WURFL.JS and WURFL Image Tailor (WIT) Community Edition, Terms of Service

 The following HTML code:

<!-- WURFL.js license at: http://wurfl.io/license -->
<script type='text/javascript'  src="//wurfl.io/wurfl.js"></script>

(the “HTML”) when included in your website(s) (each, a “Website”) permits use of a service offered by ScientiaMobile, Inc. (referred to herein as “we,” “our” and “us”) that queries and collects data from the device accessing such Website and returns data identifying certain capabilities of such device (the “WURFL.JS Service”).  By directing images displayed on your Website to the url “wit.wurfl.io” you elect to use the “WURFL Image Tailor” (the WURFL Image Tailor, together with the WURFL.JS Service, is referred to herein as the “Service”, and Service shall mean either or both of WURFL Image Tailor and WURFL.JS depending on your election to use one or both of these services).  Your use of the Service is subject to the terms of this agreement, and you agree to this agreement by electing to use Service.   You represent that you have full power, capacity and authority to accept this agreement.  If you are accepting on behalf of your employer or another entity, you represent that you have full legal authority to bind your employer or such entity this agreement.  If you don’t have the legal authority to bind, please ensure that an authorized person from your entity consents to and accepts this agreement.  In this agreement such entity, or you if your use of the Service is personal, are referred to as “you” and “your”.  If you do not agree to this agreement you have no right to use the Service.

