WURFL Cloud Terms and Conditions
By registering for the WURFL Cloud Service (the “Service”) offered by ScientiaMobile, Inc. (referred to herein as “we”, “us” and “our”) through the website www.scientiamobile.com/cloud, 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 (the “Agreement”). If you do not agree to this Agreement your sole remedy is to not register for the Service. By registering, you represent and warrant to us that all of the information provided as part of the registration process is true, accurate and correct and that you will update such information if at any time it changes to maintain such information as current, and if you are registering for an entity, that the individual registering has the authority to bind such entity to this Agreement.
Provision of the Service.
1.1 Type of Account and Website. The Service is offered for a variety of account levels that offer different degrees of features and limitations, and upon registering for the Service you selected one or more of these account levels (but only one Free Account (as defined below). The account level with the highest cost and most features is referred to as the “Premium Account”. The other levels of accounts are sometimes referred to herein as a “General Account”, except that any account for which there is no charge may also be referred to as a “Free Account” and all of the types of accounts are referred to as simply “Accounts”. Whichever Account(s) you choose, you will receive the features and functionality, and be subject to the limitations, for that type of Account that are listed on our website describing such Account for the Service as such features, functionality and limitations may change in our discretion from time to time. When registering for an Account you must associate the Account with a limited number of domain(s), and your website(s) available at such domain(s) are referred to herein as the “Website”. With respect to certain accounts we may provide you software to use on your servers in connection with your use of the Service. To the extent your Account(s) includes such software, we hereby grant you a limited, nonexclusive license to use such software solely in connection with the Service during the term of this Agreement. By registering for an Account you understand that the features and functionality of the Service requires technical proficiency in order to integrate the Service into your Website, and you acknowledge that it is your responsibility to secure such technical services as we do not support integration of use of the Service other than by providing you access to an online support forum. Not all questions are answered on the forum nor do we have any obligation to answer all questions posted to the support forum.
1.2 Trial Account; Identity Verification. We may offer a limited free trial to certain types of Accounts. If you register for the Service and a free trial is offered, all of the terms and conditions of this Agreement shall apply except for those regarding payment for the Account during whatever is the then-stated term of such free trial. You understand and agree that the free trial Account and Free Account may require verification through use of email, SMS or other form of text message and that notwithstanding the fact that such Accounts are referenced as “free”, you may incur fees with the provider of your mobile phone service for such SMS or other form of text message in accordance with your agreement with such provider.
1.3 Contract Month. The term of your Account(s) and the billing period for your Account(s) is measured by a “Contract Month”, which means the period starting on the day you first registered each particular 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 a 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).
1.4 Service Level for Service. 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 becomes unavailable for more than 1 hour for a General Account, or 30 minutes for a Premium Account in any calendar day (using the Eastern Time Zone), as your sole and exclusive remedy your account will be eligible for a downtime credit of 1/30th of the amount you paid for the Service in that particular Contract Month. To receive a downtime credit, you must contact ScientiaMobile support staff within thirty (30) days following the end of the downtime event. You must provide evidence that your server was 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.
1.5 Service Limitations; Changes. The Service permits you to detect a wide variety of capabilities of a device accessing a website domain (or multiple domains if your Account permits more than one website domain). Each Account may limit the number of capabilities you will be permitted to detect as well as the number of detections that may occur in any Contract Month, as well as the number of domain(s) for which the Service may be used to detect devices. Each Account also has limits as to the number of sources from where images may be accessed for scaling and the aggregate size of images that may be scaled in any particular Contract Month. You agree that our measurements of your usage will be definitive in determining when you have used the Service in excess of any particular limitation. You may monitor our measurement of your usage at www.scientiamobile.com/myaccount. We shall not be liable to you if you exceed any of these limitations and we stop providing the Service to your end users until your Account(s) resets its limitation counts. You agree that all of these limitations may be changed by us at any time including in ways that reduce the amount of Services you receive under a particular type of Account. If you have a Premium Account, we will endeavor to provide you notice of any adverse changes to the Premium Account at least 60 days before such changes go into effect. For General Accounts that are not Free Accounts, we will endeavor to provide you notice of any adverse changes to your type of Account prior to end of your then-current Contract Month so you may terminate this Agreement before you incur additional fees for the next Contract Month in which the changes go into effect. Free Accounts may be changed at any time without notice. In any event, your sole remedy for any such change is to terminate this Agreement and stop receiving Services if the limitations no longer suit your needs.
1.6 Changes to Features. You understand that we intend to regularly improve the features of the Service over time and that we may change the features at any time, from time to time, as we deem appropriate. While we do not expect to lessen the features of the features of the Service, we reserve the right at any time to change the features in a way that may adversely affect the value of the feature to you or to eliminate some of the features at any time. If we change a feature or eliminate a feature without the notice provided in Section 1.5 applicable to your type of Account in a manner that adversely affects your use of the Service, your sole remedy will be to terminate this Agreement immediately after you become aware of the adverse change or elimination and request a refund for the then-current Contract Month.
