Terms of Service WURFL.js Business Edition

Reston, VA. August 9, 2023

ScientiaMobile, Inc. (referred to herein as “we,” “our” and “us”) offers a service via the HTML described below that queries and collects data from the device accessing your website(s) including such HTML (each, a “Website”) and returns data identifying certain capabilities of such device, referred to herein as the “Service”.  At the time you registered for this Service you identified the entity that is procuring the rights provided under this agreement, and such entity is referred to as “you” and “your”. You agree that your use of the Service is subject to the terms of this agreement, and the individual registering for the Services represents that he or she has the full power, capacity and authority to accept this agreement on behalf of you. We agree to provide you the Service only subject to the terms of this agreement and only when you have paid all amounts due from you for the Service as provided herein.  We do offer custom features, functionality and/or terms for an additional fee; consequently this agreement may be modified, but only by a written amendment referencing this agreement and signed by your and our authorized representatives, which amendment shall only be effective once you have paid the additional fees contemplated therein.

1. When you register for the Service, you must select a level of service (presently WURFL.js Basic, WURFL.js Standard or WURFL.js Pro, although those may change in the future without changes to this agreement) and you will be subject to the limits of the offer you select (e.g., limits on hostname/websites, limits on device capabilities, limits on requests, etc.).  You will also be provided access to a customer vault where you can register the domain names on which you will embed the required HTML code to receive the Service (either

   <script type="text/javascript" src="https://wjs.wurflcloud.com/wurfl.js"></script>
   

   or if custom domain(s) are purchased a similar code snippet that has been adjusted to reflect a custom domain, i.e.  an Internet domain under your control, such as

   <script type="text/javascript" src="https://wjs.yourdomain.com/wurfl.js"></script>
   

   ) (referred to herein as the “HTML”).  You must contact our customer support team to set up a custom domain if you have purchased the right to use one, and you must employ a DNS validation record that we will use to issue an SSL certificate on your behalf.  We reserve the right to refuse the Service when calls are made from a domain that is not properly registered through the customer vault.  You may only register within the customer vaults domains that you own.  If you maintain multiple domains for different owners you must either contact us for custom pricing or create a separate customer vault for each domain owner (e.g., you may not “service bureau” the Service).

2. Through the customer vault you may access support documentation and online support tickets as your sole source of support. Care should be taken in using data reported by the Services, some subjective judgments are made in reporting certain data as further described in such documentation.  We endeavor to maintain a worldwide infrastructure that provides many points of presence (PoPs) around the world in an effort to maintain a 99.99% service uptime globally.  However, we do not guarantee the service level will be met at all times and you acknowledge that access to the Service may be unavailable due to infrastructure issues outside of our control, including network issues between our servers and our clients.
3. Subject to all of the terms of this Agreement, including your payment of all amounts when due, we grant you a limited, nonexclusive, non-transferrable, non-assignable, royalty-free license to use the HTML and the Service, in each case during the term of this agreement, to support domains you own and that are registered through the customer vault, including for commercial purposes. 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. 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. We do not collect any personal information in the course of such data collection.  For the Service we will process that data and return to you for use in connection with your Website a device capabilities associated with such data that are identified in the documentation for the then-current Service.  You agree that we are not responsible for errors that may occur in the device capabilities we send to you, and that we may for good reason (e.g., technical or legal reasons) 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. We also reserve the right to enforce the limits associated with the type of account for which you registered (e.g., WURFL.js Basic, WURFL.js Standard or WURFL.js Pro) and to cease providing the Service if any express limits are exceeded as we reasonably determine.  For measuring requests, which is done according to a formula devised in our reasonable discretion, we generally attempt to treat requests from what we believe to be a single user within a 24 hour period as only one request, but we do not guarantee that measure in all circumstances.
4. You agree to use the 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. Use of the Service is subject to the following restrictions: (i) you may use the Service only to support Websites that you own; (ii) 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; (iii) 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; (iv) you will not use a technology other than what we provide to access and/or use the Service; (v) you will not hide or mask from us the identity of your implementation of the Service; (vi) 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; (vii) you will not reverse engineer the Service or any of the data, code or information delivered through the Service; (viii) you will not use a spider, retrieval application or other device to retrieve or index the data and information provided through the Service; and (ix) you will not restrict or inhibit any other person or entity from using and enjoying the Service.
5. We do not collect, process or store personally identifiable information (PII), we do not have the ability to extract identification from any information we do collect and we will not utilize such information in any attempt to identify individuals. We may use data and information we receive in connection with improving the quality and security of the Service.  The Service transmits cookies for distribution to the end-users of your Website. Depending on your configuration, these cookies may be observed as either your website’s cookies or third-party cookies by users of your website. Such cookies are purely technical in nature in that they enable the functionality of the system and are strictly necessary.
6. This agreement shall continue for the term for which you registered.  At the conclusion of the term we may automatically renew this agreement for an additional term of equal length as the past term and bill the credit card or other payment method.  You may terminate this agreement at any time through the customer vault (including cancelling the Service to end at the end of your then-current term); provided, however, that no refund shall be due in the event you terminate in advance of the end of the then-current term.  We may terminate the Service at any time for your material breach (if such breach not cured within ten days after receipt of notice from us at the contact information provided in your customer vault, or immediately in the event of a repeated breach you have previously cured) or for your failure to pay any amount when due. 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. Those terms that by their nature should survive the expiration or termination of this agreement shall so survive.  We reserve the right to make changes to this agreement from time to time and we will provide you written notice of such changes, which shall go into effect at your next renewal unless you choose to terminate this agreement as provided above, 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, in which case you agree such change will not go into effect at a specified date no sooner than 15 days after they are posted to permit you an opportunity to review them (and if such changes are unacceptable to you, you may terminate prior to such effect date and in such limited situation we shall issue a pro-rata refund of any prepaid unused fees).
7. 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 at the price offered are 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.
8. 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.