  1. Subject to all of the terms of this Agreement, we grant you a limited, personal, nonexclusive, non-transferrable, non-assignable, royalty-free license to use the HTML and the Service, in each case during the term of this agreement.  We reserve all rights not expressly granted herein, and this agreement does not grant to you any right to any of our intellectual property not used in connection with the Service.  As part of such license you may incorporate the HTML into your Website and you agree to include only the HTML set forth above in its entirety without any modification.
  2. The Service may deliver data, information and/or software to devices that access the Website and collects data and/or logs from such devices and will transmit that data and/or logs to us.  For the WURFL.JS Service we will process that data and return to you for use in connection with your Website a limited number of device capabilities associated with such data that are identified in the description of the then-current Service, and for the WURFL Image Tailor we will deliver to persons requesting your Website images adjusted according to your instructions (subject to the limitations set forth herein).  You agree that we are not responsible for errors that may occur in the device capabilities we send to you or in adjusting the images, and that we may from time to time change the device capabilities we return to you, including by increasing or decreasing the number or changing the type of device capabilities.  You understand and agree that we may retain the data we receive from the Service.  As this Service is made available to you by us without charge, we reserve the right, and you agree we may, change or discontinue the Service at any time.  We also reserve the right to limit the number of transactions you may send or receive through the Service without notice to you.  With respect to the WURFL Image Tailor, without limiting our right to scale more or fewer images or to stop providing that Service to you at any time, we presently will adjust only 20,000 images per month for your Website.  You agree to not manipulate the identity of the Website requesting the scaling of images in an attempt to circumvent this limit.
  3. You agree to use the WURFL.JS Service only for the purpose of: (i) identify the device capabilities of your users that we provide to you in adherence with the requirements of this section; and (ii) supporting applications that are permitted by any third party contracts you have entered and that are permitted by applicable Law. You agree to use the WURFL Image Tailor only for the purpose of scaling images for which you have the right to use, copy, modify, distribute and display.  Use of the Service is subject to the following restrictions:  (i) you may use the Service only to support Websites that are available to the public free of charge (except during a limited alpha or beta release) and that do not require a fee-based subscription or other fee-based restricted access; (ii) you may not use the Service to support a Website that is behind a firewall, is operated on a network with limited access (such as in internal network) except during the design, testing and a limited alpha/beta phase, or in some other form of closed community (such as invitation-only access), (iii) you will not collect and store the data (including with respect to the capabilities) we provide to you through the Software and System other than temporarily to assist the user of your websites with respect to which such data relates; (iv) you will not use the Service in a manner to facilitate a denial of service attack, whether against us or some other person or entity; (v) you will not use a technology other than what we provide to access and/or use the Service; (vi) you will not hide or mask from us the identity of your implementation of the Service; (vii) you will not facilitate the use of the Service by a website that is not your Website, or other similar acts that resemble renting or leasing the Service to others; (viii) you will not reverse engineer the Service or any of the data, code or information delivered through the Service; (ix) you will not use a spider, retrieval application or other device to retrieve or index the data and information provided through the Service; and (x) you will not restrict or inhibit any other person or entity from using and enjoying the Service.
  4. In providing the Service we collect data from users of your Website in order to provide certain device capability data to you and to improve the Service and our other products and services.  By using the Service you hereby grant us permission to do so on your behalf and agree to secure from and grant the same permission on behalf of your users.  The collection of a user’s data may be subject to various local, state and national laws, rules and regulations (“Laws”), including Laws governing the disclosure of the use of cookies (which are employed by the Service).  As you are the only party with contact with your users, as between us and you, you are solely responsible for complying with, and you shall comply with, any required disclosures, permissions and other obligations under such Laws and you alone shall be responsible for any liability that results from any failure to comply with such Laws.
  5. You may terminate this agreement at any time by stopping all use of the Service with respect to your Website.  You have no obligation to notify us if you wish to terminate this agreement.  We may terminate the Service at any time for any or no reason, either with respect to all users of the Service or with respect to you.  We have no obligation to notify you in advance of such termination, which shall be effectuated by the Service no longer being available when you or users of your Website attempt to use the Service, and you agree that we shall have no liability to you or your users for any harm that may arise out of our termination of the Service without notice.  Notwithstanding the termination of this agreement, sections 3, 4, 5, 6 and 7 shall remain in full force and effect.  We reserve the right to make changes to this agreement from time to time.  When these changes are made, we will make a new copy of this agreement available at this website (or such successor URLs that we may designate from time to time) and will post notices within the publicly-available portion of our support website and, unless such change is required by Law, to protect against a security risk, a harm against a person or property or some other similarly serious matter, such changes will not go into effect sooner than 15 days after they are posted to permit you an opportunity to review them. You understand and agree that if you use the Service after the date on which the new agreement goes into effect we will treat your use as acceptance of the updated agreement. If a modification is unacceptable to you, your sole remedy is to terminate this agreement by ceasing use of the Service.
  6. IMPORTANT DISCLAIMERS AND ALLOCATIONS OF RISK:  The Software and Service are provided “AS IS”, without warranty of any kind, express or implied, including that the Service will meet your requirements, will be uninterrupted, timely, secure or free from error, that the data and information obtained through the Service will be accurate or reliable, and warranties of merchantability, fitness for a particular purpose and noninfringement.  To the greatest extent permitted by applicable Law, in no event shall we be liable to you or your users for any claim, damages or other liability, whether in an action of contract, tort or otherwise, whether direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services, loss of use, data, or profits, or business interruption), arising from, out of or in connection with the Software or Service or the use or other dealings in the Software or Service, even if advised of the possibility of such damage.  To the maximum extent not prohibited by Law, you further assume all liability for your use of the Software and the Service.  You understand that the Software and Service, as a royalty-free product, are offered in dependence on such limitations and such limitations are an essential aspect of the bargain formed by this agreement.  Nothing in this will exclude or limit our warranty or liability for losses that may not be lawfully excluded or limited by applicable law. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for certain types of loss or damages. Accordingly, only the limitations that are lawful in your jurisdiction will apply to you, and our liability will be limited to the maximum extent permitted by law.  You represent and warrant to us that you will not transmit to us any content (including images) that you do not have the right to use, copy, modify, distribute and display.  You agree to defend (at our option), indemnify and hold us and our affiliates and their respective officers, directors, employees and agents (the “Indemnitees”) harmless from and against any and all claims, fees (including attorneys’ fees), suits, actions, demands and judgments against the Indemnitees arising out of or relating to your use of the Service, your Website or your breach of this agreement, including any claim that the content you transmit to us infringes any proprietary right of any person or entity.  You agree to allow us to implead you into any such lawsuit as the infringer and we may elect to defend the suit ourselves, in which case you will pay our reasonable attorneys’ fees.  You agree not to settle any such claim without receiving our written consent, which will not be unreasonably withheld.
  7. This agreement is governed by the law of the Commonwealth of Virginia, without regard to its conflicts of laws principles, and each party to this agreement agrees to be subject to the personal jurisdiction of, and that any claim arising out of or relating to this agreement (other than a claim for indemnification which may be brought in your home jurisdiction) shall be brought only in, a court located in the Commonwealth of Virginia.  This agreement is not to be governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended, or any state adoption of the Uniform Computer Information Transactions Act, and the applicability of the foregoing is hereby expressly disclaimed by each of the parties. You will not directly or indirectly transfer the HTML to any country to which such transfer would be prohibited by the U.S. Export Administration Act, the regulations issued thereunder, or any other export control statute or regulation. This agreement, including any of the license rights, may not be assigned or otherwise transferred through a change in control to any entity (including any successor or affiliate of you).  However, as long as the Service is still offered by us and we did not terminate this agreement only with respect to you, a successor in interest to you or subsequent owner of your Website may agree to then-current form of this agreement in order to continue to use the Software and the Service.  If any provision of this agreement, or the application hereof, shall for any reason and to any extent, be invalid or unenforceable, the remainder of this agreement and application of such provisions to other persons or circumstances shall be interpreted so as best to reasonably effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provisions of this agreement with valid and enforceable provisions which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provisions.  This agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect hereto and thereto. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.  Any term or provision of this agreement may be amended, and the observance of any term of this agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing signed by both parties.  The failure of any party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions.  No person or entity other than you and us shall be third party beneficiaries under this agreement.  We may use screen shots of your implementation of the Service and your name in our marketing activities to promote the successful use of the Service.