1.7 Control of Credentials. Your access to the Service is controlled through a user name and password and unique identifiers to you that permit us to verify you as the holder of each of your Account(s) (your “Access Credentials”) created as part of the signup process. You are responsible for securing your Access Credentials and any losses that may result from unauthorized use of your Access Credentials. You will immediately change your Access Credentials if you become aware that the security of your Access Credentials have been compromised. If you are locked out of your Account(s), you will immediately notify us. You understand that we must protect against false claims regarding loss of Access Credentials and agree to cooperate with us in providing information necessary to ensure you are the holder of your Account(s) so that we do not make unauthorized changes to your Account(s). You agree that we are not liable if we do make changes to your Account(s) that are unauthorized by you if another person is able to authenticate him or herself as you using the Access Credentials you provide.
1.8 Free Accounts. You acknowledge that the operation of the Service involves a substantial investment and that we offer Free Accounts at a loss as a public service to the hobbyist, non-profit, micro-business and similar communities. While there is no requirement that you certify you belong to such a community we request you consider purchasing an account if your Website is a significant source of revenue generation. You understand that in light of the foregoing we may elect to cease providing the Service to Free Account(s) at any time without liability to you of any kind. You agree to not open more than one Free Account for yourself in your individual capacity or more than one Free Account for any other person or entity, even if you or such other person or entity operate multiple distinct websites.
1.9 Data Collection; Service Improvement Suggestions. We may elect to collect data and information (such as IP address and HTTP user-agent strings) generated from your 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 generic information and we will not utilize such information to attempt to identify individuals. We may disclose such data and information solely after it has been aggregated so that it is anonymous. 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. Prohibited Uses of Service; Other Obligations.
1.1 Personal to Account Holder. The use of the Service is intended to be personal to the Account registrant (either a person or entity) and is not intended to be used to support a website of any other person or entity. Consequently, you shall not lend, lease, rent, resell use, distribute, assign or otherwise transfer the Service to any other entity or person, or use the Service with a content management, publishing, developer or similar platform where such platform is to be operated for the benefit of a third party or to support an application service provider, internet service provider, hosting or similar, business. Notwithstanding the foregoing, if you design and/or are responsible for maintaining the Website of a third party, you may elect to manage and pay for the account of such third party so long as you understand that while you are legally obligated under this Agreement to pay for such Account(s), the Account(s) are the property of the third party owning such Website if such third parties desire such Account to be assigned to them.
1.2 Limited Caching. The Service transmits data to you and, which may be cached solely for improving the performance of your Website and you agree that you shall not use such cached data for any other purpose (such as remote storage) and that you shall dispose of such cached data promptly after the termination of this Agreement.
1.3 Modification of Cookies. The Service transmits “cookies” (as that term is commonly understood) for distribution to the end-users of your Website. These cookies are purely technical in nature, enable the functionality of the system and are strictly necessary. We believe the Service operates best if such cookies are set to expire at the conclusion of such end-users browser session. However, you may modify these cookies to have a different life; provided, however, that you shall not modify such cookies to persist longer than one week.
1.4 Reporting. You shall not collect or use the data received through the Service to create reports about or otherwise collect data concerning, the capabilities of and/or type of devices that access your Website.
1.5 Your Website. You shall not use the Service in connection with a website that: (i) does not comply with all laws, rules and regulations applicable to its operation and distribution, (ii) posts, transmits, promotes or distributes any content that is illegal, (iii) facilitates the distribution of content that is harmful, abusive, racially or ethnically offensive, vulgar, defamatory, infringing, invasive of personal privacy or publicity rights, or that is otherwise intended for the purpose of harassing, threatening or embarrassing any person, or (iv) promotes or encourages any illegal activity including hacking, cracking or distribution of counterfeit software, and (v) knowingly distributes files containing software a reasonable person would consider a virus or “trojan horse”, or corrupted data.
1.6 Interference with Service. You agree to not take any action that would adversely affect the performance of the Service, including any denial of service attack on the servers used to provide the Service. You agree to not attempt any work around or use any other device, software or routine, in either case the intention of which is to frustrate the limitations or the measurement thereof, provided for in this Agreement.
