Terms of Service WURFL.js, ImageEngine Business Edition

By registering for WURFL.js Basic, WURFL.js Standard, or WURFl.js Pro, collectively known as WURFL.js business edition (the “WURFL.js Service”) and/or the ImageEngine Basic, ImageEngine Standard, or ImageEngine Pro, collectively known as ImageEngine business edition (“ImageEngine”, and together with the WURFL.JS Service, is referred to herein as the “Service”, and Service shall mean either or both of WURFL and WURFL.JS depending on your election to use one or both of these services) offered by ScientiaMobile, Inc. (referred to herein as “we,” “us” and “our”) through the website www.scientiamobile.com/wurfljs/signup, either the person registering, or if the person registering is acting on behalf of an entity, the entity registering (in either case, referred to herein as “you” and “your”) is agreeing to the terms and conditions set forth below regarding the Service. Your use of the Service is subject to the terms of this agreement, and you agree to this agreement by electing to use Service. If you do not agree to these terms and conditions your sole remedy is to not register for the 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 or the account associated with this Service.

  1. Subject to all of the terms of this Agreement, we grant you a limited, personal, non-exclusive, non-transferable, non-assignable license to use the Service and the HTML code we provide for installation on your Website (the “HTML”), in each case during the term of this agreement and subject to payment of all fees due under 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 permitted in the instructions. The Service permits you to use certain Domain Name Service (DNS) configurations known as CNAME with respect to the URL for the Service during the term of this agreement. You agree to promptly remove such CNAME configurations at the end of the term of this agreement.
  2. The Service may deliver data, information and/or software to devices that access the Website and collects non-personal 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 the device capabilities identified in the description of the Service associated with such data for use solely in connection with your Website, and for ImageEngine 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 upon advance notice as provided in Section 7. You are solely responsible for the setup of the Service to work with your Website, and as between you and us, you are solely liable for any liability incurred as a result of your setup of the Service and your Website. Support for the Service is available through our support portal available at https://support.scientiamobile.com/. You understand that the Service includes limits on the number of unique users of your Website as measured by us in our reasonable discretion, and your failure to configure the Service on your Website as described in our support portal may result in a higher count of unique users which will be added to your account. You are responsible for paying the amounts associated with the number of unique users, even if inflated because of your failure to correctly configure the Service or as a result of malfeasance on the part of third party(ies) accessing your Website.
  3. We will endeavor to provide the Service on a 24 hour a day, 365 days a year continuous basis. However, we cannot guarantee that the Service will never experience an interruption. If the Service is unavailable for less than 99.99% of the time in any particular calendar month, as your sole and exclusive remedy your account will be eligible for a downtime credit of one of the following amounts (the largest applicable): (a) 100% of the amount actually paid in such month by you if the Service was available less than 20% of the time during such calendar month, (b) 50% of the amount actually paid in such month by you if the Service was available less than 50% of the time during such calendar month, (c) 10% of the amount actually paid in such month by you if the Service was available less than 75% of the time during such calendar month, or (d) 5% of the amount actually paid in such month by you if the Service was available less than 99.99% of the time during such calendar month. You must request this credit in order to receive it and also provide evidence that your users were not able to contact the Service during the downtime period. You understand that the unavailability of the Service is measured by us in our reasonable discretion solely as the failure of our servers to respond to requests because either the servers are inoperable or our connection to the public internet is unavailable, and our monitoring and measuring of such uptime shall be deemed to be the conclusive measurement of unavailability of the Service. We are not responsible for, and the Service shall not be considered to be unavailable, during periods where there are disruptions to other aspects of the public internet (such as a failure of a domain name server) or where there are disruptions to your servers or internet access. You must have timely paid all amounts due hereunder and otherwise not be in breach of this agreement to be entitled to receive this credit.
  4. You agree to use the WURFL.JS Service only for the purpose of: (i) identifying 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 ImageEngine 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 will not collect and store the data (including with respect to the capabilities) we provide to you through the Service other than temporarily to assist a user of your Website with respect to which such data relates; (ii) 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; (iii) you will not use a technology other than what we provide to access and/or use the Service; (iv) you will not hide or mask from us the identity of your implementation of the Service; (v) 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; (vi) you will not reverse engineer the Service or any of the data, code or information delivered through the Service; (vii) you will not use a spider, retrieval application or other device to retrieve or index the data and information provided through the Service; and (viii) you will not restrict or inhibit any other person or entity from using and enjoying the Service.
