined subsequently.

1. GENERAL CONDITIONS

a) App may use the Services to enable users of App’s product or service (“you” or the “End User”) to generate and/or integrate health- and wellbeing-related data.
b) App may also use the Services to draw data of End User from other health- and wellbeing-related services, if required to do so by the respective End User. With the authorization of the Services, you explicitly requests the Company to provide the Services and data on your behalf to the App.

2. DATA PRIVACY

a) The parties acknowledge that the Company provides Services to the App’s End Users on behalf of the App and its End Users (“vicarious agent”) and it’s consent according to Art. 6 Par. 1 lit. a GDPR, which can be withdrawn at any time. By connecting an account holding data to Company’s Services, App’s End User explicitly request Company on behalf of the End User to transfer their data from the respective service provider to App’s system (on the basis of Art. 20 EU GDPR).
b) The specifics of data processing are covered in a separate, dedicated agreement.

3. LICENSED SERVICES

a) Company hereby grants a limited, non-exclusive, non-transferable and terminable ability to access and use the Services. You may use the Services solely for the purposes contemplated herein, pursuant to this GTC and during the term of this GTC.

4. USER RESPONSIBILITY

a) In using the Services, You understand that you are liable for all information, in whatever form, made available to the App via the Services provided by Company (“Information”). You agree not to use the Services to:
i. Upload, post, email, transmit or otherwise make available any Information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
ii. Harm minors in any way.
b) You understand and agree that any uploading, accessing or downloading will be at your sole risk and Company shall not be responsible to you in any way. Further, Company does not provide any warranty as to the App’s use of third-party content, software or services that the App obtains via the Services.
c) You represent and warrant that information provided by You when registering or subsequently is true and accurate and not misleading.
d) You may not modify the Services in any manner. You shall not, nor allow others to copy, in whole or in part, emulate, sublicense, sell, transfer, exploit, alter, modify or adapt the Software Product nor decompile, dissemble or reverse engineer the same nor in any other way try to gain access to source code or other information regarding the construction of the Services.
e) You hereto agree that any breach of §4 d) of this agreement is likely to cause the Company irreparable injury for which it would have no adequate remedy at law. Accordingly, You agree that Company shall have the right to seek and obtain immediate injunctive relief to enforce obligations under this agreement in addition to any other rights and remedies it may have. You shall pay to Company damages of 100.000 Euro per infringement, without prejudice to the Company’s right to initiate any legal proceedings and/or to claim additional damages, if it can establish that it has incurred losses exceeding this amount. You acknowledge that the provisions of this paragraph are reasonable and necessary to protect the legitimate interests of the Company.

5. INTELLECTUAL PROPERTY RIGHTS, USE OF DATA, TRADE NAMES AND TRADEMARKS

a) All right, title, and interest in and to the Services and all intellectual property rights in the Services will remain vested in Company.
b) Neither party will at any time do, permit or cause to be done, any act or thing that would tend to impair or dilute in your case, Company’s rights in the Services, or either party’s trademarks, service marks, and trade names.
c) You acknowledge and agree that Company may use aggregate data derived from your use of the Services hereunder. Company may use in its marketing and advertising the total number of users, total number of stored records, total transaction volumes, and other aggregate statistics to attract new customers. You further acknowledge and agree that the use of such data by Company will not infringe upon your person’s intellectual property rights or other proprietary or other interests and, further, that the use of such data by Company will not result in any violation of applicable law or any agreement to which you are a party or by which you are bound. This section shall survive the termination of this GTC with respect to data transmitted hereunder prior to the date of termination.
d) You further acknowledge that Company may, in its sole discretion, preserve or disclose any data provided by or for you, as well as related information, such as IP addresses, timestamps, and other user information, if required to do so by law.