Image Scaling. Certain types of Accounts may offer the ability to have us rescale images that are displayed on your Website with the resolution appropriate for the device accessing your Website and serve that rescaled image to the end user requesting such image from your Website (it being understood that the source of the image may be your Website or a limited number of image repository services as is consistent with the limitations of your type of Account). You understand that all types of Accounts that offer this feature have a maximum aggregate size of images that may be scaled in any Contract Month and that our software for measuring your aggregate image size account activity shall be deemed to be determinative as the amount of your usage, even if we optimize our resources through caching without accounting for the same. We shall not be liable to you if you exceed this maximum threshold and we stop rescaling and serving images to your end users. You agree to only use this feature for images that you have all necessary rights to copy, modify and distribute. You retain copyright and any other rights you already hold in such images and you hereby grant us the nonexclusive, perpetual, irrevocable, royalty-free, worldwide right and license to copy, adapt, modify, publish, publicly perform, publicly display, distribute and transmit all images that you or your end users request be rescaled using this feature of the Service as well as the limited right to cache such rescaled images for our system performance reasons. You agree to immediately remove from your Website or alternatively to not request rescaling through the Service for any image a third party identifies as available on or through your Website that such third party claims infringes such third party’s intellectual property rights.
Term and Termination. You agree that we may suspend or terminate your Account(s) and access to the Services if we at any time have reason to believe you are using the Services in breach of this Agreement or otherwise in a manner that exposes us to risk or that we reasonably deem unacceptable to us. We may also terminate your Account(s) and access to the Service at any time if we elect to eliminate the type of Account for which you have registered or if we elect to cease offering the Service. If we suspend or terminate your Account(s) we will endeavor to provide notice to you that we have done so. You may terminate your Account(s) at any time by visiting your Account(s) settings, and any such termination shall be effective upon the last day of Services you have prepaid. Notwithstanding the termination of this Agreement for any reason, all rights, obligations, and representations, which by their nature are intended to survive, shall survive and remain in effect, including Sections 6 through 10.
Fees. All fees associated with the type of Account(s) you selected, 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. 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(s) settings to terminate the Service prior to the start of your next Contract Month. We reserve the right to change our fees for any Account that is not a Free Account from time to time at any time. If we change our fees we will provide you notice within the period specified in Section 1.5. If you do not agree with such increase in fees your sole remedy is to terminate your Account(s) 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 each of your Account(s), 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.
LIMITATIONS ESSENTIAL AND TO MAXIMUM EXTENT PERMITTED BY LAW. NOTHING IN THESE TERMS, INCLUDING SECTIONS 7 AND 8, SHALL EXCLUDE OR LIMIT OUR WARRANTY OR LIABILITY FOR LOSSES WHICH 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 LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE YOU AND US, THAT THE YOU AND WE HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY IN ENTERING INTO THIS AGREEMENT, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN PARTICULAR BUT WITHOUT LIMITATION, THE PRICE OF THE SERVICE, WOULD BE SUBSTANTIALLY DIFFERENT.
WARRANTY DISCLAIMER. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED. IN PARTICULAR, WE DO NOT REPRESENT OR WARRANT TO YOU THAT YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES OR ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE TO YOU FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; (B) ANY DIRECT LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU IN EXCESS OF THE AMOUNT YOU PAID FOR THE SERVICE IN THE CONTRACT MONTH IN WHICH THE LOSS OR DAMAGE WAS INCURRED (OR IN THE CASE OF A FREE ACCOUNT TEN DOLLARS). THE LIMITATIONS ON OUR LIABILITY TO YOU IN THIS AGREEMENT SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
Indemnity. You shall indemnify, defend and hold us harmless from any and all liability, damages, costs or expenses (including reasonable attorneys’ fees) that may be sustained or incurred by us as a result of your or your end users’ use of the Service, or any claim brought by end users of your Website, or relating in any way to any claim that your Website or any services provided through your Website infringe the intellectual property of any third party, including as a result of our scaling of images or other copying or distribution of works as a result of your or your end user’s use of the Service.
Miscellaneous. This Agreement shall be construed under the laws of the Commonwealth of Virginia, USA, without regard to its conflicts of laws principles. None of your rights or obligations under this Agreement may be assigned or delegated by you, by operation of law or otherwise, to any entity (including any successor or affiliate of you) except with our prior written consent. 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. Failure on the part of either party to perform its obligations under this Agreement, if occasioned in whole or in part by any act of God, any act of the public enemy, fire, explosion, perils of sea, flood, drought, war, riots, civil insurrection, sabotage, accident, embargo, governmental priority, requisition or allocation or any action of any governmental authority, or shortage or failure of supply of materials or labor, or strikes or other labor trouble, or any occurrence, act, course or thing beyond the control of said party where such party has exercised reasonable care in the prevention of such event, shall excuse said party from its obligations and said party shall have no obligations or liability in any amount arising out of or in connection with the failure. This Agreement and the descriptions of each type of Account incorporated by reference herein (as they may change from time to time) constitute the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede 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. 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. Any notice provided by us shall be deemed delivered when we send such notice to the then-current email address listed in your Account profile.