  5. In providing the Service we collect non-personal 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, including the EU General Data Privacy Regulation (GDPR) (collectively referred to as “Laws”), including Laws governing the disclosure of the use of “cookies” (as that term is commonly understood) 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.
    For the purpose of covering the usage of the WURFL.js and ImageEngine services in your own Privacy Policy, the following information is disclosed.
    1. We may elect to collect device data and information (such as IP addresses and HTTP user-agent strings) generated from your use and your end-users’ use of the Services for security and traffic analysis. We do not consider such information to be personal identifying information (PII), we do not have the ability to extract PII from such information and we will not utilize such information in any attempt to identify individuals. We may disclose such data and information solely after it has been aggregated so that it is anonymous. In addition to security and traffic analysis, we may use all such data and information to improve the Service and to create internal and external reports regarding the use of the Service and/or the use of mobile devices. Such data may be saved in our data collection infrastructure and in our back-ups maintained at a secure location for a period of time not to exceed 5 years from the date of collection.
    2. 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. The term of this agreement is month-to-month and your monthly term and billing period is measured by a “Contract Month,” which means the period starting on the day you first registered for your account and ending on 11:59 pm ET on the day in the following month immediately preceding the day you first registered such account or the last day of the month if you registered your account(s) on the 29th, 30th or 31st of a month and any subsequent month has fewer days than the day on which you registered (e.g., if you first register on January 30th, the period between January 31th and 11:59 pm ET on February 28th) and each subsequent month beginning on the anniversary of the day you first registered such account measured in the same manner (i.e., for the prior example, the next Contract Month would be 12:00am ET March 1st through 11:59 pm ET March 31st). All fees associated with your account, as well as any applicable taxes we are obligated to collect, will be billed in advance to the credit card you provide as part of the registration. The monthly fee for the Service is detailed on our website describing the Service, and may change from time to time; your sole remedy if you find such change unacceptable is to terminate the Service as provided herein. You represent and warrant that the credit card information you provided was issued to you and you have the authority to incur charges to such credit card account. You authorize us to bill the fee for the Service monthly in advance on a non-refundable basis on or about the start of each Contract Month. We will endeavor to send a receipt by email once we have billed your credit card, and it is your responsibility to ensure this email is not captured by any spam filtering technology you may employ. If you do not wish to pay for future Service it is your obligation to use your account’ settings to terminate the Service prior to the start of your next Contract Month. We reserve the right to change our fees from time to time at any time. If we change our fees we will provide you notice within the period specified in Section 7 below. If you do not agree with such increase in fees your sole remedy is to terminate your account and this agreement prior to the Contract Month in which the fee increase is to go into effect. Upon 12:00 am ET of the first day of the next Contract Month for your account, you may no longer terminate the Service for that Contract Month even if we have not yet processed payment to your credit card account and even if the fee has increased after you have received the notice contemplated herein.
  7. You agree that we may cease providing the Service, change the terms and conditions of this agreement, or the Service itself upon advance written notice to you. Such changes may reduce the amount of Services you receive, including by setting transactional limits. We will endeavor to provide you notice of any adverse changes to the Service, these terms and conditions or of any termination at least 30 days before such changes or termination go into effect; and your sole remedy with respect to such change(s) is to terminate this agreement. We reserve the right, and you agree we may, discontinue the Service for all recipients on less notice. You may terminate this agreement at any time by stopping all use of the Service with respect to your Website and following the termination procedures in your account portal. 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; provided, however, that we will provide you reasonable notice if we are terminating the Agreement for a reason other than your breach of the agreement (and where we deem it reasonable we will offer you a reasonable opportunity to cure any breach). Our termination of this agreement shall be effectuated by the Service intentionally 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. Notwithstanding the termination of this agreement, those terms that by their nature should reasonably survive the termination of an agreement, including sections 5 through 9, shall remain in full force and effect. If we make changes to this agreement, such changes will not go into effect sooner than 30 days after we provide notice to you 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 prior to the start of the next Contract Month and to cease use of the Service.
  8. 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 discounted offering of our products and services, 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 with respect to you 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 or your failure you comply with any Law. You agree to allow us to implead you into any such lawsuit 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.
  9. 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.