6. AMENDMENTS TO THE GTC

a) Company reserves the right to amend the services offered and the GTC, insofar as the particular amendment is necessary to represent changes which were not foreseeable when the particular order was issued, and non-compliance with it would damage the contractual balance between you and Company, particular insofar as
i. Company is obligated to bring the Services into compliance with the law applicable to them, particularly when the applicable legal position changes; and/or
ii. thus complies with a court decision or an administrative decision against Company, and/or
iii. must amend the Services due to mandatory technical requirements from the App Store operator.
b) At no point is Company’s fulfilment of the primary contractual obligations restricted by the service changes. In particular, the functionality of the Services is not changed.
c) In circumstances other than in clause 5 a), Company notifies the App in advance of the changes to the GTC. Insofar as the App does not raise an objection to them applying within four weeks of receiving the notification, the amendments are deemed to be accepted with effect for the future. In the event of an ongoing contractual year, the amendments are first deemed to be accepted, notwithstanding the above sentence, from the start of the following contractual year, unless it is reasonable for them to come into force earlier, taking the App’s interests into consideration. If the App objects to the amendments, Company is entitled to terminate the contractual relationship. Company will refer to the effect of silence and the right to terminate in the notification.
d) Any amendment to the contractual object and the primary contractual obligations which would lead to a change in the structure of the agreement as a whole is excepted from the power to make amendments under paragraph 6c). In these circumstances, Company will notify the App of the intended amendments, and offer to continue the contractual relationship on the amended terms.

7. TERMINATION

a) You may terminate your interest in this agreement at any point in time by requesting so to the App.
b) You agree that Company at its sole discretion, has the right (but not the obligation) to delete or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Services (or any part thereof), immediately and without notice, and remove and discard any content within the Services, for any reason, including, without limitation, if Company believes that your acted inconsistently with the GTC. Further, you agree that Company shall not be liable to you or any third party for any termination of such access to the Services. Further, you agree not to attempt to use the Services after said termination.
c) Upon the termination or expiration of this Agreement for any reason, your rights under this Agreement will cease, including all rights to use the Services.
d) Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.

8. NO WARRANTY / LIMITATION OF LIABILITY

a) The Parties’ liability is limited to intent and gross negligence (except for personal injury, claims under the Product Liability Act and existing insurance cover). The Parties shall not be mutually liable for loss of profit and other financial losses incurred by the other Party, its employees or vicarious agents while using the services, unless the damages are caused intention-ally or by gross negligence or insurance cover exists for this purpose.
b) Liability for personal injury is governed by the statutory provisions

9. INDEMNITY

YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD COMPANY HARMLESS FROM AND AGAINST ANY LOSS, COST, DAMAGES, LIABILITY, AND/OR EXPENSE ARISING OUT OF OR RELATING TO (A) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS OF INFRINGEMENT, MISAPPROPRIATION OR THE LIKE BASED ON INFORMATION, DATA OR CONTENT YOU SUBMITTED IN CONNECTION WITH THE SERVICES, (B) ANY FRAUD, MANIPULATION OR OTHER BREACH OF THESE TERMS BY YOU , OR (C) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST COMPANY ARISING OUT OF YOUR USE OF THE SERVICES.

10. MISCELLANEOUS

a) The provisions of the German Civil Code shall be applicable in case of any issues not provided for herein.
b) The Limitation of Liability, Intellectual Property Rights, Use of Data, Trade Names and Trademarks, Limited Warranty, and Miscellaneous Sections will survive termination or expiration of this GTC.
c) Company shall not be liable for any loss or delay (including any failure to meet an eventually agreed service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Services date shall be extended to the extent of any delay resulting from any force majeure event.
d) You understand that the technical processing and transmission of Services, including your data, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
e) Company’s failure to exercise or enforce any right or provision of this GTC shall not constitute a waiver of such right or provision. If any provision of this GTC is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this GTC remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this GTC must be filed within one year after such claim or cause of action arose or be forever barred.
f) Company may assign its interest in this agreement at any time to a subsidiary or parent company or to a successor to its business as part of a merger or sale of substantially all of its assets.
g) The exclusive place of jurisdiction is Company’s registered office.
h) The section titles in the GTC are for convenience only and have no legal or contractual effect.